The Nizkor Project: Remembering the Holocaust (Shoah)

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By Dr. SEIDL, Continued:

I now turn to the separate accusations brought against the
defendant, and their legal aspects. The defendant Frank is
accused of having approved of and participated in War
Crimes, and Crimes Against Humanity in the administration of
occupied territory.

As the law stands, it rests on the principle that only a
sovereign State, not an individual, can be a subject of
International Law. To make International Law binding on an
individual, International Law itself would have to lay down
that a certain set of facts constitutes a wrong and that the
rule thereby established is applicable to an individual
creating such a set of facts. Only in that way can r
individuals, who under the law as it stands, are subjected
only to municipal criminal law, by way of exception be bound
directly by International Law.

Deviating from this rule, operative International Law, in
exceptional cases only, permits a State to punish the
national of an enemy State, who has fallen into its power if
before his capture he has been guilty of infringing the
rules of war. But even here, punishment is excluded if the
deed was not committed on the person's own initiative, and
can only be attributed to his State of allegiance. Moreover,
the conception of war crimes and their factual
characteristics are the subject of great controversy, both
in judicial decisions and in legal literature.

Nor do the Hague Rules on Land Warfare, which form the Annex
to the IVth Convention on the Laws and Customs of War on
Land, and purport to be a codification of certain sections
of the law of war, list any sets of facts which could be
interpreted as a basis for the criminal liability of
individuals. In Article 3 of this Convention it is, on the
contrary, expressly provided that not individuals but the
State that has infringed the rules, may, under certain
circumstances, be liable to pay an indemnity and is also
responsible for all acts done by persons belonging to its
armed forces.

In connection with the Hague Rules for Land Warfare of 1907,
the following should also be noted.

The principles therein enunciated were evolved from the
experience of wars in the nineteenth century. Those wars
were confined in the main to the armed forces directly
concerned in them.

Now, even the First World War overstepped this framework,
and not only in respect of the geographical extent of the
bellicose conflicts. On the contrary, the war became a
struggle for extermination of the nations concerned, a
struggle in which each belligerent party utilised the whole
of its war potential and all its material and spiritual
resources. War technique having been meanwhile brought to
perfection point, the second World War was bound to destroy
altogether the framework set up for the conduct of war by
the Hague Rules for Land Warfare. That is easily shown by
circumstantial evidence: the present condition of Europe
today reveals this. If we remember in addition that in
Germany alone the greater part of almost every city has been
destroyed as a result of bombing raids; and not only that,
but that considerably more than a million civilians thereby
lost their lives and that in a single major raid on the city
of Dresden almost 300,000 people were killed, then it will
be possible to realize that the Hague Rules for Land Warfare
(at any rate in respect of many activities coming under the
rules of war) can no longer be an adequate expression of the
laws and customs to be observed in waging war. But if any
doubt should exist on this subject, then that doubt will
certainly be removed on contemplation of the consequences of
the two atom bombs which razed Hiroshima and Nagasaki to the
ground and killed hundreds of thousands of people.

Taking these circumstances into consideration, it is not
possible on the basis of the provisions of the Hague Rules
for Land Warfare, even indirectly and by way of analogy, to
establish individual criminal liability.

                                                  [Page 287]

Seeing that this is the case, it must be looked upon as
impossible to give a clear, general definition of the
factual characteristics of so-called war crimes. Referring
to the fact that even Article 6 of the Charter of the
International Military Tribunal only purports to furnish a
list of examples, it will be realised that the question as
to whether a certain line of conduct amounts to the
commission of a war crime or not, can only be answered on
the merits of each particular case, and then only if all the
circumstances are taken into consideration.

In the course of the presentation of evidence of the
personal responsibility of the defendant Frank, the
prosecution submitted as Exhibit USA 609 (Document 864-PS)
minutes of a conference held by the Fuehrer with the Chief
of the OKW on the future form of Polish relations to
Germany. This conference took place on 17th October, 1939.
It is alleged that these minutes alone, in which the
administrative goals of the defendant Frank in the
Government General are said to be established, reveal a plan
or conspiracy at variance with the laws of warfare and
humanity. This is an inadmissible conclusion, at least in so
far as the defendant Frank is concerned.

The prosecution was unable to prove that the Fuehrer
entrusted the defendant Frank with a task in conformity with
the administrative aims demanded in that conference.
Moreover, this seems very unlikely, because the directives
laid down at that conference dealt mainly with measures
which could be carried out, not by the general
administration, but only by the Security Police, the SD and
the other organs and offices under Reichsfuehrer SS Himmler.
In this connection special mention should also be made of
the powers entrusted to Reichsfuehrer SS Himmler (before the
date of that conference) in his capacity of Reich
Commissioner for the Consolidation of the German Nation.
Actually, there is at the end of Exhibit USA 609 a reference
to a commission with which Himmler was charged. In
consideration of the fact that the defendant Frank, in the
course of a short interview with Hitler, about the middle of
September, 1939, had been told to take over the civil
administration of occupied Polish territory as Chief of
Administration and did not see Hitler for a very long time
after that, it can safely be assumed that the directives
laid down at the conference between Hitler and the Chief of
the OKW were intended, not for the defendant Frank, but for
Reichsfuehrer SS Himmler, who was the only person to have
the necessary executive organs at his disposal.

THE PRESIDENT: We will adjourn now.

(A recess was taken.)

DR. SEIDL: Another document to which the prosecution has
referred and which is also alleged to show the criminality
of the administrative aims of the defendant Frank, is
Exhibit USA 297. The content of this document is a
discussion which the defendant Frank is said to have had on
3rd October, 1939, with a certain Captain Varain. The
defendant Frank testified in the witness-box that he had
never made any such or similar statements to an officer.
Moreover, a comparison of the dates shows that this
conversation, even if it did take place, could have no
connection with the subject of the conference between the
Fuehrer and the Chief of the OKW, the latter not having been
held till 17th October, 1939; that is, at a later date.

Not as part of the evidence presented in connection with the
personal responsibility of the defendant Frank, but in
connection with the accusation of so-called. Germanisation,
Exhibit USA 300 (Document 661-PS) was submitted. This is a
memorandum entitled, "Legal aspects of German Policy towards
the Poles from the ethno-political point of view." According
to a note on the title page, the legal. part of this was to
serve as a model for the Committee of the Academy for German
Law which dealt with legal nationality questions. This
document can have no probative value in connection with the
personal responsibility of the defendant Frank. He testified
in the witness-box that he had given no instructions for the
writing of that memorandum and that he was not aware of its
content. Over and

                                                  [Page 288]

above this, it would seem that no substantive evidential
value can be attached to that document within the scope of
this whole trial.

Nor is it evident from the memorandum who wrote it or who
gave instructions that it should be written. Its whole form
and content would seem to show that it is not an official
document, but rather the work of a private individual. It
was stated to have been found at the Ministry of Justice in
Cassel. But in actual fact there has been no Ministry of
Justice at Cassel for many decades. All these circumstances
would point to the material probative value of this document
as being at least extremely small.

But whatever the evidential value of minutes of conferences
that took place in the year 1939 on the occasion of the
establishment of the Government General, the following
should be pointed out:

In judging the conduct of the defendant Frank, it is not of
such essential importance to know what Hitler, he himself,
or other persons said on one occasion or another, but what
policy the defendant Frank actually pursued towards the
Polish and Ukrainian peoples. And here there can be no
possible doubt - on the basis both of the general result of
the evidence and in particular of entries in the diary of
the defendant himself - that he repudiated all tendencies
and measures designed to effect Germanisation. That is shown
with great clarity by the extracts, from the diary which I
have submitted to the Tribunal. Thus, on 8th March, 1940, he
declared at a meeting of department chiefs, i.e., to an
audience of men who as leaders of the various main
departments were deputed to put his directive into Practice:

  "I have been charged by the Fuehrer to look upon the
  Government General as the home of the Polish people.
  Accordingly no Germanisation of any sort or kind is
  possible. In your departments you will please see that
  the two-language principle is strictly observed; you will
  also point out to district and provincial officers that
  no violence is to be used in opposing such safeguarding
  of separate Polish existence. We have in a certain sense
  herewith taken over on trust from the Fuehrer the
  responsibility for Polish national life."

This declaration alone makes it apparent that the directives
laid down in the conference between Hitler and the Chief of
the KOW on 17th October, 1939, and contained in Exhibit USA
609, Document 864-PS, cannot possibly have been made the
subject of the duties with which the defendant Frank was
charged. On the other hand, in view of the entire work done
by the Higher SS and Police Leader Fast from the first day
of his appointment, it can safely be assumed that it was
Reichsfuehrer SS Himmler whom Hitler charged with carrying
out the directives laid down at his conference with the
Chief of the OKW.

A diary entry of 19th February, 1940, is on the same lines;
in this the defendant Frank advocates the formation of a
Polish government or regency council.

On 25th February, 1940, at a service conference of
departmental chiefs and district and municipal commanders of
the District of Radom, the defendant Frank gave out in
programme form his directives regarding general
administration. On this occasion the defendant Frank said
among other things:

  "(1) The Government General comprises that part of the
  occupied Polish area which is not a component part of the
  German Reich ....
  (2) The Fuehrer has decreed that this territory is to be
  the home of the Polish people. The Fuehrer and General
  Field Marshal Goering have impressed on me over and over
  again that this territory is not to be subjected to
  (3) In accordance with the instructions we have received
  under the Fuehrer's decree Polish laws, will remain in
  force here."

On 7th June, 1942, the defendant Frank stated word for word
as follows:

  "It is not as rulers by violence that we come into this
  country. We have no terroristic or oppressive intentions.
  Welded into the interests of Greater Germany, the human
  rights of the Poles and Ukrainians in this territory are
  also safeguarded by us. We have not taken away from the
  Poles and

                                                  [Page 289]

   Ukrainians either their churches, their schools or their
  education. The German does not wish to de-nationalise by
  violent means. We are sufficient unto ourselves, and we
  know that people must be born into our community, and
  that it is a distinction to belong to it. And that is why
  we can look the world in the face with this as our work."

These examples could be amplified by many more, which all
show clearly that the measures taken, at any rate by Frank,
were intended to care for the Polish nation and that he
repudiated any terror policy.

I come now to the so-called "Extraordinary Pacification
Action." When the campaign against Poland had ended in
September, 1939, that did not mean that all resistance had
ceased. Very soon afterwards new centres of resistance
sprang up, and when on 9th April, 1940, German troops
occupied Denmark and Norway and on 10th May, 1940, the
German Western Army had begun their attack, the leaders of
the Polish resistance movement believed that, in the light
of the general political and military situation, the time
for action had come. This resistance movement was all the
more dangerous because scattered but not inconsiderable
remnants of the former Polish Army were active in it. A
large number of entries in the diary of the defendant Frank
show that the security situation worsened from day to day
during that period. Here, for instance, is an entry for 16th
May, 1940:

  "The general war situation requires that the most serious
  consideration be given to the internal security situation
  of the Government General. A large number of signs and
  actions lead one to the conclusion that there exists a
  widely-organized wave of resistance on the part of the
  Poles in the country, and that we are on the threshold of
  violent happenings on a large scale. Thousands of Poles
  are already organized in secret circles; they are armed
  and are being incited in the most seditious manner to
  commit all kinds of violence."

Because of this menacing general situation, the order was
given - as the diary shows, by the Fuehrer himself - that in
the interest of the maintenance of public security, all
measures were to be taken to suppress the imminent revolt.
That order was given through Himmler to the Higher SS and
Police Leader. The administration of the Government General
had at first nothing to do with it. It intervened, however,
in order as far as possible to prevent the Security Police
and the SD from taking violent measures and to make sure
that innocent people should under no circumstances lose
their lives.

The testimony given by the defendants Frank and Seyss-
Inquart in the witness-box and the evidence given by the
witness Dr. Buehler, have shown that the efforts made by the
administration of the Government General were so far
successful that all the members of the resistance movement
rounded up by this special action were brought before a drum-
head court martial introduced by a decree issued in the year
1939; and moreover, the decisions of this court were not
carried out before being submitted to a Pardon Board which
in many cases modified the sentence. The Chairman of the
Pardon Board was, until his appointment as Reich
Commissioner for the Netherlands, the defendant Dr. Seyss-
Inquart. As his testimony revealed, no less than half the
death sentences pronounced by the summary court were
commuted to imprisonment by the Pardon Board. For the rest,
as regards the so-called extraordinary pacification action,
I refer to the oral testimony and to the extracts from the
diary of the defendant Frank which I read into the record.

Within the framework of the charges against him personally,
the defendant Frank is accused of having supported the
resettlement plans of the Reich Commissioner for the
Consolidation of the German nation (Himmler) and of having
thereby also committed a war crime. There is no doubt about
it that resettlements, even if they are carefully planned
and well prepared, mean great hardship for those who are
affected by them; in many cases a resettlement means the
destruction of a person's economic existence. Nevertheless,
it seems doubtful whether the

                                                  [Page 290]

effectuation of re-settlements constitutes a War Crime or a
Crime Against Humanity, for the following reasons:

Germany today is being flooded with millions of people who
have been driven from their homes and who own no property
but what they carry with them. The misery thereby caused,
which is bound to increase to an immeasurable degree in
consequence of the devastation wrought by the war, is so
terrible that the bishops of the Cologne and Paderborn
ecclesiastical districts were moved, on 29th March, 1946, to
bring this state of affairs to the attention of the whole
world. Among other things they said:

  "Some weeks ago we found occasion to comment on the
  outrageous happenings in the East of Germany,
  particularly in Silesia and Sudetenland, where more than
  ten million Germans have been driven from their ancestral
  homes in brutal fashion, no investigation having been
  made to ascertain whether or not there was any question
  of personal guilt. No pen can describe the unspeakable
  misery there imposed in contravention of all
  consideration of humanity and justice. All these people
  are being crammed together in the rump of Germany without
  means to found an existence there. It cannot be foreseen
  how these masses of people who have been driven from
  their homes can become other than restless and peace-
  disturbing elements."

I am not mentioning this in order to point out the enormous
dangers connected with such measures, dangers which must
arise alone out of the fact that in view of her envisaged
deprivations of territory, Germany - with an area reduced by
22 per cent as compared with 1919 - will have to feed a
population increased by 18 per cent, and that in future
there will be 200 inhabitants to the square kilometre. I am,
further, not pointing to this state of affairs to show that
if the present economic policy is continued and the so-
called industrial plan is maintained, Germany is heading for
a catastrophe, the consequences of which cannot be confined
to the German people. The evidential relevance of these
facts is, however, shown by the following:

Millions of Germans were driven from their ancestral homes
in accordance with a resolution taken at Potsdam on 2nd
August, 1945, by President Truman, Generalissimo Stalin and
Prime Minister Attlee.

GENERAL RUDENKO: Mr. President, excuse me for interrupting
the defendant's counsel, but it seems to me that his legal
considerations and the criticism of the decisions taken at
Potsdam have no bearing on the present case.

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