"Non-Germans" Under the Third Reich (98 page)

The justification of the total deprivation of all rights for the “non-Germans” was a thorny issue even for the “hard core” in the Ministry of Justice and the judicial authorities in the Annexed Eastern Territories. The policy was now to abandon the principle of the analogous application of German law, which was a comfortable legal formula allowing deviation from the statutory standards at any time in the interests of (racial) political administration of justice and had relieved the courts of the tricky question of explicit special law for “non-Germans.” What reasons could now be given for the replacement of the principle of analogous inequality by the concept of the essential
disfranchisement
of Poles and Jews? Previous theory and practice provided no examples or pointers, nothing that could be used to establish a link to the new concept.

As a result of this, neither theory nor practice was able to deal with this new form of special law in any way whatsoever, far less fit it into any form of jurisprudential framework. With observations on the legal situation applying until the end of 1941 a rare enough event in the literature,
⁹³
once the Decree on Penal Law for Poles had been issued, with the exception of the official explanations penned by State Secretary Freisler,
⁹⁴
such observations more or less disappeared completely.
⁹⁵
The purpose of the previous treatments in the literature was to prepare the courts for the future tightening up of penal law,
⁹⁶
but despite their strict anti-Polish line, they implicitly stuck to the principle of the unity of the legal system and the framework drawn up by the Implementing Decree of June 6, 1940. Even for those jurists who were more than willing to contribute to the realization of the “ethnic struggle” in the East, it must have been as good as impossible to justify with any plausibility the leap from the status of persons with
fewer
rights to the status of
zero
rights for “non-Germans” under the former legal categories. State Secretary Freisler undoubtedly expressed the opinion of all legal practitioners when, at a conference, he observed that “this penal law for Poles” was not suitable “for public scientific discussion for all-too-obvious reasons.”
⁹⁷
His explanations on the penal law for Poles, which in his own words was “only” the consolidation of the political character of the penal law, something that had always been evident in any case and which “did not conflict at all … with justice,”
⁹⁸
dispensed right from the outset with justifying the penal law for Poles using conventional legal arguments; instead, he attempted to tread completely new ground on the basis of exclusively political and racial concepts.

In concrete terms, this involved nothing less than creating a new theory of penal law for “non-Germans.” The slogan of the political “requirements of the ethnic struggle,” previously serving to justify the arbitrary deviation from Reich law (“analogous” application in
individual cases
), had to be replaced by other slogans and concepts, branding the Poles in general as enemies of the German people and placing them in
general terms
outside the law. In his famous speech “Penal Law and Non-Germans in the Reich,” given shortly before the decree was issued, he had hinted at the underlying themes of the new concept,
⁹⁹
which rep-resented a radical break with all traditional concepts of penal law. The penal law for Poles, according to Freisler in 1942 in a speech to the court of appeal presidents and chief state prosecutors,
¹⁰⁰
had nothing in common with traditional penal law. It was a law “that could be pinned to the door of [each] Bürgermeister’s office for the Poles.” It was not an “internal German penal law,” not a “penal law for offenders,” but an “authoritarian form of penal law.” The principles governing character and personality did not apply here. For this reason, the “interpretation and establishment of individual provisions of the penal law for Poles were not desirable,” to allow flexibility to be retained.
¹⁰¹
Indeed, no rigid interpretation was necessary, since clause 1, paragraph 3, contained “the wonderful provision” covering all “behavior hostile to Germany.”
¹⁰²
This allowed the punishment of actions that were essentially exempt from punishment: the very reason for the existence of the clause.
¹⁰³

But simply establishing a negative divorce of the penal law for Poles from Reich penal law was not enough; a positive definition of the purpose of the decree was now needed. The magic formula invented for this was the slogan of “the threat to the community by the nature of the Polish people,” probably coined by Freisler, which became the basis of the new penal law for “non-Germans.”
¹⁰⁴

This slogan, based on the concept of the National Socialist community
¹⁰⁵
and linked to the established doctrine of the “threat to the community” of particular groups of criminals or crimes,
¹⁰⁶
was, however, difficult to justify with regard to the Poles, because the traditional political or ethnic friend-enemy pattern could not be applied to them easily. Attempts at ethnic psychological definitions, deriving the Polish people’s “threat to the community” from their national character, which was said to be inherently “treacherous,” “cunning,” and “inherently pathological,”
¹⁰⁷
demonstrate only the helplessness of theory in the face of the phenomenon of overt special law for millions of “non-German” inhabitants of the Annexed Eastern Territories.

The situation was different with the superficially solid political arguments, on which the thesis of the “threat to the community by the nature of the Polish people” was based. These arguments related to the Polish violence against ethnic Germans at the beginning of the war (“September murders,” “Polish atrocities”), in which an estimated five thousand to six thousand people had died, but the number was simply multiplied by propaganda that unremittingly fanned the flames of hatred.
¹⁰⁸
The courts, bowing to this propaganda of revenge—either under pressure or at their own initiative—were therefore sure of the support not only of the political leadership but also of sections of the population in the Eastern Territories when they raised to the status of their leading principle the fight against this “threat to the community.”
¹⁰⁹
Not only the direct culprits but also the political leadership, the intelligentsia, indeed the entire Polish people were held responsible for this violence,
¹¹⁰
providing a pretext for “objectifying” the concept of the “threat to the community,” that is, extending it to an entire nation. It was no longer individual Poles who were now a “threat to the community” but the Polish people in its entirety, whose character had shown it to be “unworthy of Europe” and thus also “unworthy of protection under the law.”
¹¹¹

The major consequences of the thesis of the “threat to the community by the nature of the Polish people” were therefore the people’s essential disfranchisement and an objectively collective approach to all Polish crimes that excluded any consideration for individual aspects. In short, this meant that any appraisal of Polish crimes was undertaken exclusively under political aspects dominated by police requirements, that is, based on the principle of “protection against ethnic dangers” from an entire people of potential enemies of the state. As a result, any “unlawful” acts by a member of such a people necessarily appeared as an essentially political crime against the German people. In concrete terms, all principles of German penal law, such as the concepts of guilt, complicity, or assessment of penalty, lost their validity. The “application of the principles of German penal law” to Poles and Jews in the Eastern Territories thus signified rather a dangerous slide toward the “threatened punishments and classifications of fundamental German offenses,” which was not only condemned but also regarded as “mistaken,” even as “an error in law.”
¹¹²

b. Details of the Decree on Penal Law for Poles

The provisions of the Decree on Penal Law for Poles were more or less identical to the “Special Penal Provisions” already included in the Penal Law Implementing Decree of June 6, 1940,
¹¹³
under pressure from the Party and the police; only the offense of premeditated arson was dropped, now being punished by Reich law (clause 1, par. 4, no. 2).
¹¹⁴
The main feature that distinguished the decree was that the individual offenses were now subject to limitless general clauses, through which—totally independent of these individual offenses—each and any behavior, indeed any statement of opinion by the “non-Germans,” was declared to be “hostile to Germany” and could treated as a capital offense; these clauses far exceeded the general clauses being used increasingly in Reich law. There were two of these provisions in substantive law: the first part of clause 1, paragraph 1, of the decree established a general duty of obedience for Poles and Jews to all German establishments, by stipulating the following: “Poles and Jews in the Annexed Eastern Territories must behave in accordance with German laws and the directives issued for them by the German authorities. They must refrain from doing anything that would be detrimental to the sovereignty of the German Reich and the standing of the German people.”

Of much greater importance was the infamous regulation (“wonderful provision”)
¹¹⁵
in clause 1, paragraph 3, which made the application of the individual provisions essentially superfluous and was the best example of a “legal” basis in the new criminal classification of penal law for Poles: “They [Poles and Jews] shall be punished by death, or with imprisonment in less serious cases, if they manifest a hostile attitude to Germany by spiteful acts or agitation, in particular by making remarks hostile to Germany or removing or damaging public notices by German authorities or departments, or if by any other form of behavior, they disparage or damage the reputation or the well-being of the German Reich or the German people.”

All sentences of Poles and Jews in the Annexed Eastern Territories under penal law were essentially based on this type of misconduct by “non-Germans.” It either was used to replace the provisions of Reich law that should basically have been applied,
¹¹⁶
so as to avoid at least the appearance of a community in law uniting “non-Germans” and Germans, or else it was listed as an omnibus offense alongside the relevant individual offenses.
¹¹⁷
The Reich penal laws supposed to be applied to Poles and Jews under clause 2 of the decree were reinterpreted so that they became no more than an expression of the “general duty of obedience” for Poles under the Decree on Penal Law for Poles; they underwent “in this respect a special classification, in that not the scope of the
elements of an offense
, but the degree of failure to comply with the duty of obedience became the subject … of the punishment.” In other words, it was not the “crime as such” that was punished, but the “defiance of the duty of obedience” to the German sovereign power “expressed in it.”
¹¹⁸
On the basis of this “authoritarian classification of offenses,” the practice tended increasingly away from subsuming crimes by Poles under German penal law and toward defining them from the outset as specific “crimes by Poles” within the meaning of clause 1, paragraph 3,
¹¹⁹
even in the case of minor offenses. The extent of this development becomes clear only when one remembers that under the Decree on Penal Law for Poles, the
standard punishment
was the death penalty, with imprisonment for “less serious cases” only. With this development toward a special penal law with its own classification of offenses, all conventional criteria for the form of perpetration and guilt of a crime were altered; the division of offenses into the three categories of felonies, misdemeanors, and offenses disappeared for crimes by Poles and Jews. Now, there was only a single offense of “violation,” that was always treated as a crime from 1943 on and reported as such in the Reich criminal statistics.
¹²⁰
The following examples illustrate this transformation of penal law into “objective offense-related penal law.”

The statutory periods for crimes by Poles and Jews disappeared, and the concurrence rules (secs. 73, 74, Penal Code)
¹²¹
and complicity provisions were no longer applied in practice. With the fulfillment of individual elements of an offense being replaced by the degree of “violation of the duty of obedience” as the decisive factor, offenses by Poles and Jews that should have been treated as abetment were punished as an accomplished crime.
¹²²
It was reported from Upper Silesia that preparatory acts exempt from punishment, when carried out by Poles and Jews, were treated as a breach of the “duty of obedience,” thereby abolishing the boundary to punishable attempts; both acts were punished as an accomplished crime.
¹²³
There were prosecutions not only of acts by Poles and Jews that would have been punishable under German law, but also of any behavior that did not match the political line of the “ethnic struggle” without being sanctioned under penal law.