Believe me, gentlemen of the Tribunal, in this epoch, as Germany regains consciousness after a severe illness, as she proceeds to rebuild a better future from the ruins of an evil past, a future for its youth which has no part in the crimes committed, at this time seventy to eighty million German people are looking to you and are awaiting from you a verdict which will open the way for a reconstruction of German economy, of the German heart and true freedom. an written law, not bound to any legal paragraph, pledged to serve your conscience only, and called by destiny to give to the world simultaneously a legal order which will preserve for future generations that peace which the past was unable to preserve for them. A well-known democrat of the old Germany said this in a recent article on the Nuernberg Trial: In a monarchist State justice would be administered in the name of the King; in Republic Courts would pronounce their rulings in the name of the people but you, the Nuernberg Tribunal, you should administer justice in the name of humanity. aim, if it could believe that its verdict could realize the commands of humanity and that for all time it could prevent crimes against humanity. But, in certain respects this would still remain an unsteady foundation for your verdict, a verdict of the magnitude which confronts you. Because ideas on what humanity demands or prohibits in individual cases may vary, depending upon the epoch, the people, the attitude of the Party according to which one judges. foundation for your verdict when you revert to the phrase already coined by the ancient Romans, the phrase which endured throughout centuries and which certainly will still remain valid in ages to come:
Justitia est fundamentus regnorum (Justice is the basis of every state.)
is expecting from you a judgment which will not be hailed just today by the victor nations of today as the last victory over Germany, but which history will recognize as just; pronounce your verdict in the name of justice.
THE PRESIDENT: I call on Dr. Servatius for the defendant Sauckel.
DR. SERVATIUS: (Counsel for defendant Sauckel): Mr. President gentlemen of the Tribunal: to deal with the charge of slave labor.
What is slave labor? ing all the occurrences with which the defendant Sauckel is, in a bewildering abundance, charged under the heading slave labor. a juridicial point of view. The legal basis for this examination is the Charter. by slave labor and what by deportation. Therefore, these concepts should be clarified by interpretation. different points of view of deportation and of slave labor. humanity, and forced labor appears as well as slave labor under the heading of war crimes, and as enslaving under the heading of crimes against humanity. the defendant Sauckel should fall is of decisive importance; if it is a war crime, then it should be judged exclusively by martial law. If it is a crime against humanity then the latter presupposes the commission of a war crime or of a crime against peace. (b) cannot be the same thing as deportation according to Article 6 (c) nor can forced labor according to Article 6 (b) be identical with forced labor of Article 6 (c).
THE PRESIDENT: That paragraph of your speech which is in English on page 2, the second paragraph:
"It follows thereof that deportation mentioned in Article 6 (b) cannot be the same thing as deportation according to Article 5 (c) --" is not altogether clear to the Tribunal. Could you make it clearer?
DR. SERVATIUS: In Article 6 (b), we deal with crimes against humanity whereas in Article 6 (c) we speak of war crimes. In both articles the expression deportation and forced labor are used but they have to be differentiated and when we examine this we turn to the fact of differentiation and I believe my further statements will make that differentiation quite clear. as used in the Charter. fact that something contrary to humanity has to be added to the war crimes. in the terminology of the Charter, however fluctuating it may be. For instance, the Russian text for deportation as a war crime chooses the word "uvod", which only means removal from a place, whereas, on the other hand, it uses for crimes against humanity of the same kind the technical expression "ssylka" under which penal deportation under the rule of the czars is understood as identical in sense with deportation as penal deportation.
THE PRESIDENT: The Tribunal must adjourn.
THE MARSHAL: The Court will remain adjourned until a quarter to two.
(A recess was taken until 1345 hours.)
(The hearing reconvened at 1345 hours, 18 July, 1946.)
DR. SERVATIUS: I talked of the terminology of the word "deportation" in the Russian text, "ssylka". I pointed out the distinction, the word meaning only transportation, or meaning a deportation as a form of punishment. From the one may conclude that the deportation mentioned can only be regarded as a war crime against humanity when it assumes the penal character of a transportation of prisoners. Yet the question arises whether, beyond this, according to the Charter, any removal of the population is punishable as a war crime, without considering whether it occurs for deployment of labor or for other reasons. to be the case, asit renders punishable "removal for slave labor, or for any other purposes." does not seem to be meant in such a sense, as there are cases in which a removal is not only consistent with international law, but even becomes imperative. prerequisite of the punishable is not just plain "removal" but the composite concept "removal for slave labor" and "removal for any other purpose".
The clause "or for any other purpose" should be understood so as to mean only that an illegal purpose corresponding to slave labor exists. If removal of any kind was to be made punishable, then the qualifying addition "for slave labor or for any other purpose" would be contradictory to common sense. otherwise the existence of deportation classified as a war crime would be evident from the acts admitted by him. Just as for the various kinds of deportation, the difference between the kinds of slave labor according to the Charter should be clarified. Here, too, a clue for the interpretation is given by the terminology of the different linquistic versions of the text, but not because of their clarity and consistency, but by their very opposite:
The English version speaks of "Slave labor" as a war crime and of "enslavement" as a crime against humanity; the French version states "travaux forces" and "reduction on esclavage", the Russian version accordingly "rabstvo" (-Slavery) and "poraboschtschenie" (-enslavement). It is not discernible how the chosen terms differentiate in re.
carried out under more severe conditions than other labor, and considering that "slave labor" appears to be the severest form of labor conditions, one sees the no definition can be derived from this terminology of the Charter, rather than an ethical valuation and stigmatization of the incident is intended. carried out, independent of the terminology, by considering exclusively the degree of severity of labor conditions. If one tries to analyze the terminolo used, one finds the designation "enslavement", "esclavage" and "Peraboschtschni for the inhuman form of labor, whereas the labor not inconsistent with humanity is called "forced labor", "travaux forces" and "prinudidjenaja rabota". Slave labor ("Slave labor, travaux forces and rabstvo) consequently is the general term comprehending both kinds. Sauckel?
The defendant Sauckel admits having negotiated the "forced labor" in the form of compulsory labor which, as stated before, is being termed by "slave labor" in general. considered as inhuman labor, i.e. enslavement. facts of these two cases; "compulsory labor" is but a war crime and is to be judged according to rules of war; the crime against humanity has got, as alrea stated above for the deportation as crimes against humanity, the additional features: connection with war crimes or crimes against Peace. the defendant Sauckel,was permitted by the rules of war, then the same act canne be held to be a crime against humanity.
The indictment too has made a difference as to the kinds of labor. I has treated, under par. three, chap. VIII, H, as a separate war crime under the title of "Conscription of civilian labor", the mobilization of manpower direct by the defendant Sauckel, which I shall call "regulated labor conscription", "goordneton Arbeitseinsatz" and speaks here only of "forced labor", the French version speaks here of "travaux forces" end uses terms such as "les obligerent a travailler" and "mis on obligation" the Russian version follows this and also speaks only of "enforced labor" as "prinuditjelonaja rabota", but not of this being slave labor.
but I shall submit the legal reasons which justify this mobilization of labor and I shall prove that it does not involve any war crime inconsistent with international law. question whether "regulated labor conscription" is a war crime. The Chapter cannot prohibit what international law permits in wartime. 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. bases it 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. law, than a judicial inquiry into the penal regulations is, of course, not necessary. law of warfare with which we are concerned here. Whether it was recognized by all states involved here is of practically little importance, as for, inasmuch as it was not recognized, or cannot be directly applied, there is a gap in the international law which is closed in accordance with the principles of necessity for belligerent and with the duty for staying within the boundaries of humanity. The principles of international law as established in the Hague Convention on LandWarfare are in all cases on important guidance. tion in Land Warfare which is to safeguard the fundamental rights of the population. It is typical for forced labor that it restricts liberty, but it is exactly this basic right which is not protected by this article.
rule concerning deportation and forced labor it will be realized 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 mind of the contracting parties. The first world war was still fought between 2 armies with already prepared material and the fight should be ended after it is used up. The idea of a long war which is a war of material and which requires a continuous production with all available labor was for the Hague Convention on Land Warfare no problem to be discussed. principle of the right for requisition touches on the matter under discussion, but it can be seen that the rules deal only with the merely local requirements of the army which appears to be equipped and which has only additional local requirements. for requisitions is entrusted to the local commanders, in contract 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 for requisition in international law quotes accordingly only examples of local significance. accordingly not be directly applied, its basic principles are nevertheless binding on the belligerents. necessary for the satisfaction of their 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, "certlichen Leistungspflicht" is to adapt to modern warfare. The Hague Convention on Land Warfare thought of the use of smiths and wheelwrights which were necessary for the maintenance of the equipment of the army; work inside the country of the occupying power was, with regard to the undeveloped transportation conditions, out of the question and could not be considered.
but must be done in the belligerent's own countries. It must therefore be possible to demand labor where it can only be done and where it is necessary. It must be possible to demand this work also for the new war requirements of mass production for the current replacements. depends on the respective conditions. If in earlier times, according to the principle: the war supplies the war, the equipping of the army, detached from the homeland with regard to transportation, was also done on a large scale in the occupied territory, it must be possible to day to supply the army by moving the workers to the factories in the country of the belligerent. The evolution of the law of Warfare is influenced by the requirements to which this law has to serve. limitation has to be accepted. These limitations must also be interpreted in accordance with the changed conditions. the occupying power demands from it own people athome. The intensity of the war as total war must be taken in consideration. The duty for supply may hereby become very large. is certainly not to place the nationals of a defeated state in a better position than those of the victorious state which occupies 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 how 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? Convention on Land Warfare,this would be preferable to the burden of the peace treaty to be expected.
to in its original interpretation, if it is true that already before the conclusion of the armistice agreement the Soviet Union as occupying power 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. Also I have information that German civilian internees are used for work in France today. Here too the Tribunal could obtain official information. no participation in war enterprises against the fatherland of the worker can be demanded.
Any work for the occupying power benefits indirectly its war effort; the prohibition is therefore restricted on 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 asked of no workers; rather the purpose was to keep workers employed unmolested, away from these operations.
Consequently only such activity, as is directed against one's own country is forbidden. Thus, the feeling of the individual is 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 pointed to the great amount of foreigners, who adopted such an attitude and who, in part, still live in Germany today. ceased fighting. work in the armament industry. The rules of the Geneva Convention, with regard to work, permissible for prisoners of war are known. The basic notion, that no one may be forced to take 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 - he longer is able to furnish proper resistance in the field with fighting forces and thus ceases to exist as a military object of attack. arbitrarily extend this restriction beyond agreements of the Geneva Convention; it also is not 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 unlessthey come forward as independant fighters under command of their own and if they recognised as such. and the Soviet-Union were active combatants against Germany. Englishmen and Americans were not subjected to this mobilization, although citizens of the Soviet-Union were in part used in the armament production. The legal position of citizens of the Soviet-Union is however fundamentally Under Document EC 338/USSR 356, the prosecution submitted a decision of the peoples commissars of 1 June 1941.
This decree involves the utilization for labor of prisoners of war . It deals however also with the employment of interned civilians. According to it, armament production is not forbidden for both forms of labor. 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. ment of Soviet citizens in armament production. During examination before the Tribunal, the witness General Paulus confirmed that prisoners of war were employed in factories of the Soviet Union and that in a State with a directed economy they will be employed in the armament industry only for the duration of the war. According to the decree it must be assumed that these workers were employed in the armament production also. mament production lies in the grave consequence, that the formulation of a generally recognised rule of the international law in the modern 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. regulated utilization of manpower then there remain further international aspects permitting such a utilization of manpower.
The permission of the Government of the occupied State is of primary consideration. This permission has been 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 provisionary 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 maintainance of an Ambassador 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. the simple declaration of an opposing Government even though this opposing Government might have been recognised 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 remains authority inside its sphere of influence. to deal as it wanted, and that consequently agreements with Germany in the field of utilization of manpower were reached by coercive measures and therefore invalid, is not justified from the point of view of international law. 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. 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 could not have been so great, that he could have excerted an exessive amount of pressure.
conditions, that is, when unusual duties have to be performed which obviously violate principles of humanity. For instance, if the agreements contain a liability to work under slavery conditions. The motive for those agreements was, however, to offer especially to the French workers favourable working conditions and salaries for their obligatory labour in Germany, and so to gain the willingness of the workers. tory by parts of the population and therefore the shifting of manpower. This happens when the population participates in battle of partisans or resistance groups and so endanger security instead of behaving themselves peacefully according to their duty to obedience. Also to eliminate this support it is already sufficient if the population in the so-called partisan territories is being 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. In viewof this one must not forget that the herewi connected shifting of workers was exactly the consequence of their action and that these actions were permitted by international law. assignment of labor elsewhere already was necessary to uphold order. It is the right of the occupying power to utilize this labor in a regulated state economy as seems most practical in the prevailing conditions. Similar measures could also take place in areas of retreat after it was ascertained that the male population took illegally part in battle during the retreat when it was summoned by the enemy and sometimes even supplied with weapons. with 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 its members to fight and thereby intensifies the battle, is guilty of such an evacuation. The necessary retaliations therefore must be legal. without undue suffering for the population. Thereto advance measures are necessary which alone can avoid these hardships.
This is the duty of the administration (Verwaltungspflicht) as confirmed in Article 43 of Hague Convention of Land Warfare. territories of retreat in France in the case of the invasion (document 1289PS These proposals were not materialized and can therefore not incriminate the defendant Sauckel. avoid unemployment and famine. This, for example, took place when the industrial areas of the Soviet Union were occupied and there were no more working possibilities and securing of supply after the population was unemployed because of the scorched earth policy chosen by the Soviet Union, and supply failed to arrive because of transport difficulties.
Those military and administrative points of view of the 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 of Land Warfare, especially for the purpose of work, i.e. to enable the state to carry on the war through increase of production and thus release its own workers for front duty. A purely military emergency could give no excuse for disregarding international law. The endangered victory must not be pursuit by breaking the law because of necessity , because the law of warfare is supposed to correct just this conflict which is always connected with need. 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 because higher Institutions are lacking which could protect it from destruction. existence was at stake. This became evident for Germany after the ominous battles at the eastern front in the winter 1941/42. Whereas, up to that time, a general employment of foreign labor had not been necessary. Now new equipment had to be produced immediately. The employment of unskilled women and young people could not immediately relieve the situation. By later development of the war, especially by the aerial warfare, the armament demand.
were increased to such an extent, that, in spite of the increased employment of women and young people, the level could not be maintained. The means were exhausted. in Pasen 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 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 more than 10 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 labor. This has been confirmed by the witness Rehland of co-defendant Speer in document Speer-56, according to which co-defendant Spear also declared that foreign labor was needed under all circumstances.
of female labor, where by introducing additional home-labor one went up to the limit, but in the procuring of specialists and men for hard and hardest labor. Among the 10 million German women whowere at work, there were also the wives of officers at the front and others from the equivalent strata of society. a higher degree than in Germany is wrong. In Germany the women had to work till 45 years of age and later till their fiftieth, and they actually worked in factories and didnot have fake jobs of a social kind. Even the youth of school-age were conscribed to work from the tenth year of age, and from the sixteenth they were switched into the regular work organization or occupied in other services. Failies were spread apart. Schools and universities were closed; their pupils worked in the armament-industry and even wounded men 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 others in inclosure 2 of the Wartburg-Document (RF-810) what efforts were made in this sector. additional labor, is the fact that the powers in possession of colonies fetched labor from their colonies; e.g. France (see document RF-22, page 17), for instance, about 50,000 workers from North Africa and Indochina, which 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 net fall back on these reserves, it had to have the possibility, in its fight for the existence of the state, to take labor where it was to be found inactive in occupied territories. for judging the regulated utilization of labor 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 but with difficulty. The interests of the members of the community 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.
pretation of law without such inhibitions. The significance of my statement for the defense, 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 labor and that for him his behaviour did not appear in contradiction with international law. This was helped by the conviction which defendant Sauckel was obliged to gain from the permissibility of the well-ordered utilization of labor by the attitude of the superior offices. When Sauckel entered upon his office, foreign workers had already been enlisted in single actions, and he take it for granted that the State had proceeded legally. None of the highest offices had raised legal objections toward 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 on international law were not raised. foreign offices 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. a crime against international law may be left undecided; but to establish guilt, the knowledge of realization of all the criminal facts is necessary in order to pass a punitive sentence. Therefore it is necessary to realise that the action was carried out in violation of international law. The subjective part of facts and therewith a criminal guilt of the defendant Sauckel cannot be proven in regard to carrying out the regulated utilization of labor. A punishment of the defendant Sauckel could also not take place for another legal reason, even though the regulated utilization 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. (H.L.O. differentiates between two kinds of war crimes; those which can be committed by an individual, such as murder and ill-treatment, and these which can only be committed by a belligerent.
The regulated utilization of manpower is a proceeding which can only be initiated by the state. While the individual action is being punished according to the penal cede of the individual States, so is a special regulation formulated for the offence of the belligerent, in Article 3 of the introductory agreement to the H.C.L. (H.L.O.) According to that there is only an obligation for compensation agreed upon. This agreement of the H.C.L. (H.L.O.) is still valid today, for by agreement of the Allies alone, this cannot be annulled. The Charter, which orders the immediate criminal responsibility of the state-organs or its executors, is void as far as it is contradictory to the H.C.L. (H.L.O.). parties to the agreement, would have had to agree to the suspension of Article 3; there are other reasons which prove that this stipulation is still in force. An alteration of the H.C.L. (H.L.O.) 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 renunciati of the rights of sovereignty, as for as it is known to me, has not taken place to such an extent thick generally would permit such a punishment. With regard to that, I refer to the general statements made by Professor Jahrreiss before the Tribunal. humanity. If the regulated utilisation of manpower (geordneter Arbeitseinsatz) appears permissible according to international law, the question remains of the method of its execution, namely, the question on how long this utilization of manpower can still be regarded as regulated and when it will go beyond permissib 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 find the limits for actions permissible under international law, we must draw into 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. it is being interpreted in a very flexiblemanner. This should well be kept in mind if one examines the utilization of labour as to its violation against humanity. Its aim is not the strike-like killing of hundreds of thousands; however, it naturally carries hardships and certainly also mistakes, which arise unintentionally or are due to the failure of individuals. One must answer the question whether the wanted killing does not always weigh heavier than the temporary causing of other sufferings. It is to be added that the Charter does not prescribe a punishment for each violation against humanity, but only when the inhuman treatment has been committed in the execution or the connection of a crime for which the Tribunal is competent. However, the Tribunal is competent only for crimes against peace and war crimes. What concerns the crimes against peace, the defense can be permitted therefore to use the same inhuman treatment, while it is punishable when committed by the aggressor.
Or it must be considered a war crime. This is not the case when it deals with the wounding of subjects of its own nationality, for these are not protected by laws of warfare. A prosecution of an act against humanity directed against them can only happen when connected at the same time with a crime against peace. furthered the waging of the war which has been stated by the prosecution as a war of aggression or as a war violating treaties. If this is established and if it is proven moreover that the deployment 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 deployment of labor was, as a matter of principle, allowed or not 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 knows subjectively that an unlawful war is beingwaged and if he furthers it by his action. As the defendant Sauckel denies any such knowledge, it mustbe proven.