"Non-Germans" Under the Third Reich (87 page)

The essential element of these proceedings, which were processed by Department 4 (criminal jurisdiction) in the Reich Ministry of Justice, was absolute secrecy
¹⁶
—this in contrast to the special criminal law for Poles, which for deterrent purposes enjoyed a certain degree of publicity both within the judiciary and outside. This was an insidious form of justice perfectly described by the German alliterative phrase
Nacht und Nebel
(night and fog).
¹⁷

It is not surprising that the SS and the police took over this most “political” of all discriminatory legislation and ensured that “non-Germans” should come less often before the courts for trial, for on account of the formal independence of the judiciary, there was always the risk of a “miscarriage of justice” (i.e., acquittal). The ground gained by the police had been prepared (probably from the very start) by the fact that on instructions by the Reich Ministry of Justice, defendants who were acquitted or who, having been convicted, had served their sentence were to be handed over to the Gestapo, which decided on the “further measures” to be taken.
¹⁸
Although the special courts of Kiel, Essen, Cologne, Dortmund, and Berlin,
¹⁹
which were responsible for the jurisdiction of
Nacht und Nebel
matters, and the People’s Court worked extremely fast,
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awarding hundreds of death sentences,
²¹
the special courts were active in
Nacht und Nebel
cases only for about two years. In the fall of 1944, Hitler ordered that the proceedings should no longer be undertaken by the courts-martial and special courts but that the prisoners should be immediately given over to the Gestapo.
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Once a person was caught up in a
Nacht und Nebel
procedure, there was no chance of saving his or her life or freedom.
²³

Another item on the priorities list of the police was to gain jurisdiction over all “other dangerous offenses committed by ‘non-Germans’ threatening the German
Volksgemeinschaft
.” This included all contacts between Germans and prisoners of war and sexual offenses by “non-Germans,” in which Himmler as the
Reichsführer
-SS had always shown particular interest. Under the terms of a secret decree issued on March 11, 1942, by the
Reichsführer
-SS and chief of the German police, all reports of an offense were to be transmitted to the appropriate Gestapo directorate.
²⁴
If the offender was “racially undesirable,” he or she was generally executed (“special treatment”),
²⁵
or at best (i.e., if the racial evaluation was positive) such offenders were “punished” with detention in a concentration camp, a principle applied above all to “racially undesirable” members of East European nations.
²⁶
In an effort to “take care of the continued racial existence of the German nation,” the
Reichsführer
-SS and chief of the German police created by way of an unpublished circular decree dated December 7, 1942,
²⁷
the new “offense” of unauthorized sexual intercourse, punishable by death.
²⁸
This decree was, however, only a repetition of earlier orders of September 1940 and July 5, 1941, under which it already carried the death penalty. The corresponding directives had called for the execution not only of “non-German” offenders from the East but also of offenders of Western origin, that is, from France, Belgium, and Britain,
²⁹
whereas the circular decree of December 1942 excluded these last from the death penalty. In order to “maintain the ethnic entity (
Volkstum
),” the decree outlawed sexual intercourse between Germans and Poles, Russians, and other “Eastern workers”; it was permitted but “undesirable” in the case of other nationals. With this move Himmler found himself in agreement with the viewpoint of the judiciary, for which, as we have seen, indecency and sexual relations between Poles and Germans had since 1942 been prosecuted as anti-German behavior under the terms of clause 1, par. 3, of the Decree on Penal Law for Poles, provided the man was not a German.
³⁰
Such cases rarely came before the courts, however. From the beginning of the war, the great majority of cases were dealt with by the police on the basis of the directives mentioned, without the judiciary being involved or informed. Such offenders were generally executed publicly as a deterrent measure.
³¹

bb. Labor Law Offenses

A further category of offenses that were prosecuted exclusively by the police were so-called breaches of labor contract and “disciplinary problems” involving “non-German” workers in the workplace. Because the police declared such matters to be a question of internal security, they were generally removed from the jurisdiction of the Reich Labor Administration and the judiciary and dealt with by the Gestapo. This argument also met with substantial agreement on the part of the labor administration, since it considered security matters to be outside its normal purview and in any case “non-Germans” were always seen as such. Disciplinary labor offenses thus no longer carried a relatively mild sanction (an administrative penalty, a fine, or imprisonment) but were regularly punished by committal to a concentration camp or “work camp.”
³²

c. General Usurpation of Jurisdiction

Starting with the total responsibility for “hostile” “non-Germans” by the police, it was inevitable that this usurpation of jurisdiction should be extended to the entire prosecution of “non-Germans.”
³³

aa. Decree of the
Reichsführer
-SS and Chief of the German Police, January 19, 1942

The major step in this process was Himmler’s decree of January 19, 1942, according to which all criminal acts by Polish civilian workers were to be dealt with by the Gestapo, to which the relevant information was to be sent immediately, and not by the public prosecutor.
³⁴
The Gestapo was then free to pass on the affair to the judicial authorities or to deal with it itself. In the latter case—which was the rule—the usual sanctions (concentration camp or “special treatment” in the case of serious offenses) were then imposed.
³⁵
This decree needs to be viewed in connection with the Decree on Penal Law for Poles of December 4, 1941,
³⁶
which, though it introduced a whole discriminatory legislation for Poles and Jews, had at least maintained the jurisdiction of the lower courts and the special courts, so that the later decree may be regarded as a substitute for the unsuccessful attempts of the police leadership to get hold of direct jurisdiction over “non-Germans.” It is significant that no one objected to the contradiction with the Decree on Penal Law for Poles. In line with the complete absence of the checks and balances of the rule of law, the decree did not in fact mark the beginning of the autocratic activity of the Gestapo but—like other relevant decrees—was rather a legalization after the fact of practices that had long been established.

A further secret decree issued by Himmler as
Reichsführer
-SS and chief of the German police, dated February 20, 1942, extended the Gestapo’s general jurisdiction to the workforce of the Occupied Soviet Territories (so-called Eastern workers).“Serious” offenses were punished by concentration camp or “special treatment” (hanging). Similar treatment was meted out to all workers of “Polish” and “non-Polish” nationality from the General Government and the Annexed Eastern Territories.
³⁷

The category of serious offenses comprised above all political acts (“hostile tendencies against the state”), violent crime, sexual offenses, and “sabotage,” all of which were comprehensively interpreted by the police, without which the list would have been mere enumeration. Rather, the reason for the listing was simply that, under the terms of the decree, all these cases were in principle subject to “special treatment” and that their surrender to the courts could only be considered when it was certain that the death sentence would be obtained. If, “against expectation,” the death sentence was not passed, the
Reichsführer
-SS and chief of the German police was to be informed and a copy of the ruling sent to him. He then demanded delivery of the prisoner in order that “special treatment” could be exercised. Poles and Jews who had committed “milder” (“purely criminal”) offenses were to be handed over to the public prosecutor, on the proviso that in the event of a massive increase in crime, only “State Police measures” were to be taken with a view to their deterrent effect.
³⁸
Thus, here too the involvement of the judiciary depended on the Gestapo’s judgment.

bb. The Circular of June 30, 1943, by the Reich Security Main Office (RSHA)

All these regulations made it possible for Himmler, on the pretext of “fore-going” agreements with the Reich minister of justice,
³⁹
to maintain the appearance that the competence for the prosecution of “non-Germans” in principle remained with the judiciary and that the police intervened only in the case of specific categories of cases. But this still could not satisfy the boundless demands on the part of the police leadership as time went on. A secret circular decree issued by the Reich Security Main Office (RSHA) on June 30, 1943,
⁴⁰
of which the Reich minister of justice informed the chief prosecutor at the Reich Supreme Court and the chief public prosecutors by way of the decree of August 27, 1943,
⁴¹
assigned the jurisdiction of all criminality among Polish and Soviet Russian civilian workers and other “Eastern workers” in the Reich to the Security Police as a matter of principle.
⁴²
The decree quoted an alleged agreement of September 18, 1942, between the
Reichsführer
-SS and the Reich minister of justice on the transfer of the entire administration of penal justice for “non-Germans,” an agreement that, as we have seen, was never instituted. Legal proceedings against “non-Germans” were only possible “when the police so desired.” “Only cases in which adjudication by the courts appears desirable for propaganda reasons and it has been confirmed by prior contacts that the court will award the death penalty” were to be passed on to the judiciary.

In attempting to draw a picture, in conclusion, of the jurisdiction of “non-Germans” following the total usurpation of the penal authority by the police in the later years of the war, the first observation is confusion and lack of clarity. For all the various secret agreements between the judiciary and the police and the latter’s secret decrees were not made known to the lower judicial authorities. Even the presiding judges of the courts of appeal and the chief public prosecutors were informed of the instructions of the police leadership only in February 1943, by word of mouth at the ministry. Basically, therefore, the judicial authorities were not clear about the treatment of “non-Germans” and were dependent on secondhand information, unofficial communications, or “gestures” on the part of the police. It took a long time for the judicial administration to confront the situation: far too late, on August 27, 1943, it issued a decree to the chief public prosecutors (but not the presiding judges of the courts of appeal) informing them that following Gõring’s decree of March 8, 1940, in his capacity of plenipotentiary for the Four Year Plan and subsequent arrangements, “the securing of faultless behavior of civilian workers of Polish nationality and Soviet workers in the Reich territory (with the exception of the Annexed Eastern Territories) had been transferred to the police.”
⁴³
The decree produced more confusion than clarity, however, since it was couched in only general terms and gave no details of the penal powers of the police.
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The picture seen by the prosecution authorities and the courts was thus that of competitive two-track jurisdiction by the judiciary and the police, with definitions and boundaries that were unclear and impossible to overview. The legal insecurity increased, with the balance more and more in favor of the Security Police. How did this picture appear to the judiciary in detail?

4. Judicial Consequences of the Usurpation of the Prosecution of “Non-Germans” by the Police

The judiciary did what it could to retaliate in the face of the profound in-roads in its jurisdiction made by the police, which were particularly blatant with respect to sexual offenses and breaches of labor contracts by “non-Germans.” The Hamm chief public prosecutor, for example, who in his situation report of January 29, 1941, spelled out the legal insecurity caused by the competitive activities of the Gestapo, issued directives to the attorneys general of the district to the effect that the adjudication of Polish civilians was a matter for the regular system of justice, which needed to “act energetically,” and demanded that the police authorities inform the public prosecutor of criminal offenses by Polish civilian workers.
⁴⁵
Such reactions occurred only at the local level, however, and were by no means uniform.

The legal insecurity was further increased by the absence of standard instructions, information, or recommendations governing the treatment of “non-Germans,” especially foreign workers, because the Ministry of Justice was incapable of a clear line of action. Schlegelberger’s term of office (January 1941 to August 1942), was a period in which the judicial authorities were in any case constantly at odds with the Party and the police on account of the introduction of German penal law in the Annexed Eastern Territories, and though “in principle” they recognized the need for as harsh as possible treatment of “non-Germans,” their only reaction to the demands of the police was to make studied concessions that merely increased them, or to exercise greater harshness in the courts. The judiciary was neither willing nor able to recognize that the Gestapo’s encroachments were not local arbitrary acts but part of a huge, ambitious plan to completely take over the criminal prosecution of “non-Germans,” and perhaps ultimately even to exclude the justice branch from the prosecution of Germans.
⁴⁶
The judiciary was not at first informed either of Göring’s authorization of March 8, 1940, permitting Himmler to deal with the situation of Polish workers in the Reich territory, or of the subsequent police decrees extending said authorization to all “non-German” workers, so that the judiciary and the police were constantly in one another’s hair when in 1940 the first voluntary or deported foreign workers arrived in the Reich, on account of how they should be dealt with under the law.
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