E. Argument and Conclusion.

The acts of the Nazi conspirators as revealed by the evidence constitute war crimes within the meaning of Article 6 (B) of the charter of the International Military Tribunal. Two general observations should be made at the outset. In the first place, the pertinent provisions of the Hague Regulations (3737-PS) are controlling. The Germans entered into an Armistice Agreement with only one of the countries under discussion (France), and the Franco-German Armistice Agreement of 22 June 1940 contains nothing which purports to confer on the occupant powers broader than those which may be exercised under the Hague Regulations. Article 3 of the Armistice reserves to Germany in the occupied zone "all the rights of the occupying power." No other provision is material here. The language of Article 3 plainly does not purport to qualify in any way the otherwise binding terms of the Hague Regulations. The German position (EC-11) that "the rights of Article 3 are more extensive than the rights of the occupation power in the Hague Regulations" and permitted Germany to base thereon "all measures which are, according to her own

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judgment, necessary for the continuation of the war against England," is therefore plainly untenable.

Secondly, the collaboration of certain French, Dutch, and Belgian officials is legally immaterial and does not serve to shield the Nazi conspirators from responsibility for the acts done in the territory under German control. Belgium, Holland, and a large part of France were under German occupation throughout the period in question and, after 10 November 1942, so-called Vichy France was overrun and occupied as well. It is accepted doctrine that governmental authority is completely, albeit temporarily, vested in the occupant during the period of its control. Whether the occupant elects to employ the existing administrative machinery and personnel or substitute its own, is solely a question of political and administrative convenience; the choice is without legal significance. The civil administration of an occupied country, it may be confidently asserted, has no independent legal status whatever.

(1) The acts of the Nazi conspirators as revealed by the evidence are prohibited by the Hague Regulations.

(a) The forcible removal of machinery, foodstuffs, and raw materials. It has been shown above that the Nazis forcibly removed large quantities of machinery, foodstuffs, and raw materials to Germany, including even church bells and the strategic metals contained in the transmission systems of the occupied countries. Articles 52 and 53 of the Hague Regulations (the only pertinent provisions) provide no basis for such action.

Article 52 of the Hague Regulations declares that requisitions in kind and services shall not be demanded except for "the needs of the occupation army," a limitation deliberately substituted for the less restrictive one of "military necessity" which had previously been contained in the Brussels Declaration of 1874 (Conference Internationale de la Paix, La Haye, 1899, Part I, p. 60; Part III, pp. 45, 181). It is settled that requisitions for export to the country of the occupying power is violative of Article 52 (see Feilchenfeld, The International Law of Belligerent Occupation, Washington, 1942, pars. 148-149, and cases cited).

The argument, advanced by the Germans in defense of such requisitions during the first World War (see Garner, International Law and World War, Vol. II, p. 126,n) and frequently again during the recent conflict (EC-44-7; ECH- 16), that the limitations of Article 52 may be disregarded in case of military necessity, is not well founded. Article 23g, which permits the destruction of private property when "imperatively demanded by the necessities of war," is included among the provisions re-

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lating to the rights of belligerents in the conduct of military operations, and has no relation to the powers of a belligerent in an occupied area in which conflict has ceased (see Garner, loc. cit. supra). The latter are governed, so far as material here, by Articles 42-56.

Apart from Article 23g, there is no basis whatever for the German position. The Hague Regulations are limitations on the powers which may be exercised under the plea of military necessity (II, Oppenheim, International Law, 6th Edition Revised, edited by Lauterpacht, p. 185, n.1). An exception for cases of alleged military necessity, therefore, cannot be implied. The deliberate substitution of the present terminology in lieu of the vague limitations of "military necessity" as contained in the Brussels Declaration of 1874, moreover, would seem to remove all basis for a contrary construction.

Article 53 provides no better support for the Nazis' action. The second paragraph, relating to private property, states:

"All appliances, whether on land, on sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive- of cases governed by naval law, depots of arms and, generally, all kinds of munitions of war, may be seized even if they belong to private individuals, but must be restored and compensation fixed when peace is made."

This Article, it may be conceded, authorizes not only the sequestration but the use of all matters within its reach. The term "munitions of war," however, clearly refers only to chattels (Feilchenfeld, supra, par. 351). It does not, therefore, include machinery affixed to the realty. The German legal advisors uniformly so conceded during this war (EC-560; EC-84; EC-263; EC-544-7). The suggestion that Article 53 is subject to an implied exception in the case of military necessity (EC-344-7) is, for reasons noted above, untenable. It is equally clear that the deliberate removal of the-metal content of the transmission systems in the occupied areas is without legal basis. Article 53 in terms requires restoration when peace is made and, whatever exceptions may be implied in case of munitions which are necessarily consumed by use, no basis can be found for the deliberate destruction of transmission facilities.

The question as to the class of chattels included within the deliberately general term "munitions of war" is not free from doubt. The right of seizure is based on military necessity, namely, the danger of leaving at large things which are peculiarly adapted to warlike purposes (Spaight, War Rights on Land, p.

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512). It should accordingly be limited to those things which are "susceptible of direct military use" (see British Manual of Military Law, 1929, Amendment No. 12, par. 415; US Army Basic Field Manual on Rules of Land Warfare, FM 27-10, 1940, par. 332). Article 53, which contains no limitation restricting seizures to the needs of the occupation army, would otherwise completely nullify the deliberate limitations on the right of requisition imposed in Article 52. In this view, raw materials and even semifinished goods, save perhaps such goods as are normally part of military equipment, would seem outside the reach of Article 53.

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