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 3 of 9)

[Page 286]

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 Germanisation.

(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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