Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-176.01
Last-Modified: 2000/09/19

                                                  [Page 277]

HUNDRED AND SEVENTY-SIXTH DAY

THURSDAY, 11th JULY, 1946

THE PRESIDENT: The Tribunal will adjourn this afternoon at
four o'clock to sit in closed session.

Dr. Seidl, will you present the case of the defendant Frank?

DR. SEIDL: Mr. President, the defendant Dr. Harts Frank is
accused in the Indictment of having utilised his posts in
Party and State, his personal influence and his relations
with the Fuehrer for the purpose of supporting the seizure
of power by the National Socialists and the consolidation of
their control over Germany. He is also accused of having
authorized, directed and taken part in the War Crimes
mentioned in Count 3 of the Indictment, as well as in the
Crimes Against Humanity mentioned in Count 4, particularly
in the War Crimes and Crimes Against Humanity committed in
the course of the administration of occupied territories.

As I have already explained in the case of the defendant
Hess, the Indictment fails to adduce any facts in
substantiation of these accusations. It is similar in the
case of the defendant Frank; here again the Indictment
contains no statement of factual details to substantiate the
accusations.

Like all the other defendants, the defendant Frank is
accused of having taken part in a common plan which is
alleged to have had as its object the planning and waging of
wars of aggression and the commission in the course of these
wars of crimes which infringe upon the laws and customs of
war.

The evidence has shown that the defendant Frank joined the
National Socialist Party in the year 1928. Both before and
after the assumption of power by the National Socialists he
was concerned almost exclusively with legal questions. The
Reich Law Department was under his control as Reichsleiter
of the Party, until the year 1942. After Adolf Hitler's
appointment as Chancellor, Frank became the Bavarian
Minister of Justice. In the same year he was appointed Reich
Commissioner for the political co-ordination of legal
institutions. This task consisted in the main of
transferring to the Reich Ministry of Justice the functions
of the administrative legal departments of the component
States, of the Reich. That was completed in the year 1934.
When the affairs of the Bavarian Ministry of Justice had
been transferred to the Reich, the office of the defendant
Frank as Bavarian Minister of Justice came to an end. In
December, 1934, he was appointed Reich Minister without
portfolio. In addition he became, from 1934 onward,
President of the Academy for German Law, which he himself
had founded, and President of the International Chamber of
Law. Finally, he was the Leader of the National Socialist
Lawyers' Association.

This list of the various posts held by the defendant Frank
in Party and State would alone be sufficient to show that
his work was almost exclusively concerned with legal
matters. His tasks were in the main confined to the
execution of Point 19 of the Party programme, which demanded
a German Common Law. And in actual fact almost all speeches
and publications by the defendant Frank, both before and
after the assumption of power by the National Socialists,
dealt with legal questions in the widest sense of the term.

In the course of his examination in the witness-box, the
defendant Frank testified that he had done everything he
could to bring Adolf Hitler to power and to carry out the
ideas and the programme of the National Socialist Party. But
whatever the defendant undertook in this respect was done
openly.

                                                  [Page 278]

The aim of the National Socialists before they assumed power
can be expressed in a few words:

Liberation of the German people from the shackles of the
Versailles Treaty; elimination of the huge number of
unemployed which had arisen in consequence of that Treaty,
and of the unreasonable reparations policy, of Germany's
former enemies; elimination of the symptoms of degeneracy -
political, economic, social and moral - to a great extent
arising from the unemployment; and finally, the restoration
of the sovereignty of the German Reich in all spheres.

The prosecution was unable to produce any evidence to show
that the revision of the Versailles Treaty was, if
necessary, to be carried out by violent means and by war.
The political, military and economic situation in which
Germany found herself before the assumption of power - a
situation in which it could only be a question of
eliminating the terrible consequences of the economic
collapse and of enabling seven million unemployed again to
play their part in the economic process - necessarily made
any serious thought of a war of aggression appear futile.

Moreover, the evidence brought forth nothing to show the
existence of the Common Plan or Conspiracy as stated in
Count 1 of the Indictment, as far as one understands thereby
a definite, precise plan among a limited constant circle of
persons. The evidence and, in particular, the testimony
given by the witness Dr. Lammers and the defendant himself
in the witness-box, has shown, on the contrary, that Frank
did not belong to the circle of Hitler's closer
collaborators. The prosecution was unable to present to the
Tribunal a single document dealing with important political
or military decisions with which the defendant Frank was
connected. In particular, the defendant Frank was not
present at any conference with Hitler which the prosecution
considered especially important for proving the alleged
common plan, the minutes of which conferences the
prosecution has submitted as Exhibits USA 25 to 34.

The only statute which is important in this connection is
the law concerning the re-introduction of general
conscription of March 16th, 1935. I have already explained
in detail what led to the promulgation of that law and why
it cannot be looked upon as an infringement on the
Versailles Treaty. The defendant Frank signed that law in
his capacity as Reich Minister, as did all the other members
of the Reich Government. That law, which had as its object
the restoration - at least in the military sphere - of the
sovereignty of the German Reich, did no harm to any other
nation. Nor did the content of that law, or the
circumstances which led to its enactment, allow the
conclusion that it was part of a common plan whose object
was the launching of a war of aggression.

The German people had been obliged to realize, during the
preceding seventeen years, that the voice of a nation
without military power, and in particular a nation in
Germany's geographical and military situation, cannot make
itself heard in the concert of nations if it has not at its
disposal adequate instruments of power. The Government of
the German Reich faced the consequences of this realization,
after equality of rights had been promised the German people
over and over again for fourteen years, and that promise had
not been kept, and in particular after it had become clear
in the years 1933 and 1934 that the Disarmament Conference
would not be capable of fulfilling its appointed functions.

For the rest, I refer to the proclamation of the Reich
Government to the German people, which was issued in
connection with the publication of that law.

Further, the work of the defendant Frank, even after the
assumption of power and up to the beginning of the war, was
confined almost exclusively to the execution of tasks
connected with the leadership of the Academy for German Law
and the National Socialist Lawyers' Association.

The objects of the Academy for German Law are apparent from
the lam concerning its establishment of 11th July, 1933. It
was intended to encourage the reform of German legal
processes and, in close and constant co-operation with the
appropriate legislative authorities, to put the National
Socialist programme into practice in the whole sphere of
law. The Academy was under the supervision

                                                  [Page 279]

of the Reich Minister of Justice and the Reich Minister of
the Interior. The function of the Academy was to prepare
drafts of statutes. Legislation itself was exclusively a
matter for the appropriate Reich Ministries for the various
departments.

One of the tasks of the Academy was to exercise the
functions of the legal committees of the former Reichstag.
In actual fact, the work of the Academy was done almost
exclusively in its numerous committees which had been
established by the defendant. Entry into the Academy was not
dependent on membership in the Party. Most of the members of
the Academy were legal scholars and eminent practitioners of
the law, who were not Party members. Moreover, it is well
known that the Academy for German Law kept up close
relations with similar establishments abroad, and that
numerous foreign scholars gave lectures in the Academy.
These facts entirely exclude the assumption that the Academy
could have played any important part in the Common Plan or
Conspiracy alleged by the prosecution. The same is true of
the position of the defendant Frank as leader of the
National Socialist Lawyers' Association.

Adolf Hitler's attitude to the conception of a State based
on law, in so far as any doubt could still have been
entertained about it, has become perfectly clear through the
evidence presented at this trial. Hitler was a revolutionary
and a man of violence. He looked on law as a hindrance and
as a disturbing factor in the realization of his plans in
the realm of power politics. Moreover, he left no doubt
about this attitude of his and spoke about States under rule
of law in a number of speeches. He was always very reserved
in his dealings with lawyers, and for this reason alone it
was impossible from the outset that any close association
could have developed between him and the defendant Frank.
The defendant Frank considered it his life's work to see the
conception of State based on law realised in the National
Socialist Reich, and above all, to safeguard the
independence of the judiciary.

The defendant Frank proclaimed these principles as late as
in the year 1939, before the outbreak of war, in a great
speech he made before 25,000 lawyers at the final meeting of
the Congress of German Law at Leipzig. Among other things he
declared on that occasion: "First, no one should be
sentenced who has not had an opportunity of defending
himself. Second, no one shall be deprived of his property,
provided that he uses it unobjectionably from the point of
view of his fellow-men, except by judicial sentence. Legal
properties in this sense are honour, freedom, life and
earnings from work. Third, an accused person, no matter
under what procedure, must be enabled to procure someone to
defend him who is capable of making legal statements on his
behalf, and he must have an impartial hearing according to
law. If these principles are applied to their full extent,
then the Germanic ideal of law is fulfilled."

These principles constitute an unmistakable repudiation of
all methods employed in a police-ruled State and imply,
moreover, the unmistakable rejection of the system of
concentration camps. The defendant Frank had actually spoken
against the establishment of concentration camps before the
date indicated. The evidence has shown that in the year
1933, in his capacity as Bavarian Minister of Justice, he
was opposed to the concentration camp at Dachau, that he
urged the application of the so-called legality principle,
that is, the prosecution of all offences by the State, even
in these camps, and that, over and above this, he demanded
the dissolution of the concentration camp at Dachau. That
this last point is a fact is shown by the evidence, taken on
commission, of the witness Dr. Stepp.

The prosecution also appears to see in the sentence "Law is
what is useful to the people" an indication of the
participation of the defendant Frank in the alleged common
plan. Such a conclusion could only be drawn from a complete
misapprehension of the idea which the defendant Frank wished
to express by means of this sentence. It is merely the issue
of a challenge to the individualistically narrow-minded
legal idea. In the same sense as is implied in the phrase
"The common good before one's own," the sentence quoted is
intended to express the

                                                  [Page 280]

demand for a legal system which, to a greater extent than in
the past, takes account of common law and socialist
tendencies. It is in reality nothing more than a different
way of saying: Salus publica suprema lex.

These material differences alone would have been sufficient
to make it unthinkable that the defendant Frank could have
belonged to the inner circle of Hitler's collaborators. The
differences of outlook in regard to the functions of law
were bound to become more apparent in the course of the war.
It could, therefore, cause no surprise that after the death
of the former Reich Minister of Justice, Dr. Guertner, it
was not the defendant Frank who was appointed as his
successor, but the president of the People's Court, Dr.
Thierack.

And to sum up: It may be said that there is no factual
foundation for the assumption that the defendant Frank
participated in a common plan, a common plan which had as
its object the waging of an aggressive war and, in
connection therewith, the commission of crimes against the
rules of war. Before I turn to the points of accusation
brought against the defendant Frank within the framework of
his career as Governor General, I will refer shortly to
responsibility under penal law as a member of the
organizations accused of criminality.

So far as Frank's responsibility as a member of the Reich
Government is under investigation, I can here refer in the
main to the statements which I will also make in the case of
the defendant Hess. The only difference lies in the fact
that whereas Hess too was only Reich Minister without
Portfolio, he had - as the Fuehrer's Deputy under the
Fuehrer's decree of 27th July, 1934 - a considerable part to
play in the preparation of laws. That, however, was not the
case with the defendant Frank. Frank had hardly any
influence at all on the legislation of the Reich. That is
why he was co-signatory of so extraordinarily few Reich
laws. With the exception of the law of 16th March, 1935, by
which general conscription was re-introduced, his name is to
be found under none of the laws which the prosecution has
presented to the Tribunal as relevant to the proof of the
criminal nature of the Reich Nazi Government as an
organization.

The defendant Frank, in his capacity as Reichsleiter and
Leader of the Reich Law Department, was also a member of the
Leadership Corps of the National Socialist German Workers'
Party. An investigation of this point of accusation seems
all the less called for, as no act can be attributed to the
defendant Frank which fulfils the requirements of any penal
law. For the rest, and apart from that, here too I can refer
to my statements in the case of the defendant Hess.

In the Annex to the Indictment, it is alleged that the
defendant Frank was a general of the SS. The evidence has
shown that Frank at no time belonged to the SS and that he
did not even have the honorary rank of a general of the SS.
On the other hand, he was an Obergruppenfuehrer in the SA.
With respect to the application made by the prosecution to
declare that organization as criminal too, the same may be
said as in the case of the application to declare the
Leadership Corps criminal. The Charter and the prosecution
here again depart from the principle which hitherto has been
considered an indispensable component of any modern criminal
law practice, namely the principle that no punishment is
admissible unless guilt has been established in every
individual case.

I now pass to the points of accusation in connection with
the career of the defendant Frank as Governor General. When
the Polish Government had left the country after Poland's
military collapse, the German occupying forces were faced
with the task of building up an administration without the
help of any parliamentary representation or any
representatives of the former Polish State. The difficulties
arising out of this situation were bound to be all the
greater because, in spite of the comparatively short time
that the war had lasted, the war damage, especially to the
communications system, was not inconsiderable. Above all,
however, the establishment of an orderly administration was
rendered more difficult by the fact that the economic unity
of the former Polish State was destroyed by its territory
being divided into three parts. Of the 388,000 square
kilometres which made up the territory of the former Polish
State, about 200,000

                                                  [Page 281]

square kilometres were taken over by the Soviet Union,
97,000 square kilometres formed the Government General,
while the rest was incorporated in the German Reich. A
change came on 1st August, 1941. On that date, Galicia was
annexed to the Government General as a new district, whereby
the territory of the Government General was increased to an
area of approximately 150,000 square kilometres with about
18 million inhabitants. This frontier delimitation made it
all the more difficult for the administration, as the
agricultural surplus produce all went to the Soviet Union,
while on the other hand, important industrial cities such as
Lodz, and above all, the coal-fields of Dombrowa, fell to
the Reich.

Directly after the military collapse of Poland, a military
government was set up to cover the four military districts
of East Prussia, Posen, Lodz and Cracow, Commander-in-Chief
General von Rundstedt being placed at the head of that
government. The defendant Frank became Supreme Chief of
Administration (Oberverwaltungschef ).

The military government ended on 26th October, 1939, with
the coming into force of the Decree of the Fuehrer and Reich
Chancellor concerning the administration of the occupied
Polish territories under the date of 12th October, 1939
Through this decree the defendant Frank was appointed
Governor General for the occupied Polish territories which
were not incorporated in the Reich and which shortly
afterwards became known as the "Government General."

As the time at my disposal is short, I will not go into
detail on the question as to whether the administration of
the territories of the former Polish State jointly
designated as the Government General should have conformed
to the principle of occupatis bellica (occupation of enemy
territory), or whether it should not rather be assumed that
the principles of debellatio (complete subjection to and
incorporation in a foreign State) were applicable in that
case.

I come now to the question of the powers vested in the
defendant Frank by virtue of his office of Governor General.
According to Article 3 of the Fuehrer Decree of 12th
October, 1939, the Governor General was directly subordinate
to the Fuehrer. The same provision placed all branches of
the administration in the hands of the Governor General.

In actual fact, however, the Governor General had by no
means such wide powers as it would seem at first sight. The
Fuehrer's Decree itself provided in Article 5, that the
Ministerial Council for the Defence of the Reich could also
make laws for the territory of the Government General.

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