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-Fourth Day: Tuesday, 23rd July, 1946
(Part 4 of 12)

[Page 245]

DR. FLAECHSER, Continued:

The first point does not support the prosecution's contention. The contents of treaties concluded under International Law will always be influenced by the respective power of the contracting parties. In every peace treaty concluded between a victor and a vanquished State, this difference of power will be reflected in the contents. This is not, however, contrary to the nature of treaty- making.

The second point, by virtue of which the prosecution rejects the plea of an agreement between the German Government and the French Government then in power relating to the assignment of labour, is equally ineffectual. The so-called Vichy Government then in power was the only government existing in French territory; it was the lawful successor of the government in office before the occupation, and as regards International Law, it is to be particularly noted that States which were of that time involved in the war maintained diplomatic relations with it.

It cannot, moreover, be assumed that the willingness shown by the French Government in this agreement to co-operate with the German Reich, which was then gaining military victories, ran counter to the real feeling of the French people. Reference can be made in this connection to Document 124-R, Page 34 of my document book. Particular attention must be paid to the economic situation of occupied France at the time. After France's capitulation, the total blockade was extended to cover the whole of French territory in Europe, with the result that raw materials not produced in France were no longer obtainable and production was considerably reduced. Important sections of French production were in this way put out of action and many workers deprived of the means of earning a living.

The French Government did not pledge itself unconditionally to send workers to Germany, but made this dependent on reciprocal concessions such as the release of prisoners of war, etc. Whether, and in what measure, the hopes placed in the treaty by the French Government were actually fulfilled, is irrelevant in determining whether the treaties in question were authentic treaties or not. From the legal point of view there is no doubt that these agreements have the character of treaties. From this point of view, there is no justification for the accusation made by the prosecution that workers were taken from occupied French territory against their will and therefore illegally. No judgement of the legality of the measures relating to the workers from Belgium and Holland can be based on agreements such as those concluded between the German and French government departments, since in those countries the government had left the country and consequently no political authority existed. The General Secretaries remaining there could not be considered as representatives of the government and the decrees regulating the dispatch of workers to Germany were enacted by order of the Reich Commissioners or the German military Commander-in-Chief.

Dr. Steinbauer in his exposition on the defendant Seyss- Inquart's activities in Holland has already explained in detail that particular rules must apply to those

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countries and to the dispatch, of labourers from them. In order to avoid repetition, I refer you to his remarks.

As regards the eastern countries, we must start with the fact that the Soviet Union did not sign the Hague Convention on Land Warfare. It remains, however, to be examined whether the principle laid down in Article 46 of the Hague Convention on Land Warfare, with reference to the treatment of civilians in war and, in the case of occupation of a belligerent country, by the enemy, must not be considered as a universally valid International Law and therefore applicable even if the belligerent country concerned is not specifically a party to the Hague Convention of Land Warfare. An examination of this question would show the deportation of workers from occupied territories to be illegal unless some special factor emerges to remove its illegality.

A state of emergency in the sense of International Law can be considered as such a factor. It is true that it is a matter of International Law whether and in what measure such an emergency can legalise a practice which is in itself illegal, but such a state of emergency must be admitted in cases when a State is fighting for its bare existence. It may be considered that after the Allies had declared the unconditional surrender of Germany to be their goal, such a state of emergency existed for the German State, since there remained no doubt that the enemy intended to destroy the existing German State to its very foundations.

This state of emergency may, however, be considered as existing at an earlier period, when it became clear that the war had ceased to be a settlement of differences between two States, in the sense of the Hague Convention on Land Warfare, and had become a war aimed not only against the fighting forces of the belligerent nations, but also, and primarily, at their economic forces and thus at their so- called war potential. The Hague Convention on Land Warfare is based upon a conception of war which was already out of date in the First World War and much more so in the second. If in the First World War the belligerents sought to attack each other's economy by blockade and counter-blockade, this is all the more true of the Second World War, in which, in addition to the more indirect effects of the blockade, they introduced the element of direct attack on the enemy by destroying his productive installations by means of air attacks. In contrast to the conception of war on which the Hague Convention on Land Warfare is based, a complete change has come about. In view of the fact that a country can only resist an adversary who is well equipped from the technical point of view if it has at its disposal an unimpaired capacity for production, the main objective in the war was the destruction of the enemy's capacity for production. This was the aim of the British blockade not only of Germany but of every country in the German sphere of influence.

Dr. Kranzbuehler has already discussed the questions connected with this subject. I refer to the relevant parts of his statement.

From this point of view, too, the war in the air was waged primarily not only to attack German national territory but also to destroy production capacity and potentialities in the occupied territories. Continuous air raids were directed against economic targets in France, Belgium, Holland, Czechoslovakia, Poland and Austria, and had as their further aim the interruption and disruption of the whole system of communications, not only on the front and immediately behind it, but; also hundreds of kilometres away from it, in order to paralyse vital functions of the adversary. The Allied air offensive against Japan is a particularly clear indication of this. This war went beyond the bounds of the Hague Convention on Land. Warfare. It ceased to make any further distinction between the adversary's territory proper and the occupied territories, which were likewise included in the enemy blockade. In this war, which sought not only to destroy the adversary, as a nation but also to ruin its economic system and its power of production, we may speak of that as a real national emergency.

[Page 247]

When the defendant Speer was appointed Minister, the economic war just described was in full swing on both sides; in fact the task assigned to Speer's department was that of solving the production problems caused by it. Speer therefore found himself in the midst of this economic war; and we now have to decide whether and to what extent the measures taken on the German side were capable of alleviating the state of emergency.

THE PRESIDENT: Dr. Flaechsner, I would like to ask you this question. Is there any communication between States, either at the League of Nations or elsewhere, since the war of 1914- 18, which suggests that the Hague Rules on Land Warfare were no longer applicable? Perhaps you would consider that question and answer it at your convenience?

DR. FLAECHSNER: Mr. President. I can answer this question immediately, in the negative. In the period between the two wars these problems were dealt with only very superficially and, as far as I am acquainted with the facts, the questions considered lay in the sphere of naval warfare and also land warfare in connection with the treatment of prisoners of war. The Hague Convention on Land Warfare itself contained no additions or amendments whatsoever, apart from separate agreements concerning particular methods of conducting warfare. I might add that in the meantime various methods of warfare have been banned by treaties. But as far as principles are concerned, and that is the basis of my argument, the principles laid down in the Hague Convention have undergone no changes through treaties in the meantime.

THE PRESIDENT: Yes, then I understand you to say there has been no communication between States, since the 1914-18 war, which suggests that the Hague Rules on Land Warfare are no longer applicable?

DR. FLAECHSNER: Yes, that is correct.

We must also decide whether and to what extent the measures taken on the German side were effective in remedying the state of emergency.

In the course of the trial, the prosecution has claimed on several occasions that the imported labour was to be used to release workers for service at the front. This is certainly one reason why recourse was had to foreign workers, but it is by no means the only decisive reason, not even the most decisive reason. It is a fact that the total blockade of the German Reich carried out by the adversary compelled the Reich to an increasing extent to build plants for the production of substitute raw materials in order to carry on the war in the technical form which it had now assumed. It is also a fact that the disturbances caused in economic life by air warfare made it essential to employ an increased number of workers. Merely as an example, let me say how much additional labour was necessary for the repair of air raid damage. This situation involved a state of emergency in so far as the waging of a war of self-preservation would no longer have been possible without the erection of such additional production plants.

Should it be contended that it is impossible to speak of an emergency overriding the illegality of the proceedings in terms of International Law, since the war was begun as a war of aggression and was therefore illegal from the outset, it may at least be said in favour of the defendant Speer that he believed in the existence of such a state of emergency and had reason to do so.

The examination of evidence has revealed that the underlying causes which led to the war, so far as they have been exposed here by the prosecution, were not known to most of the defendants, and least of all to the defendant Speer.

In so far as the deportation of foreign workers to the Reich constitutes an objectively illegal measure according to International Law, it remains to be examined what share of it can be charged to the defendant Speer. At his interrogation prior to the beginning of the trial, on 18th October, 1945, the defendant Speer admitted knowing that, at least as far back as September, 1942,

[Page 248]

foreign workers had ceased to come voluntarily to the Reich. He said he had countenanced that because there was no possibility of meeting the labour requirements otherwise. It must be concluded from this declaration that the defendant was convinced of the necessity for this emergency measure. Subjectively, therefore, he must be credited with believing in the existence of such a state of emergency overriding illegality. But in the firs place we must examine to what extent the defendant Speer actually contributed to the dispatch of deportees to Germany. Here we must start from the principle that the defendant Speer had a purely technical assignment which he described adequately in his evidence, to which reference can be made. In order to carry out this assignment, he stated his labour requirements. The way in which these requirements were met has been described in detail by the witnesses Schieber and Schmelter. Requirements were submitted in terms of totals needed and it was incumbent upon the defendant Sauckel to satisfy them. These requirements referred to the total number of workers as a whole, and it was the defendant Sauckel's task to meet these requirements as far as possible and in accordance with his judgement. He had power to exhaust the entire resources of the home labour potential as well as to recruit foreign labour. The witnesses Schieber, Kehrl and Schmelter stated in the course of their interrogations that the defendant Speer tried to procure German worker) in the first place for assignments given to him by the Government. The testimony of the witness Sauer shows that the obtaining of the labour requirements necessary to enable him to accomplish his assignment of increasing armament production was of considerable - though not decisive - importance (Document Book II, Page 146).

According to this testimony, the number of workers in the armament finishing industry rose from 4,000,000 to 4,900,000 during the defendant's activity as Armament Minister, while the manufacture of armament parts increased five and a half times up to seven times in many departments. It must therefore be borne in mind that the increase in armament production which the defendant Speer was required to produce was achieved in the first place not so much through an increase in the number of workers employed as by means of technical and organisational measures. It follows from this again that, for the defendant, the procurement of labour was admitted to be an important, though not decisive, element in the fulfilment of the task assigned to him. The defendant made the credible statement that he had applied to Sauckel for workers, but had stressed the fact that he wanted German workers first of all. In the defendant's opinion, an increased number of workers could have been found in the economic sector under his control without having recourse to foreign labour to the extent which was done. The measures taken by the defendant to prevent the transfer of workers from the West into the Reich have been adequately described in the evidence. In taking those measures, i.e., in transferring the production of consumer goods and the manufacture of high priority armament products such as, for instance, forged parts, railway equipment, etc., to the western countries and in establishing blocked industries there, Speer was actuated by the knowledge that the conscription of workers from France as well as from Belgium and Holland would be checked. The result of his talks with the French Minister Bichelonne, as the defendant explained during his interrogation, was for all practical purposes the end of the deportation of workers to Germany. The results have been accurately described by the General Plenipotentiary for Labour Mobilization at the session of the Central Planning Board held on 1st March, 1944 (see Page 32 of my document book). In spite of all the opposition made to this policy (see Sauckel's letter to Hitler dated 17th March, 1944, Document 3819-PS) Speer persevered in his purpose. The decision adopted at Hitler's conference on 4th January, 1944, a report of which was submitted by the prosecution under Document 556-PS, also reveals that the blocked industries, the abolition of which was urged by Sauckel, were to remain out of bounds to Sauckel's labour conscription. Speer

[Page 249]

wanted to employ the French workers in France in all effort to transfer the production of consumer goods and products which did not represent armament production to the occupied western territories. He wished to utilize for armament production the German workers released in consequence of the closing down of German plants (see Document 124-R, pp. 33/34 of Speer Document Book). In this manner Speer was able to increase production, because German workers, on account of the elimination of language difficulties, could more easily be retrained and because there were no difficulties regarding food. (Compare Kehrl, Page 110, Speer Document Book.)

The result of this policy was that workers from the western areas were mainly used in the production of civilian goods - not in armament production.

On the question of employment of foreign labour in the blocked industries it must also be said: The statute is based on two factual circumstances: deportation for forced labour and forced labour itself.

Compulsory labour in France was ordered by a decree from the French Government. According to International Law there could be no objection to this, unless the view was taken that the French Government was not entitled to take such measures and to issue such decrees. As the defendant Speer stated, the French economic leadership obtained its independence through the agreement with Bichelonne, naturally with the restrictions imposed by the agreement.

As established by Berck (see Document Book I, Page 38, Document 1289-PS), co-worker of the defendant Sauckel, 20 per cent went from the blocked industries of France to French economy, whereas more than 40 per cent went from the consumer goods industry into French hands. It follows that the French armament industry did not manufacture weapons and actual implements of war, for the German authorities would scarcely have left these to the French agencies. In the session of 20th June, 1946, the Tribunal summarised its misgivings as to the manner in which we presented our evidence by stating that questions of suitability were irrelevant; on the other hand the defence may be said to represent the viewpoint that this speech was only intended to clarify the question of legality If the French Government was justified in decreeing compulsory labour service and if plants, employing French workers on the basis of this decree or on the basis of voluntary labour contracts, were provided with German orders, no legal objection could be raised. The establishment of blocked industries which prevented the withdrawal of workers and their transfer to Germany, and the removal of branches of production to France, Belgium and Holland, obtained the objective, i.e., satisfaction of the requirements of the German economy, in a manner which was legally unobjectionable. Even though the defendant Speer did not completely check the transfer of workers, he nevertheless did succeed in decreasing their commitment appreciably. Instead of the policy pursued by other Reich offices of removing foreign workers to the Reich, the defendant aimed at employing the labour needed for his purpose in the workers' homeland (Speer Exhibit 9, Page 24, and Speer Exhibit 11, Page 27, of the Speer Document Book). To this extent he counteracted the tendency to deport workers from their native country.

In order to prove the assertion that Speer played a decisive part in intensifying deportation of workers for forced labour, the prosecution refers to Document 556-PS, which is a file memo by Sauckel of a telephone conversation he had with Speer on 5th January, 1941. In contrast to this as Speer Exhibit 35, the copy of the minutes of the Fuehrer conference of 3rd and 5th January, 1941, which was the subject of the telephone conversation, has been submitted. Even if sharp remarks by Hitler are reproduced here also, the exhibit nevertheless does not reveal the tendency which was noted by Sauckel in his file memo.

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