“For it cannot be denied, that as long as Germany was powerless and defenseless, she had simply to tolerate the fact that there was a continual persecution of German people on our frontiers. But in the same way as England represents her interests over the whole world, the Germany of today will know how to represent and to protect her interests, even if they are more limited. And these interests of the German people comprise also the protection of those Germans who, of their own accord, are not in a position to ensure for themselves along our frontiers the right of commonly human, political, and ideological independence * * *.” [End of quote from Hitler’s speech.]
I request, therefore, the re-examination of this question on account of its fundamental importance in regard to legislation and to clarify its principle—in the first place, for the jurisdiction of the Chief Reich Prosecutor at the People’s Court—so that this question may through indictments in the respective cases, also be decided in court. It is, of course, not intended by these statements to anticipate the weighing of evidence in the present case.
“* * * I induced the Foreign Office to participate in the afore-mentioned expert opinion. The Foreign Office did not make any particular comment on the statements concerning purely legal matters, but has pointed out that questions in the sphere of foreign politics could not be raised, if the court in cases such as the present, acted in accordance with article 91, paragraph 2 of the Penal Code for the above-mentioned reasons. This comment applies firstly to such cases in which the ethnic groups of former Poland, Lithuania, as well as the former Czechoslovakia, and Soviet Russia are concerned. In cases in which other countries are involved, the question would, if necessary, have to be examined individually.” [End of Himmler’s letter.]
The president of the People’s Court, to whom I applied for a comment on this judicial problem, in view of the above-mentioned two different verdicts, has stated:
“A discussion with the presidents and the deputy presidents of the senates of the People’s Court on the legal question, whether article 91, paragraph 2 of the Penal Code may be applied in connection with article 2 of the Penal Code[499] in connection with the protection of ethnic Germans of foreign nationality, resulted in the following unanimous interpretation:
“The application is confirmed—
(1) if the wrong [Unrechtsgehalt] of the act—apart from the requirements that all other necessary constitutive elements [of the crime] must be present—is so serious as absolutely to demand punishment,
(2) if the granting of equal rights to an ethnic German and to a German national does not present for the state to which the ethnic German belongs, a grave detrimental proposition from a political point of view, which is prejudicial to its sovereignty and to its friendly relations with the Reich,
(3) if the act is not subject to punishment from any other legal point of view according to German penal law nor subject to punishment according to the laws of the foreign state (article 4 of the Penal Code).”
I agree firstly with the Reich Leader SS and the President of the People’s Court that a direct application of article 91, paragraph 2 of the Penal Code, which obviously, expressly, and knowingly—see also the draft of the new penal code—protects only German nationals will not be made in favor of ethnic Germans. Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, enabling the Reich largely to protect its ethnic members of foreign nationality to a greater extent than has been possible hitherto must be borne in mind in this particular instance. Therefore, I find it necessary on principle to protect by means of the German Penal Code those ethnic Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that the action, in accordance with sound public sentiment, deserves punishment analogous to this provision, but where such punishment considering the wrong of the particular case cannot be pronounced on account of any other directly applicable penal regulation. In this connection, my standpoint—and this agrees with Laemmle, “German Justice,” 1940, page 775, and with the practice of the People’s Court mentioned therein—is that the act which is punishable according to article 91, paragraph 2 of the Penal Code must be considered as an act of high treason against the Reich to which article 4, paragraph 3, number 2, of the Penal Code, not article 4, paragraph 2, is applicable. Whether in other respects the prerequisites for an appropriate application of article 91, paragraph 2, in conjunction with article 2 of the German Penal Code exist, will, in my opinion, depend upon the examination of each individual case, in which also questions of foreign politics will have to be taken into consideration, although these already have been eliminated to a large extent by the comment of the Foreign Office contained in the expert opinion of the Reich Leader SS.