"Non-Germans" Under the Third Reich (97 page)

The following examples illustrate the “analogous,” that is, extensive, interpretation of German penal law on the basis of section 2 of the Implementing Decree. The concept of “extraordinary circumstances due to the war” in section 4 of the Decree on Parasites upon the
Volk
of September 5, 1939,
⁵⁸
under which any crime exploiting these “circumstances” could be punished by limited or lifelong hard labor or the death penalty, was interpreted so widely that practically every crime committed in the Annexed Eastern Territories could be punished under this regulation.
⁵⁹
In the case of political comments by Poles, for which punishment under the Treachery Law of December 20, 1934,
⁶⁰
could only be achieved “on thin grounds,” the courts “were forced to adopt a far-reaching break from the statutory offenses”;
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the wearing or possession by Poles of German insignia containing National Socialist symbols was also consistently punished by the special courts in the Warthegau (or Wartheland) by the analogous application of the Treachery Law,
⁶²
although these regulations (secs. 3, 5, par. 2) related only to the unauthorized wearing of insignia of the NSDAP, its subdivisions, or affiliated associations.

4. The “Special Penal Provisions for the Annexed Eastern Territories” in the Decree on the Implementation of German Penal Law in the Annexed Eastern Territories, June 6, 1940

The freeing of the administration of justice from the statutory offense demonstrated clear special-law tendencies in the treatment of “non-German” culprits, but the principle of special law was taken still further by explicit legal standardization. “Special Penal Provisions for the Annexed Eastern Territories” were included in the Implementing Decree (secs. 8–16). These special provisions, representing an all-too-obvious alien element in the Implementing Decree and included at the urging of the SS and police leadership,
⁶³
punished all cases of Polish insubordination against the German administration with draconian sentences. These involved eight offenses: acts of violence against members of the Wehrmacht and the police, acts of violence against Germans “due to their membership of the German nation,” damage to German facilities, calls for disobedience of German directives, arson, prohibited possession of firearms, and the relevant forms of complicity in such offenses; these offenses were punished by death as the standard penalty, or by prison in “less serious cases.” These special provisions also legally abolished the principle of the unity of the legal system for the first time. Those affected were singled out only in the negative sense, since the provisions did not apply “to German state subjects, foreigners of German blood and subjects of the Protectorate of Bohemia and Moravia,” or to nationals of neutral countries and privileged ethnic groups
⁶⁴
(sec. 16 of the Implementing Decree); special law for the remaining groups, that is, Poles and Jews, was thus created de facto.

The further development of penal law in the Annexed Eastern Territories shows that once the concept of the unity of the legal system had been abandoned, principles of law and order no longer played a decisive role. The political situation between the rival power groups in the Reich and the Annexed Eastern Territories, as well as political expediency, that is, the “ethnic struggle” itself, decided the form and extent of the application of special law to “non-Germans” and the extent to which principles of Reich law were observed—if at all. The expedient solution of the analogous application of German law, with which special-law practices had until then been concealed, now lost the importance it had formerly enjoyed. As such, it was replaced by overt special law of a completely new species, completely divorced from general law, having nothing in common with the traditional principles of Reich law, and embodying the very ideal of the National Socialist concepts of the treatment of “non-German” inhabitants of the “Greater German Reich.”

5. The Decree on the Administration of Penal Justice against Poles and Jews (Decree on Penal Law for Poles), December 4, 1941

The departure from the twin-track Reich law-special law approach and the trend toward overt special law reflects the decisive political power struggle between the Ministry of Justice and the SS and police leadership, which had never abandoned its goal of taking complete control of the administration of justice for Poles and Jews. There could be no doubt from the outset about the outcome of this power struggle, already described in detail elsewhere,
⁶⁵
because the Ministry of Justice, under the weak leadership of Gürtner and then Schlegelberger, had few resources to counter the pressure of the
Reichsführer
-SS and chief of the German police and the chief of the SIPO and the SD, supported by the Party Chancellery
⁶⁶
and, in part, also by the administration heads in the Annexed Eastern Territories. Compared with the rigid, resolutely advocated ideas of Himmler, Heydrich, and Bormann, the arguments of the Ministry of Justice, fixated on issues of jurisdiction and void of any content, against overt special law for Poles and Jews (no cause for this “had emerged to date”; but there were “no reservations about establishing supplementary special regulations on the
basis
of German law directed exclusively against Poles, should such a need arise”)
⁶⁷
necessarily appeared as a tiresome legal dispute that simply could not be taken seriously by the power politicians in Berlin. The result of the contest between the Ministry of Justice and the police and Party leadership, lasting almost a year and half, was the Decree on the Administration of Penal Justice for Poles and Jews,
⁶⁸
issued on December 4, 1941 (the Decree on Penal Law for Poles), which came into force on January 1, 1942, and corresponded almost identically to the draft elaborated jointly by the Ministry of Justice and the presidents of courts of appeal and chief public prosecutors in the Annexed Eastern Territories.
⁶⁹

a. Basic Principles of the Decree on Penal Law for Poles and Its Justification

The decree “took substantial account of the suggestions of the Führer’s deputy” and created both substantive and procedural “total special law.”
⁷⁰
As stated in the official justification in the Ministry of Justice draft, the special provisions still to be discussed “guaranteed the greatest degree of deterrence” and “clearly expressed the political inequality between Germans on the one hand and Poles on the other.”
⁷¹
However, the Ministry of Justice had only been able to rescue its jurisdiction at a cost of giving up all constitutional and regulative principles in the face of the pressure by Bormann, Heydrich, and Himmler to seize for themselves the administration of penal justice for “non-Germans”: the Decree on Penal Law for Poles rightly enjoyed a reputation as a “shrewd move” in the “dismantling of the legal system in the Third Reich.”
⁷²
The overt purpose of the decree was not the maintenance of order, but deterrence and annihilation. There was no precedent that could be compared with the purpose of this decree.
⁷³
As in the case of all special-law provisions in the Annexed Eastern Territories, it blatantly violated not only the principles of international law;
⁷⁴
its formulations, structure, categorization of offenses, and contents also contravened the internal German penal law of the day, in particular the principle of
nulla poena sine lege
, the principle of penal law based on the requirement of personal guilt, the principles of criminal offenses and range of punishments, and many more.

The decree retained no more than “trace elements” of Reich law, such that dispensing with the specific implementation of German penal law, Poles and Jews could be punished under German penal law directly or analogously (if the crime “deserves punishment according to the fundamental principle of a German penal law,” “based on the raisons d’état existing in the Annexed Eastern Territories”) (clause 1, no. 2). However, this clause was only subordinate; that is, it applied only to cases where the subsequent special provisions on punishment were insufficient. Because these special provisions were construed without limit and could cover all disapproved acts by “non-Germans,” it was therefore a completely superfluous safeguard and should be understood only as a symbolic residue of the unity of the legal system that had been abandoned.

Apart from these traces of Reich law, the Decree on Penal Law for Poles was the first and most intimidating example of overt special law for “non-Germans” (Poles and Jews) and thus an absolute novelty in modern legal history. To a certain extent, this involved
duplicate special law
, because—as was explained above—Poles (and Jews) were already being punished under general Reich law more harshly than Germans, normally with the maximum sentence, as a matter of principle. The Decree on Penal Law for Poles created additional new offenses and opened the way for further discrimination alongside the general, already extremely harsh, punishment practice. The Decree on Penal Law for Poles thus represented not a form of regulation (albeit extraordinarily harsh) of living conditions for the purpose of the maintenance of order, at least in formal terms, but turned out to be an instrument of political struggle to annihilate the racial and political opponent. The Decree on Penal Law for Poles was a law of political expediency that, as lauded by the Kattowitz chief public prosecutor, “[contained] neither a philological nor a judicial, but only a criminal view of the means to the end: intimidation and neutralization.”
⁷⁵
In its formalities, such as the form of its promulgation—it was issued as a decree by the Ministerial Council for the Defense of the Reich and, significantly, did not bear the signature of the responsible minister of justice—its overt description as special law (Decree on the Administration of Penal Justice for Poles and Jews); its superficial form, which did not contain the standard subdivision into paragraphs (legal provisions) but was structured in clauses; the disregard for all formal requirements; and its brutal language,
⁷⁶
it was evident that all this “law” had in common with the concept of law was the name. This applied all the more to the contents of the decree. Poles and Jews not only had a lower legal status but—as had been demanded by doctrine and practice since 1933—were now actually placed outside any legal system whatsoever (they had completely lost all rights).

The “ethical” justification allowed for punishment was simply a breach of the “general duty of obedience” to the German occupying powers established in clause 1, paragraph 1, of the decree. The purpose of intimidation and neutralization was met by the sentences, which generally provided for the death penalty as the
standard sentence
, permitting a prison sentence only for the exception of “less serious cases,” which always required specific justification.
⁷⁷
A new form of sentence was introduced, specifically aimed at “intimidation” and “the strictest atonement”: “statutory prison camp”—replacing a prison sentence—and “strict prison camp”—replacing hard labor,
⁷⁸
to be enforced in special prison camps.
⁷⁹
These punishments, too, were subject to the provisions of a general clause, but as a matter of principle, all crimes could be punished by the death penalty, “even where the law does not provide for the death penalty, if the crime is evidence of a particularly base character or is particularly serious for other reasons” (clause 3, par. 2, sentence 2).
⁸⁰
The intimidatory purpose of the decree was fulfilled further by its geographical and personal purview; in terms of substantive law, it also covered Poles living in the Altreich (e.g., Polish “foreign workers”),
⁸¹
and in terms of the individuals it affected, it covered all Poles (“protected nationals and stateless Poles”) not entered in the German Ethnic Classification List (clauses 14, 15).
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This extensive trend was further equaled by a retroactive clause that declared that the decree was also applicable to crimes committed before it had come into force.

The only element of this decree conforming to judicial standards was that the courts (special courts; in less serious cases the district courts) were responsible for sentencing for crimes committed by Poles and Jews. But even their jurisdiction was perforated and cast into doubt by the authorization (discussed later) of the
Reichsstatthalter
(higher presidents) to employ police courts martial (clause 13, Decree on Penal Law for Poles).

The establishment of an exclusively special law was managed by a technical legal process that corresponded in full to the wishes of the SS and police leadership and those of the Party leadership and may be regarded as a model for future special-law provisions concerning the treatment of “non-Germans.” The special provisions for Poles and Jews contained in the Penal Law Implementing Decree of June 6, 1940,
⁸³
were still linked to the possibility of appeal in legally defined cases, and definitions of offenses were restricted to a certain degree, but the substance of the Decree on Penal Law for Poles was that all limitations on the definitions of offenses were abolished, and the individual provisions were made subject to vague general clauses, which allowed unlimited extension of application in terms of both substantive and procedural law, as well as in sentencing.
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The main focus was no longer the individual provisions but rather these general clauses; the purpose of its application was no longer the subsumption of crimes under legal regulations but rather the inclusion of “all punishable behavior” by Poles;
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it was the “point of crystallization of substantive penal law for Poles.”
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Even the Ministry of Justice had no illusions when it denied penal law for Poles the character of “law” in the traditional sense and described it as “overtly political law,”
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“a political law” to “suppress” the Poles (“political pacification of the East”), or as serving to “protect the German nation” “against attacks by the Polish people disturbing law and order.”
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In view of this unique case of exclusively “political law,” the questions arose whether and how the judicial administration and the political leadership could prepare the courts in the Annexed Eastern Territories for the issuing of this decree and convince them of its justification in the legal sense, given that the Penal Law Implementing Decree of June 6, 1940, issued only one and a half years previously, had been regarded as perfectly satisfactory both by the Ministry of Justice itself
⁸⁹
and by practitioners.
⁹⁰
Despite all rudiments of special penal law (in the “Special Penal Provisions”) in the Implementing Decree and in legal practice,
⁹¹
“only” the principle of unequal treatment had hitherto been practiced, which allocated a lower legal status to Poles and Jews but still treated them in principle as falling within the German legal system.
⁹²