The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-First Day: Thursday, 18th July, 1946
(Part 5 of 10)

[DR. SERVATIUS continues.]

[Page 97]

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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