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 5 of 9)

[Page 295]

By DR. SEIDL, Continued:

All this notwithstanding, the defendant Frank even then made every effort to thwart any violent measures by the Security Police and the SD under all circumstances. It was in order to exercise at least a modifying influence on the Security Police and the SD, and to have at least some guarantee against excesses, that the defendant Frank agreed to the order dated 9th October, 1943, setting up drum-head courts martial.

As is quite obvious from the content of this decree, its main purpose was to serve as a general preventive. It was meant as a deterrent to the guerrillas, and there can be no question but that in this it was temporarily successful. For the rest, the evidence has shown that even while this drum- head court-martial order was in operation, the Pardon Boards continued to act and that many sentences passed by the drum- head courts martial were reversed by the Pardon Boards.

In the course of the present trial, repeated mention has been made of the report, Exhibit USA 275 (Document 1061-PS), by SS Brigadefuehrer Stroop concerning the destruction of the Warsaw Ghetto in the year 1943. Both that report and a number of other documents reveal that all the measures in connection with the Warsaw Ghetto were undertaken exclusively on the direct instructions of Reichsfuehrer SS and Chief of German Police Himmler. I refer in this connection to the affidavit of SS Brigadefuehrer Stroop of 24th February, 1946, submitted by the prosecution as Exhibit USA 804 (Document 3841-PS), and to the affidavit of the same date given by the former aide-de-camp of the SS and Police Leader of Warsaw, Karl Kaleske. That is Exhibit USA 803 (Document 3840-PS). These documents show quite clearly that those measures, like all others within the competence of the Security Police and undertaken on direct orders from either Reichsfuehrer SS Himmler, the Higher SS and Police Leader East, or on instructions from the RSHA, were carried out exclusively by the Security Police and the SD, and that the administration of the Government General had nothing to do with them.

The Soviet Prosecution has also put in evidence as Exhibit USSR 93 under Article 21 of the Charter the Report of the Polish Government. That report makes no distinction between the areas which were incorporated in the German Reich and the territories of the former Polish State which were grouped together in the Government General. But, except for particular reference to the fact that the report makes no substantial statements as to the personal responsibility of the defendant Frank, it does not seem necessary to delve further into this voluminous document. Like the Indictment itself, the report constitutes an accusation of a general nature; it does not deal in detail with the results of investigations and with evidence which might justify the conclusions drawn in the report. Thus the objections to be raised to the report must appear all the more valid, taking

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only one example in Annex (1) of the report. Directives for cultural policy are noted in evidence which are obviously intended to represent instructions given by the Governor General or his administration. Actually, however, nothing of the kind is to be found either in the order Gazette of the Government General, or in any other documents. The witness Dr. Buehler stated during his interrogation that the administration of the Government General had never issued such or similar directives. In consideration of this alone, it would seem at most admissible to attach substantive probative value only to those statements in the document Exhibit USSR 93 which are confirmed by genuine documents and other unobjectionable evidence.

According to the Indictment and in particular according to the statements in the trial brief presented by the prosecution, the defendant Frank is also alleged to be responsible for the under-nourishment of the Polish population. Actually; however, the prosecution is unable to produce any evidence to show that in the area governed by the defendant Frank there was either wide-spread hunger or starvation or that epidemics broke out. The evidence has revealed on the contrary hat the efforts of the defendant Frank in the years 1939 and 1940 were successful n inducing the Reich to deliver no less than 600,000 tons of grain. That made it possible to overcome the nutrition difficulties caused by the war.

It is true that in the following years the Government General contributed in no small degree to the war effort by itself delivering grain. But it must not be overlooked that these deliveries were made possible by an extraordinary increase in agricultural production in the Government General. And this was in its turn made possible by a far- seeing economic policy, especially by the distribution of agricultural machinery, seed-corn and so on. Nor should it be forgotten that the deliveries of grain by the Government General from the year 1941 onwards also served to feed the Polish workers placed in Reich territory, and that in general these grain deliveries were utilised to maintain the internal balance as between the European economic systems.

In a number of points of accusation the prosecution has levelled reproaches against the administrative activities of the defendant Frank in his capacity, as Governor General, without making an attempt to give an even approximately adequate description of the general work of the defendant, and without pointing but its inherent difficulties. There can be no question but that such an attitude transgresses the fundamental rules of any criminal procedure. It is a recognized principle derived from the criminal law principles of all civilised States that a uniform natural process must be judged in its entirety, and that its evaluation must rest on all the circumstances of the case which are in any way suitable for consideration by the Court when passing judgement. This would seem to be all the more necessary in the present case as the defendant Frank is accused of having pursued a long-term policy of oppression, exploitation and Germanisation.

If the defendant Frank had in truth had any such intentions, then he could certainly have attained his goal in a far simpler fashion. It would not have been necessary to issue hundreds of decrees every year, decrees which, for example, for the year 1940, reached the proportions of this volume that I hold here in my hand. The defendant Frank from his first day of office set himself to establish an economic policy which one can only call constructive. Certainly he did this partly in order to strengthen the production capacity of the German nation engaged in a struggle of life and death. But there can be little doubt that the success of his measures also benefited the Polish and Ukrainian peoples. I do not intend to go into this matter in detail. I will only ask the Tribunal in this connection to take notice of the Report given by the Chief of Government on the occasion of the 4th anniversary of the existence of the Government General on 26th October, 1943. I have included this report in the document books I put in evidence. It is in Volume IV, Page 42. The report gives a concise summary of the measures taken and the successes achieved by the administrative acts of the defendant during these four years in all fields of industrial economy, in agriculture, commerce and

[Page 297]

transport, in finance and credit system, in the sphere of public health, and so on. Only by consideration of all these facts is it possible co form an approximately correct estimate of the whole position. Incidentally, I will add that the defendant, by his administration, succeeded in reducing the danger of epidemics - in particular typhus and typhoid - to a degree which had been unattained in this area in the preceding decades.

If much of what had been achieved by the defendant Frank in the Government General was destroyed in the subsequent fighting, that can certainly furnish no grounds for reproach against the general administration, which had nothing to do with military measures.

I am certainly not going to deny that in the course of the recent war, terrible crimes were committed in the territory known as the Government General. Concentration camps had been established in which mass destruction of human beings was carried out. Hostages were shot. Expropriations took place, and so on. The defendant Frank would be the last to deny this; he himself waged a five-year struggle against all violent measures. The prosecution has put in evidence as Exhibit USA 610 (Document 437-PS) a memorandum which Frank addressed to the Fuehrer on 19th June, 1943. In this memorandum, on Page 11, he listed nine points in which he sharply condemned all the evils which had arisen in consequence of the violence practised by the Security Police and the SD and of the excesses committed by various Reich authorities, violence and excesses against which all his efforts had proved unavailing. These nine points are in the main identical with the points of accusation against Frank. The content of the memorandum of 19th June, 1943, however, shows very plainly that the defendant denies responsibility for these abuses. It reveals, on the contrary, quite clearly that neither the defendant nor the general administration of the Government General can be held responsible for the said evils, but that the whole responsibility must be borne by the institutions mentioned above, in particular the Security Police and the SD, and/or the Higher SS and Police Leader East. If the defendant Frank had had the instruments of power wherewith to abolish the evils he condemned, it would not have been necessary for him to address that memorandum to Hitler at all. He would then himself have been able to take all necessary steps. In addition to this, the evidence has shown that that memorandum of 19th June, 1943, was not the only one addressed to the Fuehrer on the matter. It is clear from the testimony of the witnesses Dr. Lammers and Dr. Buehler, and the defendant's own statements in the witness-box, that from the year 1940 onwards, he (the defendant) sent protests and memoranda at regular intervals of a few months both to Hitler personally and to the Chief of the Reich Chancellery. These written protests were invariably on the subject of the violent measures taken and the excesses committed by the Higher SS and Police Leader and the Security Police including the SD. But none of the protests met with success.

As can also be said on the basis of the evidence, the defendant Frank continually made suggestions to Hitler on the subject of improving relations between the administration of the Government General and the population.

The memorandum of 19th June, 1943, too is cast in the form of a comprehensive political programme. It includes, moreover, all the essential points of protest contained in a memorandum presented in February, 1943, to the Governor General, at his own desire, by the leader of the Ukrainian Chief Committee. This latter memorandum was put in evidence by the prosecution as Exhibit USA 178 (Document 1526-PS). Such suggestions were also consistently rejected by Hitler.

Under these circumstances it is pertinent to ask what else the defendant Frank could have done. Certainly he should have resigned. But that too he did. He offered his resignation no less than fourteen times, the first time as early as 1939. His resignation was rejected by Hitler as often as it was tendered. But the defendant Frank did more. He approached Field-Marshal Keitel with the request that he be allowed to rejoin the armed forces as a lieutenant. That was in the

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year 1942. Hitler refused his consent to that request too. These facts allow of only one conclusion, namely that Hitler saw in the defendant Frank a man behind whose back he (with the help of Himmler and the organs of the Security Police d the SD) could carry out the measures he considered requisite for attaining aims of his power policy.

When it became more and more obvious that Hitler and Reichsfuehrer SS Himmler were about to abolish the last remnants of a constitutional State, when it became increasingly apparent that the power of the police would be unlimited and that a police-State of the purest water was in process of development, the defendant Frank came forward and addressed four great speeches to the German public with a last appeal on behalf of the idea of a constitutional State. He did that when Hitler stood at the summit of his power. He addressed this appeal to the German public at a time when the German forces were marching on Stalingrad and into the Caucasus, when the German Panzer Armies in Africa stood at El Alamein, barely 100 kilometres from Alexandria. In the course of the evidence I read some extracts from these great speeches which the defendant Frank made in Berlin, Heidelberg, Vienna and Munich. Those speeches contained a clear repudiation of every form of police-State and championed the idea of the constitutional State and of the independence of the judiciary. These speeches found a tremendous echo among lawyers, but, unfortunately, not in wider circles. Nor in particular were they echoed by the men who alone would have possessed the power ward off the threatening catastrophe.

The consequences of this attempt to avert the extinction of the idea of the institutional State by a last great effort are well known. The defendant Frank s deprived of all his Party offices, he was dismissed from his post as President the Academy for German Law. The leadership of the National Socialist Lawyers' Association was conferred on Reich Minister of Justice Thierack. Frank himself was forbidden by Hitler to speak in public. Although the defendant Frank again on this occasion sent in his resignation as Governor General, Hitler refused to accept it, as he had always done before. The reason for this, as given in a letter from the Reich Minister and Chief of the Reich Chancellery to the defendant Frank, was that considerations of foreign policy had caused the Fuehrer again to refuse this latest request of Frank to be allowed to resign. According to everything that has emerged from the evidence in this trial it may be regarded as certain that it was not only (and probably not even mainly) for such reasons that Hitler refused to accept Frank's resignation.

The decisive factor was obviously the consideration that it was better policy not to let the Security Police and Reichsfuehrer SS Himmler's other organs fulfil their appointed task openly, but rather to let them continue their work under cover while maintaining a general civil administration under the Governor General.

Naturally this open breach between the defendant Frank on the one hand, and Hitler and the State police system represented by Reichsfuehrer SS Himmler and the Higher SS and Police Leader East on the other, could not fail to have repercussions on the position of the defendant in his capacity as Governor General. Still more than before the various Reich authorities now began to interfere in the administration of the Government General.

Above all, it was quite clear from the summer of 1942 onwards that the Higher SS and Police Leader East, together with the organs of the Security Police and SD subordinated to him, took no more notice at all of any instructions issued by the Governor General and the general administration.

Both in the Government General and in the Reich itself, legal institutions receded more and more into the background. The State was transformed into an unadulterated police-State, and developments took the inevitable course which the defendant Frank had foreseen and feared. The course which on 19th November, 1941, he had outlined at a congress of the principal section chiefs and Reich group leaders of the National Socialist Lawyers' Association in the following words:

[Page 299]

"Law cannot be degraded to a position where it becomes an object of bargaining. Law cannot be sold. It is either there or it is not there. Law cannot be marketed on the Stock Exchange. If the Law finds no support, then the State too loses its moral prop and sinks into the depths of night and horror."
THE PRESIDENT: We will begin again at ten minutes past two.

(A recess was taken.)

THE PRESIDENT: Dr. Pannenbecker.

DR. PANNENBECKER (for the defendant Frick): Mr. President, gentlemen of the Tribunal:

The American prosecution through Dr. Kempner has charged defendant Frick with criminal actions according to Article 6, paragraphs a, b, and c of the Charter.

I should like first to examine the question as to whether Article 6 of the Charter, with its list of criminal acts, is to be considered as the authoritative criterion of the actual penal law which would lay down, in a manner irrevocably binding on and not subject to revision by the Tribunal, what actions are to be regarded as criminal, or whether Article 6 of the Charter concerns a rule of procedure defining the competence of this Tribunal for specific situations.

THE PRESIDENT: Perhaps it will be for the convenience of the interpreters if I say that we might, as it is now nearly half-past two, sit without a break until four o'clock, when we rise.

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