dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SERVATIUS: Actually, the Hague Convention on Land Warfare has not been adhered to even in its original interpretation, if it is true that already before the conclusion of the armistice the Soviet Union as occupying power transferred the population on a large scale from the eastern parts of Germany for the purpose of performing labor outside Gemmany. The Tribunal could obtain official information about this through an inquiry with the Control Council. I also have 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 obligation to work is embodied in the rule that no participation in war operations against the home country of the worker may 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. Participation in war operations in this sense was not asked of any worker; on the contrary, the purpose was to employ workers away from these operations and without disturbance by the war. Consequently only such activity as is directed against the workers' own country is forbidden, thus taking the feelings of the individual into consideration. No protection of the enemy state is thereby intended. Wherever, therefore, the individual renounces his country and in a struggle of ideologies opposes the government of his country, such a restriction no longer applies. In connection with this I wish to point to the vast number of foreigners who adopted such an attitude and who, in part, 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 the work to be done by prisoners of war are known.
DR. SERVATIUS: The basic notion, that no one may be forced to make weapons against his own brothers, must apply to civilian workers also. The fact, however, that one's country is no longer in a legal 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 still participating in war, to all intents and purposes no longer possesses any fighting forces and has thus ceased to exist as a military object of attack. The fact, that this country may have allies who fight for it cannot arbitrarily extend this limitation beyond the terms of the Geneva Convention; nor is it the duty of a subject of a given state to protect allies fighting for it and to participate in the policies of his government. Puppet governments cannot change reality. Recognition cannot be granted to them unless they reappear as independent combatants under a command of their own and are recognized as such. This applies to all states defeated by Germany. At the time of the mobilization of labor only Britain, the United States, and the Soviet Union were active combatants against Germany. British and American subjects were not affected by this mobilization, although citizens of the Soviet Union were in part used in armament production. The legal position of citizens of the Soviet Union is however fundamentally different. Under Document Number EC-338, USSR356, the Prosecution has submitted a decree by the People's Commissars dated 1 July 1941. This decree deals with the utilization of prisoners of war for labor purposes; but it also, however, refers to the employment of interned civilians. According to the wording, armament production is not forbidden for either category of workers; and only two limitations are specified in the decree, namely, work in the combat zone and services required of an orderly. Thus, from the point of view of reciprocity, no objection can be raised against the employment of Soviet citizens in armament production.
DR. SERVATIUS: In his examination before the Tribunal the witness General Paulus stated 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 these workers were also employed in the production of weapons. The significance of such a violation of the principle that armament production shall be forbidden lies in the serious consequence that no formation of a generally recognized rule of international law in this new field of utilization of manpower can thereby be proven. Under these circumstances therefore Germany was likewise free to employ workers of the Soviet Union and workers of all other states in armament production. The Hague Convention on Land Warfare thus does not forbid the regulated utilization of manpower, but there are also further international aspects permitting such a utilization of manpower. The assent of the government of the occupied state is of primary consideration. This assent 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 with foreign governments is of decisive consideration in international relations. This authority of representation was confirmed by the United States by its keeping an ambassador in Vichy even after its own entry into the war. Great Britain also negotiated the terms of an armistice with a general of the Vichy Government in Syria in 1941. This Government once recognized could not be deprived of its legality by the simple declaration of an oppositional government, even though the latter 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 oppositional government. Up to that moment it retains authority within its sphere of influence.
DR. SERVATIUS: The other objection that the Government of Marshal Petain was not free to act as it wished and that consequently agreements with Germany in the field of utilization of manpower were reached by coercive measures and are therefore invalid, is not justified from the point of view of international law. Armistice and peace treaties are always concluded under great pressure. That this does not curtail the validity of such treaties is an obvious point 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 the armistice and the 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 in the form 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 cannot have been so great that he could have exerted an excessive amount of pressure. The validity of such agreements is open to doubt only under very special conditions, such as would mean that excessive obligations were to be assumed which obviously violate principles of humanity; for instance, if the agreements contain a clause stating that work must be performed under slave-like conditions. The motive for these agreements was, however, to offer, especially to the French workers, favorable working conditions and salaries for their obligatory labor in Germany, thus to attract the workers. Military reasons too can command the evacuation of an occupied territory by part of the population and thereby cause a displacement of manpower. This nary happen when the population participates in partisan warfare or is active in resistance groups and thus endangers security instead of behaving obediently and peacefully.
DR. SERVATIUS: It even suffices for the population in the so-called partisan territories to be drawn upon even against its will for the support of the partisans. That such conditions were organized by Germany's enemies as combat measures in an increasing degree, first in the East and later in the West, is today looked upon as a patriotic achievement. In view of this one must not forget that the resulting displacement of workers was precisely the consequence of their activities and that such action was permitted by international law. Evacuation had to be carried out in the interest of security, and assignment of labor elsewhere was necessary if only to maintain order. It is the privilege of the occupying power to utilize this labor within a regulated state economy in the manner deemed most appropriate under the prevailing conditions. Similar measures might also be imposed in areas of retreat after it had been ascertained that the male population illegally took part in hostilities during the retreat, as it had been called upon to do by the enemy, sometimes even being supplied with weapons. Evacuation measures for the security of combat troops are equally permissible under international law. To engage persons evacuated from the combat zone in new work is not only legal but is actually the duty of the occupation administration. The state which calls upon its subjects to fight and thereby intensifies combat, bears the guilt for such evacuation. The necessary retaliatory measures therefore must be legal Whenever such evacuations become necessary, they must be carried out without undue suffering for the population. For this preparatory measures, which alone can avoid unnecessary hardships, are necessary. That is the duty of administration as laid down 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 event of invasion (Document 1289-PS). These proposals did not materialize and cannot therefore incriminate the Defendant Sauckel.
DR. SERVATIUS: This administrative duty may also call for a displacement of labor in order to avoid unemployment and famine. This, for example, occurred when the industrial areas of the Soviet Union were occupied, where there were no more working possibilities after the population became unemployed following the scorched earth policy adopted by 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 for the very purpose of intensified labor to enable the state to carry on the war through increase of production and to allow it to release its own workers for service at the front. A purely military emergency would provide no excuse for disregarding international law. Victory jeopardized must not be sought by breaking the law when in distress, because the laws of warfare are intended to govern that very combat, which is of necessity connected with distress. International law inclines differently where it is a case of a measure to be taken to safeguard the existence of the state. That is a law of self-preservation which every state is entitled to because higher institutions are lacking which could protect it from destruction. It has repeatedly been stressed by all concerned that in this war our existence was at stake. This became evident for Germany after the fatal battles on the Eastern Front in the winter 1941-42. Whereas up to that time no wholesale employment of foreign labor had been necessary, new equipment now had to be produced immediately. The German labor reserves were depleted due to the drafting of 2 million workers for service at the front. The employment of unskilled women and young people could not immediately relieve the situation.
DR. SERVATIUS: During the later stages of the war, especially through aerial warfare, armament demands increased to such an extent that, in spite of the increased employment of women and. young people, the level could no longer be maintained The means were exhausted. The official figures which the Defendant Sauckel made public in his speech in Posen in February 1943 (see Document 1739-PS) proved that already in 1939, at the beginning of the second World War, more than twice as many women were being employed than at the end of the first World War and that their number at the end of the second World War had increased by another 2 million to a total of over 10 million. This figure exceeds the entire number of male and female workers in the armament industry at the end of the first World War. Yet in spite of that there was a shortage of labor. This has been confirmed by the witness Rohland for Codefendant Speer in Document Speer-56, according to which Speer also declared that foreign labor was needed under all circumstances. The crux of the matter did not concern the problem of female labor, where by introducing additional home labor the limit was attained, but that of procuring specialists and men for heavy labor. Among the 10 million German women who were at work, there were also the wives of front-line officers and others from similar classes of society. The notion that in Britain the women were conscripted for work in a higher degree than in Germany is wrong. In Germany the women had to work up to 45 and later 50 years of age, and they actually worked in factories and did not have fake jobs of a social kind. Even schoolchildren beginning with the age of 10 were required to work, and from 16 years onward they were switched to regular labor or occupied in other services. Families were disrupted; schools and universities were closed; pupils and students worked in the armament industry, and even the wounded could not continue their studies. A grim fight was waged over every person capable of work. Speer's reserve of workers did not exist.
DR. SERVATIUS: What efforts were made in this sector is shown among others by Enclosure 2 of the Wartburg Document RF-810. Another point of view illustrating the necessity of employing additional labor is the fact that the powers in possession of colonies brought labor from their colonies; France (see Document RF-22, Page 17), for instance, took in about 50,000 workers from North Africa and Indo-China, which were under the command and supervision of officers and noncommissioned officers. Since Germany, having been refused colonies and on account of the blockade, was unable to draw upon such reserves, she was entitled to some means, in her fight for existence, of procuring labor where it could be found inactive in occupied territories. This is in outline the basis, with regard to international law, for judging the regulated mobilization of labor as a war crime. One may, with regard to certain points, differ in opinion; and it will generally be found that in international law a uniform interpretation will not be readily arrived at. The interests of individual members in the community of international law play an important part and are not always identical; legal principles are often not recognized because some state does not wish to place itself officially in contradiction with its former actions, or because it prefers to remain unbound for the future. As counsel for the Defense, I am in a position to present my interpretation of law without such inhibitions. The significance of my statement for the Defense, apart from the objective side, lies in the fact that the Defendant Sauckel, subjectively, was for good reasons entitled to believe in the lawfulness of a regulated mobilization of labor and that to him his actions were not discernible as being in contradiction with international law. This was supported by the impression which the Defendant Sauckel could not but gain of the permissibility of a regulated mobilization of labor, as shown by the attitude of other superior offices.
DR. SERVATIUS: When Sauckel entered upon his office, foreign workers had already been enlisted by individual action; and he could take it for granted that the State would equally proceed in a legal manner. None of the highest of flees has ever raised legal objections before Sauckel. These of fines, both the competent Foreign Office and the highest civil and military offices in the occupied territories, accepted his orders as a matter of course; and no questions of doubt on international law were raised. For the opinion of the Defendant Sauckel the attitude of the foreign agencies concerned was necessarily of special importance, notably the consent of the French and the Belgians, who came to Berlin personally for discussions. From this resulted the good co-operation with the local authorities in the occupied territories, as was the case before enemy propaganda intervened. Whether cognizance of breaking a law is indispensable when committing a crime against international law may be a moot point; but to establish guilt leading to a conviction, cognizance of the realization of all the criminal facts is essential. This includes cognizance of the fact that the action performed was contrary to international law. The subjective aspect of the facts, involving criminal guilt of the Defendant Sauckel, cannot be proved in respect to application of the regulated mobilization of labor. It would be impossible to commit the Defendant ' Sauckel for yet another legal reason, even if the regulated mobilization of manpower really were a violation of international law. According to the Hague Convention on Land Warfare, no individual responsibility exists. The Hague Convention on Land Warfare 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 be committed only by parties in a war. The regulated utilization of manpower is a proceeding which can only be initiated by the state.
DR. SERVATIUS: While the individual action is punished according to the penal code of the different states, a special regulation was laid down for offenses committed by parties in a war in Article 3 of the introductory agreement to the Hague Convention on Land Warfare. This specifies only a liability for damages on the part of the state. This passage of the Hague Convention on Land Warfare still applies today, since it cannot be rescinded by agreement among the Allies alone. The Charter, which- specifies the immediate criminal responsibility of the state organs or its executors, is void insofar as it is contradictory to the Hague Convention on Land Warfare. 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. A modification of the Hague Convention on Land Warfare in the sense of the Charter might have resulted from the law of usage or general custom due to changing legal conceptions. The presupposition for this assumption would be, however, that the contracting powers relinquish their sovereignty, since only then would the punishment of the state organs be possible. However, such a renunciation of the rights of sovereignty has not, as far as I am aware, taken place to such an extent as would generally render such punishment permissible. With regard to this point, I refer to the general statements made by Professor Jahrreiss before the Tribunal. I shall now deal with the utilization of manpower as a crime against humanity. If a regulated utilization of manpower appears permissible according to international law, there remains the problem of the method of its execution, namely, the question of up to what point this utilization of manpower can still be regarded as in order and when it will exceed the permissible limit. The Charter fails to define the concept of humanity. As far as international law is concerned, the term can only be transposed from the practice of the nations.
DR. SERVATIUS: In endeavoring to establish the limit for actions permissible under international law, we must, for the sake of comparison, mention the bombing of large cities and the use of the atomic bomb, as well as deportations and evacuations as 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. Once again we are confronted with the conception of necessity and find that it is being interpreted in a very flexible manner. This should be kept in mind when examining the mobilization of labor as to any violation of the principle of humanity involved. Its aim is not the sudden killing of hundreds of thousands; however, it naturally entails hardships and is certainly also subject to mistakes which arise unintentionally or are due to the shortcoming of individuals. An answer will be required to the question of whether deliberate killing does not always weigh heavier than the temporary infliction of other sufferings. Also, the Charter does not prescribe punishment for every violation of the principles of humanity but only when inhuman treatment occurred 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, inhuman treatment may be admissible in self-defense, while it is punishable when committed by an aggressor; or alternatively, it must be a case of a war crime. This does not apply when compatriots are ill-treated, for they are not protected by the laws of warfare. Prosecution for an act against humanity committed toward them can only take place if a crime against peace is involved at the same time. From an objective point of view labor commitment furthered the waging of the war which has been designated by the Prosecution as a war of aggression or as a war violating treaties.
DR. SERVATIUS: If this is established and if it is proved moreover that the mobilization of labor was carried out in an inhuman way, then the requirements of the Charter will have been met and a crime against humanity committed, regardless of whether the mobilization of labor was allowed or not allowed by the rules of war, since it was committed in connection with a crime against peace. But punishment can be inflicted only if the culprit himself knows that an unlawful war is being waged and that he is furthering it by his action. Since the Defendant Sauckel denies any such knowledge, it must be proved. The other possibility of meeting the factual requirement occurs when the inhuman act serves to carry out a war crime or is connected with it. Of the examples given by the Charter for violation of the rules of war, the following in the main can be taken to apply to the mobilization of labor: murder, ill-treatment, and deportation of the civilian population. As shown by this enumeration, these war crimes are not, however serious they may be, in themselves crimes against humanity. Some aggravating circumstance making the act inhuman must be added. As shown by the examples of inhuman "extermination" and "enslavement," the acts in question must be objectively of particular scope or cruelty. Subjectively, however, an inhuman disposition of the culprit and the knowledge of the inhuman character of the act, that is to say, knowledge of the scope of the measure or of the cruelty of its execution, is additionally required. How far these conditions apply to the Defendant Sauckel must be investigated later on. A "regulated mobilization of labor," as allowed by international law can never in itself be a crime against humanity; but its execution may be carried out in such a way that it involves killings and ill-treatment, which for their part might be war crimes. Such ill-treatment could result from regulations issued by the highest authority involved, who thereby would bear the responsibility.