(b) The control and direction of production and distribution in the German interest. The planned control and direction of the economy of the occupied countries in the interest of the German war effort constitute a violation of Article 52. This seems clearly true to the extent that production and sale for export to Germany were ordered by the Ruestungsobmann pursuant to Speer's directive late in 1943. It would seem equally true of the earlier method of control by prohibitions and restrictions. For the net effect of the priority system was to leave no alternative to producing in the German interest save to cease operations. And even this alternative was not available, since the power to appoint a commissar in case of recalcitrant plants was expressly reserved.

Article 53, which is limited to chattels and has no relation to the demanding of personal services in any event, provides not even a remote basis for the imposition of the controls in question.

In what has been said, it is not meant to be suggested that an occupant is without power to institute a system of rationing for articles in short supply with the aim of securing an equitable distribution among the population of the occupied area. Such a measure is plainly related to the promotion of economic order and there is nothing in the Hague Regulations which restricts even requisition for the needs of the local population. The Nazi controls, however, were exercised, not in the interest of the local population, but to fulfill the general war requirements of Germany, in the Reich as well as in the occupied area.

(c) Levy of occupation charges for purposes not relate to the needs of the occupation army. Article 49 of the Hague Regulations limits the levy of occupation charges to the "needs of the army or of the administration of the territory in question." The only purpose for which such contributions may be levied (other than for the financing of the costs of administration, a matter not material here), is to supply the needs of the army of occupa-

[Page 1078]

tion (Conference Internationale de la Paix, La Haye, 1899, Pt. I, p. 60; Feilchenfeld, supra, par. 167; Spaight, supra, pp. 384-392). The power to levy contributions is reserved in order to permit an equitable distribution among the entire community of costs which, if supplies were requisitioned, would fall directly and solely on the owners of the requisitioned property (Spaight, supra, pp. 387-389). Accordingly, the levy of contributions to finance exports or for other purposes unrelated to the needs of the army in the territory in question would seem plainly forbidden (Feilchenfeld, supra, par. 167; Spaight, supra, pp. 384- 392).

Moreover, as Article 49 refers to the occupation army only, the levy of contributions to support the troops engaged in military operations against an enemy located outside the boundaries of the occupied country or to finance other general war expenses would seem prohibited.

(d) Forced loans. Forced loans can be justified only as contributions and are therefore subject to the same limitations (Feilchenfeld, supra, par. 185). The forced loans under the Belgian-German and Franco-German clearing arrangements, were executed largely to finance exports to Germany, that is, for nonoccupation purposes.

(e) The exchange of reichsmarks for gulden by the Netherlands Bank. These transactions, whether viewed as resulting in a loan or merely in an exchange, constitute a contribution of money for nonoccupation purposes. It may be assumed that they were carried out "voluntarily" while the Netherlands Bank was under the immediate direction of Rost Van Tonningen. This circumstance is immaterial, however, since an Tonningen was a civil official appointed by Seyss- Inquart, and his authority, like that of civilian officials in occupied areas generally, was derived solely from that of the occupant.

(f) The taking over of gold of the National Bank of Belgium and the Netherlands Bank. That the gold of the National Bank of Belgium was private property is not disputed; the Nazi conspirators proceeded on this view in the original decision to requisition under Article 2 (EC-401, second enclosure). Confiscation under Article 53, first paragraph, therefore, was not open to the Nazi conspirators; so far as appears they never considered such a step.

It may be assumed for purposes of argument that gold is subject to requisition under the Hague Regulations. Requisition may be made, however, only for the needs of the occupation army. It cannot be resorted to to relieve the "considerable straining of the reserves" of Germany.

[Page 1079]

The gold reserve of the Netherlands Bank, it is believed, is private property, no less than that of the National Bank of Belgium. In this view, the taking over of the gold of the Netherlands Bank was likewise illegal. There is, of course, no basis in law for exacting a contribution for the so- called "war against Bolshevism," to use the Nazis' phrase. And, for the reasons indicated above, it is immaterial whether these "contributions" were "voluntarily" made by Van Tonningen.

(g) The compulsory surrender of gold and foreign exchange. The requirement of surrender of gold and foreign exchange for ultimate delivery to the Reichsbank amounts in substance to a requisition and cannot be supported because obviously done solely to maintain the reserves of foreign exchange for the total war effort, not for the needs of the occupation army alone.

(h) The acquisition of business interests. The Nazis' acquisition of Belgian, Dutch, and French participations was unlawful. That this is so in the case of the sales ordered by the Ministry of Economics is clear (EC-43). The conclusion should be the same even when sale was not expressly ordered. These purchases were financed through the clearing system (which, as shown above, constituted a forced loan) and out of occupation cost funds. Since such expenditures bore no relation to the needs of the occupation army or, indeed, served any purpose other than to enrich the Nazi conspirators and their nominees, the Nazi program for acquisition of participations was in plain violation of Article 49 of the Hague Regulations.

(2) Such acts constitute "plunder of public or private property" within the meaning of Article 6 (B) of the Charter of the International Military Tribunal. Save as they may be authorized by International Law (and' hence "consented" to by the occupied countries), the acts complained of are of a character condemned by the criminal code of the occupied countries and, indeed, of all civilized nations. Absent such authority, the forcible permanent taking of money or other property whether from Government agencies or private persons, constitutes larceny or, as known in the international law of belligerent occupation, "pillage" (Garner, supra, pp. 472-473). The question of which court or courts may try and punish for the offense is one of jurisdiction only (see Garner, supra, pp. 475-480) and has been resolved by the Agreement and Charter of the International Military Tribunal.

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