"Non-Germans" Under the Third Reich (108 page)

In other words, if an offense by a Pole was reported to the police, the following alternatives were possible: if it was a crime of some importance, it was passed on to the public prosecutors or, more often, to the Gestapo on the basis of the usurped jurisdiction for criminal matters. If it involved a minor crime, to which the summary sentence proceedings could be applied, in the best case the miscreant could be fined up to 200 reichsmarks by a police summary sentence imposed by the local police authority, where no criminal investigation or political interest existed. However, a police summary sentence of prison camp or a fine (between 200 and 10,000 reichsmarks), imposed by the district police authority (prefect), could also be considered. For offenses in which there was a prime “criminal investigation” interest, the person was handed over to the criminal investigation police, who in turn passed the case on to the Gestapo “for further investigation” (sentencing by a court-martial) or (although this occurred with decreasing frequency) to the public prosecutor for charges before a court of first instance or a special court. For crimes with a “political impact,” the case was always passed on directly to the Gestapo.

This decree brought developments in the Annexed Eastern Territories to a certain conclusion. The police were now in a position to register without exception all offenses by Poles against German regulations of all kinds and to deal with them under their own responsibility. For everyday crimes (“minor crimes” or misdemeanors), the instruments of police summary sentences (fine or prison camp) or criminal investigation or political police “treatment” (protective custody) were available; for more serious or grave offenses (when they affected “German interests”), the police courts-martial were responsible (with the exception of Danzig–West Prussia) or could be declared responsible by the
Reichsstatthalter
(higher district president), if such jurisdiction was not specifically defined. This was compounded by the usurpation of additional “penal jurisdiction” by the police by means of secret decrees, which criminalized conduct by “non-Germans” that was not in itself punishable, such as violations of the principle of “racial separation” (sexual relations with Germans).
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The relationship between the public prosecutors and the police had been turned on its head; the criminal investigation police filed charges at their own discretion, namely, only if the case did not interest the Security Police “for whatever reason.”
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And the police were essentially interested in all cases of crimes by “non-Germans” in the era of the “ethnic struggle.”

The exclusion of the judicial authorities from the administration of penal justice against “non-Germans” was finally complete: as the chief public prosecutors complained, they were not even informed about the activities of the police courts-martial and were forced to rely on ad hoc inquiries or the “courtesy” of the local police authorities.
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All they could achieve was the abolition of
public
executions of Poles by the police in Upper Silesia (no doubt due to the heavily mixed German-Polish population);
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in the other areas of the Annexed Eastern Territories, such executions continued (for “reasons of deterrence”), but they had the opposite effect.
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All protestations by the judicial authorities about the “severity and effectiveness” of the special courts, all draconian convictions and sentences, all efforts to please the political leadership had therefore only reinforced the totalitarian claims of the police.
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The police simply did not bother with such matters, particularly since the Ministry of Justice had largely surrendered all initiative after the death of Gürtner in 1941 and had let things drift. On the basis of their experience in the Annexed Eastern Territories since 1940, the police could be sure that the judicial administration would either knuckle under or do nothing that seriously threatened any jurisdiction the police had usurped; they could therefore afford to snub the judicial authorities in public, for instance by executing Poles who had been acquitted by the special courts or Polish remand prisoners who had been handed over to the Gestapo for interrogation and whose return was requested by the judicial authorities.
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An additional factor was that since Thierack had been appointed minister of justice on August 20, 1942, there was close agreement between the Reich judicial administration and the Party and police leadership on the treatment of “non-Germans,” in view of which all complaints and warnings from below were bound to peter out.
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Nonetheless, the judicial authorities continued to be a thorn in the side of the police leadership, because they continued to apply the last vestiges of regular proceedings, and despite their indoctrination and severity in many cases, they still took account of the individual circumstances of the case—the facts of the case, the character of the accused—in short because, as Himmler once complained to Bormann, they were still trying to “administer justice” instead of implementing the “interests of the German people.” What essentially bothered the SS and police leadership was therefore less the judgments of the courts, which they believed were often too lenient, but rather their very existence as a state institution, because their activities could not be controlled and “oriented” so totally as those of the police; they therefore continued to represent a factor of uncertainty and unreliability in the “great task” of the struggle against the “non-Germans.” In the view of the Party and the police, the judicial authorities had no business being involved in the “ethnic struggle.” That struggle demanded the exclusive jurisdiction of the SS and the police, which ought to replace the judicial authorities as an “organ of the administration of justice” sui generis and achieve the public impression of an independent “administration of justice” for “non-Germans.”
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In the Annexed Eastern Territories, this goal was achieved with near perfection.

C. Civil Law

I. “Analogous Application” of Civil Law

Although the prime judicial and political focus in legal developments in the Annexed Eastern Territories was on penal law, the implementation of special law was not limited to the area of penal law, because such a restriction would have contradicted the totalitarian nature of the regime. Less spectacular, but no less single-minded (and often more far-reaching in their impact), the conditions for the separation of Germans and “non-Germans” and the unequal treatment of the latter in practice had been created right from the outset in the area of civil law. The development of civil law can also be divided into three phases, although these overlapped and were less precisely demarcated than in the case of penal law. The first phase of legal vacuum was followed in around mid-1940 by a phase in which individual provisions of Reich law were implemented and some overt special regulations for Poles and Jews were issued; in the third phase, complete civil law was implemented in the Annexed Eastern Territories but at the same time was made subject to the proviso of “
völkisch
inequality” by an umbrella clause.

In line with the area of penal law, the first phase, from September 1939 to around mid-1940, was distinguished by the basic concept that exclusively German law applied, without its formal implementation in the Annexed Eastern Territories. As described above, the only “legal basis” was section 7 of the Assimilation Decree of October 8, 1939,
¹
under which the “existing law” remained in force where it did not contradict the “effect of assimilation.” The reader is referred to part 2, section 2, B, I, 2 (“Führer Decree on the Division and Administration of the Eastern Territories, October 8, 1939”) with regard to its interpretation and the definition of what was to be regarded as “current law” (i.e., German law as applied by the authorities since the start of the war), as well as the underlying doctrine of the collapse of the Polish state under international law on account of the German occupation.
²
Another justification resulting from court practice expressed the actual reason for the abandonment of Polish law in much clearer terms: since Polish law was a means for combating Germanness, the (ethnic) Germans living in the Eastern Territories could not be expected to continue living under Polish law. In addition, if Polish law had been permitted, the Polish population could have been left in doubt as to the “irrevocable decision” to “merge the Eastern Territories completely with the German Reich for all time.”
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It was therefore not at all a matter for dispute that German law alone would determine civil law. The question of why German law should suddenly apply in a formerly foreign state territory without any formal implementation was answered with the argument that this law more or less flowed into an “area of legal vacuum” by itself “to fill a gap,” that is, without any formal implementation.
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Nevertheless, the validity of German civil law was merely the starting point for the subsequent considerations, and it was by no means consistently thought out. The complete and direct application of German law was not at all in the interest of the Germans, because then both Poles and Germans would have enjoyed its benefits. This was ruled out by the completely different “ethnic (racial) circumstances,” which made discrimination against the local population the duty of all authorities. Following the example of developments in penal law, the principle of “analogous application” was also used for civil law. According to this formula, German law only applied
in principle
and could be amended in individual instances at the discretion of the authorities to meet “ethnic” or “political” interests; in the eyes of the Nazis, of course, there could be no equality of treatment of Poles and Jews.
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In practice, the analogous application of German law therefore meant that German law was applied directly if this was politically desirable, that is, if it had a detrimental effect on the Poles, and was not considered if it would have favored Polish interests.

This maxim is clearly exemplified in an express letter from the Ministry of the Interior to the supreme Reich authorities of November 16, 1939. Therein the minister of the interior requested that if it proved to be absolutely necessary to introduce Reich law provisions, an examination should be made as to whether foreigners of German blood would be ensured the preferential status due to them and that, if necessary, the Reich law provisions should be revised so that it could be implemented in such a way that “non-German” nationals did not become the beneficiaries of German law.
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For the exercise of the administration of justice, however, these formulations did not supply any concrete criteria. The “ethnic” proviso of the application of German law was therefore mostly paraphrased; the rule of thumb was “reasonable discretion” and “greatest possible regard for the requirements of assimilation,”
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or the vague concept of “flexibility and adaptation” of the administration of justice.
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However, this only replaced one umbrella clause by another, which did not help much and left many questions unanswered.
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This was because, as a rule, civil law contained precise definitions of offenses and only a few clauses and concepts requiring interpretation (in the form of umbrella clauses) and was therefore of little use for the analogous application of German law or “conformity” with German law. The authorities were therefore faced with the question of how they could decide whether regulations (for instance, having to do with contract law, commercial, and company law) could be suitably applied to meet Nazi purposes, and if so, which regulations could be applied; they also had to decide in which cases a divergent application was preferred. In turn, such decisions depended on the extent of the “ethnic and racial loyalty” of the regulation in question.
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To wade through all provisions of civil law to determine the extent of this “loyalty” was simply impossible for practical reasons. In this respect, Reich German civil law was adopted more or less as it stood—without formal introduction—so that the motto of the corresponding application was more a concession to the guiding political principle than a practical guideline for justice, and did not have the same significance as it had in penal law. As a rule, justice was administered on the basis of the application, “to the widest extent possible,”
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of German civil law. All associated legal matters, with the courts applying German law directly,
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were supported by guidelines from the courts of appeal, based partially on recommendations by the minister of justice, in part drafted by the courts themselves.
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From 1940 on, however, there was a move toward
overt special law
for “non-Germans.” Once efforts had been started to implement formally certain areas of civil law in which there was a particular interest for reasons of security in the law (e.g., liability law, law of bills and checks, commercial law, etc.),
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the purview of these areas was—in part—restricted explicitly to German state subjects and foreigners of German blood, or explicit discriminatory provisions were implemented to the detriment of “non-Germans,” as shown by the provisions on lower wages for Poles and on the exclusion of Poles and Jews from social welfare benefits.
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