The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. KUBUSCHOK, 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

                                                  [Page 246]

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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