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 6 of 10)

[DR. SERVATIUS continues.]

[Page 101]

It has repeatedly been stressed by all concerned that in this war our existence was at stake. This became evident for Germany after the ominous battles on the Eastern Front in the winter of 1941-42. Whereas, up to that time, a general employment of foreign labour had not been necessary, now new equipment had to be produced immediately. The German labour forces had to be decreased due to the removal of two million workers for duty at the front. The employment of unskilled women and young people could not immediately relieve the situation. Through the later development of the war; especially through air warfare, the armament demands were increased to such an extent that, in spite of the increased employment of women and young people, the necessary level of production could not he maintained. The means were exhausted.

The official figures the defendant Sauckel made public in his speech in Posen in February, 1943 (see Document 1739- PS), showed that, already in 1939, at the beginning of the Second World War, more than twice as many women were employed than at the end of the First World War, and that their number towards the end of the Second World War had increased by another two million to more than ten million. This number is higher than the entire number of male and female workers in the armament industry at the end of the First World War. In spite of that there was a shortage of labour. This has been confirmed by the witness Rohland of co- defendant Speer in Document Speer 56, according to which co- defendant Speer also declared that foreign labour was urgently needed.

The difficult part of the problem did not consist in the question of female labour, which was used to the extreme limit, but in the procuring of specialists and men for special and the heaviest tasks. Among the ten million German women who were at work, there were also the wives of officers at the front and others from the equivalent strata of society.

The opinion that in England the women were conscripted for work to a greater extent than in Germany is wrong. In Germany the women up to 45 years of age and later up to 50 years of age had to work, and they actually worked in factories and did not have just fancy jobs of a social kind. Even school-children from the age of 10 were required to work and from the age of 16 on were directed to ordinary manual labour or employed in other services. Families were broken up; schools

[Page 102]

and universities were closed and their pupils worked in the armament industry. Even the wounded could not continue their studies. A grim fight was on for every person capable of work. . Speer's reserve of workers did not exist. It is shown, among other documents; in inclosure 2 of the Wartburg Document (RF 810) what efforts were made in this field.

Another point of view illustrating the necessity of employing additional labour is the fact that the powers in possession of colonies brought workers from their colonies; e.g., France (see Document RF 22, Page 117), for instance, about 50,000 workers from North Africa and Indo-China, who were under the leadership and direction of commissioned and non-commissioned officers. As Germany, because it had been refused colonies and on account of the blockade, could not fall back on such reserves, it was forced in its fight for its existence to take unemployed workers in occupied territories.

This is in outline the basis with regard to International Law for judging the regulated utilizations of labour as a war crime. One may, with regard to certain points, have a different opinion, and, especially in International Law, we find that a common interpretation of law will be formed only with difficulty. The interests of the community of upholders of International Law play an important part and are not always identical; legal principles are often not recognized because a State does not want to put itself officially in contradiction with its former actions, or because it would like to keep its hands free for the future.

As counsel for the defence, I am in a position to present an interpretation of law without such inhibitions. The significance of my statement for the defence, apart from the objective side, lies in the fact that defendant Sauckel, subjectively, was entitled to believe in the lawfulness of a regulated utilization of labour and that to him his behaviour did not appear to be in contradiction with International Law. This belief was bound to be enhanced by the attitude of the superior offices regarding the permissibility of the well-ordered utilization of labour. When Sauckel took up his office, foreign workers had already been enlisted due to individual actions, and he could take it for granted that the State had proceeded legally. None of the highest offices had raised legal objections before Sauckel. These offices, especially the competent Foreign Office, as well as the highest civil and military offices in the occupied territories abroad, accepted his orders as a foregone conclusion, and questions of doubt as to their legality according to International Law were not raised.

For this opinion of the defendant Sauckel, the attitude of the foreign offices of the countries concerned must have been especially decisive, and above all the consent of the French, as well as the Belgians who came to Berlin personally for discussions. From that followed the good co- operation with the local authorities in the occupied territories, as it was before the enemy propaganda intervened.

Whether awareness of breaking a law is an essential element of a crime against International Law may be left undecided; but to establish guilt, proof of the knowledge of the criminality of the action must be established, therefore it is necessary to realize that the action was carried out in violation of International Law. A personal realization of the facts and thereby involving criminal guilt of the defendant Sauckel cannot be proved in respect to the carrying out of the regulated utilization of labour. The defendant Sauckel could not be punished for yet another legal reason, even though the regulated employment of manpower would really be a violation of International Law. According to the Hague Convention on Land Warfare, no individual responsibility exists. The H.C.L. differentiates between two kinds of war crimes; those which can be committed by an individual, such as murder and ill- treatment, and those which can only be committed by a belligerent. The regulated utilization of manpower is a procedure which can only be initiated by the State. While the individual action is punished according to the penal code. of the individual States, a special regulation was

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formulated for offences committed by a belligerent, in Article 3 of the introductory agreement to the H.C.L. According to that there is only an obligation on the part of the State for compensation agreed upon. This agreement of the H.C.L. is still valid today, for, by agreement of the Allies alone, this cannot be annulled. The Charter, which provides for the immediate criminal responsibility of the State organs or its executors, is void inasmuch as it is contradictory to the H.C.L.

I do not have to refer to the fact that Germany, as one of the parties to the agreement, would have had to agree to the suspension of Article 3; there are other reasons which speak for a continuation of this stipulation. An alteration of the H.C.L. in the sense of the Charter could have been accomplished by prescriptive law or general custom, due to the change of legal conceptions. The presupposition to this assumption would be, however, that the contracting powers would have relinquished their sovereignty, as only then the punishment of the State organs would be possible. However, such a renunciation of the rights of sovereignty, as far as is known to me, has not taken place to such an extent that it would generally admit of such a punishment. With regard to that, I refer to the general statements made by Professor Jahrreiss before the Tribunal.

I come now to the utilization of manpower as a crime against humanity. If the regulated utilization of manpower (geordneter Arbeitseinsatz) appears permissible according to International Law, there remains the question of the method of its execution, namely, the question of how long this utilization of manpower can still be regarded as regulated and when it will go beyond the permissible limit.

What is understood by humanity, the Charter does not say. The meaning for that - as far as International Law is concerned - can only be seen from the practice of the nations. If one wants to establish the limits for actions permissible under International Law, we must mention for the sake of comparison: the bombing of large cities and the use of the atom-bomb, as well as deportations and evacuations as they are still in progress today. These are all incidents which have occurred before the eyes of the world and were regarded as permissible by the executing countries.

One runs again into the conception of necessity and finds that it is being interpreted in a very flexible manner. This should well be kept in mind if one examines the utilization of labour in respect to its violating the principles of humanity. Its aim is not the sudden killing of hundreds of thousands; however, it naturally entails hardships and is certainly also subject to mistakes which occur ,unintentionally or are due to the shortcomings of individuals. One must answer the question whether the intended killing does not always weigh heavier than the temporary infliction of other sufferings. It is to be added that the Charter does not provide for a punishment for each violation of the principles of humanity, but only when the inhuman treatment has been committed in the execution of or in connection with a crime for which the Tribunal is competent. However, the Tribunal is competent only for crimes against peace and for war crimes. As for crimes against peace, the same inhuman treatment can be admissible in the defence, while it is punishable when committed by an aggressor, or it must be a case of a war crime.

This is not the case when compatriots are ill-treated for they are not protected by laws of warfare. A prosecution of an act against humanity directed against them can only occur if a crime against peace is involved at the same time.

From an impartial point of view labour commitment has furthered the waging of the war which has been specified by the prosecution as a war of aggression or as a war violating treaties. If this is established and if it is proved moreover that the employment of labour has been carried out in an inhuman way, then the facts stated by the Charter are implied and a crime against humanity has been committed, without regard to the fact whether the employment of labour was, as a matter of

[Page 104]

principle, allowed or not allowed by the rules of war, as it has been committed in connection with a crime against peace. But a punishment can be inflicted only if the culprit himself knows that an unlawful war is being waged and if he furthers it by his action. As the defendant Sauckel denies any such knowledge, it must be proven.

The other possibility of committing the acts at issue is that the inhuman act serves the carrying out of a war crime or is connected with it. Of the examples given by the Charter for violation of the rules of war, the following are, above all others, to be quoted in connection with labour commitment: "Murder, ill-treatment and deportation of the civilian population." As shown by this enumeration, these war crimes which have been mentioned are not, however serious they may be, crimes against humanity by themselves. Some aggravating circumstances which make the act an inhuman one must be added. As shown by the examples of "extermination" and "enslavement" as inhuman acts, the acts in question must be objectively of a particular scale or particularly cruel. Subjectively, however, an inhuman disposition of the culprit and the knowledge of the inhuman character of the act, i.e., the knowledge of the scale of the measure or of the cruelty of its execution, must be added. How far these presuppositions apply to the defendant Sauckel must be investigated later on. A "regulated labour conscription" ("geordneter Arbeitseinsatz") allowed by International Law can never be a crime against humanity in itself, but its execution can be carried out in such a way that it involves killings and ill-treatment, which for their part may be war crimes.

Such ill-treatment could be based on the regulation issued by the highest authority involved, which thereby bears the responsibility. It can, however, be committed by subordinate offices acting on their own authority without knowledge or intention of the superior authorities. In this case, the head of the office which acts autonomously bears the responsibility. Finally, there may be the question of a purely individual act committed against the regulations in force. For such an act the acting individual is solely responsible.

It follows that the defendant Sauckel is responsible, to begin with, only for such general orders and instructions which he has given, but not, on the contrary, for autonomous acts of supreme authorities in the occupied territories or of supreme Reich authorities such as Chief of SS and Police, which were not under his jurisdiction.

The orders and directions of the defendant Sauckel have been submitted and they must show whether the employment of labour ordered by him was in fact a regulated one or was tantamount to an "ill-treatment" of the population.

The workers employed, apart from the volunteers, were obtained by conscription which, as a matter of principle, was legally ordered, according to Hitler's instructions, by the territorial commanders. The authority to issue such laws went beyond the powers of the defendant Sauckel, nor could he ask that any such laws be issued. But he approved of them and made them the basis of his work. The contents of those laws were consistent with the fundamental ideas of the German laws concerning compulsory labour service. Those laws were enforced by coercion.

The use of coercive measures is not necessary as long as the legal authority of the occupying power is acknowledged by the population; they become necessary only when this authority disappears. For this reason, the defendant Sauckel repeatedly asked for the maintenance of the so-called Executive in connection with operations for cleaning up territories held by partisans and for suppressing the resistance movement.

No legal objections can be raised against the fact that he demanded the use of State funds appropriated for this purpose. He is wrongly incriminated only by the words "SS and police", which have been connected by the prosecution with the conception of crime. Such an incrimination would only be justified if the

[Page 105]

criminal character of the police had been proven and if the defendant Sauckel at that time had had cognizance of the criminal activity then taking place.

That force may be used in case of resistance against orders of the occupation force cannot be disputed. The question is, what are the limits of force and whether or not there are legal and illegal, admissible and inadmissible measures of force.

If fundamental laws of a country are no longer valid when martial law is declared within a State, then this is all the more the case when a power occupies another country in war time. Anyone who refuses to carry out the orders of the occupying power knowingly participates in belligerent action, which he is not entitled to do, and he has to accept the consequences. Obedience is a duty towards the occupying power and where patriotism and obedience are conflicting, the law decides against patriotism. The punishments which are dealt out are not subject to any limitations, and the threats of punishment by an occupation power are, for the purpose of intimidation, usually extremely severe.

The question is whether there exists a limit from the humane standpoint which prohibits going unnecessarily beyond the purpose of the punishment. For instance, orders for the burning of houses, which had been issued independently by subordinate offices in connection with the recruitment of labour, must be examined from this point of view.

This question is not easy to answer, if one considers the special circumstances prevailing, and realizes that the condition involved here was an open struggle between the occupying power and the population, with official support from the enemy. In case of uprisings and organized general resistance one cannot reject the idea of the applicability of the military laws of the combat troops. Necessity e alone can be the decisive factor in this case. International Law has put only one limit to coercive measures by forbidding, in Article 50 of the Hague Convention on Land Warfare, punishment of an entire population for the deeds of individuals for which the population could not be held responsible. Presupposition hereby is that joint responsibility has been established through actual events and has not been construed through orders.

Wherein collective punishment may consist has not been stated. The principles of humanity, as aforementioned, must be respected, but in war this is a vague conception of necessity and practicability must always have the preference.

Next to the manner of recruiting workers, the conditions of work can represent an ill-treatment which can be looked upon as a war crime. Generally speaking, there can be no question of ill-treatment in cases where the foreign workers are treated the same way as the non-foreign workers. A different treatment is only permissible in case special circumstances justify it. Though this policy was followed in general with regard to foreign workers, the so-called Eastern workers were treated less well. Most striking in their case was the limitation of freedom. If this were arbitrary, it would be sufficient reason for declaring it an ill-treatment. But the reason for this limitation of freedom was not arbitrary, but arose through the need for security of the State. During war time the presence of an enemy alien in the country always represents a danger and it is just for that reason that at first the bringing in of foreign workers had been renounced. It was only when the requirements demanded the utilization of foreign workers that the need for security measures of this nature simultaneously arose. What measures are to be taken depends upon the danger, which varies according to the attitude of the alien. Whereas the measures of policing were imperceptible with regard to the French, the Eastern workers were, in the beginning, kept locked in camps.

The natural interest of the State lies in attaining security by winning the good will of the aliens because their collaboration is desired. This will not be achieved by depriving them of their liberty. As long as the attitude of the alien cannot be clearly recognized, especially if he be, as the citizen of the Soviet Union is, trained propagandistically, more severe control may be necessary. But it should not develop into a permanent captivity, and should at most correspond to a sort

[Page 106]

of quarantine. To deprive innocent people of their liberty for an extended period is not admissible, because it would correspond to a forbidden collective punishment. The mere assumption of danger is not sufficient for the justification of such restriction; there must be in addition acts which indicate that these foreign workers may be dangerous under normal working conditions. The keeping in custody of Eastern workers behind barbed wire and refusing them permission to go out, as ordered by Himmler, is to be regarded as an ill- treatment if it is permanent.

The defendant Sauckel, urged by the feeling that in this matter the limits of the permissible had been overstepped, immediately took steps against this and, in a tough fight against Himmler, demanded and obtained the removal of barbed wire fences and cancellation of the order prohibiting walking-out passes, as can be seen from the ensuing decrees, Document Sauckel 10, Exhibit USA 206.

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