"Non-Germans" Under the Third Reich (95 page)

I. The Principle of the Analogous Application of German Law (October 1939–May 1940)

During the first months of civil administration in the Annexed Eastern Territories, there were no legal regulations for the activities of the German administration, apart from a few regulations for the special courts and a number of special provisions regarding unauthorized possession of firearms, and so forth.
²

The only binding regulation was the Decree by the Führer and Reich Chancellor regarding the Division and Administration of the Eastern Territories of October 8, 1939,
³
under section 7 of which “the current prevailing law [remained] in force until further notice where it did not contradict the assimilation into the German Reich.” However, this wording was of little use, since it specified neither what the “current prevailing law” was nor what was supposed to replace this current law. When interpreting the regulation, there was therefore a question of whether the “current law” was the Polish law in force before September 1, 1939, or the law that was applied by the German authorities between September 1, 1939, and the coming into force (October 26, 1939) of the assimilation decree. The further question under discussion in legal circles was, as reported by the SD, whether only the “current law” that contradicted the territorial
changes
(for instance that required the existence of the Polish state) should be suspended, or all law running counter to the National Socialist
ideology
,
⁴
which would also have included numerous Reich regulations from the period before 1933. However, it soon emerged that these were specious questions being discussed in professional journals primarily for form’s sake and that they merely served to confirm the existing legal situation;
⁵
the courts were making political decisions “unhampered by theoretical reservations”
⁶
and were interpreting section 7 of the Führer decree of October 8, 1939, not legally but politically, contrary to the actual wording and intentions.
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Court practice adopted the Führer’s dictum “I do not believe in any law in the world that is not shielded by a power” as the dictum of the law and legal policy.
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The continuance in force of Polish law as the law of the vanquished was rejected unanimously by all courts (in the Reich district of the Wartheland) as “legally and politically impossible.”
⁹

Polish law was thus replaced by a legal system organized at the individual’s discretion.
¹⁰
In concrete terms, this meant the effect of German law, even without its formal introduction.
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“Current law” under the terms of the decree of October 8, 1939, was interpreted to mean the German law applied by the German authorities.

The question of the scope of the (indirect, i.e., analogous) application of German law would result in a further extensive, even nonsensical interpretation of section 7 of the Führer decree of October 8, 1939. Although the decree stated that the current law continued in force where it did
not
“contradict the effect of integration,” this was interpreted in practice to mean that the current Reich law applied since September 1, 1939, continued to apply only if it
corresponded
to the “effect of integration.” This restricted the Reich law to be applied: Reich law that had previously been applied only with a neutral effect was to be suspended. Any deviation from normative standards of Reich law was thus permitted, even necessary,
¹²
at any time, if demanded by the effect of assimilation, that is, by political interests. This was the starting point of the “analogous” application of German law.
¹³

The principle of the analogous application of Reich law was regarded as an instrument that could be used with ease to bridge the lack of legal regulations. In reality, this saw the judiciary facing insoluble difficulties, since neither the “legal basis” of section 7 of the Führer decree of October 8, 1939, nor any other pointers or criteria provided any details about the scope of the Reich law to be applied. The appeals to the judges for “law-creating activity” and for “awareness of their political mission,”
¹⁴
the confidence that judges would always find the right law corresponding to the “special circumstances in the East,”
¹⁵
would act as “pioneers of the law” in the “Eastern Territories,” and would continue to develop the law “creatively” and free “from all … restricting, rigid standards,” were basically phrases without substance. Neither were central measures to control events of much help in individual instances. Discussions among judges and the references by the judicial authorities “to the aims of the legal and ethnic struggle” were able, perhaps, to secure the “uniform basic position” of the judges, but whether these, as claimed by the vice president of the Posen Court of Appeal, also guaranteed “uniform adjudication” in the desired sense,
¹⁶
must be left open to doubt, because a decision had to be taken in each and every case to be judged whether German law should be applied directly or analogously or the judge should decide entirely at his own discretion.

The consequences of this unclear legal situation were confusion and legal uncertainty in the judicial authorities. It soon emerged that the slim “legal basis” of the Führer decree of October 8, 1939, and the “enthusiastic decisiveness and energy” of legal practice alone were insufficient.
¹⁷
The pressure for performing the much extolled “law-creating” activity was more of a burden than a relief to the judges and public prosecutors, most of whom came from the original Reich administration and were bound up in a traditional positivist way of thinking, and reinforced the need for the formal introduction of German law.
¹⁸
The Reich Ministry of the Interior, too, which had as early as 1935 emphasized the need for introducing German law in
each single case
of future territorial acquisitions for reasons of certainty of justice,
¹⁹
demanded the introduction of German law, but with a heavy slant on special law to the detriment of the “non-Germans.”
²⁰
In contrast, the Party leadership, as the major political power in the Annexed Eastern Territories, pursued the line that, as expressed by an official in the Party Chancellery, it would be

wrong to regard as necessary the unconditional introduction of German law … to territories in which the conditions of the original Reich would first have to be established simply to possess a secure legal basis for development. The development and total Germanization of new territories should not start with the introduction of German law, but should rather be preceded by development. Only when acts of political despotism have been eliminated and the conditions in these territories have been harmonized with those in the original Reich can any thought be given to the implementation of the complete concurrence of the law of the original Reich with the law in the new territories.
²¹

II. From the Analogous Application of German Law to Special Law (Summer 1940–Fall 1941)

However, both the Party and the Reich (judicial) administration were soon forced to realize that the “conditions were begging for explicit regulation by the law.”
²²
In view of this need, the second phase of legislative development, which should be placed roughly between summer 1940 and fall 1941, appears in retrospect to be a compromise (discussed in greater detail below) between the two views outlined above. At this point, it is sufficient to point out that the need for a more solid legal basis was met by the formal introduction of numerous Reich laws in the Annexed Eastern Territories, above all in individual areas of administrative law;
²³
as will be shown below, key elements of German penal law were also introduced by the Decree on the Implementation of German Penal Law in the Annexed Eastern Territories of June 6, 1940.
²⁴
In practice, this meant that the principle of the analogous application of German law without restriction (without any link per se to the “effect of assimilation”) was declared to be in order in cases where a penal law regulation could not be applied “directly.” Civil law experienced a similar development, with the Civil Code introduced by a decree of September 25, 1941,
²⁵
but with the stipulation of a mandatory deviation from statutory law if required by “the needs of assimilation” (sec. 4, par. 1). An increasing number of individual special regulations affecting “non-German” Poles (and Jews) were also introduced; these have already been discussed above.
²⁶
However, this did not achieve an improvement in the legal situation to the extent desired. In many instances, the former uncertain legal situation was merely continued, as in cases where no special regulations had been issued, Reich law largely applied; it was possible to deviate from the provisions of Reich law at any time, though, if such a course was dictated by political reasons.

III. The Establishment of Overt Special Law for “Non-Germans” (after Fall 1941)

In the third phase, which started around fall 1941 but overlapped with the second phase in many cases, the transition from a (still) generally applicable legal framework to overt special law for Poles (and Jews), a process initiated in the second phase, was finally concluded. This special law, embodied in particular in the Decree on the Administration of Penal Justice against Poles and Jews of December 4, 1941,
²⁷
withdrew from these “non-Germans” the few legal guarantees still remaining to them under general law (e.g., the right of appeal) and subjected them to a system of special law governed exclusively by political criteria dominated by police requirements. This was accompanied by the dissolution of the concept of legal rules and the statutory definition of offenses, such that “law” for “non-Germans” was restricted to a few vague general provisions. This completed the abolition of the unity of the legal system in favor of political tyranny and a development toward an overt emergency law for “non-Germans.” This process of the abolition of traditional principles in favor of political directives governed by police requirements is described below using examples of the development of special law in the field of penal and civil law.

B. Penal Law as a Central Element of the Special Law against “Non-Germans”

Although its general understanding of law meant that the main emphasis of the administration of justice under National Socialism lay in the area of penal law, “to maintain the striking power of the German people in the struggle against the powers hostile to Europe,”
¹
the primacy of penal law in the Annexed Eastern Territories was considerably reinforced.
²
It was naturally the most suitable means for the judiciary to “suppress the Polish nation,” in line with its task of collaborating in the “ethnic struggle.” Penal law and penal law policy in the Annexed Eastern Territories thus did not only follow the general tightening of criminal justice and the criminalization of far-reaching areas of life in the original Reich, but were additionally characterized by the “struggle against the Polish nation.”
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This was, as it were, penal law reinforced by special law. The consequence was that the judiciary was no longer thought of in the sense of
administration of justice
, even one judging by harsher standards, but rather as an “instrument of the struggle” against everything “alien,”
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and it manifested itself to the local population almost exclusively in the form of penal justice. With the idea of the unity of the legal system already thereby abandoned in principle, the second stage involved committing the courts to implementing the unequal treatment of “non-Germans” by a generally harsher interpretation of offenses and sentencing policy or by ensuring unequal treatment through the “analogous application” of German law where there was no legal basis for punishment. This erosion of the principle of
nulla poena sine lege
was the transitional phase to the decree of overt special law for “non-Germans,” which concludes the development of special law in the Annexed Eastern Territories.

I. Principles of Substantive Special Penal Law

1. Decrees of the Military Administration

In the early days of the war, special courts were established in the occupied Polish territories; their task was at first merely political, that is, to initiate the punishment of criminal offenses committed against Germans in the first days of the war (the “September crimes”).
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The basis for this was two decrees by the commander in chief of the army dated September 5, 1939, one regarding special courts in occupied Polish territory and the other on the introduction of German penal law.
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Under the second decree, German penal law (including military penal law) was to be applied
directly
by the special courts, so that “right from the outset,” there could be no “doubts about the application of the law” by the special courts.
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It is doubtful that these decrees were particularly important; neither the literature nor legal practice make any comments on whether these decrees were still valid after the end of the military administration on October 25, 1939. Even if their continuation in force is assumed, since they were never formally abolished,
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they were not obeyed. This is because after this time, German penal law was merely applied analogously: “the general and consistent application of German law [was] not considered at the time or in the future.”
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These decrees, however, certainly excluded any deviation from German penal law. In reality, this practice, glossed over as the “generous interpretation and appropriate continuation of penal law,” meant that there was a
deviation
from German penal law in order to be able to punish crimes by “non-Germans” more harshly than provided for under the law.
¹⁰
In contrast, the direct application of German penal law was approved, if it ensured the greatest possible punishment for the individual involved. For instance, the purview of German law was also antedated to the time before the occupation of Poland, with a decree by the commander in chief of the army dated October 1, 1939,
¹¹
specifying that crimes committed before September 1, 1939, in the occupied Polish territories could be judged by German courts using German penal law (although prosecution was not compulsory), with the aim of bringing before the special courts crimes by Poles against ethnic Germans committed before that date. The justification—that the Eastern Territories now annexed were “old German
Kulturland
” that had never been abandoned,
¹²
and that the Reich had been forced to assume the “moral” protection of the ethnic Germans in 1933 because the Polish state was incapable of doing so
¹³
—shows clearly the minor role played by traditional legal principles in the Eastern Territories.
¹⁴