The Nizkor Project: Remembering the Holocaust (Shoah)

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By DR. SEIDL, Continued:

All this notwithstanding, the defendant Frank even then made
every effort to thwart any violent measures by the Security
Police and the SD under all circumstances. 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 9th October, 1943, setting up drum-head courts

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

In the course of the present trial, repeated mention has
been made of the report, Exhibit USA 275 (Document 1061-PS),
by SS Brigadefuehrer Stroop concerning the destruction of
the Warsaw Ghetto in the year 1943. 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 Reichsfuehrer SS
and Chief of German Police Himmler. I refer in this
connection to the affidavit of SS Brigadefuehrer Stroop of
24th February, 1946, submitted by the prosecution as Exhibit
USA 804 (Document 3841-PS), and to the affidavit of the same
date given by the former aide-de-camp of the SS and Police
Leader of Warsaw, Karl Kaleske. That is Exhibit USA 803
(Document 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
Reichsfuehrer 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 German Reich and
the territories of the former Polish State which were
grouped together in the Government General. But, except for
particular reference to 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. Thus the objections to be
raised to the report must appear all the more valid, taking

                                                  [Page 296]

only one example in Annex (1) of the report. Directives for
cultural policy are noted in evidence which are obviously
intended to represent instructions given by the Governor
General or his administration. Actually, however, nothing of
the kind is to be found either in the order Gazette of the
Government General, or in any other documents. The witness
Dr. Buehler 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 only to those statements in the document
Exhibit USSR 93 which 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 under-nourishment 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 there was either wide-spread hunger or
starvation or that epidemics broke out. The evidence has
revealed on the contrary hat the efforts of the defendant
Frank in the years 1939 and 1940 were successful n inducing
the Reich to deliver no less than 600,000 tons of grain.
That made it possible to overcome the nutrition 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 far-
seeing 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 onwards also served to feed the
Polish workers placed in Reich territory, and that in
general these grain deliveries were utilised to maintain the
internal balance as between the European economic systems.

In a number of points of accusation the prosecution has
levelled 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 but 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 civilised States that a uniform natural
process must be judged in its entirety, and that its
evaluation must rest on all the circumstances of the case
which are in any way suitable for consideration by the Court
when passing judgement. 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 Germanisation.

If the defendant Frank had in truth had any such intentions,
then he could certainly have attained his goal in a 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 establish an economic
policy which one can only call 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 there can be little doubt that the success of
his 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 4th anniversary of the existence of the
Government General on 26th 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 four years
in all fields of industrial economy, in agriculture,
commerce and

                                                  [Page 297]

transport, in finance and credit system, in the sphere of
public health, and so on. Only by consideration of all these
facts is it possible co form an approximately correct
estimate of the whole position. Incidentally, 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 unattained 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.

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 five-year struggle against all
violent measures. The prosecution has put in evidence as
Exhibit USA 610 (Document 437-PS) a memorandum which Frank
addressed to the Fuehrer on 19th 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 practised by the Security Police
and the SD and of the excesses committed by various Reich
authorities, violence and excesses 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 19th 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, and/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 19th June, 1943, was not
the only one addressed to the Fuehrer on the matter. It is
clear from the testimony of the witnesses Dr. Lammers and
Dr. Buehler, and the defendant's own statements in the
witness-box, that from the year 1940 onwards, he (the
defendant) 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 19th June, 1943, too is cast in the form
of a comprehensive political programme. 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 USA 178 (Document 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 fourteen 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

                                                  [Page 298]

year 1942. Hitler refused his consent to that request 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 d
the SD) could carry out the measures he considered requisite
for attaining aims of his power policy.

When it became more and more obvious that Hitler and
Reichsfuehrer SS Himmler were about to abolish the last
remnants of a constitutional State, when it became
increasingly apparent that the power of the police would be
unlimited 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 constitutional State.
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 kilometres 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 constitutional State and of the
independence of the judiciary. 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 ward off the
threatening catastrophe.

The consequences of this attempt to avert the extinction of
the idea of the institutional State by a last great effort
are well known. The defendant Frank s deprived of all his
Party offices, he was dismissed from his post as President
the Academy for German Law. The leadership of the National
Socialist Lawyers' Association was conferred on 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 Fuehrer 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
regarded 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
Reichsfuehrer SS Himmler's other organs fulfil 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 Reichsfuehrer 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, it was quite clear from the summer of 1942
onwards 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

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 19th 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:

                                                  [Page 299]

  "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 prop and sinks into the depths
  of night and horror."

THE PRESIDENT: We will begin again at ten minutes past two.

(A recess was taken.)

THE PRESIDENT: Dr. Pannenbecker.

DR. PANNENBECKER (for the defendant Frick): Mr. President,
gentlemen of the Tribunal:

The American prosecution through Dr. Kempner has charged
defendant Frick with criminal actions according to Article
6, paragraphs a, b, and c of the Charter.

I should like first to examine the question as to whether
Article 6 of the Charter, with its list of criminal acts, is
to be considered as the authoritative criterion of the
actual penal law which would lay down, in a manner
irrevocably binding on and not subject to revision by the
Tribunal, what actions are to be regarded as criminal, or
whether Article 6 of the Charter concerns a rule of
procedure defining the competence of this Tribunal for
specific situations.

THE PRESIDENT: Perhaps it will be for the convenience of the
interpreters if I say that we might, as it is now nearly
half-past two, sit without a break until four o'clock, when
we rise.

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