"Non-Germans" Under the Third Reich (117 page)

In 1940 and 1941 in Warsaw, for example, Jews arrested for not wearing the yellow star were sentenced to a fine or a maximum prison sentence of one year. On June 13, 1942 a Jew was condemned to five years in the penitentiary by the Warsaw Special Court. On March 27, 1943, in contrast, three Jews were fined only 150 złoty each.
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A similar story can be told for Jews found in the Aryan quarter of the city without authorization, on which count the Warsaw Special Court sentenced a Jew to three years’ imprisonment on March 15, 1942, and two others to two years’ imprisonment on March 17 and June 8, 1942, respectively.
⁹⁷

The relatively lenient sentencing practice in the General Government clearly also had practical and personal motivations. Following the initial phase of deterrence, during which jail sentences were the rule, it was soon clear that such a policy was putting excessive pressure on the prisons of the General Government.
⁹⁸
Accordingly, sentencing became milder between 1940 and 1942, with fewer jail sentences and more fines.
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The choice of the judges and public prosecutors in the General Government may also have contributed to this development. Not all the law officers of the General Government had been active in the ethnic struggle, and the enthusiasm expected of them by the political leadership was often wanting. This can be seen in the very fact that whereas a large number of justice officials initially signed up voluntarily for service in the Annexed Eastern Territories (
Osteinsatz
),
¹⁰⁰
in the General Government there was very little voluntary recruitment; the Reich administration was loath to send personnel out east, where it had no direct control of them, and the supply was already short on account of the draft. Hardly anyone was keen to serve in the General Government, where living conditions were reputed to be very much inferior to those in the Reich and many other disadvantages were to be feared.

Various horrific reports on the poor living and working conditions in the General Government circulated in the Reich, and their effect was exacerbated by the fact that promises to promote and repatriate judges posted there had not been honored. Justice officials were already dissatisfied enough and had given up hope of better days after the war. The judges and public prosecutors took particular umbrage to the fact that conditions were much better in the other branches of the judiciary, that is, the courts of the Wehrmacht and the SS and police courts, with plentiful manpower and even translation,
¹⁰¹
while the judiciary was unable to cope with the growing volume of work. The best heads were clearly not going to volunteer for service in the General Government under such conditions.

As a result, the Ministry of Justice had to accept the employment of lawyers as judges or public prosecutors and transfer them to the General Government. Most of the law officers posted to the General Government in this way probably viewed their missions without any great personal or political ambition. Another reason for the judiciary’s failure to attract ambitious individuals was the enormous caseload, many times greater than that in the Reich; the judicial authorities did nothing to relieve the situation, although transferring the prosecution of Poles for offenses among themselves to the Polish courts (sec. 1, par. 2, of the Decree on Polish Jurisdiction of February 19, 1940)
¹⁰²
would have eased the workload considerably. The mentality of the top echelons of the administration appears, however, to have precluded all possibility of transferring “sovereign rights” to the Polish courts.

EXCURSUS

The Criminal Jurisdiction of the Police

In addition to the legal and personal aspects discussed above, a major criterion for the German courts in the General Government was the fact that they were not exposed to the many burdens experienced by their counterparts in the Eastern Territories: a wide-ranging summary police court system designed to counter all forms of active resistance against the German occupying power relieved the courts from having to demonstrate whether they could exert the rigorous deterrent justice expected by the political leadership.

The police courts, for their part, did not have to fight the established judiciary or be set up illegally, as was the case in the Annexed Eastern Territories; they were incorporated into the legal system of the General Government from the start.

1. Summary Police Jurisdiction Following the Decree on Combating Acts of Violence in the General Government, October 31, 1939

The basis of the jurisdiction of the police courts was the Decree on Combating Acts of Violence in the General Government of October 31, 1939 (the Acts of Violence Decree).
¹
The drumhead courts of the SS and the police had been set up in the very first days of the occupation, and through this decree they were now elevated to the rank of independent administrators of justice;
²
thus, the police realized their aim of taking complete charge of all criminal offenses by “non-Germans” in the major branches of the law.

The legalization of police jurisdiction came about as the result of Security Police arguments that dominated the political scene. That Frank never intended these courts to become a permanent institution is clear from section 14 of the Acts of Violence Decree, which gave the governor general the right to repeal the instrument at any time. Himmler, however, as
Reichsführer
-SS and police leader, could not be expected to relinquish such powers once he had obtained them. He and Higher SS and Police Leader (HSSPF) Krüger did not dream of relaxing their grip, and at the beginning there was little pressure on them to do so. The administrative leadership was intent on maintaining good relations with the SS and the police (the subsequent differences emerged only after mid-1940)
³
and from the outset approved the idea of breaking all resistance, real or imagined, by the conquered Poles through police action rather than the courts. Governor General Frank’s Decree on Security and Public Order in the General Government of October 26, 1939,
⁴
which authorized the higher SS and police leader to promulgate police decrees without any limitation of their object or scope, was a testimony to this desire for good relations. And after the establishment of the civil administration in the new district of Galicia, the governor general himself pressed for implementation of summary police jurisdiction in this region too.
⁵

Consequently, the SS and the police were spared interminable struggles with the civil administration in order to achieve the position they desired. Attempts by subordinate offices to include the civil authority in the summary court system were blocked by the administration itself, which insisted on maintaining the jurisdiction of the police courts. For example, the judicial authority of the Kraków district proposed extending such jurisdiction to the
Kreishauptmann
, and with the support of the head of the Warsaw district, Fischer, submitted a draft amendment to the Acts of Violence Decree in February 1940.
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The initiative had no success, however, since the judicial administration, in accord with the district governor of Lublin
⁷
and Radom, claimed the existing jurisdiction in the General Government to be “completely satisfactory.”
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Thus, the power of the summary police courts persisted through the end of German control in the General Government, with no desire on the part of either the administration or the police to change it. The sole concession the Justice Department obtained was to have the name “summary police court” (
Polizeistandgericht
), replaced by “police special court” (
Polizeiausnahmegericht
),
⁹
doubtless so as at least to put on record the exceptional nature of the arbitrary justice meted out by the SS and the police. By that time, however, the power of the police was so firmly established that no amending decree was ever issued.

The desire of the police to give their courts a veneer of official justice can be seen in their proposal to grant them the right to confiscate a condemned prisoner’s property “as punishment” in addition to the death penalty. The administration was at first able to thwart this plan, but such a provision was later included in the Decree on the Possession of Firearms in the General Government of November 26, 1941.
¹⁰

The Decree on Combating Acts of Violence in the General Government of October 31, 1939,
¹¹
threatened every single offense against the German occupying force, however minor, with the death penalty exclusively and as such was virtually identical with the Decree on Penal Law for Poles,
¹²
except that it made no provision for a mitigation of the penalty in less serious cases as did the latter. The offenses covered were

acts of violence directed against the Reich or German sovereign power exercised in the General Government (sec. 1);

malicious damage to German establishments or public facilities (sec. 2) (all Jewish dwellings being classed as “German establishments”);
¹³

incitement to disobedience of decrees and instructions issued by the German authorities (sec. 3);

acts of violence toward a German on account of his German nationality (sec. 4);

arson causing damage to the property of a German (sec. 5);

complicity in such acts, including attempted acts and failure to report one of the aforementioned offenses (secs. 6, 8, 9).

Possession of firearms and failure to report such possession were also liable to the death penalty, provided the offense did not come under the jurisdiction of the military courts-martial.
¹⁴

The summary police courts were composed of a regiment commander or a battalion commander of the regular police or (from 1941 on), of a highly placed officer reporting to the commander of the Security Police and SD with a minimum rank of
Hauptsturmführer
and two members of the unit concerned.
¹⁵
As regards procedure, the rule was unlimited discretion. No statements by the accused or witnesses were recorded, merely the name of the accused, the name of the judge, the offense, and the date of conviction and execution of the sentence. Complex cases or those in which it was difficult to obtain evidence could be referred to the public prosecutor of the special court, although this was not mandatory.
¹⁶
But however deficient these regulations were in even the minimum procedural requirements, they did contain rudiments of a certain order such as was completely lacking in the summary court procedure of the Annexed Eastern Territories. There, as we have seen, it was sufficient to belong to the Polish intelligentsia or to be classed as anti-German to receive the death penalty; in the General Government at least some recognized “offense” needed to have been committed. Certainly the court records contained no more than the bare minimum of information mentioned, whereas those of the military courts-martial indicated the offense, the motives, and the evidence, albeit in telegraphic form.
¹⁷

2. The Extension of Police Summary Jurisdiction

Beginning in 1942, which was a turning point in the political and administrative development of the General Government toward a radically anti-Polish line, the already broad competence of the police courts was constantly expanded.

The first step was the enactment of the Decree on Protection of the Harvest of July 11, 1942,
¹⁸
under which all acts committed with an intent to damage or destroy the harvest were prosecuted, apparently in the belief that the General Government could supply enough food to make up the greatly increased requirements of the Reich. The decree also covered unlawful slaughtering.
¹⁹
Such offenses had hitherto been dealt with through administrative penal proceedings or the special courts.
²⁰
Now they became subject exclusively to the death penalty and were passed over to the police courts, which made ruthless use of this prerogative, particularly in agricultural areas.
²¹
Such rough justice (combined with massive police engagement in bringing in the harvest) was still not enough for the police, and despite the strained relations between the governor general and the police chief (Krüger),
²²
Frank granted them even more sweeping powers with respect to general administrative policy. For no apparent reason, given that the existing jurisdiction of the police courts was sufficient to satisfy even the most extreme ambitions of the SS and police leadership, Frank yielded to the pressures of the Security Police and, “setting aside all formal reservations,”
²³
on October 2, 1943, enacted the Decree on Combating Attacks on the German Development Effort in the General Government.
²⁴
This granted the police absolutely unlimited and uncontrollable powers, including jurisdiction over political offenses in the narrow sense of the term. The decree recognized only one single offense, expressed in the form of a vague general clause, which of course applied only to “non-Germans”: “Non-Germans who violate laws, decrees, and official orders and instructions with intent to prevent or hinder the German development effort in the General Government shall be punished by death” (sec. 1, par. 1), a formulation that by comparison with the Acts of Violence Decree of October 31, 1939, must really have appeared to be based on case law. Such a formula constituted a quite unparalleled extension of police powers.
²⁵
It gave the police unlimited authority to use their courts against acts of any type and degree that could in any way be interpreted as detrimental to German development (the secret implementing provisions included economic offenses such as black marketeering, illegal slaughtering of animals, profiteering, etc.).
²⁶
To increase the effect of intimidation, the only detail made known to the public was that all disturbance of German development would be punished by death.
²⁷
The already weak judiciary was now pushed completely into the background, and the triumph of brute force over at least a semblance of justice was firmly instated. The few rulings that have been preserved illustrate the casual manner in which the decree was implemented, death sentences being passed using preprinted forms, in contempt of all the recognized rules of procedure.
²⁸