The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection, it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions—and this is not dependent on the above—whether within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Criminal (Penal) Code regarding treason and high treason, if the provisions of the law governing occupied territories would also have justified the same penalties for aiding and abetting a hostile army?
With regard to the introduction of German law in the Eastern territories we must first of all consider that they were essentially divided into the following three groups, namely:
1. Territories which were part of the Union of Soviet Republics after September 1939;
2. The so-called Congress Poland [Kongresspolen], the principal part of the Polish Republic, which was administered under the designation of Government General, and finally;
3. The western parts of Poland, which before 1918 were made up mainly of the German provinces of Poznan, Upper Silesia, and other small parts of provinces. German jurisdiction was introduced only in areas mentioned under 3, and they were designated as “Incorporated Eastern Territories.” The former Russian territories mentioned under 1 were subordinate to the military and civilian governors, and the Government General mentioned under 2 to Governor General Dr. Frank. Both these groups were completely outside the administrative competency, or even the sphere of influence, of the Reich Ministry of Justice.
If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called Incorporated Eastern Territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders treaties [staatsrechtliche Vertraege] meaningless between the parties at war. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet’s Droit International Public [International Public Law]. It will be shown that other states have in fact also accepted this point of view. The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.
The answer to the question—which has already come up many times during the examination of witnesses by the Court—namely the question, whether it was permissible to apply the criminal ordinance for Poles [Polenstrafrechtsverordnung] also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above-mentioned extent admissible. I don’t believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily, was sentenced. Generally speaking however, we will have to take into consideration the fact that the Pole who came to Germany was subject to that law which then applied in his former place of residence.
So that the jurisdiction in so-called Night and Fog [Nacht und Nebelsachen—NN] cases, can be judged, we shall put in evidence that in the main the military courts alone were competent. Section 3, paragraph 2, of the Decree for Military Jurisdiction During Wartime [Kriegsstrafverfahrensordnung] formed the legal basis for handing over those cases to the general courts. This decree concerning military jurisdiction during wartime and special operations was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the Fuehrer and Reichskanzler and by the Chef des Oberkommandos der Wehrmacht [Chief of the Supreme Command of the Armed Forces].
This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, paragraph 2, of this decree, military courts however are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.
On the basis of this legal foundation, and in accordance with an agreement between the Chief of the Armed Forces Legal Department, Dr. Lehmann—who has appeared here before the Tribunal as witness—and the former Under Secretary Dr. Freisler, prisoners held in Night and Fog cases were placed before a German court in the sense of paragraph 30 of the Hague Regulations on Land Warfare.