Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-176.03
Last-Modified: 2000/09/19

DR. SEIDL: Mr. President, may I briefly define my attitude
on this?

As far as I am concerned, I do not wish to criticise the
decisions of the conference at Potsdam. However, I am
anxious to find out whether, employing the rules of the
Charter, a certain conduct which has been alleged on the
part of the defendant Frank constitutes evidence for War
Crimes or Crimes Against Humanity. It is only in the course
of investigating that question that I find myself forced to
go into the decisions of the so-called Potsdam conference
and bring them up in my argument.

THE PRESIDENT: Dr. Seidl, the Tribunal considers that your
references to the Potsdam declaration are irrelevant, and
the objection of General Rudenko is therefore sustained. You
are directed to go on to some other part of your argument.

DR. SEIDL: Mr. President, I presume that the Tribunal have
the translation of my presentation at hand. I am not quite
clear about the question as to whether the final conclusion,
which appears at Page 38, is also affected by the decision
of the Tribunal which you have just announced.

THE PRESIDENT: It is affected by that, and I think you can
pass on to Page 40, where you begin to deal with the subject
of the Jews. That is the second paragraph on Page 40.

                                                  [Page 291]

DR. SEIDL: Very well, Mr. President.

The defendant Frank is further accused of having. approved
and carried out a programme for the extermination of Jews of
Polish nationality, thereby infringing upon the laws of war
and humanity.

It is clear that in a number of speeches made by the
defendant Frank in his capacity as Governor General, he
revealed his point of view on the Jewish question. The
extracts from the diary submitted by the prosecution in
connection with this matter comprise practically everything
relevant thereto in the defendant Frank's diary of 10 to
12,000 type pages. It is not denied that the defendant Frank
made no secret of his anti-Semitic views. He spoke in detail
on this question when giving his testimony in the witness-
box.

But the question of the importance to be attached to the
diary entries submitted by the prosecution is quite another
matter. Almost all of them consist of statements made by the
defendant Frank in speeches, but there has not even been an
attempt by the prosecution to prove the existence of a
causal connection between these statements and the measures
carried out against the Jews by the Security Police.

As a result of the evidence, in particular of the testimony
given by the witnesses Dr. Bilfinger and Dr. Buehler, it can
be looked upon as certain - in connection with the secret
decree concerning the jurisdiction of the Security Police
and the SD of the year 1939, and the decree concerning the
transfer of certain tasks to the State Secretary for
Security - that all the measures concerning Jews in the
Government General were carried out exclusively by
Reichsfuehrer SS Himmler and his organs. That is true for
both the initiation and the organization of ghettoes and the
so-called final solution of the Jewish question.

As regards the latter, it may be said here, on the basis of
the testimony given by the witnesses Wisliceny and Hoess and
of the documents presented by the prosecution, that these
measures were undertaken on Hitler's express orders and that
only a small circle of persons was concerned in their
execution. This small circle was confined in the main to a
few SS leaders of Department IV-a-4-b of the RSHA and the
personnel of the concentration camps that had been selected
for the purpose.

The administration of the Government General had nothing to
do with these measures. The above facts also show that the
anti-Semitic statements by the defendant Frank submitted by
the prosecution have no causal connection with the so-called
final solution of the Jewish question. Since a causal link
must be established before the question of illegality and
guilt can even be considered, it does not seem necessary to
dwell further on the matter. All the less because the
factual elements of any punishable offences can only be said
to exist if at least an attempt has been made, that is, if
the commission of the offence has at least been begun. Under
the principles derived from the criminal law of all
civilised nations, the statements contained 1n the diary of
the defendant Frank do not even constitute preparatory acts.
In consideration of the tense and sometimes extremely
frangible relationship between the Government General on the
one hand and the Reichsfuehrer SS Himmler and the Higher SS
and Police Leader Kruger on the other, it would also seem to
be impossible to look upon the statements of the defendant
Frank as acts of incitement or complicity. The evidence has
shown on the contrary that all the efforts of the defendant
Frank to investigate the rumours about the elimination of
the Jews, at least within his own administrative district,
were unsuccessful. Only to complete the picture need it be
mentioned that the concentration camp of Auschwitz was not
in the Government General, but in that part of Poland which
was annexed to Upper Silesia. For the rest, it is not clear
whether the erection and administration of concentration
camps is in itself to be looked on as fulfilling the
requirements of a War Crime or a Crime Against Humanity, or
whether the prosecution considers the establishment of such
camps solely as part of the so-called Common Plan or
Conspiracy. Setting aside the crimes committed in the
concentration camps, and considering the nature of

                                                  [Page 292]

concentration camps to be that in which people are confined
for reasons of State and security on account of their
political opinions, and without an opportunity of defending
themselves in an ordinary court of law, it appears at least
doubtful whether an occupying power should not have the
right to take such necessary steps as this in order to
maintain public order and security. Apart from the fact that
it was not National Socialists and not Germans at all who
first established such camps, the following must be
mentioned:

In the American occupation zone alone there were, according
to a statement -

DR. KEMPNER: Mr. President, we raise an objection. This
matter is completely irrelevant.

THE PRESIDENT: Dr. Seidl, do you wish to say anything in
answer to the objection?

DR. SEIDL: Mr. President, I beg you to overrule the
objection by the prosecution, and I should like to say the
following: I am not interested in criticising an occupying
power, I am only concerned with the question of whether
certain conduct of which the defendant Frank has been
accused by the prosecution constitutes evidence of a
criminal act.

I base my case on the assumption that what is proper for one
occupying power must, under similar circumstances, be
allowed for another occupying power, especially when it is a
question of accusations made against the defendant
concerning actions carried out during the war, whilst the
state of war with Germany having ceased on 8th May, 1945, at
the very latest, these urgent reasons no longer existed to
that extent.

THE PRESIDENT: The Tribunal sustains the objection. There is
no evidence of the statements which you have made. And in
any event, the Tribunal considers them entirely irrelevant.

DR. SEIDL: I assume, Mr. President, that in that case I may
continue with the last paragraph on Page 44.

THE PRESIDENT: I think so, yes, the last paragraph.

BY DR. SEIDL:

It is not necessary to go into this matter in more detail
here, because the evidence has shown that it was the
defendant Frank who, from the first day of assumption of
power by the National Socialists, fought against the Police-
State system and, above all, stigmatised the concentration
camps as institutions which could in no way be made to
harmonise with the idea of a State resting on law. In this
connection I refer to the testimony given by the witness Dr.
Stepp to the defendant's own statement, and above all to the
extracts from the defendant's diary which I put in evidence.
The evidence has further shown that the establishment and
administration of the concentration camps lay within the
sphere of Reichsfuehrer SS Himmler's organization. The
camps, both in Reich territories and in all areas occupied
by German troops, were exclusively under the command of the
SS WVHA and/or the Inspector-General of the concentration
camps. Neither the Governor General nor the general
administration of the Government General had anything to do
with these camps.

A further point of accusation against Frank is the charge
that he supported violence and economic pressure as a means
of recruiting workers for deportation to Germany. It is true
that during the recent war many Poles came to work in
Germany, but in this connection the following should be
noted:

Even before the First World War, hundreds of thousands of
Poles came to Germany as vagrant workers. This stream of
vagrant workers continued to flow even during the period
between the First and the Second World Wars. In consequence
of the ill-fated demarcation line, the Government General
became an area that was distinctly over-populated. The
agricultural surplus areas had fallen to the Soviet Union,
whereas important industrial areas were incorporated

                                                  [Page 293]

into the Reich. Under these circumstances, because there
were no riches to be found in the soil, the only valuable
means of production lay in the working capacity of the
population. And this - at any rate for the first few years -
could not be absorbed to a sufficient extent, because the
other production factors were lacking. In order to avoid
unemployment, and above all in the interest of maintaining
public order and security, the administration of the
Government General was bound, if only for reasons of State
policy, to try to transfer as many workers as possible to
Germany. There can indeed be no doubt that during the first
years of the administration most of the Polish workers went
to the Reich voluntarily. When later, in consequence of the
continuous bombing raids, not only Germany's cities but also
her factories crashed in ruins and a not inconsiderable part
of Germany's capacity for the production of war materials
had to be removed to the Government General for reasons of
security, the aim of the defendant Frank was necessarily to
put a stop to any further transfer of labour. Over and above
this, however, the defendant Frank had from the very
beginning opposed all violent measures in recruiting labour,
and alone, for security reasons and in order not to create
new centres of unrest, had insisted that no compulsory
measures were to be used and only propagandistic methods
employed. That is certain, as shown by the testimony of the
witnesses Dr. Buehler and Dr. Boepple, and also by a large
number of entries in the diary. In my presentation of
evidence, I have already referred to several of them. Thus,
for example, the defendant Frank said among other things on
4th March, 1940:

  ". . . I refuse to issue the decree demanded by Berlin
  establishing compulsory measures and threatening
  punishment. Measures that, viewed from the outside world,
  create a sensation must be avoided under all
  circumstances. There is everything to be said against the
  removal of people by violence."

On 14th January, 1944, he made a similar statement to the
Commander of the Security Police. I quote:

  "The Governor General is strongly opposed to the
  suggestion that police forces should be used in
  recruiting labour."

These quotations could be amplified by many more.

I refer further to the evidence presented by me in respect
of the treatment of Polish workers in Germany. The defendant
Frank continuously and repeatedly pleaded for better
treatment of the Polish workers in the Reich.

For the rest, the legal position in the matter of recruiting
foreign labour does not appear to be quite clear. I do not
intend to go further into the legal questions pertaining to
this matter. The defence counsel for the defendant Sauckel
will go into this matter fully, and I just wish to say the
following:

In the literature of International Law it is undisputed that
the concept of emergency as recognized in criminal law
would, in International Law, too, preclude illegality in the
case of a violation of law committed in circumstances within
the meaning of this term.

If the vital interests of a State are endangered, the State
may, these interests being paramount, safeguard them if
necessary by injuring the legitimate interests of a third
party. Even those writers who deny the application of the
"emergency" theory to International Law - they are in the
minority - grant the threatened State the "right to self-
preservation" and therewith the right to enforce
"necessities of State," even at the cost of the interests of
other States. It is a recognized principle of International
Law that a State need not wait until the direct threat of
extinction is at its very threshold. There can be no doubt
that after the entry of the United States of America into
the war, by which, for all practical purposes, the
productive capacity and the military might of almost the
whole world were gathered together to overthrow Germany, the
German Reich was faced with a situation which not only
threatened the State as such with extinction, but over and
above that placed the bare existence of the people in
jeopardy. Under these circumstances the right of the State
leadership to make use of labour forces, even those in
occupied territory, in this defensive struggle has to be
acknowledged.

                                                  [Page 294]

In addition, the following should not be passed over: The
prosecution alleges that many if not most of the foreign
workers were brought to Germany by force, and that they were
then obliged to do heavy labour under degrading conditions.
However one may look upon the evidence on this question, the
fact cannot be ignored that there are hundreds of thousands
of foreign workers still living in Germany who were
allegedly deported thither by force. They refuse to return
to their homes, although no one now attempts to hinder them.
Under these circumstances it must be assumed that the force
cannot have been as great, nor the treatment in Germany as
bad, as is alleged by the prosecution.

Another allegation refers to the closing of the schools. It
may be left out of account whether International Law
recognises any criminal classification which would make the
closing of schools appear as a war crime or a crime against
humanity. In time of war this would seem to be all the more
unlikely, as it is well known that schooling in war time was
considerably reduced, not only in Germany, but in many other
belligerent countries. There is all the less reason to
investigate this. question more thoroughly as the evidence
has shown that the schools were for the most part already
closed when the defendant assumed office as Governor
General. During his whole period of office he left no means
untried to re-activate not only the elementary and
technical, but also the higher standard of schools. In this
connection I will only mention the university courses which
he initiated.

The Soviet prosecution has presented as Exhibit USSR 335 a
decree issued by the defendant to combat attacks against
German reconstruction work in the Government General, dated
2nd October, 1943. There is no question but that this decree
setting up a drum-head court martial is not in conformity
with that which can be regarded as correct, legal procedure
under normal circumstances. This decree can only be judged
correctly if the circumstances which led to its promulgation
are taken into consideration.

It general it should first be said that the reconstruction
work of the administration of the Government General had to
be carried on in a difficult territory and under
circumstances which must be among the most difficult that
have ever fallen to the lot of any administration. After the
collapse of the Polish State, the German administration
found, so to speak, a vacuum in which to organize and
administer. In all spheres of administration they had to
start completely afresh. If in spite of the difficulties
they succeeded fairly quickly in removing war damage,
particularly in the communications system, then that is
incontestably to their credit.

The year 1940 was, however, the only one in which the work
of restoration in the area of the Government General could
be carried out under fairly normal conditions. As the year
1941 opened, the Germans began to concentrate their troops
for action against the Soviet Union and therewith initiated
a period of immense strain for the administration of the
Government General. The Government General became the
greatest repair workshop and the greatest military transit
territory that history has ever known. This carried in its
train an increasing deterioration of the security situation.
The resistance movement began to re-organize on an
intensified scale. But the menace inherent in the security
situation developed to a still more alarming degree when the
German armies were forced to arrest their progress in Russia
and when - after the catastrophe of Stalingrad - their march
forward was transformed into a general retreat. In the
course of the year 1943, the activities of the resistance
movement and in particular of the numerous guerrilla bands,
in which thousands of anti-social elements were grouped,
reached extremes that represented a danger to any kind of
orderly administration. The administration of the Government
General was forced again and again to deal with this matter.
Thus on 31st May, 1943, a service meeting of the government
of this Government General was held to deal with the
security situation.

At that meeting the President of the Chief Department
Internal Administration felt obliged to state among other
things (I quote from the diary):

                                                  [Page 295]

  "... In their activities the guerrilla bands have
  revealed an increasingly well-developed system. They have
  now gone over to the systematic destruction of
  institutions belonging to the German administration; they
  steal money, typewriters and duplicators, destroy quota-
  lists and lists of workers in the communal offices, and
  take away or burn criminal records and taxation lists.
  Moreover, raids on important production centres in the
  country have multiplied, for instance on saw-mills,
  dairies and distilleries, railway installations and post-
  offices, and bridges are destroyed. The organization of
  the guerrillas has become strongly military in
  character."

In the course of the summer and autumn of the year 1943, the
increasing activities of the partisans and the improvement
in their military organization and equipment so endangered
security in the Government General that it might perhaps
under the circumstances have been better to turn over its
entire administration to the appropriate army commanders,
and to proclaim martial law. It is indeed not possible to
describe the conditions then existing in the Government
General as anything else but a state of war. It was the
period when at any moment the possibility had to be taken
into account that a general revolt would break out over the
whole country.

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