"Non-Germans" Under the Third Reich (80 page)

The two witness do not present the case in such an anodyne manner as the learned Jew, however…. It is striking that in a private appraisal requested by Aryan defense counsel Dr. Z. in the preliminary proceedings, the Jewish physician Dr. Hermann G. declared the defendant not to be criminally responsible…. As an aggravating circumstance, it will be noted that the accused tries to play down his actions in a typically talmudic way and to present them as innocent, believing that he will be let off with a fine, as used to be the case. Furthermore, by his actions the accused most grossly abuses the laws and regulations of the State and Party in a country in which he merely enjoys hospitality rights. As a Jew he must know that since the enactment of the Nuremberg Laws, a clear line of demarcation has been drawn between Aryans and Jews. If he nevertheless abuses the honor of German women and thus German honor, he cannot be reprimanded severely enough, especially as Jews are continually committing such moral violations of women and girls of their host nations. The Jew must be shown by exemplary punishments that he has to keep within the limits set for him by the state.
⁵⁹

Following an appeal by the defendant, the Frankfurt District Court did, however, reverse the aforementioned decision and reduce the sentence to four months’ imprisonment with explicit reference to the more lenient punishment imposed on the Aryan baker. In this connection it should be mentioned that on February 1, 1937, the
Strafsenat
of the Frankfurt Court of Appeal canceled the arrest warrant against the Jewish defendant, since there was no risk that he would abscond, whereupon on February 20 the lay assessor’s court in Frankfurt on Main also reversed the arrest warrant against the Aryan baker ex officio, with a similar justification, although reasons for arrest still existed. The commentary on this decision reads as follows:

It is inadmissible to keep and Aryan under arrest while the Jew … runs free…. The ordinary national comrade with his healthy sense of justice cannot understand such a situation. He wants to see fair justice done and quite instinctively sees such an offense on the part of a Jew as more insupportable than a similar lapse by an Aryan…. Every German is outraged when a Jew touches a German woman, for such an action is equally an attack on German honor. The people are again aware of how supranational powers and Jewish lackeys have long distorted the sense of honor, and experience it is an unacceptable insult against the whole nation that an arrogant and impertinent member of the Jewish bastard race, pernicious to all other peoples, should touch a German woman.
⁶⁰

Such discriminatory criteria were applied in considerably severer form in the field of so-called martial penal law. Here, where draconian harshness was already inflicted upon German offenders,
⁶¹
discrimination against “non-Germans” reached its peak; as early as 1941 the Reich minister of justice in office, Schlegelberger, had complained that the administration of justice showed an “incomprehensibly considerate attitude toward the Polish people, who are irreconcilably hostile to us,” and thus presented a danger to public safety. He expressed the hope that from now on “the heaviest punishments [would] be inflicted on Polish criminals.”
⁶²
His successor, Otto Thierack, constantly pressed for a harsher line.

The severest practice is to be found with respect to political cases—in the then current (extensive) interpretation of the term—which were to be handled in close cooperation with the Secret Police.
⁶³
High treason and national betrayal (secs. 80 ff., Penal Code) were always tried before the People’s Court, although an indictment was also possible before the court of appeal. But as a political special court, the People’s Court offered the best guarantee of “absolute severity” and in this respect was surpassed by no other type of court.
⁶⁴
But the special courts, too, which dealt with the conviction of other political offenses (“espionage,” “incitement to disaffection,” etc.),
⁶⁵
frequently made extensive use of their powers. Particularly with respect to “incitement to subversion” in the broader sense (sabotage, fraternization with prisoners of war, etc.),
⁶⁶
which after 1944 was centrally managed by a special adviser at the Reich Ministry of Justice,
⁶⁷
the harshest measures imaginable were directed against “non-German” offenders.
⁶⁸

But the jurisdiction also attacked “non-German” offenders with excessive harshness with respect to all the other so-called war offenses in the Nazi sense. After 1940 these offenses were in principle tried before the special courts,
⁶⁹
backed by constant appeals from the ministry for the “most severe punishment” (“unrelenting struggle … against all war criminals”).
⁷⁰
Under the so-called War Economy Penal Code particularly, in which extremely heavy prison sentences were imposed for quite mild violations, the ministry called for the most stringent measures on account of the “insolent and presumptuous behavior” of Jews.
⁷¹

The best example of the persecution of “non-Germans” in this context was the so-called Decree on Parasites upon the
Volk
of September 5, 1939.
⁷²
This decree punished looting with death (sec. 1), whereas its section 4 imposed a term of life imprisonment on “all other offenses committed by taking advantage of the special circumstances brought about by the war.” The death sentence was called for if “the sound thinking of the people in the face of such particularly reprehensible crimes” demanded it.

Though the ministry constantly admonished the courts to punish even German offenders very severly,
⁷³
the Decree on Parasites upon the
Volk
was extended beyond all limits where “non-Germans” were concerned. Thus, as it stated in its circular of July 24, 1941—probably written as the result of pressure on the part of the public prosecutor’s office—the ministry held the application of section 4 (the administration of the death sentence) to be justified for Poles as the general rule and urged the courts to proceed accordingly.
⁷⁴
The ministry claimed in justification that the staff shortage resulting from the war made it impossible to keep the Poles under adequate surveillance; thus a lack of adequate surveillance was equated with “exploitation of the special circumstances brought about by the war” and thereby acknowledged as a criterion justifying punishment. The decree was directed above all toward sexual offenses by Poles, which in principle were covered not by the provisions of the Penal Code but by the Decree on Parasites upon the
Volk
, which provided for the death penalty.
⁷⁵
It was already deemed an “exploitation of the special circumstances brought about by the war” if a Pole as the only male worker on a farm committed a sexual offense. Even the attempt at such an offense was awarded the death sentence by the Reich Supreme Court.
⁷⁶

The recommendations of the Reich Ministry of Justice did not fall on deaf ears. Thus the
Führerinformationen
, which the minister of justice sent to Hitler and the heads of the Party Chancellery (Bormann) and the Reich Chancellery from mid-1942 on, reported the justice branch’s “successes” to the Führer in the various districts.

In the Hamm Court of Appeal district, in particular, political arguments were openly used to justify the death penalty as a matter of principle for all offenses by Poles. Since the Poles had killed sixty thousand Germans, offenses by Poles were “not simply normal offenses” but were defined by the “inherent criminality of the Poles against the German Reich” (thus, the very fact of being a Pole became a ground for punishment) and the “way in which the Poles waged war.” So criminal offenses committed by Poles, especially “political offenses” (in the current broad sense) and offenses against Germans, were invariably an “exploitation of the special circumstances brought about by the war,” to which was added the pretext of inadequate surveillance in the midst of German national comrades. The public prosecutors of the district were accordingly instructed to call for the death penalty on principle for all “political” offenses by Poles or for offenses against Germans or their property.
⁷⁷
With this development the interpretation of section 4 of the Decree on Parasites upon the
Volk
, which had been enacted as an extraordinary provision, was extended without limit. This practice is matched only by the system introduced in the Annexed Eastern Territories, where all offenses by Poles were deemed to be covered by a “permanent state of emergency,” justifying the harshest penalties.
⁷⁸

Finally, the stricter regulations concerning so-called violent and habitual offenders (the Decree against Violent Criminals of December 5, 1939),
⁷⁹
were applied extensively against “non-Germans” through the Penal Code Amendment Law of September 4, 1941.
⁸⁰
Section 1 of the latter threatened the death sentence for all criminal offenses committed with violence or the use of a dangerous instrument by a “dangerous habitual criminal” under the terms of section 20a of the Penal Code, “if protection of the community or the need for fair retribution required it,” when applied to “non-Germans.” Here too the ministry never failed to call for “a tireless struggle” against “professional and habitual criminals,” “asocial persons,” “parasites,” and so forth, and to demand the death sentence as standard punishment.
⁸¹
This demand corresponded precisely with Hitler’s view-point that the death sentence was preferable to a long term of imprisonment in such cases. This was necessary “in order to set an example.”
⁸²

The rulings of supreme justice complied in full with these demands.
⁸³
The broad interpretation of the term
dangerous instrument
by the Reich Supreme Court is of particular note. Unlike the rulings of the local courts, which made the natural distinction between the body and an instrument,
⁸⁴
the Supreme Court included the mere physical force of the offender under this term, so that cases analogous to simple bodily harm or robbery could be stamped as meriting the death penalty.
⁸⁵
Thus, the criterion was on longer the commission of the offense, but only the “inferiority” of the offender and the deterrent policy, which justified the death penalty (“extirpation”) in virtually all cases of violent offenses.
⁸⁶
This was particularly true for Polish offenders, against whom the Reich Supreme Court as a general rule pronounced “neutralization.”
⁸⁷
In particular, the death penalty was “generally called for in the event of a sexual offense by a Pole against a German woman,” since most Polish workers in Germany constituted a “racial threat.”
⁸⁸
The only question was whether the death penalty should be based on the need to “protect the
Volksgemeinschaft
” or the “need for just punishment”; in general the Supreme Court opted for the needs of the
Volksgemeinschaft
, so that it became a moot point whether “the need for just punishment requires the death penalty,”
⁸⁹
and the question of the appropriateness of the punishment was also avoided.

In summary, it may be noted that in the intention of the justice authorities, “non-German” defendants were always—that is, without exception—to be punished more severely than Germans. That this was so is largely borne out by the published and otherwise recorded judgments,
⁹⁰
but only after 1942 and above all in the jurisdiction of the special courts.

Nevertheless, a number of examples testify to the fact that before the enactment of the Decree on Penal Law for Poles, that is, in 1941–42, the sentences awarded remained within the limits normal for German offenders, in spite of the fact that even at this time the Reich Ministry of Justice had pressed for harsher penalties for Jews and Poles and was soon to present draconian judgments as “successes.”
⁹¹
But even at this time, the majority of the death penalties imposed by the special courts were directed against “non-Germans” (above all Poles), just as the majority of the accused before the special courts were “non-Germans” (so-called immigrant workers).
⁹²
The regular courts, in contrast, generally brought “more lenient” judgments; that is to say, they applied the standards prevailing for Germans to “non-Germans” too. Conviction of Poles to relatively short terms of imprisonment by the lower courts for minor bodily harm or sexual offenses appears to have been relatively common before the fall of 1941,
⁹³
since such rulings were the object of much criticism in the Security Service’s reports (“The people consider the penalties to be too mild, since imprisonment is useless for Poles”).
⁹⁴
But the higher courts were not exempt from such criticism, which sometimes came from the highest authorities. Massive reprimands against specific department chiefs were not uncommon (“regrettably lenient penalties,” and so on), coupled with the “expectation” of strong influence on judges,
⁹⁵
although such reproofs did not lead to disciplinary measures.
⁹⁶
As late as 1944, the ministry found time to go into detail on the subject of quite ludicrous incidents, especially when they concerned “non-Germans,”
⁹⁷
and it was particularly displeased if the law was applied fairly to Jews.
⁹⁸
The Security Service also voiced complaints that criminal justice did not act with “the expected rigor” against Poles, since a number of judges were unable “to see the need for differential treatment of Poles and Germans.” Many judges were not capable of awarding “better” judgments because of a “misconceived independence.”
⁹⁹