"Non-Germans" Under the Third Reich (94 page)

Section Two

The Implementation of Völkisch Inequality in the Annexed Eastern Territories

INTRODUCTION

The Political Objectives in the Annexed Eastern Territories: Testing the Ethnic Struggle

With the incorporation of the occupied Polish western territories into the Reich by a Führer decree on October 8, 1939,
¹
all state and Party departments were faced with completely new tasks. Not only did they have to cope with the administrative problems resulting from a territorial gain of around ninety-nine thousand square kilometers and a population increase of almost 9.5 million people;
²
they also had to implement the principle of
völkisch
inequality (special law) on a large scale, a measure with which they had little experience. Although the struggle against “alien” nations was one of the tirelessly repeated dogmas of the National Socialist ideology in the Altreich, there had as yet been no possibility of actually trying it out in practice, with the exception of the measures instituted against the Jews. However, these latter being German state subjects, they were accorded a certain “special status.”
³
In contrast, the Annexed Eastern Territories, with their almost exclusively non-German population (approximately 86% Poles, 5% Jews, 7% Germans, 2% “others”),
⁴
and above all with the “model district” of the Wartheland,
⁵
now provided the first opportunity of realizing the principle of
völkisch
inequality on a large scale and without any of the “hurdles” presented by traditional legal principles.

As described in the introduction to part 1, section 2, the basis and justification for this was the concept of the “ethnic struggle,” the political version of the concept of special law, inseparably linked to the National Socialist policies, in the Annexed Eastern Territories, where it first achieved importance in its own right, namely the extermination of the leading Polish classes and the Polish Jews,
⁶
the deportations and expulsions (the “resettlement” of the “undesirable” local population),
⁷
and the “total Germanization” by introduction of new German settlers. Although there had been no lack of efforts and special laws in the Altreich to implement the “ethnic struggle” against German state subjects of Jewish descent,
⁸
legal practice had not swung around to a drastic line against “non-Germans” to the extent desired by the National Socialist leadership,
⁹
because despite all attempts to control them, the courts were still unable to free themselves completely from the principle of equality. But things would be different in this new playground for racial policy. There was a feeling of being part of a conspiracy in a country of pioneers on “Germany’s Eastern front,” where the local “non-German” population should be “suppressed” as far as possible and work would be performed to “reconstruct” Germany and the “border territories.”
¹⁰
As explained above, any commitment to the principles of international law (the Hague Convention)
¹¹
and to domestic (Reich) law was therefore rejected, because such legal or bureaucratic principles had proven to be “obstacles” in the realization of racial policy objectives. The only guiding principle of all state activities was thus the political objective of the “ethnic struggle,” in other words the Germanization of the Eastern Territories; all means were justified to achieve this goal, and everything was subordinate to the dictates of racial policy.

The judiciary also had to serve this objective, a demand that was implemented almost to the full—in contrast to the situation in the Altreich, where the submission of the judiciary to the policies of the government was repeatedly demanded but never fully achieved, one of the reasons being that the freedom of judges from political interference (except for their duty to obey Führer orders) was never cast into doubt even by the most zealous advocates of the National Socialist judicial model.
¹²
In the Annexed Eastern Territories, the judiciary was “absolutely National Socialist,”
¹³
as the Posen (Pozna
) chief public prosecutor told a meeting of the League of National Socialist German Jurists.

Right from the start, no doubts were allowed about the goal of degrading the judiciary to a compliant tool of the political leadership. The latter was still circumscribing this task with a certain degree of understanding for the mentality of the judges, with phrases such as the duty of the judiciary being to guarantee the “legal basis” for “racial conflicts,” the national leadership needing the “cooperation of the judiciary,” as the basis of law was one of the “necessary prerequisites for building a country,” and was not economical with praise (the judiciary had performed its duty “to our fullest satisfaction”),
¹⁴
but the representatives of the judicial administration were much more direct: according to the Posen chief public prosecutor, the judiciary must become the “powerful instrument of the political leadership.”
¹⁵
This meant that the public prosecutors must be men who were particularly open-minded as regards “the reality of life,” who would give precedence to the “concept of nationhood” in all their decisions
¹⁶
and, as “political civil servants,” would be, “like soldiers,” “devoted and obedient” to their superiors “on their own battlefield.”
¹⁷
The president of the Posen Court of Appeal claimed that only “politically thinking judges” who could thus fulfill their task of being “comrades-in-arms in the political racial struggle and champions of the realization of the unity of party and state”
¹⁸
could be considered as judges. State Secretary Freisler of the Ministry of Justice expressed himself in even clearer terms. The conquered territories were the place where the judge could prove himself as “the Führer’s political soldier in the field of the law,” “marching in formation in the political struggle.”
¹⁹
The military principle was therefore perverted completely and elevated to the guiding principle of the administration of justice.
²⁰
The struggle against “non-Germans” was now viewed as “frontline experience,” “proving oneself in the ethnic struggle” was the criterion that qualified the official for a career in the judiciary in the East and the principle used for selecting leading judicial officials,
²¹
and gaining this qualification was the aim of the first wave of judicial officials to reach the Annexed Eastern Territories, most of whom had arrived as volunteers.
²²
In addition, a “posting to the East” was designed to become the “top school” for the jurist, both within and without the judiciary, as well as the selection principle for the other districts.
²³

As State Secretary Freisler explained, the entire process of legislation and legislative interpretation was therefore required to conform with the “particular requirements of ethnic policy.”
²⁴
The administration of justice in the Annexed Eastern Territories thus centered around the application of an increasingly stricter special law for the “non-German” Polish population to protect the “German development work” against the “dangers posed by the Polish nation.”
²⁵
This aim was promoted and supported in every way by the judicial administration and the political leadership, which is likely to have swept aside the bulk of the legal and moral inhibitions of the judicial officials in the Annexed Eastern Territories about the blunt implementation of
völkisch
inequality. The aim was the introduction of a comprehensive statute for Poles (“Polish statute”), not contained in a separate legal code but merely anchored as special law in the individual legal frameworks.
²⁶
However, relevant publications have shown that in the national Ministry of the Interior, there were concrete plans to issue a comprehensive Polish Code at a later date.
²⁷
It was public knowledge that the structuring of this special law was oriented toward “Germany’s mission in the East,” “determined by the venomous hatred displayed by the Polish nation at all times toward Germany and all Germans.”
²⁸
As a result of this exclusively (ethnic) political orientation of the administration of justice, tirelessly repeated or tacitly understood in the literature and in practice, there was no legal foundation whatsoever for the principle of special law.
²⁹
The specified revolutionary goals and the uninhibited totalitarian claims of the National Socialist leadership could not be reconciled with traditional legal and administrative concepts and measures. Despite all attempts, the aims of discrimination and annihilation of the “enemy Polish nation” could not be fitted into any legal framework.

Because of a lack of any substantive arguments, the judicial representatives restricted themselves in their publications to the statement that the “non-Germans” living in the Annexed Eastern Territories, representing 93 percent of the population in 1939,
³⁰
were (in all seriousness) referred to as “alien elements” in the “ethnic [German] fabric,”
³¹
who under no circumstances should be allowed to enjoy the benefits of German law without restriction. In the published opinion of the majority of leading judicial officials,
³²
it was “inexpedient,” or “even dangerous and thus wrong,” to “apply within the Reich” the law “designed for German compatriots” to “non-German persons,” particularly where “settlement areas of racially differing peoples with different cultural levels were interlinked”; “for this reason, the
general
and
consistent
application of German law could not be considered, either at the present or in the future.”
³³
They were either unwilling or unable to see that the policy of special law was inappropriate, even from a National Socialist viewpoint, because the quickest possible integration of the “newly gained territories” should have demanded the most wide-spread possible introduction of German law, to establish the consistency and uniformity of the law. But the prevailing practice turned everything upside down by asserting that the requirement of “integrating the Eastern Territories” demanded a deviation from principles applied in the Reich and the subjugation of the Poles to special law.

A. Stages in the Implementation of
Völkisch
Inequality

In line with the governing principles described above, the development of special law in the Annexed Eastern Territories was implemented in a comprehensive fashion in both substantive and procedural law right from the outset.

Three phases are evident in this process; initially, these were not so much planned as decided by the war and practical necessities, but they were subsequently developed with a certain consistency. It was not that undisguised special law was introduced for the Polish population at one fell swoop, as was advocated in particular by the Party and police leadership. This would have run counter to the legal philosophy of the time, in which formal regulations and legal unity were still the determining factors. Despite the justification for recognizing special-law measures in principle, considerable efforts were still being made to introduce these measures only gradually, primarily by the interpretation of existing law.

Since the
direct
application of German law to the Polish population could not be considered because of its inherent principle of equal treatment for all beneficiaries of the community of law, efforts were made to find alternative methods of realizing the determining principle of
völkisch
inequality for the population but without having to abandon German law in its entirety. The magic formula common to and linking all these three phases, and invented to overcome this difficulty, was the formula of the
analogous interpretation
and
application
of German law. It was originally conceived as a temporary legal measure to take account of the legal vacuum arising as a result of the precipitate withdrawal of the military administration from the Eastern Territories at the end of October 1939,
¹
but it was also retained in the subsequent period. It allowed all deviations from German law while retaining such law in principle, with the nature and scope of the application of law governed by the “demands of the ethnic struggle.” This was phase one. Apart from the analogous application of German law, specific regulations under special law for “non-Germans” within the framework of general law also emerged from mid-1940 on (phase two). From the fall of 1941, there was no longer any scope for even the analogous application of general law, and the final separation of Reich law from special law was formally completed at that time (phase three). This is highlighted by the following overview.