Chapter VIII: Front Matter (8)

So far as he was informed of things and commanded any influence, Rosenberg fought for his convictions. The fact that adverse powers became stronger than he was cannot be brought up as a charge against him. One cannot punish offenses, and at the same time punish those who revolted against them. In view of the terrible extermination orders which have now been disclosed, it is certainly possible to raise the point whether Rosenberg could not have exerted much stronger opposition. To expect this would, however, suppose an earlier knowledge of things which he only learned about after the collapse. Should he be charged with any carelessness it must not be forgotten that he felt it to be his duty to serve the Reich engaged in the struggle for its existence, and that terrible injuries were also inflicted upon the German nation, injuries which Rosenberg was equally unable to recognize as war necessities.

His official tasks, as for example the duties of the Einsatzstab in the West and East, were carried out by Rosenberg without compromising his personal integrity. The requisitioning of artistic and cultural objects he always carried out provisionally, subject to final decisions by the supreme authority and, as far as was at all possible, with proper identification of the proprietor. Moreover, in the use of unclaimed furniture for the benefit of air-raid victims in Germany, provision was made for the subsequent indemnification of the owners based upon a precise inventory.

In considering his entire personality we see that Rosenberg followed with faith and devotion an ideal of social justice combined with national dignity. He fought for it openly and honorably, went to prison, and risked his life for it. He did not step in only when National Socialism afforded the opportunity to begin a career, but at a time when it was dangerous and asked only for sacrifice. In his speeches after 1933 he took his stand in favor of deeper spiritual formation, a new cultural education, personality values, and respect for every form of honest work. He accepted the gloomy days of that time as unfortunate but inevitable accompanying phenomena of a revolution otherwise acclaimed as having passed without bloodshed, without having in fact learned of the secret details. He fully believed that good forces and ideas would prevail over these other human imperfections. During the war he was at the service of the Reich in accordance with his duty.

For 25 years, throughout the revolution and the events of the war, he maintained his personal integrity and untainted character. He had to witness with deep sorrow that a great idea, in the hands of those possessed with the lust for power, was gradually abused, and in 1944, at Party meetings, he protested against this abuse of power entrusted to its holders. During this Trial he had to his dismay and horror to look upon the evidence of the degeneration of his life’s ideal; but he knows that his aspirations and the aspirations of many millions of other Germans have been honorable and decent. Today he still adheres to his honorable, honest, and humanly irreproachable conduct and, full of sorrow for the wounds inflicted upon all nations and for the downfall of the Reich, he awaits the sentence of a just Tribunal.

[_The Tribunal adjourned until 11 July 1946 at 1000 hours._]

ONE HUNDRED
AND SEVENTY-SIXTH DAY
Thursday, 11 July 1946

_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.