"Non-Germans" Under the Third Reich (120 page)

The differences between the Annexed Eastern Territories and the General Government with respect to their legislation and legal practice are more apparent in the field of criminal than in civil law. Before the enactment of the Decree on Penal Law for Poles on December 4, 1941, in fact, tolerable security existed in the Annexed Eastern Territories, too, since until then “non-Germans” were governed by Reich law (Decree on the Implementation of Reich Penal Law of June 6, 1940). As we have shown, the principle of analogous application paved the way for replacement of the Reich statutes by a jurisdiction based on the ethnic struggle and their circumvention at any time as the political situation required. This process of disintegration culminated in the Decree on Penal Law for Poles of December 4, 1941, which abolished all formal definitions of criminal offenses and replaced them by the umbrella phrase “anti-German behavior” (clause 1, par. 3), thus setting a legal seal on the deprivation of the rights of “non-Germans” under the law. Compared with this situation of insecurity and the absence of formal criteria, the criminal law of the General Government presented a model of clarity. Though the drafting of criminal law was extensive and vague, the jurisdiction of the special courts at least was more or less firmly laid down. The direct application of German criminal law excluded the possibility of deviating from substantive Reich law. The principle of analogous application was found only in procedural law, so as to tighten up and simplify proceedings. Therefore, whereas in the Annexed Eastern Territories the abandonment of the statutes and legal principles of the Reich led to insecurity and lawless areas, wide open to arbitrary political actions, the form and content of criminal law in the General Government remained largely intact and shielded the administration of justice against excessive abuse by the political authorities.

This difference between the legal insecurity and confusion in the Annexed Eastern Territories and relative clarity in the General Government is also found expressed in the jurisdiction. The concept of deterrence, which under National Socialist criminal law underlay all decisions in the courts, served of course as leitmotiv in all the occupied Polish territories. But whereas in the Annexed Eastern Territories, this meant annihilation and extermination—as so many examples show—in the General Government, where the accent was on preserving manpower in the German interest, such a course was generally undesirable. In the realm of purely criminal offenses, we see a sharp contrast between the relatively lenient practice of the special courts and German courts of the General Government—notwithstanding the sometimes very harsh punishment of economic and certain other offenses—and the increasingly arbitrary justice in the Annexed Eastern Territories, which can only be described as relentless vindictive jurisdiction against “non-German” offenders, at least in the latter years of the war.

It should not be forgotten, however, that the function and field of activity of the judiciary in the two regions were conceived completely differently, and this naturally affected the composition of the courts and the attitude of the judges. In the Annexed Eastern Territories, the judiciary saw itself as belonging to a dominant political apparatus designed to keep the population down and gain ascendancy in the ethnic struggle. In the General Government, the judiciary was in a weak position from the start in the face of the summary police courts, but it was not without political ambition. It saw its role less as the instrument of a far-reaching new ethnic order than as prosecutor of individual criminal acts—its traditional role. The different arrangements regarding the responsibilities of the courts also contributed strongly to the differences in jurisdiction in the two territories. In the Annexed Eastern Territories, common criminality was usurped by the police, de facto at first and later officially (by the circular decree by the
Reichsführer
-SS and police leader of June 15, 1942), so that no comparison is possible at this level. Similar regulations indeed existed in the General Government, empowering the administrative authorities (government, district governor,
Kreishauptmann
) to issue orders imposing punishment (Decree on the Administrative Criminal Procedure in the General Government of September 13, 1940). But the scope of police power in the Annexed Eastern Territories was vastly greater, covering infringements of both the Reich Penal Code and police orders and directives; the administrative penalty procedures of the General Government were limited to infringements of the orders and directives of the local authorities. This jurisdiction in the General Government was merely subsidiary, operative only if no court penalty was imposed, whereas in the Annexed Eastern Territories the judiciary was completely bypassed in this regard. In the Annexed Eastern Territories, too, police penalties were immediately final and absolute, with no possibility of subsequent review by the courts; in the General Government it was possible to bring an appeal against decisions of the
Kreishauptmann
. And despite the great harshness and harassment experienced by individuals in the General Government, enforcement of the fines and custodial penalties imposed through the administrative penalty procedures was probably exercised more leniently than the execution of police custody in the “work training camps” run by the police in the Annexed Eastern Territories, which were reminiscent of concentration camps, for in the General Government so-called administrative prison camps, which were under the control not of the police but of the general administration authority (
Kreishauptmann
), existed for this purpose.
¹³

Another difference was in the jurisdiction over politically significant criminality, that is, acts of resistance against the occupying power (acts against German citizens and nationals and German installations). Whereas in the General Government the Acts of Violence Decree of October 31, 1939, brought such offenses—and later all violations of German regulations—under the jurisdiction of the summary police courts, in the Annexed Eastern Territories they continued to be dealt with by the special courts (secs. 8–16 of the Decree on the Implementation of Penal Law of June 6, 1940; clause 1, par. 4, of the Decree on Penal Law for Poles). Thus, in the General Government the judiciary was excluded from the major areas of the criminal prosecution of “non-Germans.” The result of these differences in jurisdiction was that many of the (death) sentences passed by the special courts in the Annexed Eastern Territories were for offenses tried by the summary police courts in the General Government, where the justice system itself was limited to general criminality and minor political offenses (anti-German remarks, for example). But even here great differences in sentencing practice emerge. In particular, as the numerous examples given above have shown, the broad powers of the special courts in the Annexed Eastern Territories were such that they often dealt with extremely minor offenses normally handled by the German courts of first instance in the General Government, which, with their much more limited range of punishment, imposed very much milder penalties.

Taking all these differences in function, responsibilities, and sentencing practice into account, we may therefore note that the comparison only holds with respect to criminal acts in the narrow sense. Here, the jurisdiction against “non-Germans” in the Annexed Eastern Territories was dominated by the whims of the special courts, which, having largely shaken off the shackles of the Reich statutes, exercised draconian justice in even the most minor cases; the special courts of the General Government, oriented as they were toward the principles of Reich law, retained a relatively orderly procedure and relatively moderate sentencing.

This review of legal practice in the Annexed Eastern Territories and the General Government would not be complete without mention of the gradual spread of police power outside the regulated limits of jurisdiction. In the latter years of the war, at least, in real terms it was less significant who was formally responsible for the prosecution of a crime or a misdemeanor than who had the right to the first step against the accused. In the Annexed Eastern Territories, “non-Germans” could, at the discretion of the (regular) police authorities (
Schutzpolizei
, gendarmerie), be handed over to the judiciary; but also (even for a simple misdemeanor), they could be referred to the Security Police, that is, to the criminal police or the Gestapo, who had a wide range of sanctions (fines, custody, prison camps, concentration camps) at their disposal. The situation was similar in the General Government. Even in the event of a misdemeanor, it was largely a matter of chance whether the police or the administrative authorities stepped in first or the offender was handed over to the judiciary, whatever the formal jurisdiction. But the evolution of the relations between the police and the judiciary was such that a long-term period of detention was the rule for all “non-Germans” in German custody, including those convicted by the courts of justice. It is worth remembering that before early 1943 the Poles of the Annexed Eastern Territories still had a chance of being set free after a term of imprisonment. From then on, however, any Poles sentenced to more than six months’ imprisonment were automatically committed to a concentration camp “for the duration of the war.” On account of the labor shortage, this arrangement was limited in early 1944 to sentences of a year or more. Still harsher was the practice in the General Government. The judiciary dealt with “non-Germans” only insofar as the summary police courts did not get in first. But even then the police were so well informed of all judicial proceedings that it was never a problem for them to ensure that anybody who interested them for any reason would be sent to concentration camp after having served his sentence. The right of the police to impose “protective” or preventive detention at will remained intact, so that anybody under trial could be removed from the power of the court if he was not actually serving a sentence. Once in the clutches of the police or the judiciary, innumerable “non-German” individuals or groups could never hope to see freedom again. The major question was whether they would be sent to a regular prison or a police prison, prison camp, work training camp, or concentration camp, for on this their chances of survival depended.

Conclusion

In attempting to draw conclusions from the present work, four focal points present themselves under which the principle of special law in the Third Reich can ultimately be considered:

1. Technical efficiency.

2. Limitless area of personal and substantive applicability.

3. Unlimited judicial authority and the escalation of special law from west to east.

4. Distribution of jurisdiction and the struggle for authority between the regular service and the exceptional powers of the Third Reich.

1. The process involved in implementing the idea of special law in the areas of general inner civil service and the judicial system confirms the thesis proposed in the introduction to this volume that the leadership of the National Socialist state was, within a relatively short time, in a position to indoctrinate the entire judicial and administrative apparatus in the new political policy, although the previous set of legal standards (with the exception of the basic liberal values of the Weimar Constitution) was adopted unchanged and preserved in most essentials. This transition from traditional administrative thinking to the new state ideology of National Socialism occurred almost without a hitch, since, the better to uphold the appearance of legality, National Socialism’s entire thinking and mode of expression—as demonstrated by the quotations cited herein—was aimed at depicting itself as guardian and conservator of German legal tradition. This in turn led to the tactic, so typical for the Nazi regime, of obscuring normative and ethical questions or excluding them altogether from the domains of justice and the Civil Service; or, more precisely, reformulating them as questions of administrative technique.

This method of replacing political goals by an obsession with technique met, to an extraordinary degree, the needs of a Civil Service that for some time past had been oriented toward principles of efficiency and procedural functionalism. These principles took on ever more importance; indeed, they increasingly came to be valued for themselves, since owing to the considerable loss of moral fiber and religious teaching that followed on the heels of World War I, they were no longer shored up by generally accepted standards and values. One consequence of this loss of moral substance was that, although the old values were still formally recognized, they were largely robbed of content and meaning; thus, as empty “conceptual husks,” they provided to some extent an alibi for the values of the ruling powers. This development played a decisive role in permitting the National Socialist leadership to take over not only the normative apparatus but also and simultaneously the traditional values (duty, order, authority, honor, fidelity, etc.), removing them from context, giving them different meanings, and carrying them forward with no reference to moral and ethical standards.

In this way the old values were put directly into the service of National Socialist ideas, just as members of the old oligarchy, who, clinging to “tradition” and “order” (although without values clearly anchored in formal legal acts), offered the regime their services. Into this vacuum, then, the ideology of the NSDAP—whether adopted directly or indirectly admitted under cover of traditional values and ideas of order—was able to pour its fundamental values (“race,” “blood and soil,” “community,” etc.) virtually without hindrance. The result for the bureaucracy and the judiciary was that the introduction of National Socialist ideology into the traditional set of values and standards presented itself not as a
fundamental
question but merely as one of (administrative)
technique
and political opportunity. That is to say, we are talking about processes of adaptation that, from a formal juristic perspective, could be undertaken relatively smoothly but which implicated both legislation and jurisprudence, imperceptibly at first, then to an ever greater extent, in the methodical implementation of injustice and despotism. Of this influx of totalitarian ideas into traditional standards and values emptied of meaning, of this transformation of political goals into technical efficiency, the principle of special law presents the prime example. It shows that, as a result of this smooth transition, only relatively insignificant (by the standards of the time) changes in the legal system (such as, for instance, the racial codes) were necessary to recast the practice of law to fit, explicitly and for all to see, the fundamental values of the National Socialist “ethnic community.”