The Nizkor Project: Remembering the Holocaust (Shoah)

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It has repeatedly been stressed by all concerned that in
this war our existence was at stake. This became evident for
Germany after the ominous battles on the Eastern Front in
the winter of 1941-42. Whereas, up to that time, a general
employment of foreign labour had not been necessary, now new
equipment had to be produced immediately. The German labour
forces had to be decreased due to the removal of two million
workers for duty at the front. The employment of unskilled
women and young people could not immediately relieve the
situation. Through the later development of the war;
especially through air warfare, the armament demands were
increased to such an extent that, in spite of the increased
employment of women and young people, the necessary level of
production could not he maintained. The means were
exhausted.

The official figures the defendant Sauckel made public in
his speech in Posen in February, 1943 (see Document 1739-
PS), showed 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 towards the end of the Second World War had
increased by another two million to more than ten 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
labour. This has been confirmed by the witness Rohland of co-
defendant Speer in Document Speer 56, according to which co-
defendant Speer also declared that foreign labour was
urgently needed.

The difficult part of the problem did not consist in the
question of female labour, which was used to the extreme
limit, but in the procuring of specialists and men for
special and the heaviest tasks. Among the ten million German
women who were at work, there were also the wives of
officers at the front and others from the equivalent strata
of society.

The opinion that in England the women were conscripted for
work to a greater extent than in Germany is wrong. In
Germany the women up to 45 years of age and later up to 50
years of age had to work, and they actually worked in
factories and did not have just fancy jobs of a social kind.
Even school-children from the age of 10 were required to
work and from the age of 16 on were directed to ordinary
manual labour or employed in other services. Families were
broken up; schools

                                                  [Page 102]

and universities were closed and their pupils worked in the
armament industry. Even the wounded 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 other documents; in inclosure 2 of the Wartburg
Document (RF 810) what efforts were made in this field.

Another point of view illustrating the necessity of
employing additional labour is the fact that the powers in
possession of colonies brought workers from their colonies;
e.g., France (see Document RF 22, Page 117), for instance,
about 50,000 workers from North Africa and Indo-China, who
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 not
fall back on such reserves, it was forced in its fight for
its existence to take unemployed workers in occupied
territories.

This is in outline the basis with regard to International
Law for judging the regulated utilizations of labour 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 only
with difficulty. The interests of the community of upholders
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.

As counsel for the defence, I am in a position to present an
interpretation of law without such inhibitions. The
significance of my statement for the defence, 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 labour and that to him his
behaviour did not appear to be in contradiction with
International Law. This belief was bound to be enhanced by
the attitude of the superior offices regarding the
permissibility of the well-ordered utilization of labour.
When Sauckel took up his office, foreign workers had already
been enlisted due to individual actions, and he could take
it for granted that the State had proceeded legally. None of
the highest offices had raised legal objections before
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 as to their
legality according to International Law were not raised.

For this opinion of the defendant Sauckel, the attitude of
the foreign offices of the countries 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.

Whether awareness of breaking a law is an essential element
of a crime against International Law may be left undecided;
but to establish guilt, proof of the knowledge of the
criminality of the action must be established, therefore it
is necessary to realize that the action was carried out in
violation of International Law. A personal realization of
the facts and thereby involving criminal guilt of the
defendant Sauckel cannot be proved in respect to the
carrying out of the regulated utilization of labour. The
defendant Sauckel could not be punished for yet another
legal reason, even though the regulated employment 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. 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 only be committed by a
belligerent. The regulated utilization of manpower is a
procedure which can only be initiated by the State. While
the individual action is punished according to the penal
code. of the individual States, a special regulation was

                                                  [Page 103]

formulated for offences committed by a belligerent, in
Article 3 of the introductory agreement to the H.C.L.
According to that there is only an obligation on the part of
the State for compensation agreed upon. This agreement of
the H.C.L. is still valid today, for, by agreement of the
Allies alone, this cannot be annulled. The Charter, which
provides for the immediate criminal responsibility of the
State organs or its executors, is void inasmuch as it is
contradictory to the H.C.L.

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. An alteration of the
H.C.L. 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 renunciation of the rights of sovereignty, as far as
is known to me, has not taken place to such an extent that
it would generally admit of such a punishment. With regard
to that, I refer to the general statements made by Professor
Jahrreiss before the Tribunal.

I come now to the utilization of manpower as a crime against
humanity. If the regulated utilization of manpower
(geordneter Arbeitseinsatz) appears permissible according to
International Law, there remains the question of the method
of its execution, namely, the question of how long this
utilization of manpower can still be regarded as regulated
and when it will go beyond the permissible 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 establish the limits for actions
permissible under International Law, we must mention for the
sake of 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.

One runs again into the conception of necessity and finds
that it is being interpreted in a very flexible manner. This
should well be kept in mind if one examines the utilization
of labour in respect to its violating the principles of
humanity. Its aim is not the sudden killing of hundreds of
thousands; however, it naturally entails hardships and is
certainly also subject to mistakes which occur
,unintentionally or are due to the shortcomings of
individuals. One must answer the question whether the
intended killing does not always weigh heavier than the
temporary infliction of other sufferings. It is to be added
that the Charter does not provide for a punishment for each
violation of the principles of humanity, but only when the
inhuman treatment has been committed 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, the same inhuman treatment can be admissible
in the defence, while it is punishable when committed by an
aggressor, or it must be a case of a war crime.

This is not the case when compatriots are ill-treated for
they are not protected by laws of warfare. A prosecution of
an act against humanity directed against them can only occur
if a crime against peace is involved at the same time.

From an impartial point of view labour commitment has
furthered the waging of the war which has been specified by
the prosecution as a war of aggression or as a war violating
treaties. If this is established and if it is proved
moreover that the employment 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 employment of labour
was, as a matter of

                                                  [Page 104]

principle, allowed or not allowed 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
himself knows that an unlawful war is being waged and if he
furthers it by his action. As the defendant Sauckel denies
any such knowledge, it must be proven.

The other possibility of committing the acts at issue is
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
labour commitment: "Murder, ill-treatment and deportation of
the civilian population." As shown by this enumeration,
these war crimes which have been mentioned are not, however
serious they may be, crimes against humanity by themselves.
Some aggravating circumstances which make the act an inhuman
one must be added. As shown by the examples of
"extermination" and "enslavement" as inhuman acts, the acts
in question must be objectively of a particular scale or
particularly cruel. Subjectively, however, an inhuman
disposition of the culprit and the knowledge of the inhuman
character of the act, i.e., the knowledge of the scale of
the measure or of the cruelty of its execution, must be
added. How far these presuppositions apply to the defendant
Sauckel must be investigated later on. A "regulated labour
conscription" ("geordneter Arbeitseinsatz") allowed by
International Law can never 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.

Such ill-treatment could be based on the regulation issued
by the highest authority involved, which thereby bears the
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.

It follows that the defendant Sauckel is responsible, to
begin with, only for such general orders and instructions
which he has given, but not, on the contrary, for autonomous
acts of supreme authorities in the occupied territories or
of supreme Reich authorities such as Chief of SS and Police,
which were not under his jurisdiction.

The orders and directions of the defendant Sauckel have been
submitted and they must show whether the employment of
labour ordered by him was in fact a regulated one or was
tantamount to an "ill-treatment" of the population.

The workers employed, apart from the volunteers, were
obtained by conscription which, as a matter of principle,
was legally ordered, according to Hitler's instructions, by
the territorial commanders. The authority to issue such laws
went beyond the powers of the defendant Sauckel, nor could
he ask that any such laws be issued. But he approved of them
and made them the basis of his work. The contents of those
laws were consistent with the fundamental ideas of the
German laws concerning compulsory labour service. Those laws
were enforced by coercion.

The use of coercive measures is not necessary as long as the
legal authority of the occupying power is acknowledged by
the population; they become necessary only when this
authority disappears. For this reason, the defendant Sauckel
repeatedly asked for the maintenance of the so-called
Executive in connection with operations for cleaning up
territories held by partisans and for suppressing the
resistance movement.

No legal objections can be raised against the fact that he
demanded the use of State funds appropriated for this
purpose. 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

                                                  [Page 105]

criminal character of the police had been proven and if the
defendant Sauckel at that time had had cognizance of the
criminal activity then taking place.

That force may be used in case of resistance against orders
of the occupation force cannot be disputed. The question is,
what are the limits of force and whether or not there are
legal and illegal, admissible and inadmissible measures of
force.

If fundamental laws of a country are no longer valid when
martial law is declared within a State, then this is all the
more the case when a power occupies another country in war
time. Anyone who refuses to carry out the orders of the
occupying power knowingly participates in belligerent
action, which he is not entitled to do, and he has to accept
the consequences. Obedience is a duty towards the occupying
power and where patriotism and obedience are conflicting,
the law decides against patriotism. The punishments which
are dealt out are not subject to any limitations, and the
threats of punishment by an occupation power are, for the
purpose of intimidation, usually extremely severe.

The question is whether there exists a limit from the humane
standpoint which prohibits going unnecessarily beyond the
purpose of the punishment. For instance, orders for the
burning of houses, which had been issued independently by
subordinate offices in connection with the recruitment of
labour, must be examined from this point of view.

This question is not easy to answer, if one considers the
special circumstances prevailing, and realizes that the
condition involved here was an open struggle between the
occupying power and the population, with official support
from the enemy. In case of uprisings and organized general
resistance one cannot reject the idea of the applicability
of the military laws of the combat troops. Necessity e alone
can be the decisive factor in this case. International Law
has put only one limit to coercive measures by 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 held
responsible. Presupposition hereby is that joint
responsibility has been established through actual events
and has not been construed through orders.

Wherein collective punishment may consist has not been
stated. The principles of humanity, as aforementioned, must
be respected, but in war this is a vague conception of
necessity and practicability must always have the
preference.

Next to the manner of recruiting workers, the conditions of
work can represent an ill-treatment which can be looked upon
as a war crime. Generally speaking, there can be no question
of ill-treatment in cases where the foreign workers are
treated the same way as the non-foreign workers. A different
treatment is only permissible in case special circumstances
justify it. Though this policy was followed in general with
regard to foreign workers, the so-called Eastern workers
were treated less well. Most striking in their case was the
limitation of freedom. If this were arbitrary, it would be
sufficient reason for declaring it an ill-treatment. But the
reason for this limitation of freedom was not arbitrary, but
arose through the need for security of the State. During war
time the presence of an enemy alien in the country 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 only when the requirements demanded the utilization
of foreign workers that the need for security measures of
this nature simultaneously arose. What measures are to be
taken depends upon the danger, which varies according to the
attitude of the alien. Whereas the measures of policing were
imperceptible with regard to the French, the Eastern workers
were, in the beginning, kept locked in camps.

The natural interest of the State lies in attaining security
by winning the good will of the aliens because their
collaboration is desired. This will not be achieved by
depriving them of their liberty. As long as the attitude of
the alien cannot be clearly recognized, especially if he be,
as the citizen of the Soviet Union is, trained
propagandistically, more severe control may be necessary.
But it should not develop into a permanent captivity, and
should at most correspond to a sort

                                                  [Page 106]

of quarantine. To deprive innocent people of their liberty
for an extended period is not admissible, because it would
correspond to a forbidden collective punishment. The mere
assumption of danger is not sufficient for the justification
of such restriction; there must be in addition acts which
indicate that these foreign workers may be dangerous under
normal working conditions. The keeping in custody of Eastern
workers behind barbed wire and refusing them permission to
go out, as ordered by Himmler, is to be regarded as an ill-
treatment if it is permanent.

The defendant Sauckel, urged by the feeling that in this
matter the limits of the permissible had been overstepped,
immediately took steps against this and, in a tough fight
against Himmler, demanded and obtained the removal of barbed
wire fences and cancellation of the order prohibiting
walking-out passes, as can be seen from the ensuing decrees,
Document Sauckel 10, Exhibit USA 206.

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