The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Sixth Day: Thursday, 11th July, 1946
(Part 1 of 9)

[Page 277]

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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