Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 18

by Various

Morning Session

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. ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords. The Defendant Dr. Hans Frank is accused in the Indictment of having utilized his posts in Party and State, his personal influence, and his relation with the Führer, 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 approved, led, and taken part in the War Crimes mentioned in Count Three of the Indictment, as well as in the Crimes against Humanity mentioned in Count Four, 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 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 by 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 Program, 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 program of the National Socialist Party. But whatever the defendant undertook in this respect was done openly.

The aims 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 mass unemployment which had arisen in consequence of that treaty and the unreasonable reparations policy of Germany’s former enemies; counteraction against the symptoms of degeneracy—political, economic, social, and moral—connected with that unemployment; and finally, the restoration of the sovereignty of the 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—could not but make any serious thought of a war of aggression appear futile.

Moreover, the evidence brought forth nothing to show the existence of the common plan as stated in Count One of the Indictment, as far as one understands thereby a definite and concrete plan among a narrow uniform circle of persons. The evidence, 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 of the conferences with Hitler which the Prosecution considers especially important in proving the alleged common plan, the minutes of which conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to 34.

The only statute which is important in this connection is the Law on the Reintroduction of General Conscription of 16 March 1935. The facts have already been explained, and will be further enlarged upon, which led to the promulgation of that law and why it cannot be looked upon as an infringement of 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, admit the conclusion that it was part of a common plan with the object of launching a war of aggression.

The German people had been obliged to realize, during the preceding 17 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 Reich faced the consequences of this realization after equality of rights had been promised the German people over and over again for 14 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 law concerning its establishment of 11 July 1933. It was intended to encourage the reform of German legal procedure and, in close and constant co-operation with the appropriate legislative authorities, to put the National Socialist program into practice in the whole sphere of law. The academy was under the supervision 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 restricted to the 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. Acceptance into the academy was not dependent on membership in the Party. Most of the members of the academy were legal scholars and eminent legal practitioners 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 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 toward the conception of a State founded on law, insofar 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 an impeding and disturbing factor in the realization of his plans in the realm of power politics. Incidentally, he left no doubt about this attitude of his and discussed the subject of the State founded on 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 the State founded on law realized in the National Socialist Reich and, above all, to safeguard the independence of the judiciary.

The Defendant Frank proclaimed these principles as late as 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 the community, except by judicial sentence. Legal properties in this sense include honor, freedom, life, and earnings.

“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 will be fulfilled.”

These principles constitute a definite repudiation of all methods employed in a police-ruled State and imply, moreover, the definite 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 offenses 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 given by the witness Dr. Stepp, who was questioned elsewhere.

The Prosecution also appears to see in the sentence, “Right is what benefits the people,” an indication of the participation of the Defendant Frank in the alleged common plan. Such a conclusion could only be drawn in complete misapprehension of the idea which the Defendant Frank wished to express by means of this sentence. This was merely a challenge to the exaggeratedly individualistic legal idea. In the same way as by the phrase, “The common good before one’s own,” the sentence quoted is intended to express the demand for a legal system which, to a greater extent than in previous years, should take 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 pronounced in the course of the war. It could therefore cause no surprise that after the death of the former Reich Minister of Justice, Dr. Gürtner, it was not the Defendant Frank who was appointed his successor, but the President of the Peoples’ Court, Dr. Thierack.

Summing 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 his responsibility under penal law as a member of the organizations accused of criminality.

So far as Frank’s responsibility as member of the Reich Government is under investigation, I can here in the main refer to the statements which I shall later 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 Führer’s Deputy under the Führer’s decree of 27 July 1934—a considerable influence on 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 cosignatory of so extraordinarily few Reich laws. With the exception of the law of 16 March 1935, by which general conscription was reintroduced, 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 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 since in this respect no act can be attributed to the Defendant Frank which fulfills the requirements of any penal law. For the rest, here too I can refer to my statements in the case of the Defendant Hess.

In Appendix A 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 Obergruppenführer 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, 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 homogeneous economic area of the former Polish State was divided into three parts. Of the 388,000 square kilometers which made up the territory of the former Polish State, about 200,000 were taken over by the Soviet Union and 97,000 formed the Government General, while the rest was incorporated in the German Reich. A change came on 1 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 kilometers with about 18 million inhabitants. This frontier delimitation made it all the more difficult for the administration, as the agricultural excess production 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 Kraków, Commander Von Rundstedt being placed at the head of that government. The Defendant Frank became Supreme Chief of Administration (Oberverwaltungschef). The military government ended on 26 October 1939 with the coming into force of the decree of the Führer and Reich Chancellor concerning the administration of the occupied Polish territories under the date of 12 October 1939. Under this decree the Defendant Frank was appointed Governor General for the occupied Polish territories which were not incorporated in the Reich and which shortly afterward 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 occupatio bellica (occupation of enemy territory), or whether it should not rather be assumed that the principles of debellatio (complete subjection 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 Führer’s decree of 12 October 1939 the Governor General was directly subordinate to the Führer. 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 Führer’s decree itself provided in Article 5 that the Ministerial Council for the Defense of the Reich could also make laws for the territory of the Government General.

The Delegate for the Four Year Plan had the same power. Article 6 provided that, moreover, all supreme Reich authorities could issue decrees necessary for planning within the German living space and economic area and that these would be effective also for the Government General.

Apart from this limitation of the authority of the Governor General as provided in the Führer decree of 12 October 1939, other powers were conferred at a later date which no less impaired the principle of uniform administration. That is particularly true of the position of the Plenipotentiary General for the Allocation of Labor. I refer at this point to the appropriate documents presented by the Prosecution and the Defense, in particular to the Führer’s decree of 21 March 1942, in which it is expressly provided that the powers of the Plenipotentiary General for the Allocation of Labor extend to the territory of the Government General. The whole armament industry in the Government General was at first in the hands of the OKW, but after the establishment of the Reich Ministry for Armaments and War Production it came under the jurisdiction of the latter.

The evidence has shown that in other directions, too, the principle of uniform administration was extensively infringed upon. For this I refer to the statements of the witnesses Dr. Lammers and Dr. Bühler and to the content of the documents submitted by me, especially Document USA-135. This deals with the directives in “special matters concerning instructions Number 21 (Case Barbarossa),” in which it is expressly provided that the commander-in-chief of the Army shall be entitled “to order such measures in the Government General as are necessary for the execution of his military duties and for safeguarding the troops” and in which the commander-in-chief is empowered to delegate his authority to the army groups and armies.

All these infringements of the principle of a uniform administration of all special powers, however, pale beside the special position allotted to the Reichsführer SS Himmler also in respect of the territory of the Government General. The evidence, and particularly the testimony of Dr. Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939 when the defendant was appointed Governor General, a secret decree was issued in which it was provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Reichsführer SS and Chief of the German Police, Himmler. Similarly, it is provided in the decree of the Führer and Reich Chancellor for the Preservation of German Nationality that the Reichsführer SS shall be directly empowered to effect the planning of new German settlement areas by means of resettlements. These two decrees conferred on the Reichsführer SS Himmler powers which, from the very first day of the existence of the Government General, tended to confront its administration with almost insurmountable difficulties. It was very soon evident that the general administration under the Governor General had at its disposal no executive organs, in the true meaning of the term. Since the Higher SS and Police Leader, East received his instructions and orders direct from Reichsführer SS Himmler and refused to carry out instructions emanating from the Governor General, it was very soon seen that in reality there were two separate authorities ruling over the Government General. The difficulties which thus arose were bound to become all the greater, as Higher SS and Police Leader Krüger, who for no less than 4 years was Himmler’s direct representative in the Government General, did not even inform the administration of the Government General before carrying out police measures.

It is a well-known experience in the life of any state that an administration lacking executive police organs is in the long run not capable of carrying out its appointed functions. This is true even under normal conditions, but it must be all the more pronounced in the administration of occupied territory. If we remember, moreover, that not only did the Reichsführer SS Himmler issue his instructions direct to the Higher SS and Police Leader, ignoring the Governor General, but that over and above this the Offices III, IV, V, and VI of the RSHA also gave direct orders to the Commander of the Security Police and the SD in Kraków, we can well assess the difficulties with which the civil administration of the Government General had to wrestle day by day.

Under these circumstances the Governor General had no choice but to make every attempt to reach some form of co-operation with the Security Police, unless he was prepared to relinquish any hope of building up a civil administration in the Government General. And in fact the history of the administration of the Government General—which lasted for over 5 years—is for the greater part nothing but a chronicle of uninterrupted struggles between the Governor General and the administration on the one hand, and the Security Police with the SD as represented by Reichsführer SS Himmler and the Higher SS and Police Leader, East, on the other.

The same applies to the activity of Himmler and his organs in the field of resettlement. As Reich Commissioner for the Preservation of German Nationality, Himmler and his organs carried out resettlement measures without even establishing previous contact with the administration of the Government General or informing the Governor General.

The numerous protests of the Governor General, addressed to Dr. Lammers, the Reich Minister and Chief of the Reich Chancellery, with regard to the measures taken by the Reichsführer and the Higher SS and Police Leader, East, and the difficulties they put in the way of the administration of that territory, have been established by the evidence. These protests led in the year 1942 to an attempt at redirecting the relationship between the administration and the Police. In retrospect, it can be said today as a result of the evidence that even this attempt was only utilized by Himmler and the Security Police to undermine internally and externally the position of the Governor General and his civil administration.

By a decree of the Führer dated 7 May 1942 a State Secretariat for Security was established in the Government General, and the Higher SS and Police Leader was appointed State Secretary. According to Article II of this decree, the State Secretary for Security also became the representative of the Reichsführer SS in his capacity as Reich Commissioner for the Preservation of German Nationality. The decisive provision of this decree is contained in Article IV, in which it is stated verbatim:

“The Reichsführer SS and Chief of the German Police can issue direct instructions to the State Secretary for Security in matters pertaining to security and the preservation of German nationality.”

Herewith, the contents of the secret decree issued in 1939 on the establishment of the Government General—which also provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Berlin central offices and particularly from the Reichsführer SS in person—was expressly, and now publicly, confirmed. It is true that Article V of the Führer decree of 7 May 1942 provided that in cases of difference of opinion between the Governor General and the Reichsführer SS and Chief of the German Police the Führer’s decision was to be obtained through the Reich Minister and Chief of the Chancellery.

The Chief of the Reich Chancellery, Lammers, was interrogated on this subject when he appeared as a witness before this Tribunal. He testified that insofar as he found it possible at all to gain the Führer’s ear in these matters, the latter on principle invariably approved Himmler’s view. This is not surprising if we remember Himmler’s position in the German governmental system, particularly during the later war years. This deprived the Defendant Frank of the last possibility of influencing in any way the measures taken by Himmler and the Higher SS and Police Leader, East.

In consequence of Article I, Paragraph 3, of the Führer decree of 7 May 1942 the scope of duties of the State Secretary for Security had to be newly defined. Both the Higher SS and Police Leader and, backing him, the Reichsführer SS attempted to bring as wide a field as possible under their jurisdiction in connection with the new regulation of the competence of the State Secretariat; on the other hand, the Governor General, in the interest of the maintenance of some sort of order in the administration, naturally tried to obtain control of at least certain departments of the Regular Police and the Administration Police. There is no doubt at all that it was the Police that emerged the victor in these struggles.

On 3 June 1942 the Governor General was obliged—in a decree concerning the delegation of duties to the State Secretary for Security—to declare himself willing to transfer to the State Secretary all the departments of the Security Police and the Regular Police. I have submitted this decree to the Tribunal (together with its two Appendices A and B) in the course of the evidence as Exhibit Number Frank-4. The two appendices list all the functions of the Regular and Security Police that have ever existed in the German police system. In Appendix A, which covers the departments of the Regular Police, there are 26 headings in which not only all the departments of the Regular Police are transferred to the State Secretary for Security, but over and above that, almost all the departmental functions of the so-called Administration Police. I will only mention Heading 18 as one example among many. This transfers to the Regular Police, and thereby to the Higher SS and Police Leader, all matters connected with price control. What is true of the Regular Police applies in even greater measure to the departments of the Security Police. No change as compared with the earlier situation was brought about by placing under the jurisdiction of the Higher SS and Police Leader the whole of the Political and Criminal Police, political intelligence, Jewish affairs, and similar departments; these competencies were already his as leader of the Security Police and the SD, and were made entirely independent of the administration of the Government General under the secret decree of 1939. Departments were also transferred to the State Secretary for Security which had only the remotest connection with the tasks of the Security Police, for example, matters such as the regulation of holidays and so on.

Of considerable importance are the two last headings in the Appendices A and B, in which it is expressly provided that at conferences and meetings, particularly with the central Reich authorities, on all matters pertaining to the Regular and Security Police, the Government General—not the Governor—should be represented by the Higher SS and Police Leader. Therewith any competency possessed by the Governor General, even in regard to comparatively unimportant branches of the Administration Police, was transferred to the organs of Reichsführer SS Himmler, and the Government General was thus deprived of even the last remnants of an executive of its own.

Only by considering these facts and the development of the conditions obtaining between administration and police in the Government General is it possible to form an even approximately correct appreciation of the events in the Government General, which form part of the subject of the Indictment in this Trial.

Your Lordships, the Prosecution seeks to prove its accusations against the Defendant Dr. Frank in the main by quotations from the defendant’s diary. In this connection I have the following basic observation to make.

That diary was not kept personally by the Defendant Frank but was compiled by stenographers who were present at Government conferences and other discussions of the Governor General. The diary consists of 42 volumes with no less than 10,000 or 12,000 pages of typescript.

With one exception, the entries do not represent the outcome of dictation by the defendant, but take the form of stenographers’ transcripts. For the greater part—and this is evident from the diary itself—the authors of this diary did not record the various speeches and remarks word for word, but made a summarized version in their own words. The entries in the diary were not checked by the defendant, nor—again with one single exception—were they signed by him. The attendance lists stapled into several volumes of the diary—they are only contained in such volumes as relate to Government conferences—cannot be looked upon as a substitute for a confirmatory note.

Moreover, the evidence has clearly established that very many entries in the diary were not made on the basis of personal observations but came about through the fact that the author was told by participants about the subjects of Government meetings or other conferences after they had taken place, and then expressed it in the diary in his own words. Moreover, by an examination of the diary it can easily be ascertained that the entries cannot be considered complete.

All these facts bring us to the conclusion that the material evidential value of this diary must not be overestimated. The evidential value of this diary can in no way be compared with the evidential value of entries made personally by the person concerned.

Above all, however, it seems to me essential to point out the following: The contents of any document are of material evidential value only insofar as the document is appreciated in its entirety. The diary of the Defendant Frank with its 10,000 or 12,000 pages is one uniform document. It is improper to put in as evidence certain individual entries without showing the context in which alone some of them can be understood. But it is particularly improper—and this infringes upon the principles of any presentation of evidence—to select from some uniform whole, such as a long speech, a few sentences and put them in as evidence. In Document Book Number 2, I have listed a few examples of this and hereby refer to them.

As the Defendant Frank himself rightly pointed out in the witness box, the diary is a uniform whole; only in its entirety can it be probative and form part of the presentation of evidence. I have read through that diary of more than 10,000 pages and can only confirm his opinion. And that was why I did not use individual entries in presenting my evidence but put in the whole diary.

If I myself, in presenting evidence, have read certain single entries from the diary and if in the course of my present address I shall quote a few more passages from it, then, just as in the case of the extracts put forward by the Prosecution, their evidential value can certainly be gauged only within the framework of the whole diary.

The following may also be looked upon as having been established by the evidence: As the diaries show, and as is evident in particular from the testimony given by the witnesses Bühler, Böpple, and Meidinger, the Defendant Frank in his capacity as Governor General often made two or three improvised speeches in the course of one day. The extracts from the diary presented by the Prosecution consist, for the most part, of single sentences from such speeches. If we take into consideration both the temperament of the defendant and his habit of expressing himself in an incisive manner, then that is another reason which tends to reduce the probative value of these extracts from the diary. And we actually do find many diary entries which flatly contradict other entries on the same subject occurring a little earlier or later.

In connection with the many speeches made by the Defendant Frank, the following must not be left out of consideration and may also be looked upon as established by the evidence: It was a foregone conclusion that the Defendant Frank, as an avowed champion of the idea of a State founded on law and of the independence of the judiciary, would come into increasingly sharp conflict with the representatives of the police-state system; this developed to an even greater degree in the course of the war, both within the Reich and in occupied territory. The representatives of the police state, however, were Reichsführer SS Himmler and, for the area of the Government General, the Higher SS and Police Leader, East, above all and in particular SS Obergruppenführer and General of Police Krüger. The relation between the Defendant Frank on the one hand, and Reichsführer SS Himmler and his representative, Obergruppenführer Krüger, on the other, had been extremely bad even at the time the Government General was established. They deteriorated still more as the divergence of outlook concerning the tasks of the Police came ever more openly to the fore; and the Defendant Frank was forced to lodge increasingly strong protests with the Chief of the Reich Chancellery, Dr. Lammers, and the Führer himself regarding the violent measures taken by the Security Police and the SD.

As I have already mentioned, the Governor General, lacking an executive of his own, had no choice but to make repeated attempts to co-ordinate the work of the general administration with that of the Police, in order to be in a position to carry out any administrative work at all. Obviously these objectives demanded—at least on the face of things in a certain degree—a conciliatory tendency toward the general attitude of the Security Police and, above all, of the Higher SS and Police Leader, East. Moreover, the evidence has further established that the tension existing between the Governor General and the Higher SS and Police Leader often reached such a degree that the Defendant Frank could not but feel himself menaced and—to quote the words of the witness Bühler—was no longer a free agent and master of his own decisions.

The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no doubt on this point. Quite rightly, therefore, the witness Dr. Bühler also pointed out that the Defendant Frank expressed himself with particular vehemence when the Higher SS and Police Leader or the commander of the Security Police and the SD were present at conferences, while his utterances were made on quite a different note when he was speaking to an audience composed only of members of the administration. Even a cursory inspection of the diary will confirm this. All these circumstances must be taken into consideration in assessing the substantive evidential value of the Defendant Frank’s diary.

It should also be noted that these diaries constituted the only personal property that Frank was able to rescue from the castle at Kraków. On his arrest he handed over all the diaries to the officers who took him into custody. It would have been an easy matter for him to destroy these documents.

Your Lordships, I now turn to the individual 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, such 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 individuals, who under the law as it stands are subject only to the criminal law applying in each state, by way of exception be directly bound by international law.

Deviating from this rule, existing international law permits, in exceptional cases, 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, but 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 Appendix to the IVth Convention on the Laws and Customs of War on Land and purport to be a codification of certain subject matter of the laws of war, list any 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 which 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 19th century. Those wars were confined in the main to the armed forces directly concerned therein.

Now the first World War already overstepped this framework, and not only in respect of the geographical extent of conflict. On the contrary, the war became a struggle for extermination of the nations involved, a struggle in which each belligerent party utilized the whole of its war potential and all its material and imponderable resources. War technique having meanwhile been considerably perfected, the second World War was bound altogether to destroy the framework set up for the conduct of war by the Hague Rules for Land Warfare. That can be seen at a glance—the condition of Europe today reveals it. 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 to adduce the provisions of the Hague Rules for Land Warfare, even indirectly or by way of analogy, to establish individual criminal liability. Seeing that this is the case, it must be looked upon as impossible to give a clear and 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 realized 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 for the personal responsibility of the Defendant Frank, the Prosecution submitted as Exhibit USA-609 (864-PS) minutes of a conference held by the Führer with the Chief of the OKW on the future form of Polish relations to Germany. This conference took place on 17 October 1939. It is alleged that these minutes alone, by 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 insofar as the Defendant Frank is concerned.

The Prosecution was unable to prove that the Führer 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 not be carried out by the general administration, but only by the Security Police, the SD, and the other organs and offices under Reichsführer SS Himmler. In this connection special mention should also be made of the powers vested in Reichsführer SS Himmler before the date of that conference in his capacity of Reich Commissioner for the Preservation of German Nationality. 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 had not seen 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 Reichsführer 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: Mr. President, My Lordships, 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 Number USA-297, which is EC-344(16). The content of this document is a discussion which the Defendant Frank is said to have had on 3 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 should have taken place, can have no connection with the subject of the conference between the Führer and the Chief of the OKW, the latter not having been held until 17 October 1939, that is, at a later date.

Not within the framework of the evidence presented in connection with the personal responsibility of the Defendant Frank, but in connection with the accusation of so-called Germanization, a document was submitted with the Exhibit USA-300, 661-PS. This is a memorandum entitled “Legal Aspects of German Policy toward 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 contents. Over and 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 Kassel. But in actual fact there has been no Ministry of Justice at Kassel for many decades. All these circumstances would seem to indicate that the material probative value of this document is, to say the 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 toward 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 Germanization. That is shown with great clarity by the extracts from the diary which I have submitted to the Tribunal. Thus on 8 March 1940 he declared at a meeting of department chiefs, that is, to an audience of men who as leaders of the various main departments were deputed to put his directives into practice:

“I have been charged by the Führer to look upon the Government General as the home of the Polish people. Accordingly no Germanization 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 Polish national existence. We have in a certain sense herewith taken over on trust from the Führer 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 OKW on 17 October 1939, as contained in Exhibit USA-609, 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 activities of the Higher SS and Police Leader, East from the first day of his appointment, it can safely be assumed that it was Reichsführer 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 19 February 1940 is on the same lines; in this the Defendant Frank advocates the formation of a Polish government or regency council.

On 25 February 1940, at a service conference of officials of the District of Radom, the Defendant Frank gave out, in program 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 Führer has decreed that this territory shall be the home of the Polish people. The Führer and Field Marshal Göring have impressed on me over and over again that this territory is not to be subjected to Germanization.

“3. In accordance with the instructions we have received under the Führer’s decree Polish laws will remain in force here.”

On 7 June 1942 the Defendant Frank stated word for word as follows:

“It is not as rulers by violence that we come and go in this country. We have no terroristic or oppressive intentions. Welded into the interests of Greater Germany, the living rights of the Poles and Ukrainians in this territory are also safeguarded by us. We have not taken away from the Poles and Ukrainians either their churches, their schools, or their education. We Germans do not wish to denationalize 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 in this our task.”

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 now come to the so-called “peace-enforcing action.” When the campaign against Poland had ended in September 1939 that did not mean that all resistance had ceased. Very soon afterward new centers of resistance sprang up; and when on 9 April 1940 German troops occupied Denmark and Norway and on 10 May 1940 the German western army had begun their attack, the leaders of the Polish resistance movement believed that, in consideration of the general political and military situation, the time for action had come. This resistance movement was all the more dangerous because dispersed 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 deteriorated from day to day during that period. Here for instance is an entry for 16 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 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.”

In consideration of this menacing general situation, the order was given—as the diary shows, by the Führer 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 at first had 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. Bühler have shown that the efforts made by the administration of the Government General were so far successful in that all the members of the resistance movement rounded up by this special action were brought before a drumhead court-martial introduced by a decree issued in 1939; and moreover, the decisions of this court were not carried out before being submitted to a Board of Pardon which in many cases modified the sentence. The chairman of this Board of Pardon, until his appointment as Reich Commissioner for the Netherlands, was 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 Board of Pardon. For the rest, in regard to the so-called peace-enforcing 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 scope of the charges against him personally, the Defendant Frank is accused of having supported the resettlement plans of the Reich Commissioner for the Preservation of German Nationality (Himmler) and of having thereby also committed a war crime. There is no question but that resettlement, even when carefully planned and well prepared, means great hardship for those who are affected by it; in many cases a resettlement means the destruction of a person’s economic existence. Nevertheless, it seems doubtful whether resettlement 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 29 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 the Sudetenland, where more than 10 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 what remains of Germany without means for earning a livelihood there. It cannot be foreseen how these masses of people who have been driven from their homes can become other than peace-disturbing elements.”

My Lords, I am not mentioning this in order to point out the enormous dangers connected with such measures, dangers which must arise, if only out of the fact that in view of her planned deprivations of territory, Germany—with an area reduced by 22 percent as compared with 1919—will have to feed a population increased by 18 percent and that in future there will be 200 inhabitants to the square kilometer. 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 2 August 1945 by President Truman, Generalissimo Stalin, and Prime Minister Attlee.

GENERAL RUDENKO: ML 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.

DR. SEIDL: Mr. President, may I briefly define my attitude on this?

As far as I am concerned, I do not wish to criticize the decisions of the Potsdam Conference. 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 within the framework 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 on 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.

DR. SEIDL: Very well, Mr. President.

The Defendant Frank is further accused of having approved and carried out a program for the extermination of Jews of Polish nationality, thereby infringing upon the laws of war and humanity.

It is true that in a number of speeches given 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 10,000 or 12,000 typed pages. Nevertheless it shall not be 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. Bühler, 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 Reichsführer SS Himmler and his organs. That is true for both the initiation and the organization of ghettos and the so-called final solution of the Jewish question.

In regard to 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 IVA, 4b 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 as 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 offenses can only be said to exist if at least an attempt has been made, that is, if the commission of the offense has at least been begun. Under the principles derived from the criminal law of all civilized nations, the statements contained in 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 Reichsführer SS Himmler and the Higher SS and Police Leader Krüger, 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 successfully the rumors about the elimination of the Jews, at least within his own administrative district, failed completely. 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 cannot be clearly seen whether the erection and administration of concentration camps is in itself to be looked upon 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. Setting aside the crimes committed in the concentration camps and considering the nature of concentration camps to be that in which people are confined for reasons of state and police security on account of their political opinions and without an opportunity of defending themselves in an ordinary court of law, it appears at least doubtful whether an occupying power should not have the right to take such necessary steps as this in order to maintain public order and security. Apart from the fact that it was not National Socialists and not Germans at all who first established such camps, the following must be mentioned:

In the American Occupation Zone alone there were, according to a statement ...

DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States): 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 criticizing 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 the 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, while, the state of war with Germany having ceased on 8 May 1945 at the very latest, these urgent reasons now perhaps no longer exist 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.

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 the National Socialists’ assumption of power fought against the police-state system and, above all, decried the concentration camps as an institution which could in no way be made to harmonize with the idea of a state founded 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 Reichsführer 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 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 also during the period between the first and the second World Wars. In consequence of the unfortunate demarcation line, the Government General became an area that was distinctly overpopulated. The agricultural excess production areas had fallen to the Soviet Union, whereas important industrial areas were incorporated into the Reich. Under these circumstances, and because there were no riches to be found in the soil, the only valuable means of production lay in the working capacity of the population. And this—at any rate for the first few years—could not be utilized to a sufficient extent, because the other production factors were lacking. In order to avoid unemployment, and above all in the interest of maintaining public order and security, the administration of the Government General was bound, if only for reasons of State policy, to try to transfer as many workers as possible to Germany.

There can indeed be no doubt that during the first years of the administration most of the Polish workers went to the Reich voluntarily. When later, in consequence of the continuous bombing raids, not only Germany’s cities but also her factories crumbled to ruins and a not inconsiderable part of Germany’s capacity for the production of war materials had to be removed to the Government General for reasons of security, the aim of the Defendant Frank necessarily was to put a stop to any further transfer of labor. Over and above this, however, the Defendant Frank had from the very beginning opposed all violent measures in recruiting labor and solely for security reasons and in order not to create new centers of unrest had insisted that no compulsory measures were to be used and only propagandistic methods employed. That is established by the testimony of the witnesses Dr. Bühler and Dr. Böpple, and also by a large number of entries in the diary. In my presentation of evidence I have already referred to several of them. Thus, for example, the Defendant Frank said, among other things, on 4 March 1940:

“... 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.”

On 14 January 1944 he made a similar statement to the Commander of the Security Police. I quote:

“The Governor General is strongly opposed to the suggestion that police forces should be used in recruiting labor.”

These quotations could be amplified by many more.

I refer further to the evidence presented by me in respect to 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 labor does not appear to be quite clear. I do not intend to go further into the legal questions pertaining to this matter. The defense 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 conception of vital stress (Notstand) as recognized in criminal law would, in international law, too, preclude illegality in the case of a given violation of law. If the vital interests of a State are endangered, that State may, these interests being preponderant, safeguard them if necessary by injuring the justified interests of a third party. Even those writers who deny the application of the “vital stress” 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 just 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 into the war of the United States, with 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 labor forces, even those in occupied territory, in this defensive struggle had to be acknowledged.

In addition, the following should not be passed over: The Prosecution alleges that many, if not most of the foreign workers were brought to Germany by force and that they were then obliged to do heavy labor under degrading conditions. However one may look upon the evidence on this question, the fact cannot be ignored that there are hundreds of thousands of foreign workers still living in Germany who were allegedly deported thither by force. They refuse to return to their homes, although no one now attempts to hinder them. Under these circumstances it must be assumed that the force cannot have been as great, nor the treatment in Germany as bad, as is alleged by, the Prosecution.

Another allegation refers to the closing of the schools. It may be left out of account whether international law recognizes 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 wartime was considerably reduced, not only in Germany, but also 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 reactivate, not only the elementary and vocational, but also the higher forms of school. In this connection I will only mention the university courses which he initiated.

The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree issued by the defendant to combat attacks against German reconstruction work in the Government General, dated 2 October 1943. There is no question but that this decree setting up a drumhead court-martial is not in conformity with what must be demanded of court procedure under normal circumstances. However, this decree can only be judged correctly if the circumstances which led to its promulgation are taken into consideration.

In 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 repairing the war damage, particularly in the communications system, then that is incontestably to their credit.

The year 1940 was, however, to prove 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 began, the Germans proceeded 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 reorganize 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 lawless 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 31 May 1943 a service meeting of the authorities of the 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:

“... 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, procure typewriters and duplicating machines, 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 centers in the country have multiplied, for instance, on sawmills, dairies, and distilleries, as also on bridges, railway installations, and post offices. The organization of the guerrillas has become strongly military in character.”

In the course of the summer and autumn of the year 1943, the increasing activities of the partisans and the improvement in their military organization and equipment so endangered security in the Government General that it might perhaps under the circumstances have been better to turn over its entire administration to the appropriate army commanders and to proclaim a state of emergency. It is indeed not possible to describe conditions then existing in the Government General as anything else but a state of war. It was the period when at any moment the possibility had to be taken into account that a general revolt would break out over the whole country.

All this notwithstanding, the Defendant Frank even then made every effort under all circumstances to thwart any violent measures by the Security Police and the SD. 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 9 October 1943 setting up a drumhead court-martial.

It is quite obvious from the content of this decree that 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 drumhead court-martial order was in operation, the Boards of Pardon continued to act and that many sentences passed by the drumhead court-martial were reversed by the boards.

In the course of the present Trial repeated mention has been made of the report by SS Brigadeführer Stroop concerning the destruction of the Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). 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 Reichsführer SS and Chief of the German Police Himmler. I refer in this connection to the affidavit of SS Brigadeführer Stroop of 24 February 1946, submitted by the Prosecution as Exhibit Number USA-804 (3841-PS) and to the affidavit of the same date given by the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske. That is Exhibit Number USA-803 (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 Reichsführer 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 Reich and the territories of the former Polish State which were grouped together in the Government General. But particularly in view of 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. The objections to be raised to the report must appear all the more valid, since, to take only one example, in Appendix (1) of the report directives for cultural policy are appended which obviously purport to represent instructions given by the Governor General or his administration. Actually, however, nothing of the kind is to be found either in the Official Gazette of the Government General or in any other documents. The witness Dr. Bühler 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 to this Exhibit USSR-93 only insofar as the statements therein made 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 undernourishment 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 either famine occurred or epidemics broke out. The evidence has revealed on the contrary that the efforts of the Defendant Frank in the years 1939 and 1940 were successful in inducing the Reich to deliver no less than 600,000 tons Of grain. That made it possible to overcome the food 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 farseeing 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 onward also served to feed the Polish workers placed in Reich territory and that in general these grain deliveries were utilized to maintain the internal balance between the European economic systems. In principle, however, the following should be said concerning this question:

In a number of points of accusation the Prosecution has leveled 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 out 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 civilized states that a uniform natural process must be judged in its entirety and that its evaluation must take into account all the circumstances of the case that are in any way fit for consideration by the court when passing judgment. 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 Germanization.

My Lords, if the Defendant Frank had in truth had any such intentions, then he could certainly have attained his goal in 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 integrate the entire economic policy in a manner which one can only term 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 at the same time there can be no doubt that the success of these 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 fourth anniversary of the existence of the Government General on 26 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 4 years in all fields of industrial economy, in agriculture, commerce, and transport, in the finance and credit system, in the sphere of public health, and so on. Only in consideration of all these facts is it possible to form an approximately correct estimate of the whole position. For the sake of completeness 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 found impossible 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.

My Lords, 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 5 year struggle against all violent measures. The Prosecution has put in evidence, as Exhibit Number USA-610 (437-PS), a memorandum which Frank addressed to the Führer on 19 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 practiced by the Security Police and the SD and of the excesses committed by various Reich authorities, 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 19 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, 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 19 June 1943 was not the only one addressed to the Führer on the matter. It is clear from the testimony of the witnesses Dr. Lammers and Dr. Bühler and the defendant’s own statements in the witness box that from the year 1940 onward he 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 19 June 1943 is also cast in the form of a comprehensive political program. 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 Number USA-178 (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 14 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 year 1942. Hitler refused his consent to that 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 and the SD) could carry out the measures he considered requisite for attaining the aims of his power policy.

My Lords, when it became more and more obvious that Hitler and Reichsführer SS Himmler were about to abolish the last remnants of a State founded on law; when it became increasingly apparent that the power of the Police knew no bounds 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 State founded on law. 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 kilometers 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 State founded on law, of the independence of the judiciary, and of law as such. 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 to ward off the threatening catastrophe.

The consequences of this attempt to avert the extinction of the idea of the State founded on law by a last great effort are well known. The Defendant Frank was deprived of all his Party offices: he was dismissed from his post as President of the Academy for German Law. The leadership of the National Socialist Lawyers Association was conferred on the 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 Führer 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 looked upon 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 Reichsführer SS Himmler’s other organs fulfill 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 Reichsführer 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, however, it was quite clear from the summer of 1942 onward 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 19 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:

“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 stay and sinks into the depths of night and horror.”

THE PRESIDENT: We will begin again at 10 minutes past 2.

[The Tribunal recessed until 1410 hours.]

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