Chapter XXIV: Section L: 5th to 9th cy (3)

14. It is agreed that, in consideration of the intended aims of the Government for the clearing up of the Eastern problems, in future Jews, Poles, Gypsies, Russians and Ukrainians are no longer to be judged by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Fuehrer of SS. This does not apply to civil lawsuits, nor to Poles whose names are announced or entered in the German Racial Lists.

Signed Th.

TRANSLATION OF DOCUMENT 656-PS

National Socialist German Workers' Party Party Chancellory

The Chief of the Party Chancellory

Fuehrer's Headquarters
SECRET

[Stamp]

Circular No. 12/43g.

SECRET

Subject: Law of Self-Defense against P.O.W.'s

I acknowledge the copy of the annexed order of the Supreme Command of the Wehrmacht.

(s) M. BORMANN

F.d.R.
Hilegardt
_1 copy_
Distrb. Reichsleiter,
Gauleiter,
Verbaendefuehrer.

index cards: Prisoners of War/Guard Personnel/Self-Defense/ Physical Punishment.

* * * * *

Copy

Supreme Command of the Wehrmacht Berlin 29.1.1943
Az 2f 24.74 AWA/Prisoners of War. General (IA)
No. 3868 142g

SECRET

Subject: Self Defense against Prisoners of War.
Reference: None.

The question of the treatment of Prisoners of War is continually being brought up and discussed by Wehrmacht and Party bureaus, namely that the possibilities of punishment provided in the agreement of 1929 (M. Dr.-38/2) are not sufficient. Primarily neither the military punishment law nor the discipline law, which has been eliminated for German military personnel, offers a punishment which can be used with satisfactory success in case of an insubordinate and provoking attitude of Prisoners of War. The following is hereby fundamentally affirmed:

1. The M.Dr. 38/2 (Agreement 1929) article 46, states that Prisoners of War cannot receive any other punishments than those meted out to German military personnel. That applies to all Prisoners of War with the exception of Soviet Prisoners of War. For Soviet Prisoners of War the order of the Supreme Command of the Wehrmacht 2 f 24.73 AWA/Prisoners of War, General (IA) No. 389/42g of the 24.3.1942 Article A, fourth paragraph is applicable.

2. Improper and provoking attitude of Prisoners of War toward German guard personnel as well as toward German contractors and workers forces and justifies this being enacted for the preservation of their own dignity and of national esteem. German law has an application for this; in the case of self-defense ST GB Art 53 is applicable. According to the existing law, self-defense occurs not only in the case of present actual attacks but also present attacks on one's honor, on one's property, etc. The law of self-defense concerns not only the party attacked, it applies also to the protection of a third party from attack. Third, in the sense of the N Art 53 a.a. G, are not only persons, but also the persons of the public and private law, as for instance the State, the municipality, society etc. The party attacked can use for protection any means that the situation requires and the use of which does not contradict healthy national interest [Gesunden Volksempfinden]. A _subsequent_ punishment of a prisoner of war for an improper and provoking attitude of _physical chastisement_ is not permissible since self-defense is no longer present.

3. In case of the diminishing of the effort to work only the guard and the assistant guard (for example among the farmers there is very often a personal union between assistant-guard and contractor) can interfere as the military superior of the Prisoners of War. In this he is not only authorized but also obliged by duty (see Order of the OKW A2 2f 2417a Chief of Prisoners of War/General (I)/Org (IIIb) No. 2916/42 of the 26.6.1942). Should the prisoners of war not fulfill his order, _then he has in the case of the most pressing need and danger,--the right to force obedience with the weapon if he has no other means_. He can use the weapon as much as is necessary to attain his goal. If the assistant guard is not armed, then, he is authorized in forcing obedience by other applicable means.

4. The military personnel, officials, and assisting guard personnel who are charged with the duty of guarding prisoners of war are to be instructed accordingly. It is to be made clear to them what means the law puts at their disposal, in order that they may be able to combat insubordinations, provocative attitudes and abatement of the will to work on the part of the prisoners of war, and what also the limits are to which they can go.

Distribution:
* * *
D.d.R.d.A.:
Weber
Chief of the Supreme Command of the Wehrmacht
/s/ Reinecke
F.d.R.
/s/ v. Graevenitz
Majorgeneral.

PARTIAL TRANSLATION OF DOCUMENT 661-PS

[Secret Thesis from the Academy of German Law on Resettlement, January 1940]

Resettlement, mixed settlement, emigration, national biological power [biologische Volkstumskraft]

Short consideration of the prerequisites for a political legal system of the peoples. [Volkspolitische Rechtsgestaltung]

1 _a._ _Resettlement_ (pages 6-8).

For the carrying out of costly and long-term measures for the increase of agricultural production, the Governmental-General can at the most absorb 1 to 1.5 million resettlers, as it is already over-populated. * * * By further absorption of 1.6 million resettlers, the 1925 Reich census figure of 133 inhabitants per square kilometer would be reached, which practically because of already existing rural over-population and lack of industry would result in a double over-population.

This figure of 1.6 million will barely suffice to transfer from the Reich:

The Jews from the liberated East (over 600,000), parts of the remaining Jews, preferably the younger age groups from Germany proper, Austria, Sudetengau and the Protectorate (altogether over 1 million).

The Polish intelligentsia who have been politically active in the past, and potential political leaders.

The leading economic personalities, comprising owners of large estates, industrialists and businessmen, etc.

The peasant population, so far as it has to be removed in order to carry out by strips of German settlements the encirclement of Polish territories in the East.

6 to 7 million Poles (not including the majority of the Wasserpolen, Schlonsaken, Kaschuben) would therefore remain for an extended period of time in the liberated East, and it will be possible to accept only a small fraction of them into German folksdom. * * * A resettlement of many millions can only be undertaken after victory and only in connection with an overwhelming reorganization of the East, which would create space for the surplus Poles, be it in Siberia, or be it in the bordering territories, for example after the resettlement eastwards of the White Russians. A resettlement of several million Jews, perhaps in Madagascar, could also create space.

* * * * *

_c._ In regard to internal colonization of the East of the Reich, it might be expedient to envisage the carrying out of a planned encirclement of the districts with a Polish majority by wide strips of German settlements. Also, a concentration of the remaining Poles in order to create space can be considered.

_d._ In order to relieve the living space of the Poles in the Government-General as well as in the liberated East, one should remove cheap labor temporarily by the hundreds of thousands, employ them for a few years in the old Reich, and thereby hamper their native biological propagation. (Their assimilation into the old Reich must be prevented.)

If 1.5 million people are to be transferred in short order (in about 4 years, i.e., 1000 daily) from the East of the Reich and are to be absorbed by the Government-General, if among them there are barely 1 million Poles and the rest Jews, then 7 million Poles would remain in the Reich, including Poles in Germany proper and Austria, but not including prisoners of war, seasonal workers from the Government-General and for the time being also Kaschuben, and of course Masurians and other Slavic Germanic tribes. There would be 1 Pole for every 12 Germans in the Reich excluding the Government-General.

The figure of 7 million comprises for example the following peoples: Finns, Estonians, Latvians, Lithuanians; it is double the number of Sudeten-Germans in former Czechoslovakia.

It is terrifyingly high and cannot be decreased considerably by emigration assimilation, or additional future transfer to the Government-General.

This mass of Poles is a great inconvenience, an obstacle to the Germanization of the country, and under certain circumstances a danger. It can be reduced by enlarging the Government-General.

In renouncing an area with a population of 1 million, it would be possible not only to get rid of this number of Poles but about 1.2 million, since the areas in question are sufficiently fertile to absorb 15 to 20% additional resettlers. For example, the territory of the former district of Lodz (19,000 square kilometers) had a population of 2.86 million (1938). One could take 150,000 Germans from their area and put over 3 million Poles into it. Or by giving up the Cracow Ural district (Olkusz) and the Zickenau district one could get rid of about 1.5 million Poles, including additional settlers from the Reich. The further deliberations presuppose that no areas of the Eastern districts (Ostgaue) will be renounced in favor of the Government-General. Therefore a major part of this Polish mass, which is much too large, could emigrate only to areas East of the Government-General. A prerequisite would be a thorough reorganization of the entire East and many of its numerous peoples, under the determining influence of the Reich (a memorandum is necessary). The total emigration of over 3 million Jews (possibly to Madagascar) would also create space for Polish resettlement.

About 1 million Poles could be taken out of their settlements, but not from the Reich, and used as agricultural and industrial itinerant labor. This would doubtless result in considerable relief, particularly from the biological viewpoint.

* * * * *

Strictest care is to be taken that secret circulars, memoranda and official correspondence which contains instructions detrimental to the Poles are kept steadily under lock and key so that they will not some day fill the White Books printed in Paris or the USA.

TRANSLATION OF DOCUMENT 666-PS

SECRET

The Fuehrer and Commander-in-Chief of the Armed Forces.

DIRECTIVES

for the prosecution of offences against the Reich or against the occupation authorities in the occupied territories.

7 December 1941

With the beginning of the Russian campaign, communist elements and other anti-German circles increased their attacks on the Reich and the occupation authorities in the occupied territories. The extent and the danger of these activities compel to most severe measures against the guilty for the purpose of intimidation.

For the time being the following directions shall be observed:

I

In regard to offences committed by non-German civilians in the occupied territories against the Reich or the occupation authorities which endanger their security or efficiency, the death sentence is adequate as a matter of principle.

II

The offences referred to in section I are to be tried in the occupied territories only if it is likely that the guilty persons, at least the main offenders, will be sentenced to death and if the proceedings and the execution of the death sentences can be carried out quickly. Otherwise the offenders, at least the main offenders, are to be brought to Germany.

III

Guilty persons who are brought to Germany are to be subject to court-martial proceedings there only if specific military interests make it necessary. German or foreign authorities making inquiries are to be told that the guilty persons had been arrested and that the state of the proceedings did not permit to give further information.

IV

The commanders in the occupied territories and the legal representatives are personally responsible for the execution of this decree within the framework of their competence.

VI

The chief of the high command of the armed forces determines in which occupied territories this decree is to be applied. He is authorized to explain, to make provisions for the execution of the decree and to supplement it. The Reich minister of justice issues the provisions for the execution of the law for his district.

The Chief of the High Command
of the Armed Forces
By order (I.A.) (signed) KEITEL

_DISTRIBUTION_:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich leader SS and Chief of the German police in the Reich Ministry of Interior.

High Command of the Army (Chef H. Ruest u. BDE--HR) with 7 N.A.

High Command of the Navy (MR) with 1 N.A.

Reich Minister of Aviation and Commander-in-Chief of the Air force (ZAR) with 1 N.A.

President of the Reich Court-Martial

Commander Southeast with 4 N.A.

Commander Norway

Commander Netherlands

Commander Eastland

Commander Ukraine

Plenipotentiary of the armed forces with the Reich Protector Bohemia and Moravia

Armistice Commission Wiesbaden

High Command of the Armed Forces:

Chief West
Abt. L with 8 N.A.
W Pr
Amt Aus 1/Abw. (ZR)
Abt. Ausl.
Abw. III

AWA

TRANSLATION OF DOCUMENT 668-PS

Copy

Chief of the Security Police and the SD--IV D 4--103/42 g--Berlin SW 11, Prinz-Albrecht Street 8, 24 June 1942

SECRET

To the Chief of the Supreme Command of the Armed Forces for the attention of the Oberregierungsrat DOWALDT or his acting deputy.

Berlin W 35, at Tirpitzufer 72--76

_Subject_: Prosecution of punishable offences against the Reich or the occupation forces in occupied territories.

_Reference_: Circular dated 16 April 1942--14 n 16.18 WR (I 3/4) Nr 242/42 g.

By virtue of the above-named edict a considerable number of persons who were arrested in the occupied district of France have been transferred to camp Hinzert at Trier, pending commencement of the main proceedings before the competent special court in Cologne.

The 67-year old Frenchman, Louis Adolf Rousseau, died here recently of a stroke.

Thus the question has arisen--which has not been settled until now--as to what steps are to be taken in such cases of death.

It is the intent of the general directions of the Fuehrer and supreme commander of the Wehrmacht concerning prosecution of punishable offences against the Reich or the occupation forces in occupied territories, dated 7 December 1941, to create, for deterrent purposes, uncertainty about the fate of prisoners among their relatives and acquaintances, through the deportation into Reich territory of persons arrested in occupied areas on account of anti-German activity. This goal would be forfeited if the relatives were to be notified in cases of death. Surrender of the body for burial at home is inadvisable for the same reason, and also because the place of burial could be misused for demonstration purposes.

I therefore propose that the following general rule be decided upon for cases of death:

_a._ Notification of relatives is not to take place.

_b._ The body is buried at the place of death, in the Reich.

_c._ The place of burial is not made known for the time being.

In the case of the deceased Frenchman Rousseau, I have given orders which accord with the above proposal and I will do likewise in the future pending a decision by you.

pp.
[signature illegible]

* * * * *

SECRET

Supreme Command of the Armed Forces

Berlin W 35, Tirpitzufer 72--76, July 13, 1942
14 m 16.18 WR (I 3/4), No. 562/42 g
To the Chief of the Security Police and Security Service
Berlin SW11, Prinz Albrecht Str. 8
[Pencil alteration]

[Pencil note--]
E46 E8/46 38/42
Reich Ministry of Justice 16th July 1942
Section

By way of information to:

Supreme Command of the Army

Supreme Command of the Navy

Reich Minister of Air Transportation and Commander-in-Chief of the Air Forces

President of the Reich Court Martial

Reich Minister of Justice

Armed Forces Operations Staff/Headquarters

_Subject_: Prosecution of punishable offences against the Reich or the occupation forces in the occupied territories.

_Reference_:--IV D 4--103/42 g--of June 24, 1942. 1 enclosure.

The supreme command of the armed forces agrees to the suggested treatment of cases of death. The decree of April 16, 1942, will in due course be supplemented accordingly.

The Chief of the Supreme Command
of the Armed Forces
Per: Dr. Lehmann

[Handwritten note--largely undecipherable]

(Stamp of the Supreme Command of the Armed Forces)
Checked: Bachmann,
Justizoberinspektor d.Lw.
IV a 863/42 g
[Handwritten note]

1. _Note_: Procedure in cases of death has already been laid down by IX para. 5 of the draft of a second order for the carrying out of the general directions * * * of decree of the OKW dated 16.4.42.--

In my opinion the case of death quoted in the letter of the Reichfuehrer-SS dated 24.6.42 precludes the necessity of a supplement to the draft, mentioned.

2. Submit to me 3.8.

RM 29.7.

Submitted to OBGK (?) Dr. V. Ammon 3.8.

TRANSLATION OF DOCUMENT 674-PS

_1st copy_

President of the High District Court and Chief Public Prosecutor

Kattowitz, 3 December 1941

Nikolai Str. 1, Entrance Wilhemsplatz Tel.: 34608 and 34610

VS 4 E-1. 51 secret
_file nr. 229_

[illegible notations]

"SECRET" only

To the Reich Minister of Justice, Attention: Chief Councillor to the Government Stadermann or Representative in Office.

Berlin

_Re_: Executions by the Police and Expediting of Penal Procedure Without Order.

Inclosure: 1 copy of report

About 3 weeks ago 6 chief agents (partially German) were hanged by the police in connection with the destruction of a treasonable organization of 350 members in Tarnowitz without notification of the ministry of justice. Such execution of criminal agents in the Bielitz district have already been made before also without the knowledge of the proper authority for criminal persecution. On 2 December 1941 the head of the state police at Kattowitz, chief councillor to the government Mildner, reported orally to the undersigned that he had ordered as necessary immediate action, with authority from the Reich-leader of the SS these executions by public hanging at the place of the crime; and that deterring measures would also have to be continued in the future until the criminal and actively anti-German powers in the occupied Eastern territories have been destroyed, or until other immediate actions, perhaps also by the courts, would guarantee equal frightening effect. Accordingly, 6 leaders of another Polish organization guilty of high treason in the district in and around Sosnowitz were to be hanged publicly today as an example.

About this procedure the undersigned expressed considerable doubts.

Besides the fact that such measures have been withdrawn from the jurisdiction of the ordinary courts and are contradictory to the laws not put out of effect, a justified emergency for the exceptional proceedings by the police alone cannot, in our opinion, be lawfully recognized.

The penal justice in our district within the limits of our jurisdiction is quite capable of fulfilling its duty of immediate penal retribution by means of a special form of special judicial activity (establishment of a so-called rapid special court). Indictment and proceeding could be speeded up in such a way that between turning the case over to the public prosecutor and execution no more than 3 days would elapse if the practice of pardoning is simplified and if the decision, if necessary, can be obtained by long distance call. This was expressed yesterday to the head of the state police at Kattowitz by the undersigned.

We cannot believe that execution by the police of criminals, especially German criminals, can be considered more effective through shattering the sense of justice of many German countrymen. In the long run they might, in spite of public terrorizing, lead even more to further brutality of minds, which is contrary to the intended purpose of pacifying. These deliberations, however, do not apply to future lawful competence of a drumhead court-martial for Poles and Jews.

According to a recent report of the head of the Kattowitz state police to the district leader [Gauleiter] Bracht, the cases of 540 persons accused of high treason from the Kattowitz district have already been forwarded in December 1940 by the police to the board of arraignment of the people's court in Berlin without any sentences having been passed there as yet. This situation, which became known in the various branches of interested party circles and administration departments, injures the reputation of justice in general as well as the concept of the effectiveness of justice in the occupied Eastern territories especially because, with the exception of the court, the exclusive competence of the people's court for the sentencing of matters of high treason is not sufficiently known.

We are not informed as to how far the described situation of non-settlement is true.

As far as the proceedings of treasonable cases by the chief Reich prosecutor at the people's court in Berlin are concerned which were forwarded for prosecution to the co-undersigned public prosecutor (proceedings per par. 5 section 2 of the law about the competence of criminal courts dated 21 Feb. 40--RGBl I, p. 405--in connection with the AV of Reich justice ministry dated 7 June 45--German law, page 683) we should like to point out the following:

From July 1941 until today, the cases of 235 accused were forwarded by the chief Reich prosecutor; 122 of the accused have already been sentenced, indicted, or proceedings were suspended or transferred.

The co-undersigned president of the supreme country court has taken steps to expedite prosecution further by personally supplementing the criminal court for high treason. If it should become necessary in the future, a second court could be appointed for the prosecution of matters of high treason by putting aside less important work. All organizations charged with prosecuting and sentencing of high treason and also with other severe crimes have been impressed by the undersigned that a speedy treatment is essential for war and nation.

With these organizational measures intended and already partially introduced by us of creating a "Rapid Special Court" which should also be technically equipped with everything necessary, and with the likely establishment at any time of a second court for matters of high treason in Kattowitz, the executions by the police still remain necessary as immediate actions against traitors, according to the chief councillor to the government Mildner, for the anti-German treasonal activity is supposed to have increased to such an extent that comparisons with the situation in 1917 and 1918 are already permissible, and that the criminals draw courage and power from the drawn-out legal trials of the traitors. The situation in the Kattowitz district is supposed to be especially difficult because there are 1-1/2 million Poles, 150,000 Czechs, and 7,000 Jews among the 3 million population whose anti-German attitude is being joined in a remarkable way by more and more Germans in the last months. A further worsening of the situation is to be counted on if the war should last longer; for the Poles are said to be fanatically convinced of the victory of the Western countries and of a resurrection of their country, and, without inhibition, risk everything which does not seem to be punishable by death. The terrorist activity of the last few months does not appear to leave the Reich Germans in the Eastern occupied districts unimperilled. The slightest military set-back could result in immediate danger due to the growing and immediate terrorist readiness of the anti-German organizations. These are the reasons why the head of the state police considers as necessary immediate measures also in the field of high treason. If such steps could be taken by judicial means, this would seem also to him the best solution since the state police is already overburdened and suffering from considerable personnel shortage.

After this discourse we cannot help but have the impression that the situation, especially with respect to high treason (terrorist) activity has grown serious since the spring of 1941 and that special measures have to be taken to subdue same effectively. We pointed out to the head of the state police our insufficient competence in this field, but have informed him that we would report this matter to the Reich minister of justice.

In view of the great judicial importance of the mentioned problems for the district of the Kattowitz high county court, we deem an early personal discussion at Kattowitz necessary, and that the chief councillor to the government Mildner and perhaps a representative of the people's court and of the chief Reich prosecutor at the people's court should be taken into consultation.

(signed) Dr. Heimer

[illegible notes showing that the conference had taken place]

TRANSLATION OF DOCUMENT 675-PS

SECRET

Nationalsocialist German Workers Party
Berlin--Wilhelm Str. 64
Munich, Brown House
The Deputy of the Fuehrer

To the Reichminister for Justice, Attn: Ministerial office director Stadermann or his deputy

[Rubber stamp]
Reichministry for Justice
25 August 1938,

Dept V Gst a,
16 Aug 1938, III D--Es, 3315/0/31--3604 Secret
Berlin W 8 Wilhelmstrasse 65

_Subject_: Austrian Concordat
Your letter of 23 May 1938--Va 146/38 Secret

I have purposely not taken a hand in the letters, which I have received from various Reichministers as well as from the Reichfuehrer SS and the Chief of the German Police, since the Fuehrer's decision on that was known to me already in connection with a lecture by the Reichcommissioner for the incorporation of Austria into the Reich. I therefore have refrained to take a standpoint again to the questions, mentioned in your letter, and have requested the Reichminister and Chief of the Reich Chancellory in a letter of 29 June 1938, to inform you about the Fuehrer's decision. Therefore, the questions, as far as they concern the validity of the Austrian Concordat, are taken care of by the letter of the Reich Minister and Chief of the Reich Chancellory of 12 July 1938--Rk 276 B Secret.

However, in order to be able to take into account the general political considerations in the measures, probably planned for Austria for the execution of this decision of the Fuehrer, and to keep to the church-political line of the Fuehrer, I request from you, to get into contact at the proper time before taking action in these measures besides with the Reich Commissioner for the incorporation of Austria into the Reich, also with the Reich Minister for church affairs and with the Fuehrer's deputy.

Heil Hitler!
By order
/s/ BORMANN
(M. BORMANN)

TRANSLATION OF DOCUMENT 680-PS

SECRET

The Reich- and Prussian Minister of the Interior

Berlin, 5 May 1938
NW 40, Koenigsplatz 6

Phone: Dept Z, I, II, V, VIII 11 00 27, IV, VI, VII (Unter den Linden 70--72) 12 00 34

Cable address: Reichsinnenminister
Nr I 176/38, 1014 g

Urgent

To:

_a._ The Reich- and Prussian Minister for Ecclesiastical Affairs, attention: Government Councillor [Regierungsrat] URLAUCH or his deputy in office.

_b._ The Foreign Office, attention: Councillor [AMTS- and HOFRAT] SCHIMPKE or his deputy in office.

_c._ The Reich Minister of Justice, attention: Ministerial Office Director STADERMANN or his deputy in office.

_d._ The Reich Minister for Education, attention: Government Councillor [Regierungsrat] JAEHNERT or his deputy in office.

_e._ The Deputy of the Fuehrer, attention: SS-Inspector KNOBLAUCH or his deputy in office.

_f._ The Reichsfuehrer SS and chief of the German Police attention: SS 2nd Lt, Government Councillor Dr. TANZMANN or his deputy in office.

SUBJECT: Concordat between the Holy See and the Republic of Austria.

The question of further validity of the Austrian Concordat (Konkordat) which has already been brought up by the Reich- and Prussian Minister for Ecclesiastical Affairs in his letters to the Foreign Office of 22 March 1938--II 1563/38--and of 26 March 1938--G II 1596/38--, is one of fundamental importance for a number of matters to be worked out by the central office for the execution of the reunion of Austria with the German Reich as well as other offices of the Reich and Austria concerned with it. This question has to be brought to a conclusive clarification immediately.

I deem the following conceptions possible:

The Concordat will not be considered as binding already for the reason that it has not at all been reached _within the framework of the constitution_.

The more detailed reasons for that are evident from the following:

1. The negotiations for conclusion of the Concordat had come to an end already on 5 June 1933, on which day the Concordat had been initialed in Vatican City.

Regardless of that, the Concordat was not submitted for further constitutional processing by the federal government of Austria for almost a whole year, because the National Council of Austria was considered suspended in accordance with the so-called "self-elimination" thesis represented by the federal government due to the resignation of all its three presidents, and beyond that, the acceptance of the Concordat could not be expected because of the majority relationships as they existed at that time within the National Council.

The constitutional processing, in accordance with article 50 of the federal constitutional law as provided for in the version of 1929 (RGBl Nr 1/1930), would have had to consist of the fact that the Concordat, being a political and law-changing treaty of the State, would have to be presented to the National Council for approval in order to attain its validity, in which connection the respective decision regarding the character of this State treaty, which simultaneously changes the constitution, can only be made in the presence of at least half of the members of the National Council with a majority of two thirds of the votes cast; besides, the decision of the National Council would have had to be submitted to further prescribed procedure (presentation to the Federal Council).

The Concordat was processed further only in conjunction with the development which led to the constitution of 1934, and that in the following manner:

While, up to that date, the repeatedly uttered request for another session of the National Council had always been opposed on the ground that it was impossible to convoke it because of the so-called "self-elimination program" and whilst, on the basis of this claim, one had governed by means of the enabling act for war economy which had originally been passed for certain exclusively economic purposes (RGBl. No. 307/1917), now all of a sudden, also based on this act, by a decree dated 24 April 1934 (RGBl. I No. 238/1934), the federal act concerning the rules of procedure of the National Council was amended to the effect that, although a president did not exist, the National Council was in a position to reassemble.

This procedure was absolutely unconstitutional. The Federal Government prevented through police power the attempt of the last-retired president of the National Council to revive this body by summoning the National Council anew in his capacity as the last president. On the other hand, the Federal Government had also constantly refused to use the possibility given by article 18, paragraph 3-5 of the Federal constitutional Law of 1929, to set the National Council going again through an emergency decree of the Federal president. Instead of this, in the meantime, all possible legal measures were based upon the enabling act for war economy, which was entirely contrary to the realm of authorization of this law and entirely against the constitution. An especially notorious abuse of the enabling act for war economy was the employment of the enabling act for war economy for the issuance of the aforementioned decree with which the rules of procedure of the National Council were changed.

As it turned out, the National Council summoned on this basis no longer had the composition with which it had emerged from the last elections; on the contrary it was only a rump-parliament, because all mandates of the Social Democratic Labor Party in the meantime were also declared void by a decree of February 16, 1934 (RGBl. I Nr 100/1934) also based upon the before-mentioned enabling act for war economy.

This rump-parliament assembled on 30 April 1934 for a conference in which solemn declarations were made by the Gross Deutsche Volkspartei and the Landbund--the two parties with outspoken National character--in which the constitutional legality of the whole procedure was expressly disputed, after which all delegates of the two named parties left the conference, with the exception of one delegate of the Landbund who at the same time was holding a public office, so that for the further discussions and resolutions only the before-mentioned one delegate of the Landbund and the delegates of the Christian-Social-Party and the Heimatschutz remained who together comprised only 76 delegates.

These 76 delegates now passed the so called Federal Constitutional Law concerning extraordinary measures within the jurisdiction of the constitution (RGBl. I Nr. 255/1934). Through Art. I of which the above mentioned decrees of Art. 50 of the Federal Constitutional Law of 1929 concerning the co-operation of the National Council in National treaties were cancelled. This constituted, in addition to the unconstitutional manner of the summons, a further very substantial violation of the constitution, in that--as has been mentioned already in the beginning--according to Art. 44, section 1, of the Federal Constitutional Law in the version of 1929, constitutional laws could only be passed in the presence of at least one half of the members of the National Council with a two-thirds majority of the votes cast, but the National Council consisted, in accordance with paragraph 1 of the election rules of 165 delegates and therefore the presence of at least 83 delegates would have been required in order to pass upon a resolution changing the constitution.

After the federal constitutional law of 30 April 1934 had also been presented to the Federal Council which for the same reasons as the National Council, held sessions as a rump body, and it had issued no protest, it was announced yet on 30 April 1934, causing the day of its taking effect to be 1 May 1934.

Already during the night of 30 April to 1 May 1934, the exchange of ratifications prepared with the Papal Nuntio took place and already on the 1 May 1934 the concordat was made public in the federal gazette.

From the preceding explanation it is evident, that the Concordat between the Holy See and the Republic of Austria has been concluded under circumstances which offer the possibility to represent, with reasons which cannot be contradicted, the point of view that the conclusion of the Concordat was completely in violation of the constitution and therefore no legal validity can be attributed to the Concordat. In this respect it has to be noted that the fact that the Concordat was concluded in violation of the constitution was regarded as a fact already at that time in all serious judicial circles in Austria. (Compare in this respect particularly also the remarks referring to the Concordat made in the work of Guerke on "The Austrian Constitution of 1934" in the archive of public law, new edition, volume 25, page 178 pp.).

This point of view would open up the following additional path:

The Reich government declares to the Holy See on the basis of these facts that, after examining the legal angle, it had come to the conclusion that for the reason stated it could not recognize the Concordat any longer and is combining with that also with the effect "ex nunc" and with simultaneous legal settlement of the questions remaining unclarified through the abrogation of the Concordat, the abolition of the Austrian legal regulations referring to the Concordat (Federal law RGBl II, Nr. 8/1934 in the version of RGBl Nr. 134/1935 and decree RGBl II Nr. 13/1934).

2. The Concordat has expired automatically, through the reunion of Austria with the German Reich, because Austria has vanished as independent state, has obtained the constitutional position of a German state and therefore lost the position as a subject of international law. This point of view which by reason of logic can surely only be taken _retroactive to 13 March 1938_, would be based more exactly on the following:

Within the international legal sphere there is no general legal succession of the territorial successor into the rights and duties of the territorial predecessor. It rather has to be scrutinized in each case separately, whether a legal succession in accordance with international law occurs. With the fall of the territorial predecessor, the bilateral state treaties concluded by him are as a rule void. However some exceptions to this principle are recognized: National practice has shown that state treaties will be renewed tacitly by the territorial successor simply by administering them further. But a new state may also be forced, in order to obtain desired recognition, to take over certain state treaties. A general _duty in accordance with international law_ for the fulfillment of obligations resulting from treaties made by the territorial predecessor, exists, however, only in the following cases: As a rule, state treaties which concern the territory of the state taken over as such, that is, so-called "ratifizierte" treaties (border treaties, treaties on rivers and roads of communication), will also fall to the territorial successor. Furthermore, those Concordats which have in accordance with customary law found recognition beyond the sphere of the partners of the treaty, will also be valid for the territorial successor. Lastly, rules can be established through a collective treaty which determines a certain order for a group of states. Those norms also remain in effect in case of territorial changes within that group and therefore also fall to the territorial successor. (Compare Verdross, international law 1937, Page 71.)

The following additional consequences would be combined with the conceptions mentioned above:

To 1: The establishment of the unconstitutional conclusion of the Concordat would first of all represent a strong moral verdict against the whole past system connected with the names Dollfuss and Schuschnigg in Austria, which could be politically very desirable for various reasons.

The attitude of the Reich government toward the other bilateral State treaties signed by Austria would not be prejudiced as no other state treaty of more importance was signed under the same circumstances as the Concordat. One would prefer this procedure in the expected discussions with other countries, some of which (Jugoslavia, Poland, England) have already referred to their stipulated rights in Austria.

The declaration that the Concordat will not be acknowledged on the grounds of unconstitutionality and the repeal of the connected Austrian legal provisions with "ex nunc" effect would not influence the validity of the legal acts based on the Concordat (especially on the field of matrimonial law as to states rights). An express legalization of the past is therefore not required.

Furthermore one could arrive at the point where the conception could be maintained that former Austrian territory, in contrast to remaining Reich territory, had become entirely free of the Concordat, an interpretation which would be especially unwelcome to the Holy See for various reasons, and would force open the entire question of the future relationship between the Reich and the Holy See with all the resulting consequences in favor of the Reich in eventual further conferences with the Holy See.

To 2: On a former occasion the church adopted this point of view, as the Reich- and Prussian Minister for church affairs has already pointed out in his letter to the Foreign Office of 22 March 1938.

Thus in a statement to the secret consistory of 21 November 1921 Pope Benedict XV discussed the question of the validity and tenure of the Concordats, since retroactive effects had arisen from the changes in state territories and organizations produced by the world war. Therein the Pope distinguished between countries which were newly created, countries with considerable territorial expansion, and countries which have changed so completely that they could not be considered the same "moral person". According to Pope Benedict XV opinion all these three classes of countries have "lost their privileges granted in former Concordats". It is quite evident, that Austria, after it became a part of the German Reich since March 13, 1938, cannot be considered the "same moral person" as before.

It has not yet been decided how the bilateral Austrian state Treaties of noneconomical nature which have been listed in the letter of the Foreign Office of April 6, 1938--R VII. 38 will be handled. One cannot yet perceive whether the Reich will take over one or the other of these treaties. This would no doubt be made use of by the Holy See to insist on the succession of the Reich as to the Austrian Concordat. On the other hand application of the theory of international law relating to succession of states as discussed above may lead to unnecessary suspicions in other cases, in which the Reich intends to bring about a peaceful solution with the other partner to the agreement.

If one is of the opinion that the Austrian Concordat is abolished by the actual reunion of Austria with the Reich then the question comes up whether, on account of the same fact of territorial expansion, the Concordat of the Reich logically would have to be regarded as applying to Austria too.

The Reich Concordat was, as far as I know, not expressly extended to the Saar-District, after the reembodiment of the latter into Germany; there can be no doubt, however, that the Reich Concordat has formal validity in the Saar-District today. Even though the Saar-District unlike the Federal State of Austria--had not concluded a Concordat of its own with the Holy See prior to its reembodiment, there can be no doubt as to the former independent legal competence in accordance with international law of the Saar-District. In view of a comparison with the Saar-District and the possible conclusion to be drawn with regard to Austria it seems advisable not to claim the expiration of the Concordat on the grounds that the Austrian independent state has ceased to exist.

The Austrian Concordat however, has established very incisive regulations in the sphere of matrimonial law as pointed out by the Reich Minister for Church Affairs, according to which the Canon Law alone is competent for marriages of Catholics; this law has the validity of a civil law; the publishing of bans and the laying down of obstacles to matrimony are stipulated according to Canon Law; Catholic Church authorities and law courts are competent for matrimonial affairs; the parson is a registrar at the same time. Should the Concordat therefore be considered as having expired as of March 13, 1938 a number of most complicated legal questions would arise; in particular the question as to what legal validity should be given to catholic matrimonies concluded in Austria after March 13, 1938 and which other legal consequences are to be considered as connected with such matrimonies. It would be regrettable should one have to draw the conclusion that legal acts based on the expired Concordat had subsequently to be sanctioned by the state.

On weighing the advantages and disadvantages of the two conceptions both of which can be supported by good legal arguments I should like to speak in favour of the conception explained under 1.

I shall be glad if you will inform me of your opinion about the question raised by May 15, 1938. I am quite aware of the fact that in view of its great political importance the decision can only be made by the Fuehrer and Reich chancellor.

After receipt of your communication I reserve the right to summon a conference.

Signed: Frick

* * * * *

SECRET

D. RM.d.J. Berlin, May 13, 1938
_Special Delivery_

To The REICH AND PRUSSIAN MINISTER OF THE INTERIOR
c/o Ministerialrat Dr. Hoche

_Subject_: Concordat between the Holy See and the Republic of Austria.

_Re_: Communication of the 5th of this month
TO THE OFFICE May 14, 1938
signed: Templev(?)5/14/

Nr. 1-176/38 1014 g;
Despatched May 14, 1938
signed: Templev [?]
Not later than today

Your communication, as per description on the margin was received here on the 9th of May. Considering the importance a proper handling of this matter carries for the official business under my jurisdiction I shall be unable to announce a final statement before the 15th of this month.

I therefore request that the time allotted me for a reply to the communication be tacitly extended to May 25.

for the office 5/14/38, 10 o'clock I.V.

EK.

(S) [Illegible]
Final regulation of 5/23/38 with V a 146/38 g page 13
V a 138/38 g

* * * * *

V a 138/38 g

1. _Note_: Of the 4 spare copies which were procured I have given one to Ministerialrat Ficker and at the same time one to KGR Kaulbach because of the question of canonical law and at the same time for the minister.

Ministerialrat Ruppert, who has already offered a preliminary opinion, wants to express his conclusive opinion at a later date, since, he will presumably not be present by the end of the week, because of his vacation.

The report on the matter will probably be made to Secretary of State, Dr. Schlegelberger's, on Saturday the 21st, the report to the minister's on the 23rd of May. The matter should be fully prepared by that time.

2. The office is requested to refer on Monday May 16 the occurrences, including any opinions of the Ministries concerned to Min-Rat Dr. Kriege who is handling the matter.

Berlin, May 14, 1938

Presented upon arrival from the Reich and Prussian Ministry for Ecclesiastical Affairs on May 11, 1938.

The 4 duplicates have been placed in the file of papers to be destroyed.

* * * * *

To: Mr. Kriege, Counsellor of the Ministry of Interior, respectfully submitted:

Mr. Thees has asked me to give my opinion on the letter of the Ministry of Interior, dated 5.5, regarding the Austrian Concordat, insofar as the letter pertains to my sphere.

With regard to the reform work in the field of matrimonial law and, in close connection with it, the creation of a uniform matrimonial law for Greater Germany, two points are of decisive importance:

_a._ The Concordat must not offer any impediment as soon as this matrimonial law comes into force.

_b._ The legislation for the execution of the Concordat, namely the law of 4.5.1934, has to remain in force until this time.

This result, decisive for any further action, cannot be achieved, in my opinion, on the basis of the first proposal of the Ministry of Interior. If the Concordat were null and void on account of unconstitutionality, then the same would apply to the legislation for its execution; the marriages based on the law of 4.5.1934 would be void and would have to be sanctioned with retroactive force. It is not clear to me how, on the basis of this reasoning, the Ministry of Interior can achieve a non-retroactive result in the nullification (p. 5).

There remains, therefore, the second solution proposed by the Ministry of Interior. If the Concordat excludes state succession, it seems to me, nevertheless, that the expiration of the law of 4.5.1934 does not result with effective date of 13.3.38. Even if an international pact expires, it seems to me that the legislation for the execution would bind the subjects until it was abrogated by an act of the state. The statements on page 9 of the letter are inaccurate insofar as the marriages which were contracted after 13.3 were not contracted by virtue of the expired Concordat, but by virtue of the law of 4.5.1934. Accordingly, it seems to me that continuing effect of the law of 4.5.1934 can be achieved in this way.

/S/ Ficker 18/5

* * * * *

SECRET

Reich and Prussian Ministry for Church Affairs
Berlin W.8., 3, Leipzigerstrasse, 11th May 1938
[stamp]
Reich Ministry of Justice, 13th May 1938.
Sect. V.
Re: Austrian Concordat.
Communication of the Reich Minister of the Interior, May 5, 1938
I 176/38 1014 g
Va 138/38g (Contents noted for the Minister)

The question whether the Austrian Concordat should be considered by the Reich Government as having been illegal and invalid from the very start, or as having been abolished by the revolution or whether it should be expressly cancelled can not be decided from a legal point of view but has to be decided from a political point of view.

This political decision can only be taken by the Fuehrer. Suggestions to this effect will be made to him by the Ministers competent in questions of foreign policy and of church affairs, i.e., by the Reich Minister for Foreign Affairs and by the Minister for Church Affairs, who have already contacted each other for this purpose.

Also the question of the Reich Concordats to Austria (which, by the way, is utterly unbearable) is not a legal but a political matter. The question of the continuation of the Reich Concordat and of the "state"--Concordats is connected with this problem. Here, too, the decision rests with the Fuehrer.

With regard to the execution of the necessary laws in Austria, resp. to the introduction of Reich laws in Austria the only decisive factor is the political interest of the Reich, whereby the Austrian Concordat will be considered as non-existent.

Signed: KERRL.

To:

_a._ The Reich Minister of the Interior

_b._ The Ministry of Foreign Affairs

_c._ The Reich Minister of Justice

_d._ The Reich Minister of Education

_e._ The Deputy of the Fuehrer

_f._ The Reich Leader of SS troops and Chief of the German Police

_g._ The Reich Minister and Chief of the Reich Chancery

(In connection with a 146/38g) Va- 139/38g

* * * * *

SECRET

The Reich and Prussian Minister of Education, etc.
Berlin W8, May 17, 1938
Z II a Nr. 10074 Geh/38 Reich Ministry of Justice
May 18, 1938
Dept. V Off. a

In reference to the communication of May 5, 1938--I 176/38, 1014 g, V a 138/38 g, re: Concordat between the Holy See and the Republic of Austria.

I agree with your conception in the final analyses.

The Austrian concordat did not--according to your arguments--enter into a due constitutional existence and is therefore without legal effect. However, in contradistinction to your arguments, I believe it correct to assume that the treaty was void from the beginning (ab initio) and not from now on. Therefore all legal acts which have taken place up to the day of establishment of invalidity of the Austrian concordat would have to be sanctioned retroactively.

Looking at both possibilities, as presented by you, the Austrian concordat is void ab initio, in the first case as represented by you and also by me from the very beginning, in the second case from March 13, 1938 on. For legal considerations, in both cases, the subsequent sanctioning of any legal acts, carried out meanwhile, is absolutely required.

By registered mail.

1. Reich Minister and Prussian Minister of the Interior, Attention: Min. Buerodirektor Stoppel or acting deputy.

2a. Reich Minister and Prussian Minister for Church Affairs, Attention Regierungsrat Urlacher or acting deputy.

b. The Foreign Deputy Office, Attention Amts- and Hofrat Schimpke or acting deputy.

c. Reich Minister of Justice, Attention Min. Buerodirektor Stadermann or acting deputy.

d. Deputy of the Fuehrer, Attention SS-Oberfuehrer Knoblauch or acting deputy.

e. Reichsfuehrer SS and Chief of the German Police, Attention SS-Untersturmfuehrer Reg.Rat Dr. Tanzmann or acting deputy.

to 2 Duplicate for taking note of.
[In long hand:] Dr. Kriege
V a 146/38/1 Encl. (2 dupl) Duplicate to file
E 26

* * * * *

The first possibility, the establishment of the legal invalidity of the Austrian Concordat, has in its favor, as ably shown by you, that a moral condemnation of the past system in Austria is brought about. This system seized the power without a mandate of the Austrian people and concluded the concordat without authorization on the part of the Austrian people. Further, I don't think, that we have to fear the effects upon the Saarland, which you indicated. However, it seems to me of the utmost importance, that the treaties, concluded by Austria with other states, have not been concluded under similar circumstances; therefore these states do not have to fear similar consequences, a fact, which should be pointed out at the time of the declaration of the invalidity of the Austrian concordat.

However, I think it advisable, to refer while dealing with the Curia, especially since this point of view was also advocated by Pope Benedict XV in his statement of November 21, 1921, before the Secret Consistory (Geheimkonsistorium).

I also take the position that Austria is without any concordat after the establishment of the invalidity of the Austrian concordat. I do not consider an extension of the Reich-concordat to Austria appropriate from the point of view of my office.

By authority of the State Secretary.

Signed KUNISCH
Certified:
[signature illegible]
Verwaltungssekretaer

* * * * *

19 May 1938

1. Minister of Education, signed Kunisch, May 17, secret, sends copy of his letter of May 17th to the Minister of the Interior, concerning the Concordat between the Holy See and the Republic of Austria.

I agree with your concept as far as results are concerned.

The Austrian Concordat is devoid of legal validity, since it was not concluded in an orderly fashion and in accordance with the constitution, as apparent from your explanations. However, I shall have to differ with you on the point that the contract is not merely invalid "ex nunc" (from now on) but "ex tunc", i.e., from the very beginning. The necessity arises therewith to sanction retroactively all legal acts executed by reason of the Concordat till the date when invalidity of the Austrian Concordat was proven.

Entering upon the two possibilities explained by you, the Austrian Concordat would therefore be invalid "ex tunc", as far as your first case and also mine is concerned from the very beginning, and in the second case as of 13 March 1938. In both cases the need arises on the basis of judicial-political considerations for retroactive sanction of legal acts executed in the meantime.