[Page 290]

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]

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]

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]

". . . 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."

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

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]

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."

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