"Non-Germans" Under the Third Reich (86 page)

Whether the
Führerinformationen
achieved their aim remains unclear. There is even some doubt that they actually reached Hitler, possibly being held back by the Party Chancellery.
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Apart from this possibility, it is difficult to imagine that such a publication could change Hitler’s opinion of the “total incompetence” or even the superfluity of the judiciary in dealing with certain offenses, especially political ones.
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With the declining course of the war after 1939, Hitler lost interest in the judiciary and its plans for reform. From late 1942 Himmler built up a large “counterjustice” apparatus, doubtless with the Führer’s knowledge and consent, which took on increasing importance as a competitor to the regular justice system.

dd. The Justice System Comes under the Control of the Police Command in 1942: Systematization

The creation of this “counterjustice” system was facilitated above all by the fact that Gürtner’s successor to the ministry, Thierack, who took over on August 20, 1942, was a trusted Party man who worked closely with the Security Police (Himmler, Heydrich). Despite Schlegelberger’s opinion that he himself was “under Party orders,”
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the appointment of Thierack, who had a clean record in the judiciary and the Party and who as president of the People’s Court had fostered good relations with the Security Police, found a welcome on all sides.
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The judiciary hoped that Thierack’s close connections with the Party and the police would reduced the pressure on it. The police took encouragement from the rumor that during the air raids on Berlin he had appeared personally at prisons and ordered the immediate execution of numerous prisoners, staying to ensure that the order was carried out, and the police approved of him “as a man who doesn’t get lost in the paragraph jungle,…. but takes ruthless and rapid action on the basis of state considerations.”
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The Party leaders took note of Thierack’s appointment “with satisfaction” and declared themselves ready “to work together with the courts in confidence.”
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The new minister came up to expectations. Actions that previously had been seen as police interventions were now decided upon through “agreements.” Arbitrary action became the system, chaos the order of the day.

Seen from outside, the situation had become calm. The omnipotence of the police was institutionalized; the status quo was legalized and ready to be extended. In real terms, this meant both a multiplication of police interventions in the form of the “rectification” of court rulings and a confirmation and extension of criminal prosecution by the police. The “rectification” of rulings was thus no longer a matter of police autocracy but was an established instrument of police control, endorsed by the judicial administration. The guiding principles were laid down by Thierack at a meeting with Himmler on September 18, 1942, only a few weeks after he took office.
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In addition to the introduction of punitive innovations such as flogging,
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the heads of the judiciary and the police agreed “no longer to burden” the Führer with matters of “rectification,” “inadequate rulings,” and so on, but to settle them between the
Reichsführer
-SS and the ministry in the form of a centralized procedure and to have recourse to the head of the Party Chancellery if they could not come to an understanding. On this basis the head of the Security Police and the Security Service could either “propose” a rectification of certain rulings to the judiciary (by lodging a plea of nullity) or make a formal “application” for rectification and have the prisoner handed over to them. Whole lists of “contested” judgments were now regularly communicated to the Reich Ministry of Justice. For his part, the minister of justice could “suggest” to the Security Police that police custody be imposed against convicted people after they had served their sentence.
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The stronger position thus obtained by the police meant that “rectification” in the form of the execution (“special treatment”) of prisoners of justice now became regular practice and was no longer regarded as the exception. The matter was settled in discussions between Thierack and Himmler on September 18, 1942; they agreed that such corrections should become the instrument to change “unsatisfactory” rulings. A certain “concession” by the police would be the rule that the minister of justice and not the police should decide on the question of “special police treatment” (execution) as a measure of “balancing out overly lenient sentences.” If he and the
Reichsführer
-SS agreed about “special treatment,” it was carried out. Otherwise the head of the Party Chancellery was called in.
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The procedure was similar to that for applications for rectification of judgements: the head of the Security Police and the Security Service provided the Reich minister of justice, by way of the Party Chancellery, with regular lists of the names of people sentenced to imprisonment with an application for “special treatment.” The applications contained brief explanations.
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Himmler received further additional powers from the Reich minister of justice. In particular, this concerned jurisdiction over so-called asocial individuals, which had long since lost all relation to the prosecution of criminal acts. In the discussion of September 18, 1942, the result of which was explicitly sanctioned by Hitler and was in line with his own wishes,
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Himmler and Thierack agreed to hand over “asocial elements” to the Gestapo for “destruction through work”;
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“in this war of survival,” it was “insupportable that a large number of asocial elements enjoy security” in German prisons and protective custody, and there was “no call to feed and treat these prisoners as had been done in the past.”
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“Asocial elements” in this sense above all referred to people in protective custody, of whom there were 6,716 in June 1942,
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and penitentiary inmates serving long sentences, who in the opinion of the minister had “placed themselves out of the community of the German people” through their acts and numerous previous convictions. All convicted Germans and Czechs who had been sentenced to more than eight years’ imprisonment were handed over to the Gestapo,
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followed by other groups of prisoners held by the judiciary (see the following section).

3. Police “Rectification” Measures in the Prosecution of “Non-Germans”

a. Collaboration between the Reich Ministry of Justice and the Police:“Non-Germans” Are Handed Over to the Gestapo

To date, the “rectification” measures of the Gestapo, however far they went, were never enough for the police leadership, since they were isolated instances that left the judiciary as an institution intact. At least as regards the imposition of protective custody, all judicial acts such as the finality of the decision still required the seal of the justice branch. What the police wanted, in spite of all the successes they had obtained so far, was to take over the authority of the judiciary de jure and de facto for certain offenses (“political and serious criminality”) and certain categories of people (“non-Germans,” “habitual criminals,” etc.). Their efforts to achieve this centered on the prosecution of “non-Germans,” particularly Jews and other “asocial” foreigners, since this fitted best into the racial concept of the day and had the best chance of acceptance. Since, furthermore, these categories were in any case considered inferior and nefarious to the community, and it was easy to brand them with the Nazi theories of enmity or asocial behavior typical of offenders who were foreign to the race or the community, scant resistance was to be expected from the judicial leadership to efforts by the police to take over the prosecution of the offenses they committed. Indeed, in his agreement with Himmler of September 18, 1942, the Reich minister of justice expressly approved these plans.
¹
“Asocial” individuals, as understood in that agreement, included Jews and “non-Germans” from the East (Poles, Russians, Gypsies, etc.), whatever their offense. The agreement must be seen as one element of the over-all aim pursued by the police leadership and the judical authorities to make justice available exclusively to Germans, leaving the police generally responsible for “hostile aliens.”
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In other words, the fundamental tenet of penal law of punishing the individual act according to the specific motives of the offender should be reserved for Germans, whereas “hostile aliens” were to be dealt with by the police without any consideration of personal motives, but exclusively from the viewpoint of their danger to public security and order.
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This plan was successfully resisted by the Reich governors in the Annexed Eastern Territories, who feared that handing over Polish prisoners of justice could cause unrest among the people. In a discussion with Thierack and State Secretary Wilhelm Stuckart from the Reich Ministry of the Interior on November 13, 1942, they firmly refused the project,
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whereupon on December 13 Himmler surprisingly informed Thierack that, given the circumstances, he was no longer interested in settling the question “in the form discussed.”
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b. Usurpation of Sentencing Powers in Specific Domains

For the police, however, the failure of this plan was only a matter of form, since the Thirteenth Decree to the Reich Citizenship Law,
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legalizing the police procedures with respect to the prosecution of Jews, had made the agreement of September 18, 1942, dispensable. But Himmler was not a man to allow pragmatic objections to get in the way of his intention of having other “non-German” “offenders” handed over. Since an agreement had not sufficed to bring about the delimitation of the jurisdiction, the Security Police resorted to the well-tried maneuver of eroding the authority of the judiciary by secret decrees issued without the latter’s knowledge. Thus, the method covered police operations with a veneer of legality and had the advantage of avoiding disputes about jurisdiction while nevertheless sowing uncertainty and confusion in the ranks of the judiciary.

Regarding “non-Germans,” Himmler could be sure of forbearance or even tolerance on the part of the Reich minister of justice. At the meeting of December 13, 1942, the two had agreed in principle that the basis for the new prosecution of “non-Germans” should no longer be the German Penal Code but rather decrees issued by the
Reichsführer
-SS.
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The “legal basis” for the developing practice of the Security Police was the secret decree of March 8, 1940,
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issued by Hermann Göring in his capacity as plenipotentiary for the Four Year Plan, empowering the
Reichsführer
-SS and chief of the German police to “secure” the conduct of Polish civilian workers in the Reich territory by way of administrative instruments. Himmler had always interpreted this as a general license to circumvent the powers of the judiciary, and he had instructed all Security Police units to punish every “digression” by Polish workers with police measures only, applying “special treatment” (execution) in the most serious cases.
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As time went on, the police unilaterally extended this authorization, which had originally been conceived only for Polish civilian workers, to all “non-German” workers in the Reich, including those from Western and Northern Europe in addition to Eastern Europeans.
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aa. So-Called Political Crimes (Including
Nacht und Nebel
Cases and Racial and Sexual Offenses)

In this context we are focusing especially on so-called political crimes (in the contemporary broad sense of the term), which from the very beginning had been dealt with primarily by the Gestapo; that is to say they were not brought before the courts. The rule was the execution of the prisoner or “custody” in a concentration camp for an unspecified period.
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The so-called
Nacht und Nebel
(night and fog) regulations related to quite general offenses (i.e., not only those endangering military security) committed by “non-Germans” in certain occupied territories, as well as to “political” ones.
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The procedure was originally in the hands of the judiciary but was increasingly taken over by the police.

The
Nacht und Nebel
proceedings were based exclusively on Führer decrees and directives issued by Hitler personally, especially his instruction of December 1, 1941, which in the form of a decree of December 7, 1941, signed by Wilhelm Keitel as chief of the Wehrmacht Supreme Command, became known as the
Nacht und Nebel
decree.
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Under its terms and the corresponding directives issued on the same date, all “non-Germans” in the occupied territories in the West and the North (Belgium, Netherlands, occupied France, Norway) who had committed an offense against the German occupying power were to be tried by the special courts or, in the case of “serious political crimes” (secs. 80 ff., Penal Code), to be brought before the People’s Court in the Reich territory (so as to avoid unrest in the local population), except when the military courts adjudicated the case on the spot.
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In line with Hitler”s wish, the death penalty was in principle imposed in
Nacht und Nebel
cases.
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