"Non-Germans" Under the Third Reich (99 page)

In particular, the “crime” of sexual intercourse between Poles and Germans was a thorn in the flesh of those in power and received draconian punishment for “behavior hostile to Germany,” because “sexual intercourse [by a Pole] with a German woman represented the “violation of the honor of the entire German people,” and the “Pole thereby disparaged the reputation and well-being of the German people.”
¹²⁴
Punishable in practice was also “any form of Polish propaganda,” or even “serious and repeated disciplinary offenses by a Polish convict,”
¹²⁵
indeed any behavior that was allegedly directed against “German interests.” The Ministry of Justice proposed legitimizing these attempts by practitioners to “create law” by creating special offense for these infinitely stretchable “crimes,”
¹²⁶
a suggestion that was not followed up solely because of the war. Further attempts at tightening penal law for Poles not provided for under German penal law were decreed by the Ministry of Justice, such as the prohibition on the application of German penal law for juvenile offenders in the penal law for Poles (because “there is no place for the educational concept in penal law for Poles”),
¹²⁷
with juvenile Polish offenders being treated under the penal law for adults.

c. Plans by the Ministry of Justice to Extend the Decree on Penal Law for Poles

For the radical “ethnic warriors” in the Ministry of Justice and the Annexed Eastern Territories, however, this total special penal law still did not go far enough. In the Ministry of Justice, plans were hatched with the agreement of the senior administrative officials in the Annexed Eastern Territories to amend the Decree on Penal Law for Poles to extend still further its already very wide purview; although these plans were never realized, they do show the extent to which the bureaucracy had made the principle of “
völkisch
inequality” its own.
¹²⁸
Of particular significance in this respect was the project for a “decree on the penal liability of complicity in punishable acts by Poles and Jews,” the justification for which was that it would provide an “additional political tool in the ethnic struggle.”
¹²⁹

The proposed decree addressed how the “complicity” of Germans in crimes committed by Poles and Jews, who were subject to the Decree on Penal Law for Poles, could be qualified in legal terms, since the principles of the special “crimes committed by Poles” and punishment categories (prison camp) could not be transferred to forms of complicity of Germans under the principle of “accessoriness.”

This involved finding legal arrangements for behavior by Germans that was not in itself punishable but was “undesirable” in terms of racial policy.
¹³⁰
These arrangements, the lack of which had been termed a “painful, even unbearable gap” by practitioners, were aimed at criminalizing the numerous cases of behavior by Germans that was “friendly toward the Poles” (providing material help for Poles, paying them good wages, etc.)—a situation that caused a good deal of hand-wringing by racially aware “judicial leaders”
¹³¹
—as “violations of moral racial conduct.”
¹³²

However, no agreement was reached on the decree drafted by the Ministry of Justice in 1940, because it was impossible to reach a consensus about the principles under which punishment was to be made (under the analogous provision of sec. 2, Penal Code; or clause 1, par. 3, of the Decree on Penal Law for Poles; or under a new offense to be created). A new draft by the ministry dated August 11, 1942, which created a new offense, “the undermining of ethnic work by Germans,”
¹³³
based on the Decree on Penal Law for Poles, met with resistance by the senior administrative officials in the Annexed Eastern Territories, who raised objections to the terms of the draft (“complicity”) and to the linking of criminal offenses for Germans with special penal law for Poles; they believed that the new offense should be worded much more widely and cover all ethnically prejudicial behavior.
¹³⁴
In turn, the
Reichsstatthalter
in the Warthegau raised his objections to this, presenting his own draft decree,
¹³⁵
maintaining that the version proposed by the appeal court presidents and the Posen (Pozna
) chief public prosecutor went much too far.
¹³⁶
Shortly thereafter, however, he came around to accepting the rejected version,
¹³⁷
since in the meantime the Gestapo had intervened in the cases of “ethnically prejudicial” behavior by Germans and, because of the lack of sufficient legal grounds, took the “offenders” into protective custody instead of handing them over to the judicial authorities.

Faced with initiatives by the Gestapo to continue this practice,
¹³⁸
the
Reichsstatthalter
stuck to his position that the “will of the national community would be expressed more visibly in court sentences than in summary sentences imposed by the police.”
¹³⁹
However, neither the Ministry of Justice nor the drafts emanating from Posen were able to prevail over the practices of the Gestapo, which from mid-1942 on not had only usurped prosecutions against “non-Germans” almost completely but had also increasingly extended its grip on Germans.
¹⁴⁰
In March 1943, the Ministry of Justice let it be known that none of the drafts would be pursued any further.
¹⁴¹
A counterproposal by Arthur Greiser, seeking to issue a penal regulation at least as a decree by the
Reichsstatthalter
for the Warthegau,
¹⁴²
was unsuccessful because the Reich minister of the interior refused his consent. Discussions on an amendment to the Treachery Law of December 1, 1934, in which the relevant penal provision on ethnically prejudicial behavior by Germans was to be included,
¹⁴³
achieved no concrete result, either because of the war or because of obstruction by the SS and police, in the face of which the central administration retreated. The situation thus remained as it was, with all support by Germans for Poles being increasingly regarded as political offenses—unless they were punishable under German law—and dealt with by the Gestapo.

II. The Status of “Non-German” Individuals in Procedural Law

1. Special Courts as an Instrument for Combating “Non-German” Crime

The key element of the special-law system, the abolition of statutory offenses in favor of vague general clauses, is also evident in procedural law, although the erosion of the rigid, formal provisions was more difficult and proceeded at a slower pace than in substantive law, with traditional judicial attitudes also playing a role. But the starting point here, which was the same as with substantive law, namely the dominance of political goals of the “suppression” of the “Polish people” (“ethnic struggle”) and the task of the judicial authorities to contribute to this “suppression,” excluded from the outset any application
ipso jure
of general Reich German judicatory law and criminal procedure law.
¹
The result was that ordinary jurisdiction in the Annexed Eastern Territories was never of more than minor importance.

Special jurisdiction was another matter. With its very name suggesting its role, it reached true fruition in its application against “non-Germans.” Designed from the outset to punish all offenses by Poles and Jews against the “German development structure,” that is, against German interests in the widest sense, special courts had already been established in the first days of the war and were sitting as the only civil courts long before the regular judicial authorities started working (around summer 1940).
²
Special jurisdiction was of lesser importance in the first months of the German civil administration, with the unleashed terror of the special-operations groups and the flying courts-martial of the Security Police, as well as the drumhead courts of the local “self-defense” corps preventing any form of appreciable administration of penal justice for the local population.
³
But the special courts had been assigned responsibility for the politically explosive field of prosecuting Polish attacks on (ethnic) Germans at the start of the war (the “September crimes”),
⁴
and in line with the slogan of the “striking power” of special jurisdiction, they had started on this task while the war against Poland was still under way.
⁵
The status of the special courts was only cemented after the implementation of German penal law in June 1940.
⁶
As in the German homeland, they became a permanent institution, differing, however, in their large number
⁷
and in the selection of staff
⁸
and—as State Secretary Schlegel-berger in the Ministry of Justice noted approvingly—in their “particularly quick and effective procedures,” such that they developed into the almost exclusive instrument of the “struggle against all Polish and Jewish crime.”
⁹

a. Jurisdiction

This development was the result not only of selective penal law and personnel policy but also of the far-reaching jurisdiction of the special courts. Although their jurisdiction in the Altreich was still separate from the jurisdiction of the general courts, despite the substantial increase in responsibilities allocated to them over time,
¹⁰
the special courts in the Annexed Eastern Territories received sole jurisdiction.

The decree of September 5, 1939,
¹¹
by the commander in chief of the army on special courts in occupied Polish territory had implemented Reich law jurisdiction in principle,
¹²
but at the same time it had stipulated that
all
criminal cases could be brought before the special court if the public prosecutors regarded “sentencing by the special court as necessary for particular reasons” (sec. 2).
¹³
The phrase “for particular reasons” was without significance in the first few months of civil administration, because the special courts were in any case the sole civil courts and therefore enjoyed sole jurisdiction. Appropriate measures by the local military administration also explicitly stipulated the comprehensive jurisdiction of the special courts.
¹⁴

However, the scope of special-law jurisdiction began to become blurred when the regular judicial authorities started working, because their former sole jurisdiction collided with the responsibilities of the regular judicial authorities. This question of the scope of the responsibilities of the special courts, a matter for dispute between the Ministry of Justice and the Reich Ministry of the Interior,
¹⁵
was clarified to a certain degree by the introduction of German penal law with the decree of June 6, 1940.
¹⁶
Although the decree did not introduce explicitly the responsibilities of the special courts defined under Reich law (the Jurisdiction Decree of February 21, 1940),
¹⁷
there was general agreement that with the Reich Code of Criminal Procedure applying in its entirety under this decree, the decree of February 21, 1940, had been implemented concurrently and the original general jurisdiction of the special courts had thus been restricted.
¹⁸
In terms of the treatment of “non-Germans” under special law, however, this restriction existed more or less on paper only, since under the Jurisdiction Decree—in a similar way to the military decree of September 5, 1939—
all
offenses could be tried before a special court if they were particularly “serious” or “reprehensible,” or if this was demanded by “public outcry” or a “risk to public security and order.”
¹⁹
That any offense by a “non-German” could be subsumed under one of these categories without further ado, thus providing a starting point for the monopolization of criminal jurisdiction against “non-Germans” in the special courts, is self-evident. Confirmation of this monopolization intention is shown in the Decree on Penal Law for Poles of December 4, 1941,
²⁰
which concentrated jurisdiction for offenses by Poles and Jews almost exclusively in the hands of the special courts. Although offenses by Poles and Jews could still be sentenced by district courts, the public prosecutors could bring indictments before the special courts “in all matters” at their own discretion (clause 5, pars. 1, 2) without having the necessary conditions for this defined in any way whatsoever. The wheel thus turned full circle, restoring the situation that had reigned at the time of the legal vacuum in the Annexed Eastern Territories. The special courts had once again become the most important instrument for the treatment of “non-German criminals” under special law.