Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-181.05
Last-Modified: 2000/10/08

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The defendant Sauckel does not deny the facts taken here as
a basis, but I shall submit the legal reasons which justify
this mobilization of labour and I shall prove that it does
not involve any war crime inconsistent with International
Law.

The rules of International Law are authoritative when
considering the question whether "regulated labour
conscription" is a war crime. The Charter cannot prohibit
what International Law permits in war time. Such
International Law is laid down in the agreements on rules of
war and in the general legal principles and usages as they
are applied by the States.

The prosecution bases its judgement that labour conscription
is a war crime on the definitions of the Hague Convention on
Land Warfare, as well as on the agreements and rules of war
and the criminal codes of the countries concerned.

If it is shown that the labour conscription is permitted by
International Law, then a judicial inquiry into the penal
regulations is, of course, not necessary.

The Hague Convention on Land Warfare can be considered as a
basis for the laws of warfare with which we are concerned
here. Whether it was recognized by all States involved here
is, from a practical point of view, of little importance for
inasmuch as it was not recognized, or cannot be directly
applied, there is something lacking in International Law
which will be remedied in accordance with the principles of
the necessity and the duty of a belligerent to respect the
laws of humanity. The principles of International Law as
established in the Hague Convention on Land Warfare are in
all cases an important guidance.

The prosecution quoted in the first place Article 45 of the
Hague Convention on Land Warfare which is to safeguard the
fundamental rights of the population. It is typical of
forced labour that it restricts liberty, but it is exactly
this basic right which is not protected by this article.

If the Hague Convention on Land Warfare is examined for a
definite rule concerning deportation and forced labour it
will be realised that there is no such regulation. Just as
in the sphere of air warfare and the use of new weapons, the
Hague Convention on Land Warfare could not deal with
questions, which, at the time of its drafting, were far from
the minds of the contracting parties. The First World War
was fought between two armies with prepared material in
advance and the generally accepted idea was that after it
was used up, the fight would be ended. The idea of a long
war consuming huge amounts of material and requiring a
continuous production with all available labour was for the
Hague Convention on Land Warfare no problem as yet to be
discussed.

Article 52 of the Hague Convention on Land Warfare which
deals with the right to requisition touches on the matter
under discussion, but it can be seen that the rules deal
only with the merely local requirements of an army which is
equipped and which has only additional local requirements.

It is characteristic for the purely local meaning that the
requisitioning authority is entrusted to the local
commanders, in contrast to Article 51 of the Hague
Convention on Land Warfare which permits only an independent
commanding general to impose compulsory contributions. The
literature about the right to requisition in International
Law quotes accordingly only examples of local significance.

Although Article 52 of the Hague Convention on Land Warfare
can accordingly not be directly applied, its basic
principles are nevertheless binding on the belligerents.

The basic idea is that the Army can demand practically
everything that is necessary to meet its requirements. There
are only two limitations: it cannot take more than it needs
and not more than is compatible with the resources of the
country.

The idea of the local duty for supply, "ortlichen
Leistungspflicht", is to be adapted to modern warfare. The
Hague Convention on Land Warfare was concerned with the use
of smiths and wheelwrights who were necessary for the
maintenance of the equipment of the Army; work inside the
country of the occu-

                                                   [Page 98]

pying power was, with regard to the undeveloped conditions
of transport, out of. the question and could not be
considered.

Today, the necessary work cannot be done any more near the
front lines but must be done in the belligerents' own
countries. It must, therefore, be possible to demand labour
for work where the work alone can be done and where it is
necessary. It must be possible also to demand this for the
new war requirements of mass production for current
replacements.

What is necessary at any given time can be demanded and the
amount depends on the prevailing conditions. If in earlier
times, according to the principle "the war feeds the war",
an army far from its homeland was equipped to a large extent
in the occupied territory, it must be possible today to
supply the Army by moving the workers to the factories in a
belligerent's own country. The evolution of the laws of
warfare is influenced by the requirements which these laws
have to serve.

With the basic idea of the duty to furnish work or supplies
the basic idea of limitation has to be accepted, too. These
limitations must also be considered in accordance with the
changed conditions.

If the demand to work is justified, no more work can be
demanded than the occupying power demands of its own people
at home. The intensity of the war as total war must be taken
into consideration. The duty to work may hereby assume large
proportions.

The meaning and the purpose of the Hague Convention on Land
Warfare is certainly not to place the nationals of a
defeated State in a better position than those of the
victorious State which occupied the country. This, however,
would be the result if the Hague Convention on Land Warfare
would be interpreted according to its original wording. If
this is claimed, France, which had unconditionally
capitulated, as well as the other occupied countries, could
have looked on in security while Germany, strangled by the
blockade, exhausted herself in an indefatigable struggle in
sacrifices of life and property. Can one really demand that
the prisoner in a besieged fortress lives better than the
defender of the fortress?

If Germany could live today according to the ideal of the
Hague Convention on Land Warfare, this would be preferable
to the burden of the peace treaty to be expected.

Actually, the Hague Convention on Land Warfare has not been
adhered to in its original interpretation if it is true
that, already before the conclusion of the armistice
agreement, the Soviet Union as occupying power has
transferred the population on a large scale from the eastern
parts of Germany for work outside Germany. The Tribunal
could obtain official information about this through an
inquiry with the Control Council. I have also information
that German civilian internees are used for work in France
today. Here, too, the Tribunal could obtain official
information.

The second limitation of the duty for work is embodied in
the rule that no participation in war enterprises against
the fatherland of the worker can be demanded. Any work done
for the occupying power indirectly benefits its war effort;
the prohibition is therefore restricted to direct
participation in "operations" of the fighting force. The
literature on International Law contrasts the participation
in military operations with the permissible participation in
preparations.

A participation in war operations in this sense was demanded
of no workers; on the contrary, the policy was to employ
workers away from these operations.

Consequently only such activity as is directed against one's
own country is forbidden. Thus, the feelings of the
individual are to be taken into consideration. The
protection of the enemy State is not aimed at. Wherever,
therefore, the individual renounces his country and, in the
struggle of ideologies, opposes the government of his
country, such a restriction cannot be kept up. In connection
with this, it is to be noted that a great number of
foreigners adopted such an

                                                   [Page 99]

attitude and some of them still live in Germany today. The
same applies when the State to which the worker belongs has
ceased fighting. This question is of special importance with
regard to the obligation to work in the armament industry.
The rules of the Geneva Convention, with regard to work
permissible for prisoners of war, ate known. The basic
principle that no one may be forced to make weapons against
his own brother must apply to civilian workers also.

The fact, however, that one's country is no longer in a
state of war is one of the reasons that nullify this
restriction. The need for protection also ceases to exist
when a country - though legally participating in war - no
longer possesses sufficient fighting forces and thus ceases
to exist as a military object of attack. The fact that this
country has allies who fight for it cannot arbitrarily
extend this restriction beyond agreements of the Geneva
Convention; neither is it the duty of a subject of a State
to protect allies fighting for him and to participate in the
policies of his government.

Puppet governments cannot change reality. Recognition cannot
be granted to them unless they come forward as independent
combatants under a command of their own and if they are
recognized as such.

This applies to all States defeated by Germany.

At the time of the mobilization of labour only England, the
United States and the Soviet Union were active combatants
against Germany. British and American subjects were not
subjected to this mobilization, although some citizens of
the Soviet Union were used in the armament production.

The legal position of citizens of the Soviet Union is,
however, fundamentally different.

Under Document EC-338, Exhibit USSR 356, the prosecution
submitted a decision of the People's Commissars of 1st June,
1941. This decree involves the utilization of prisoners of
war for labour purposes, but deals, however, also with the
employment of interned civilians. According to it, armament
production is not forbidden for both categories of workers.
However, two restrictions are provided for in the decree,
namely: work in the combat zone, and such work as might be
done by an orderly.

From the point of view of reciprocity, no objection can be
raised against the employment of Soviet citizens in armament
production. In his examination before the Tribunal, the
witness General Paulus confirmed that prisoners of war were
employed in factories of the Soviet Union, which means that
in a State with a directed economy they were employed during
the war in the armament industry. According to the decree it
must be assumed then that interned civilians also were
employed in the armament production.

The significance of such a violation of the principle
forbidding utilization of such labour in armament production
lies in the grave consequence that the formulation of a
generally recognized rule of International Law in this new
field of utilization of manpower cannot be proven. Under
these circumstances, therefore, Germany was likewise free to
employ workers of the Soviet Union and workers of all other
States in the armament production.

If on one hand the Hague Convention on Land Warfare does not
prohibit regulated utilization of manpower there are also
further international aspects permitting such a utilization
of manpower. The permission of the Government of the
occupied State is of primary consideration. This permission
was given by France. The objection that Marshal Petain's
Government was not a constitutional Government is invalid,
for it was the legitimate successor to the provisional
armistice Government. That it represented the French State
to all foreign Governments is of decisive consideration in
international relations. This authority of representation
was confirmed by the United States, by her maintenance of an
Embassy in Vichy, even after her own entry into the war.
Great Britain also agreed upon terms of an armistice with a
general of the Vichy Government in Syria in 1941.

                                                  [Page 100]

This Government once recognized could ,not lose its legality
by the simple declaration of an opposing Government even
though this opposing Government might have been recognized
by the Allies. A Government loses its international position
only if it is forced to transfer its actual power to the
opposing Government. Up to such a moment it retains
authority inside its sphere of influence.

The other objection that the Government of Marshal Petain
was not free to act as it wanted, and that consequently
agreements with Germany in the field of utilization of
manpower were reached by coercive measures and were
therefore invalid, is not justified from the point of view
of International Law.

Negotiations for armistice and peace treaties are always
conducted under great pressure. That this does not infringe
upon the validity of such treaties cannot be denied from the
point of view of International Law. This has constantly been
emphasized when refusing German demands for a revision of
the Treaty of Versailles.

Agreements which, are reached in periods between an
armistice and a peace treaty are subject to the same
conditions. This also applies to the agreement with France
with respect to the utilization of manpower. Thus, if -
contrary to the statement of the defendant Sauckel -
negotiations about the utilization of manpower were
conducted under the pressure of an ultimatum, there could
from the point of view of International Law still be no
reason for an objection. Besides, Sauckel's influence surely
could not have been so great that he could have exerted an
excessive amount of pressure.

The validity of such agreements can only be doubted under
very special conditions, that is, when unusual duties have
to be performed which obviously violate principles of
humanity, as for example, if the agreements contain a
liability to work under slave-like conditions. The motive
for these agreements was, however, to offer to the French
workers especially favourable working conditions and
salaries for their obligatory labour in Germany, and so to
gain the willingness of the workers.

Military reasons, too, can command the evacuation of an
occupied territory by parts of the population and therefore
the shifting of manpower. This can happen when the
population participates in partisan warfare or is active in
resistance groups and so endangers security instead of
obediently behaving itself peacefully. It even suffices if
the population in the so-called partisan territories is
enlisted even against its will for the support of the
partisans. That such conditions were organized by Germany's
enemies in an increasing manner, first in the East and later
in the West, are looked upon today as patriotic
achievements. However, one must not forget that the
resultant organized shifting of workers was exactly the
consequence of their action and that such measures were
permitted by International Law.

Evacuation had to be carried out in the interest of security
and assignment of labour elsewhere was necessary to maintain
order. It is the right of the occupying power to utilize
this labour in a regulated State economy as seems most
practical under the prevailing conditions. Similar measures
could also be taken in areas of retreat after it was
ascertained that the male population illegally took part in
the hostilities during the retreat, called upon to do so by
the enemy who sometimes even supplied weapons.

Evacuation measures for the security of combat troops are
permitted under International Law. To engage evacuated
persons in new work is not only legal but also the duty of
the occupation administration. The State which summons the
inhabitants to fight, and thereby intensifies the fighting,
causes such an evacuation. The necessary retaliations,
therefore, must be legal.

If such evacuations become necessary, then they must be
carried out without undue suffering for the population. For
this preparatory measures are necessary which alone can
avoid unnecessary. hardships. This is the duty of the
adminis-

                                                  [Page 101]

tration (Verwaltungspflicht) as confirmed in Article 43 of
the Hague Convention on Land Warfare.

Thereto appertain the proposals made by Sauckel for the
evacuation of territories of retreat in France in the case
of the invasion (Document 1289-PS). These proposals did not
materialise and can therefore not incriminate the defendant
Sauckel.

This administrative duty can also demand the shifting of
labour in order to avoid unemployment and famine. This, for
example, took place when the industrial areas of the Soviet
Union were occupied and there were no possibilities of
employment after the population became unemployed - because
of the scorched earth policy of the Soviet Union, and
supplies failed to arrive because of transport difficulties.
These military and administrative points of view of
International Law can invalidate a number of reproaches, but
they do not answer the basic question, namely, whether the
enlistment of workers is also permitted outside the Hague
Convention on Land Warfare to enable the State to carry on
the war through increase of production and also to release
its own workers for front duty.

A purely military emergency could give no excuse for
disregarding International Law. Because victory is
endangered, victory must not be pursued by breaking the law
on the grounds of necessity, because the laws of warfare are
supposed to rule over this conflict which is always
connected with need and want. International Law decides to
the contrary if a measure is concerned which has to be taken
in order to safeguard the existence of the State. This is a
law of self-preservation which every State is entitled to
follow because strictly legal measures are lacking which
could protect it from destruction.

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