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.
herein 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 deployment of labour: "Murder, illtreatments and deportation... committed on the civilian population." As shown by this enumeration, these war crimes which have been mentioned are not, how serious they may be, crimes against humanity by themselves.
Something aggravating which is necessary to give the net the character of inhumanity must be added. As shown by the example of "extermination" and "enslavement" as an inhuman act, the acts in question must be objectively of a particular scale or particularly cruel. Subjectively however, an inhuman disposition of the culprit and the knowledte of the inhumanity of the act, i.e. the knowledge of the scale of the measure of the cruelty of its execution, must be added. How far those presuppositions apply to the defendant Sauckel must be investigated later on. A "regulated labor conscription", geordneter Arbeitseinsatz", allowed by international law never can 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. highest authority involved, which herewith takes 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. such general orders and instructions only which he has given, but not, on the contrary, for autonomous acts of supreme authorities in the occupied territories or of supreme Reich authorities as Chief of SS and Police, which were not under his jurisdiction. and they must prove whether the deployment of labor ordered by him was in fact a regulated one or was tantamount to an "ill-treatment" of the population. the basis of a service duty "Dienstverpflichtung" which, as a matter of principle, was legally ordered, according to Hitler's orders, by the territorial commanders. The authority to issue such laws transcended the powers of the defendant Sauckel, nor could he ask for the issue of any such laws.
But he has approved of them and has made them the basis of his work. the German laws concerning compulsory labor service. Those laws were enforced by coercion. authority of the occupying power is acknowledged by the population; they become necessary only when this authority gets lost. tenance of the so-called Executive by enterprises for the sweeping of territories held by partisans and for the over-powering of the resistance movement. demanded the use of the therto appropriated state funds. 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 criminal character of the police had been proven and if the defendant Sauckel at that time had had cognisance of the criminal activity then taking place. occupation force, cannot be disputed. The question is where are the limits of force and whether or not there are legal and illegal, admissible and inadmissible measures of force. within a state, then this thought is all the mere applicable to an occupying power during a state of war. Anyone who refuses to carry out the orders of the occupation-power, knowingly participates in the fight to which he is not entitled and he has to accept the consequences. Obedience is duty towards the occupying power and where patriotism and obedience are conflicting, the law decides against patriotism. The punishments which are dealt out are as such not subject to any limitations and the threats of punishment by an occupation power are for the effect of intimidation usually out of all proportion in severity.
The question is whether there exists a limit from the humane stand point which prohibits going unnecessarily beyond the purpose of the punishment and which, as beyond measure, appears to be unnecessary. Orders like the burning of houses which had been issued by subordinate offices independently in the carrying out of utilisation of labor, must be examined from this point of view. cumstances and realizes that the thing involved here is an open battle between the occupying power and the population, with official support from the enemy. In case of uprisings and organized general resistance one can no' reject the idea of the applicability of the military laws of the combattroops. Necessity alone can be the decisive factor in this case. International law has out only one limit to coercive measures in 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 hold responsible. Presupposition hereby is, that co-responsibility has been established through actual events and has not been construed through orders.
Wherein collective punishment may consist has not been stated. As limit must be considered the aforementioned: They must be the bounds of humanity, but in war this is a vague conception; necessity and suitableness of the means to the end must always have the preference. present an ill treatment which can be looked upon as a war-crime. On principle there can be no question of ill treatment, in case the foreign workers are treated generally the same way as the workers of the homecountry. A different treatment is only permissible in case special circumstances justify it. Whereas this putting on the same basis was in general carried out, the so called eastern workers were put on worse conditions.
The most striking item was here the limitation of freedom. If this were arbitrary, it would be sufficient reason for declaring it an ill-treatment. But the reasons for this limitation of freedom were not arbitrary but were the needs of security of the state.
During wartime the stay of an enemy alien in the state-area 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 but when the needs demanded the deployment of foreign workers, that the need of security had to be satisfied simultaneously. What measures are to be tal depends upon the danger, which is different according to the attitude of the alien. Whereas the measures of policing were imperceptible with regard to t French, the eastern workers were, in the beginning, kept locked in camps. security by winning the aliens over inwardly because their collaboration is desired. By depriving them of their freedom this is not to be achieved. As long as the attitude of the alien can not be clearly recognized, especial if he be -- as the citizen of the Soviet-Union is-schooled propagandistical more severe control may be necessary. But it should not develop into a permanent captivity, and should at most correspond to a sort of quarantine. To deprive people without guilt of their liberty for an extended period is not admissible, because it would correspond to a forbidden collective punish ment. The mere assumption of danger is not sufficient for the decreasing of such limitations; there must be, besides, acts which show that these foreign workers appear dangerous also under normal working conditions. The keeping in custody of eastern workers behind barbed wire and without permission to out for walks as ordered by Himmler, is to be regarded as an ill-treatment, if it is permanent. limits of the permissible had been overstepped, immediately took steps again this and, in a tough fight against Himmler, demanded and obtained the withdrawal of barbed wires and the prohibition to go out for walks, to be seen from the following decrees, that is, Document Sauckel 10, Exhibit USA-206. the police, Sauckel always intervened when he heard of such occurences. Th has been confirmed repeatedly by witnesses, Exhibit Sauckel 10, the statement by the witness Goetz.
Another controversial point nets the earmarking by the badge "OST" which was maintained until the year 1944 and was then replaced by a country insigni This earmarking of the Eastern workers who could move freely among the popula tion was necessary for police security measures. This cannot be considered ill treatment. The rejection of this sign by the Eastern workers was based the first place on the defamation of this badge by propaganda, and the defend ant Sauckel always tried to change this insignia and to replace it by a nationality insignia as the other workers were it voluntarily. He finally prevailed here also against Himmler, successfully, Document RF-819, page 12. with regard to the rules concerning maintenance of discipline. deal with such workers who do not live up to their duty of work; that means slackers, shirkers and saboteurs. The practice of discharge, common in peac time, is ineffective during war; but deserters from work cannot be tolerated today by any belligerent. In cases amounting to sabotage, police and penal measures had therefore to be taken, the most important of which was the short transfer to a labor camps in special extreme cases imprisonment in a concentration camp was inflicted.
The document 1063-PS/RF-345 shows the similarity in the execution of the regulations towards Germans and Foreigners. worker are justified measures. The Wartburg document RF-810 show in the rep of the reporting official Dr. Sturm that such measures were carried out in a very moderate manner, and that only 0.1 to 0.2 per thousand were thus punish of discipline is in itself not yet an "ill treatment" which could be the has for a crime against humanity. side the competence of the defendant Sauckel. He can only be held responsible for those if the subjective facts of the case are fulfilled, and if he knew of such excesses and approved of them although he could have prevented them.
In summing up one can say that the "regulated utilization of labor" is permissible in international law and that restrictions imposed on workers within the limits of necessities must be permitted for reasons of state security. regarded as ill treatment and could mean crimes against humanity. For those he is responsible who has instigated them or who, within the sphere of his competence, did not prevent them.
Should the extensive scale of the charges brought against defendant Sauckel proceed from the above stated legal considerations, it is necessary first of all to single out those fields in which the evidence reveals him to be absolutely clear of any responsibility. can be connected with the biological extermination of the population. His whole interest in fact has proved to have been just the opposite, since his purpose was to obtain people as laborers. With the migration measures and methods used in this respect, he had nothing to do. defendant Sauckel's responsibility. Himmler's Posen speech in October 1943 (Document 1919 PS, page 21) reveals that the SS had erected gigantic armament plants of their own. We know that Himmler covered his extensive labor requirements by despotic, arbitrary arrest or persons in occupied territories. In Germany itself, he had workers engaged in regular employment arrested on insignificant pretexts and brought into concentration camps fraudulently vis-a-vis the regular labor offices. This is clearly shown in Document 1063 PS, that is a letter dated 17 December 1942 as well as a letter dated 25 June 1943, in which alone a requirement of 35,000 prisoners is signified. Moreover, any correspondence exchanged with reference to concentration camp labor never passes through Sauckel's services. As an example, I refer to Document 1584 PS containing some correspondence with Himmler's Department. Defendant Sauckel's name is never mentioned with reference to a conscription of prisoners, and the witnesses have unanimously stated that defendant Sauckel had no connection with these matters. This is also confirmed by the statement of the Director of the ministry Armament's Labor Office. Schmelter, who received the required prisoners direct iron Himmler. Jews for labor. This labor conscription is a pert of labor con scription of concentration camp prisoners; it was Himmler's own personal secret kingdom.
This is revealed, for instance by Document R 91 in which Himmler's service orders the arrest of 45,000 Jews in the "Jewish Sector" as concentration camp prisoners. attempted to convict Sauckel of a share of guilt in this department This document is a letter dated 26 November 1942 from Sauckel's office to the President of the National Labor Office, to the effect that, in agreement with the Chief of the Security police and Security Department, Jewish workers remaining in the plants must be withdrawn and evacuated to Poland. As a matter of fact, this letter actually confirms that Sauckel had nothing to do with Jewish labor in the concentration camps, since Jewish workers were actually withdrawn from his department under the false pretence of evacuation. The measure is indeed solely concerned with the purely technical purpose of releasing the Jewish laborers and replacing them by Poles, an operation which could not have been carried out without the participation of Sauckel's office. traced back to the period prior to Sauckel's assumption of office, and Document L 156 is subsequently concerned with the same technical operation. The unimportant character of the matter is attested by the fact that these letters were not composed at defendant Sauckel's headquarters in the "Thueringenhaus" but in an auxiliary office in the Saarlandstrasse. Defendant Sauckel disclaims knowledge of these operations and points out that the letters do not bear his original signature but were, according to the routine of his service, made out in his name precisely because they were of minor importance. The fact that the letters begin with the routine business term of "in agreement with", and not "in accordance with" (the orders of) the Chief of Police SP and SD, does not mean that they refer to a connivence but merely to orders received from the authoritative headquarters.
But Documents 682 PS dated September 1942 unmistakably show that a secret maneuvre of Himmler and Goebbels in cooperation with Reich Minister of Justice Thierack is here involved. Defendant Sauckel is not concerned. the Organization Todt under Sauckel's responsibility. The accusations proceeding from document UK-58 in this respect, bearing upon labor conscription methods in the Channel Islands, do not therefore concern him.