Re Koch
| Jurisdiction | Polonia |
| Date | 10 November 1959 |
| Court | Supreme Administrative Court (Poland) |
International law Relation to municipal law Binding force of treaties in municipal law Incorporation by legislation Agreement for the Punishment of Major War Criminals, 1945 Binding force of Nuremberg Judgment in municipal law The law of Poland.
Extradition Conditions of Principle of specialty Extradition of war criminals Absence of need to specify exact offence Sufficiency of statement of facts on which application for extradition is based Extradition of common criminals contrasted The law of Poland.
Treaties Operation and enforcement of Necessity for municipal legislation Agreement for the Punishment of Major War Criminals, 1945 Incorporation in the law of Poland.
Occupation of enemy territory Nature and effects of German occupation of Poland, 19391945 Special characteristics of Criminal aims of said occupation Occupation resulting from unlawful war Whether occupation in legal sense Annexation of part of occupied Poland and administrative changes therein Unlawfulness under international law German theories Hague Convention No. IV, Article 42.
Occupation of enemy territory Legislative, judicial and administrative functions of Occupant German occupation of Poland, 19391945 Introduction of Occupant's own legal system Setting up of courts of summary justice.
Occupation of enemy territory Inhabitants German occupation of Poland, 19391945 Mass killings and deportations of civilian population Nazi policy towards Jews Limitations imposed upon Jews and final extermination Collective responsibility and mass reprisals against local population Hague Convention No. IV, Articles 43 and 46.
War In general Enforcement of the laws of war Punishment of war crimes Moscow Declaration of 1943 and London Agreement of 1945 Effect in municipal law Principle of nulla poena sine lege Plea of Act of State Criminal responsibility of individuals for Act of State Applicability of Hague Convention No. IV Crimes under that Convention Responsibility of administrative head of portion of occupied territory for criminal acts committed therein as part of official occupation policy The law of Poland.
The Facts.The accused, Erich Koch, was Gauleiter and Oberprsident of East Prussia and in that capacity he was administrative head of certain parts of Polish territory occupied by Germany during the Second World War. These included (I) the District (Regierungsbezirk) of Ciechanw and two smaller administrative units, namely Dzialdowo and Suwalki, which Germany claimed to have incorporated into the Reich and which were thus considered, in German law, as forming part of the Province of East Prussia. This area was under the administration of the accused from October 26, 1939, until it was liberated in 1945. These parts also included (2) the so-called District of Bialystok, of which the accused was Chief of Civilian Administration from July 17, 1941, until the liberation.
The accused was charged with breaking the basic legal and moral rules governing life in the territories subject to his administration. In particular, he was charged with crimes against humanity, war crimes and crimes against peace, which he was alleged to have committed by violating the powers bestowed on a belligerent Occupant by international law. He was accused of having acted either on his own initiative or in execution of criminal instructions which he received from the Government of the Reich and from the National-Socialist Party (N.S.D.A.P.). In particular, the criminal acts with which he was charged included mass and individual murder or extermination in camps of persons who were regarded by the Nazi rgime as constituting an obstacle to the strengthening of National-Socialism in the Reich and of Nazi rule in the occupied countries. The said acts consisted of ill-treatment and persecution on political, national and racial grounds, including the infliction of bodily injuries and causing of ill-health often resulting in death, of prisoners of war and civilian inhabitants; imprisonment of such persons in concentration camps and prisons; mass expulsions followed by destruction of homes; and deportation to slave labour in Germany or to closed quarters in cities (ghettoes).
The accused was also sued in a civil action for token damages, by Hersz Pianko, a Polish citizen who had been deported, together with his family, on the orders of the accused's administration, to the concentration camp in Owicim (Auschwitz), where his whole family perished.
In his defence the accused pleaded that he did not know of many of the criminal occurrences which took place in the territories under his administration. He also contended that the police and the S.S. acting in the territories for which he was responsible were independent of him and his officials, while the responsibility for all matters of policy regarding the occupied territories rested with his superiors.
Held (by the Voivodship Court): that the accused was guilty of the crimes set out in Article 1, paragraph 1, of the Decree of August 31, 1944 (murder, ill-treatment, and persecution of civilian inhabitants or prisoners of war).1Inter alia, he had acted in excess of the powers accorded to the military Occupant by international law. In the civil action against the accused, he was ordered to pay z 1 to
the plaintiff, Hersz Pianko, as token reparation for bodily injury and moral wrong.The Voivodship Court said (in those parts of its judgment which were devoted to the international law aspect of the case, and after reviewing the history of the Nazi movement and its policies in prewar Germany): The true intention of Hitler and his accomplices was to dismember Poland, to seize her territories and to prepare for the final struggle with the Soviet Union. Their immediate intention, bent on conquest, was to incorporate Pomerania, Great Poland[1] and Silesia and the disputed neighbouring areas of Central Poland into the Reich, to exterminate ruthlessly the Poles in these territories, to settle Germans in these territories, to destroy all traces of Polish culture there, and to exploit the territories economically to their full extent for the benefit of the German Reich.
The following passage, which we quote, from the judgment of the Supreme National Tribunal in In re Forster is relevant for our deliberations in the present case.
From the very inception of the Nazi Party, throughout the whole period of the Nazi rgime in Germany until its collapse, the accused Erich Koch was one of Hitler's most faithful collaborators, as well as one of the most skilful and ruthless of those who carried out Hitler's plans in Germany, especially in East Prussia, and in the captured territories of Poland and the Soviet Union where the accused exercised public power. [The Court then described at length the life and activities of the accused.]
On October 26, 1939, there was created the so-called Regierungsbezirk of Ciechanw, which consisted of fourteen districts detached from the Warsaw voivodship. The said Regierungsbezirk was incorporated into the province of East Prussia. It is, besides, well known, and it has even been shown in public proclamations regarding the decisions of summary courts, that under the rule of the Occupant, and in conformity with the constant policy of Germanizing the captured territories, German names were given to specific districts, towns and settlements, for instance Ciechanw became Zichenau, Pock became Schrtersburg, Ostroeka became Scharfenwiese, and so on. Notwithstanding the setting up of the Regierungsbezirk of Ciechanw, the district of Dzialdowo was incorporated into the Regierungzbezirk of Olsztyn [Allenstein], while the district of Suwalki was renamed Sudauen and incorporated in the Regierungsbezirk of Gumbinnen.
Thus there was accomplished the first unlawful annexation of Polish territories to the Nazi Reich in contravention of the rules of international law.
We must now investigate the activities of the Nazi authorities as directed by the accused Erich Koch in the areas which were subjected to his rule from the end of October 1939.
It is not possible to indicate in the reasons underlying the present judgment the immensity of the wholesale and methodical extermination of the Polish and Jewish populations which resulted from the criminal directives of the N.S.D.A.P. and the authorities of the Nazi Reich. It is impossible to give exact total figures or to specify or describe all the events. The Court is obliged to limit itself merely to pointing to a fraction of the crimes as established by the handful of witnesses who took part in the present proceedings and to published documents which reflect only in small part the picture of the Nazi atrocities. [Here the Court quoted several documents.]
The figures collected carefully during the investigation and based on reports received from the several districts, showed that during the occupation in the territories incorporated into East Prussia there were killed on the spot at least 35,012 men, 6,589 women and 5,964 children, while 25,187 persons were sent to concentration camps and about 35,000 to labour camps. These...
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