Archive/File: imt/nca/nca-01/nca-01-13-spoliation-04 Last-Modified: 1996/06/18 Nazi Conspiracy and Aggression, Volume One, Chapter Thirteen [Page 1052] 4. THE WESTERN OCCUPIED COUNTRIES (This section is based on a brief originally prepared for submission by the United States Prosecution in support of the allegation, in Count One of the Indictment, of a plan or conspiracy to commit war crimes. The evidence relating to the plan or conspiracy, however, proved to be inseparable from that on the execution thereof, a subject assigned to the French Prosecution. The materials contained herein were accordingly made available to the French for such use as they might deem appropriate in connection with the proof of their case.) A. The Nazi Conspirators Obtained Enormous Quantities of Foodstuffs, Raw Materials and Equipment From the Occupied Western Countries. [Page 1053] (1) The Nazis planned in advance of the invasion to secure from the conquered territories the strategic materials which Germany lacked and without which Germany could not prevail in a war of long duration. In this war, as in the last, German resources were sufficient only for a conflict of short duration. As early as the winter of 1939-40, following the swift and crushing defeat of Poland, Germany suffered from a critical shortage of essential raw materials (EC- 615). The Nazi leaders were thus faced with the question whether to conserve their supplies for a long war or to commit their limited reserves in the hope of obtaining an early decision. Hitler decided on the latter course. As Goering told General Thomas: "The Fuehrer is firmly convinced that he will succeed in reaching a decision *** in the year 1940 by a big attack in the West. He reckons that Belgium, Holland, and Northern France will get into our possession and *** had figured out that the industrial areas of Douai and Lens and those of Luxemburg, Longwy, and Briey could, from the point of view of raw material, replace the supplies from Sweden. Therefore, the Fuehrer had decided now to make use of our reserve of raw materials without regard to future times. ***" (EC-606) Careful plans were made in advance of the invasion in 1940 to secure for Germany the raw material resources of the to- be occupied countries. A manual of directives and decrees issued by the Quartermaster, OKH, for the economic administration of the military government set forth an exhaustive list of important raw materials to be seized wherever found (EC-155). Directives were issued to the so- called economic squads (Wirtschafts Truppe) attached to the tactical units on the procedures to be followed in locating, seizing, and preparing such materials for shipment to Germany (EC-618). Also included in the manual mentioned were drafts of decrees to be promulgated by the German occupation authorities, for the establishment in the occupied countries of Goods Offices, modeled after the German rationing boards, to control production and distribution in the occupied countries in the German interest. (EC-155) (2) The occupied Western countries were ruthlessly exploited according to plan. The occupied areas were systematically stripped of their economic resources to feed the German war machine. The extent of German exploitation is partially indicated by the staggering totals of the occupation levies and the "credit" balances of the local central banks under clearing arrangements imposed [Page 1054] by the Nazis, the principal sources of the funds with which Germany financed the spoliation of Western Europe. (For a brief explanation of the clearing system, see infra under D, 2.) The total occupation charges exacted from Franco alone were 31,600,000,000 RM from 25 June 1940, to 5 September 1944 (3615-PS). They averaged more than 7,000,000,000 RM annually, a sum more than four times the German annual payments under the Dawes and Young Plans. This sum is in addition to a "credit" of the Bank of France under the Franco-German clearing, which, as of September, 1943, amounted to 4,400,000,000 RM (3615-PS). For the period May 1942-43, the tribute exacted from Belgium (mainly from occupation' charges and clearing credits) amounted to more than two-thirds of the Belgium national income (ECR-149). These figures, large as they are, take no account of the substantial quantities of materials seized and removed to the Reich without compensation (see infra under B, (1)) nor do they reflect the windfall to the Reich resulting from the substantial over-valuation of the Reichsmark, particularly in the case of France and Belgium. (EC-86) A few illustrative examples of specific items, taken from the report of the German Military Commander for France of 10 September 1942 (EC-267), will serve to show even more concretely than monetary figures, the extent to which materials and equipment were taken from the occupied countries for the benefit of the Reich. Since the Armistice, according to this report, the French contributed to the Germans 73 percent of the normal annual French consumption of iron, amounting to nearly 5 million tons. From the Armistice to July, 1942, 225,000 tons of copper and 5,700 tons of nickel were delivered by France to Germany, amounting to 80 percent and 86 percent of French supplies respectively; also 55 percent of the French aluminum and 80 percent of the magnesium production. For her own needs France retained only 30 percent of the normal production of the wool industry, 16 percent of the cotton production, and 13 percent of the linen production. The total French production of locomotives and the major part of the machine tool industry were put at the disposal of the Germans. (EC- 267) B. The Foodstuffs, Raw Materials and Equipment Delivered to Germany were Obtained by Compelling the Nationals of the Conquered Countries to Produce and Distribute in Accordance with German War Requirements, by Seizure and Requisition, and by Purchases Financed with Funds Exacted from the Occupied Countries and Their Nationals. [Page 1055] (1) Much of the material and equipment removed to Germany was obtained by seizure, requisition, and confiscation of private property. During the first phase of the occupation, the Nazis systematically removed to the Reich almost all available supplies to satisfy the immediate German requirements. This phase, according to the German Military Commander's description of the practice in France, was one of "stripping" occupied areas of "foodstuffs, raw materials and machinery", leaving only enough to secure the "bare subsistence" of the population (EC-614). In the words of the report of the Wi-Rue Staff in France: "In this period the legal concepts of the Hague Regulations regarding Land Warfare are not yet strictly observed. The main purpose is to get out of France through seizure BeschIagnahme or purchase at infinitesimal prices the materials of use for the German armament." (EC-422) By order of the German High Command, booty was defined to include not merely public property but "beyond the Hague Regulations on Land Warfare," also "privately owned finished and semi-finished products if they were manufactured in fulfillment of an order of the French armed forces" (EC- 422). At the same time, payments made by the French armed forces on account of war material orders were likewise treated as war booty. Even goods in transit were arbitrarily placed in this category (EC-422). Machinery and equipment affixed to the realty were seized and shipped to Germany in wilful disregard of the limitations of the Hague Regulations authorizing seizure only of chattels. (EC-84) The "stripping phase" of Nazi spoliation was relatively short-lived. Decision was soon reached to utilize at-least part of the industrial capacity of the occupied areas to relieve the burden on the armament plants in Germany (EC- 620). Throughout the period of occupation, however, the Nazis continued the seizure and requisition of machinery and certain raw materials in short supply in the Reich. From December, 1942, to the end of the occupation, for example, 242 German demands for Belgian machinery were met, of which 110 were fulfilled by requisitions (ECH-10). In 79 instances the requisitioned equipment was shipped to Germany. (ECH-10) Support for such requisitions was found in an order of the Military Commander of Belgium of 6 August 1942. This order was explained as embodying the "modern" German view that, as "total war is no longer limited in space but has become a struggle of peoples and nations against each other," requisitions under Article 52 of the Hague Regulations should no longer be [Page 1056] limited to the "needs of the occupying forces" but may also be used in the "general interest of the German war effort"; and that requisitioned articles may be used not only in the territory in which they were obtained but also "in other territories in the sphere of the occupying power." (ECH-10) In April 1941, Goering ordered the removal of church bells in France "which represent the most important and last reserve of copper and tin," stressing that "no church bells would be removed in Germany before all bells had been removed in France" (EC-323). In 1943, after the removal of church bells from the other occupied countries and even from the Reich, Hitler ordered their removal from Belgium (ECH- 11). The Belgians protested, invoking the Hague Regulations, and refused an offer to buy; thereupon the Germans requisitioned the bells against receipt. (ECH-11) By circular letter, dated 23 June 1943, Speer ordered that scientific instruments and apparatus be taken out of the laboratories and research institutes in the occupied Western countries, directing that applications for instruments be made through channels and that the requisitions be made by the Military Government. (ECH-14) In many cases, representatives of German scientific institutions sought to acquire scientific instruments in order to modernize their own installations, appearing in Army uniforms to give the impression that the requisition was a military measure (ECH-15). The Military Government of Belgium decided that Articles 52 and 56 of the Hague Regulations were inapplicable because the Allies had destroyed a number of German scientific installations in the Reich through bombing, which therefore had to be replaced from the occupied territories, and that "in a total war, no consideration could be given to the cited articles of the Hague Regulations". (ECH-16) As part of the design to supply the armament industry in Germany with material from the occupied Western territories, a program for the removal of copper and lead from transmission installations of power distribution plants in the occupied Western countries was instituted by a decree of Speer dated 31 May 1943 (EC-101). The plan contemplated from the outset that the transmission of facilities would not be restored (as required by the second paragraph of Article 53 of the Hague Regulations) but that an equivalent amount of metal would be returned after the war. (EC-101) (2) The Nazis purchased war materials and consumer goods [Page 1057] in the regular and black markets for shipment to the Reich, all with funds exacted from the occupied countries. Following the initial "stripping" phase of the occupation, the Nazis promptly instituted an extensive "buying-out" program (061-PS) with the object of procuring not merely materials required for the German war effort, but to obtain also consumer goods, including luxury items, for the civilian population of Germany (EC-485). No limitations, legal or moral, were observed in the execution of this program. Supplies which could not be obtained through normal channels were purchased on the black market. The disastrous effects of competition among various German agents led the central occupational authorities in Belgium, France, and Holland to take over black market operation directly (1765-PS). On 13 June 1942, by order of Goering, Col. Veltjens was appointed to direct black market purchases in all occupied territories and a new agency, the so-called UEWA, was placed at his disposal. (ECH-7) The actual purchases were made by several corporations, including Pimetex, an agency of the Speer Ministry of Armament and Munitions. The goods were distributed through Roges according to directives of the Central Planning Board (Speer, Koerner, Milch) and in appropriate cases by the German Ministry of Economics and the Reichsstellen (ECH-7). Black market operations were finally abolished by order of Goering dated 2 April 1943, confirmed in Belgium by circular of the Military Commander of 19 June 1943. (ECH-9) Certain of the purchases made through the black market while under the direction of Col. Veltjens are of special interest: Christmas Drive. On 22 September 1942, Goering ordered a special drive in the Western occupied countries to purchase present for the civil population in Germany for the coming Christmas. The Roges Company effected the distribution of the articles in Germany. Special Drive WABO. This drive was pursuant to Hitler's order to Speer to procure Christmas packages for the soldiers. The O. Todt Cantine accepted offers of sale on the black market and Pimetex did the buying. Special Drive LOWA (Degenkolb locomotive program). The purchase were made by Pimetex. (ECH-7) As of 15 January 1943, black market purchases totaled approximately 1,100,000,000 RM, including: RM 929,100,000 in France. RM 103,881,929 in Belgium, and RM 73,685,162.64 in Holland. (1765-PS) [Page 1058] Payment in France was made out of occupation funds, in Belgium out of such funds and through the clearing, and in Holland through "normal bank transactions" (1765-PS; ECR- 132). As appears very clearly from the report of Col. Veltjens of 15 January 1943, substantially all the goods so purchased were shipped to the Reich. (1765-PS) (3) The Nazi conspirators compelled the nationals of the occupied countries to produce and distribute materials and equipment in accordance with the German general war requirements. The "stripping" and "buying-out" phases of the Nazi spoliation were both gradually superseded by a regulated program for the utilization of the industrial plant of the occupied areas and the transfer of orders (subcontracting) to local concerns. The Nazi conspirators established comprehensive rationing controls under which essential raw materials were made available only to those who produced in the German interest; those reluctant to produce on German order were placed under compulsory administration. "This," Keitel noted in commenting on the controls established in France, "is *** booty of the victor". (EC-613) The means employed in Belgium were typical. Production quotas for coal, iron and steel, textiles and leather, and other products were fixed by the Ministry of Economics and its Reichsstellen, in some cases after consultation with the Reich Minister (Funk). (ECH-2) Comprehensive production controls were established in Belgium to assure the fulfillment of these quotas. Pursuant to plans developed in advance of the invasion (EC-155), a decree was issued by the Military Commander on 27 May 1940, creating so-called "Goods Offices," endowed with authority to issue general and special orders to Belgian firms requiring production of designated products, and the sale thereof to designated buyers, and with the further power to prohibit production or sale without license (3604-PS). By decree of the Military Commander of 29 April 1941, the appointment of a commissar to direct operations of private plants was authorized. (3610-PS) The German Goods Offices (ECH-3) were transferred to similar units established by Belgian decree of 3 September 1940. (Whether this decree was issued on German order or suggestion does not appear.) The Germans supervised the Belgian Goods Offices and adopted as German orders both the Belgian decree establishing the Offices and the orders issued thereunder, and [Page 1059] prescribed punishment by fine and imprisonment for violations. (3609-PS) For the first two years of the occupation, German control was exercised mainly through prohibitions and restrictions, that is, by a priority system (ECH-4), although even then important sectors of the Belgian economy, notably textiles and leather products, were controlled by "positive" orders directing the amount in kind to be produced and the persons to whom distribution must be made (ECH-4; ECH-2). During this period the Military Commander issued instructions to the Goods Offices through "command channels," that is, through the Belgian Minister of Economics. (ECH-3) On 6 August 1942, the Military Commander, however, published a decree reaffirming explicitly the power to compel production of designated articles (3612-PS), a signal for the introduction of "positive" controls. In 1943, on instructions from the Reich Ministry of Economics, German representatives selected from the Reichsstellen were attached directly to the Belgian Goods Offices (ECH-3). At the end of 1943, the office of the "Ruestungsobmann" of the Speer Ministry for Armaments and War Production began issuing "positive orders" for production to individual concerns directly, without clearing with the Goods Offices, pursuant to decree of the Minister for Armaments and War Production (Speer). (ECH-3) Production facilities in Belgium which were not deemed to serve the German interest were shut down. By order of 30 March 1942, the Military Commander prohibited the enlargement of existing plants and the construction of new ones without German authorization, and provided for the closing down of factories at his discretion (3616-PS). In the iron and metal industry alone at least 400 plants "not important for the war effort" had been closed down by 15 April 1943 (EC-335). By the end of the occupation, 1360 out of a total of 2164 plants in the textile industry had been closed down. (ECH-19) France and Holland Substantially the same system was put into effect in France and Holland. German Goods Offices were established in Occupied France at the same time as in Belgium (3604-PS). These were subsequently abolished in November, 1940, however, when the Vichy Government, at the "suggestion" of the Nazis, created raw material rationing boards, on which delegates of the German Military Administration served as technical advisers (EC-613; EC-616). In the Netherlands, controls were exercised by the [Page 1060] local German Armament Inspectorate (EC-471; EC-472-A), who, it is believed, made use of the rationing boards set up in Holland before the outbreak of war. C. The Nazi Conspirators Acquired Ownership of Belgian, Dutch, and French Participations in European Industries by Means of Governmental Pressure and Through the Use of Funds Unlawfully Exacted from the Occupied Countries and Their Nationals. The Nazi conspirators were not content with securing for Germany the supplies necessary for the period of the war. They aimed at obtaining permanent ownership and domination of European industry to the fullest extent possible, and embarked on a program to that end even during the progress of the war. (1) The Nazi conspirators established a program to acquire for German interests ownership of Belgian, Dutch, and French participation during the war. On 23 May 1940, recommendation was made that it would be opportune to secure all Dutch and Belgian stocks "in order, especially in the case of holding companies, to win influence *** over the controlled companies" (EC-41). The memorandum recommended the taking possession of stocks of the dominated companies located in foreign countries and influencing the decisions of members of holding companies located in Holland and Belgium or of other owners of such stock. Because of the provisions of Article 46 of the Hague Regulations prohibiting confiscation of private property, it was deemed more advisable to influence members of holding companies through careful guiding than through plain force. (EC-41) At a meeting held in the Reich Ministry of Economics on 3 June 1940 on the subject of "Belgian and Dutch capital shares in southeastern European countries," it was decided that regulations should be issued immediately by the Military Commander for Belgium prohibiting the destruction, transfer, or disposition of any bonds or stocks of these countries, and that registration should be required of owners and trustees. (1445-PS) In a memorandum of 2 August 1940 Goering declared that the goal of the Germans' economic policy was the "increase of German influence with foreign enterprises," that it was "necessary already now that any opportunity is used to make it possible for the German economy to start the penetration even during the war f the interesting objects of the economy of the occupied countries," and directed that the transfer of capital from Germany to [Page 1061] the occupied countries be facilitated to make possible the immediate purchase of enterprises in the occupied countries. (EC-137) At a meeting at the Reich Ministry of Economics on 8 August 1940 on the subject of "Acquisition of shares of important foreign enterprises in southeastern Europe," Dr. Schlotterer of the Reich Ministry of Economics commented that "private economical penetration of the Southeast area by German influence is desirable, likewise the supplanting of British and French interests in that territory" (EC-4). The group present, including representatives of the Reich Ministry of Economics and the Reichsbank, agreed that "attempts should be made immediately to acquire shares" and that "in doing so the tendency should be preserved to present a bill for the shares at the peace conference." It was further agreed that "it should be attempted if possible to transfer the shares into private hands" but that "in order to make the right selection it appears necessary to introduce an intermediary stage" in which "first of all, enterprises should be taken over through banks, thereupon the plants should be managed as a matter of trusteeship for the Reich with the aim that the Reich (Reich Marshal Goering)" undertake handing them over to private industry. (EC-43) (2) The Nazi conspirators carried out this program by compulsory sale where necessary and by purchases financed out of occupation charges and under clearing agreements with the occupied countries. Belgium Immediate steps were taken to implement these measures in Belgium. The-annual report of the Commissar at the National Bank from May 1940-41 states: "According to the directions of the Reichsmarshal Goering as early as September 1940 the first measures for a closer formation of capital ties between the Belgian and German economy were taken. Two different procedures were concerned here: "1. Direct negotiations between German industrialists and Belgian industrialists, for the purpose of obtaining constructive participations in important Belgian enterprises which offer the basis for collaboration between the two economies even after the war. furthermore, it is desired to transfer to German hands important Belgian participations in foreign - enterprises whose administration is located in Belgium, particularly so far as enterprises are concerned which are lo- [Page 1062] cated in the Balkans and in which a general German interest exists. "2. Ties which result from purchases of stock by German parties on the Belgium stock markets. For this purpose the Reich Economic Minister has given general permission to 32 German banks to obtain participation rights, particularly stocks, in a limited quantity in Belgium. Till now use has been made of this permission in the amount of about 25 million RM for the procurement of Belgian participations in Rumania, Bulgaria, and the former Poland." (ECR-24) In his report for November 1940 the Military Commander for Belgium stated: "A certain readiness exists on the part of the Belgians to give up investments in stocks in such countries which, at the present time, are being ruled militarily or economically by Germany. Among the important business deals of this kind which have been concluded should be mentioned the taking over of the Kreditanstalt, Wien (Credit Institute, Vienna) of an essential interest in the Allgemeiner Jugoslawischer Bankverein (General Yugoslav Bank Association) from the Societe Generale (capital approximately 1 million RM) and the taking over by the Deutsche Bank of the overwhelming majority [translators note: of shares] of the Banca Commerciala Romana from the Societe Generale (capital approximately 2 million RM). The Deutsche Bank also succeeded in acquiring shares of the Kreditanstalt, Wien, of approximately 800,000 RM nominally from the Societe Generale and one of its subsidiaries. Negotiations between the Deutsche Bank and the Societe Generale on the transfer of approximately 25% of the capital of the Banque Generale du Luxembourg are about to be concluded. Through this deal the Deutsche Bank together with other German groups obtains the absolute majority of the Luxembourger Bank (approximately 70% of the shares). The Deutsche Bank gets the right to acquire another 25% of the shares which for the time being, remained with the Societe Generale." (EC-34) While the Military Commander of Belgium may have given some assurance that the owners would not be compelled to sell (ECH-22), in at least one instance, purchase could be effected only by military order (EC-335). In this instance the procurement for the Main Branch of Trustees East of shares of the Bel- [Page 1063] gian "Trust Metallurgique" in electricity and road enterprises of East Silesia and the General Government, as well as purchase of shares in the Iron works Ostrovica for the Reichswerk Hermann Goering had "to be done, at the request of the Reich Ministry fro Economics, forcibly, as an agreement on a financial basis could not be obtained." (EC- 335) The German acquisition of Belgian stock participations was financed through the Belgium-German clearing. The Belgian clearing balances of 20 March 1940 included an item of 296 million bfrs., which "is explained by out-payment of large clearing transfers resulting from the German capital penetration program precipitated a controversy with the Emission Bank, which was resolved by the Commissars issuance of an order requiring the bank to make payment. (ECR-24). As a sequel, "Capital" payments were separated from those for "goods and services" and financed by a separate "capital" clearing agreement covering purchases of securities and other "capital" transactions (ECR-24). The Belgian clearing "credit" under the capital clearing, as of 31 July 1943, amounted to 1,071,000,000 bfrs (ECR-173). As shown below, (see infra, D, 2) the Belgian credit under the capital clearing traffic represents a forced loan, exacted for a purpose not even remotely related to the needs of the occupation army. France and Holland The limited evidence in the presently available German documents indicates that similar methods were employed in French and Dutch participations. The procedure followed in the Netherlands is indicated below in the discussion of the removal of restrictions on the free transfer of Reichsmarks in that country, (See infra, S, 5.) In France, participations of a value of 121,000,000 RM were purchased for German interests, paid for in part out of occupation funds and in part through the clearing. (1991-PS) D. The Nazi Conspirators Compelled the Occupied Countries and Their Nationals to Furnish the Monetary Requirements for the German Exploitation, by Means of Occupation Levies, Forced Loans, and the Requisition of Gold and Foreign Exchange in Amounts Far in Excess of the Needs of the Occupation Armies. Except for the early period of the occupation, during which Reichskreditkassen certificates were issued to finance the needs of the occupation troops (Lemkin, Axis Rule in Occupied Europe, p. 329), the Nazis obtained the necessary local currency through [Page 1064] the levy of excessive occupation charges, the imposition of clearing arrangements under which the local central banks were compelled to finance exports to the Reich, and by requisition of gold and foreign exchange. (1) The Nazi conspirators exacted excessive occupation charges from the conquered countries. Belgium The Nazi conspirators demanded from Belgium both "internal occupation costs" and "external occupation costs" (ECR-2). The former was defined as "those sums which have gotten out of the country to finance the needs of the German military formations located in the country" (ECR-32). The term "external occupation costs" was used interchangeably with the title "antibolshevistic contribution" (EC-401). Under whatever theory, the exaction of occupation charges was made "to the limit of capacity". (ECR-59) Throughout the period of German occupation, a substantial part of the contribution charges obtained from Belgium was used as a matter of regular practice "not for occupation cost purposes" (ECR-166; ECR-155-A; ECR-35), including: (a) Exports to Germany, Holland, and France (ECR-89; ECR-104). (b) Exchange for Belgian francs of RKK certificates, a "not inconsiderable part" of which did "not have the least thing to do with occupation costs" (ECR-39; ECR-142). (c) "Political purposes (that is, SS, Propaganda, Hitler Youth)" (ECR-106). (d) Purchases in the "black market" (ECR-106), many of them destined for export. (See supra, B, (2).) (e) General war expenses, including the supply of troops based in Belgium for military operations against England (ECH-5); the Commander-in-Chief of the Army rejected a recommendation of the Military Commander that a distinction be drawn between occupation troops and those for military operations (ECH-5). Notwithstanding the extensive use of occupation levies for nonoccupation purposes, the contributions exacted from Belgium "were not only sufficient to cover the needs of the Wehrmacht *** but also made it possible *** to found a cash reserve which reached at certain times about 2,500,000,000 bfrs". (ECH-5) France The occupation cost accounts of the Reichskreditkasse in Paris disclose on their face that a large part of the occupation funds was obtained and used for nonoccupational purposes. Two sets of occupation cost accounts were maintained: Account A, into which payments were made on behalf of various Reichs ministries and agencies, and for specified purposes; and Account B, into which payments were made for disposal for the Wehrmacht (3615-PS) The funds in Account A were used for obviously nonoccupational purposes, as follows: June 1940 to end 1943 A I. Reich Minister for Economic Affairs (primarily for the buying agency, "Roges," also for the purchase of securities and devises) - RM 1,518,000,000 A II. Foreign Office (for propaganda purposes in France) 27,000,000 A III. Payment of support to dependents of laborers recruited in France for work in Germany 1,500,000 A IV. Reich Minister for Transportation (purchase of securities) 2,500,000 A V. Paris Agency of the Reichstierstelle (Reich Agency for Animals) -- imports of meat and meat products 19,000,000 A VI. Exchange by the Bank of France of RM notes for persons evacuated from Alsace-Lorraine 900,000 A VII. Financing purchases of raw sugar in North France by sugar refiner in South Germany 1,285,000 A VIII. Compensation for war damage to Reichsdeutsche and Volkdeutsche in France 8,500,000 A IX. Sale of French francs to the Reich (Commodity imports into Alsace-Lorraine) 66,000,000 A X. Reich Minister of Education (Purchases for libraries in the Reich of books destroyed in air raids) 1,000,000 (3615-PS) The available records do not disclose the full extent to which the Wehrmacht used the funds at its disposal in Account B for nonoccupational purposes. It is certain, however, that large sums were expended for such purposes. Thus, a communication of the [Page 1066] OKW to the Foreign Office of 6 November 1942, explaining the decrease in reserve for Account B, states: "In addition, payments to a considerable extent had to be made from the occupation cost funds which were not allotted to meet the demands of those units of the German Wehrmacht stationed in France. On 15 January the B account of occupation costs was approximately 3 bill. RM. The reason for the decrease appears from the following compilation: Million RM a. For procurement of goods exported from France during the period of 1 January 1942 - 31 October 1942 an estimated 10 X 90 mill. RM 900 b. To Roges Raw Material Trading Company Ltd. for purchases on black market 700 c. For procurement of foreign bills by the Navy (the purchase of foreign bills with French francs was necessary to buy and repair merchant ships in Spanish harbors. These merchant ships are to serve for supplying Rommel's Panzer army in Africa) 40 d. Reimbursement to Foreign Office (account Syria) 4 e. Allotments in favor of families of French workers working in Germany 1.5 f. Special commissioner Rumania 1.3 g. Costs of building completions for directors of French powder factories 0.2 ------- 1,647 Therefrom it appears that the decrease of reserves of occupation cost funds amounting to 3,000 mill. RM on 15 January 1942 is primarily due to expenditures for purposes unrelated to the occupation." Holland Occupation charges were fixed at about 100,000,000 gulden a month (ECR-174; EC-86). (100 RM = 75 gulden, approximately (EC-468)). Expenditures were divided between "occupation" purposes and "nonoccupation" purposes, according to whether "the products purchased or produced on orders of the armed forces of the Netherlands remain in the Netherlands (occupation cost) or leave the Netherlands (nonoccupation cost)" (ECR-174). During the 20-month period from March 1941 to October 1942, inclusive (the only period for which figures are available), out of the total [Page 1067] occupation charges of 1,545,500,000 gulden, 433,800,000 gulden were expended for "nonoccupation" purposes (ECR-175- 193). A large part of the "pure" occupation expenditure, moreover, was for general war expenses, including the construction of fortifications and airfields, and the letting of shipbuilding contracts. (ECR-180, 181,183,187,191) In theory, only the "occupation" costs were supposed to be charged to the Netherlands (ECR-174); until April 1941, the "nonoccupation" expenditures were returned to the Military Commander in the Netherlands (ECR-175). The claim of the Netherlands to the sums "returned," however, was rejected. Moreover, as appears from the above cited reports (ECR-175- 193), nonoccupation expenditure continued even after April 1941, when reimbursements ceased. (ECR-176) During the first year of the occupation Germany exacted an additional levy from the Netherlands under the heading of "external occupation costs," amounting to 500,000,000 RM (ECR-194). Of this sum, 100,000,000 RM was paid in gold; the remainder was paid by a transfer of the clearing balance of the Netherlands Bank at the Verrechnungskasse to the German Ministry of Finance, that is, was used to reduce a credit which arose by reason of exports to the Reich. (ECR-194) In April 1942, "at the instigation of the Reich Commissioner Seyss-Inquart," the Netherlands began to pay a "voluntary contribution to the war against Bolshevism" of 50,000,000 guilders per month, retroactive to 1 July 1941, of which 10,000,000 per month was paid in gold (ECR-195). By 31 March 1944, this "contribution" amounted to 2,150,000,000 RM. (EC- 86) It is immaterial whether this "contribution" was made at the direction of Seyss-Inquart or was in fact the "voluntary" act of the then President of the Netherlands Bank and Treasurer in the Ministry of Finance, Van Tonningen. Van Tonningen was appointed by Seyss-Inquart and acted in the German interest. His acts, like that of civilian administrators in occupied territories generally, must be charged to the occupant. (See infra, Conclusion.) The spirit in which he discharged his duties is sympathetically described by the German Commissar at the Netherlands Bank as follows: "The new President of the Netherlands Bank, Mr. Rost van Tonningen, is, in contrast to a large part of the leadership, penetrated in his movements and his official acts by the greater German thought, and convinced of the necessity o the creation of a greater European economic space. This ideological attitude in itself gives him the correct position [Page 1068] on financial and monetary policy questions for his country in relation to the greater German economic space. Furthermore, it makes easier cooperation with my office, a fact which deserves special mention in consideration of the frequently observed passive conduct of the Netherlands agencies before the entrance into office of the new President. I consider as a fortunate solution the fact that the Reichskommissar for the Occupied Dutch Areas has also entrusted Mr. Rost van Tonningen with the Treasury of the Ministry of Finance (Schatzamt des Finanzminsteriums). Mr. Rost van Tonningen took over this office at the end of the month of April. Thus there is a guarantee that the financial and monetary policy of the country will be conducted according to unified points of view." (ECR-196) (2) The Nazi conspirators financed exports from the occupied countries to German by means of forced loans under the guise of clearing agreements. Belgium The principle of the clearing system is as follows: The importer makes a deposit of the purchase price in his own currency at the national clearing agency of his country, which places the same amount to the credit of the clearing agency of the exporting country. The latter institution then pays the exporter in his own currency. Thus if trade between two countries is unequal the clearing agency of one acquires a claim against the agency of the other which, however, is satisfied only when a shift in the balance of trade gives rise to an offsetting claim. In the order establishing the German-Belgium clearing, the Belgium clearing agency was the National Bank of Belgium (608-PS). The administration of the clearing was shortly thereafter transferred to Emission Bank, an organization originally incorporated by Belgian interests pursuant to order of the Military Commander of 27 June 1940 (ECR-24). The change was one in name only, however, since at this time the management of the two banks was substantially identical and the Emission Bank obtained its currency by loan from the National Bank. The Emission Bank was, by its charter terms, subject to orders of the Commissar at the National Bank; the Commissar obtained the same powers over the National Bank by German order of 116 February 1940. (ECR-24) The Belgian total "credit" under the clearing, as of 31 July 1944, amounted to 60,837,000,000 bfrs = 4,867,000,000 RM, of [Page 1069] which 54,993,000,000 bfrs = 4,399,000,000 RM arose from the Belgian-German clearing for goods and services. (ECR-173) The continued increase in the Belgian "credit" was due mainly to "the increasing Belgian export to Germany for which there are only small imports from Germany on the other side of the account." (ECR-149) The entire Belgian credit under the clearing constitutes a forced loan, largely for nonoccupation purposes: (a) The Belgian-German clearing was established by circular of the Reichs Minister of Economics, 4 July 1940 (ECH-6), which was published to the Belgians by proclamation of the Military Commander of 10 July 1940 (EC-604; 608-PS). (b) "Since it was to be foreseen that as the result of the increased deliveries from Belgium to the Reich, which were not matched by opposite accounts, particularly in the early period, the clearing status would develop to the favor of the Emission Bank" (ECR-24), an agreement was signed by the Emission Bank and the German Reichsbank on 16/17 August 1940 under which each undertook to pay out clearing transfers immediately (ECR-24; ECH-5). (c) This agreement did not prescribe what must be financed through the clearing; it merely provided for immediate payment of claim arising thereunder without waiting until the account should be balanced by equalizing of imports and exports. As the Military Commander stated, the German- Belgian clearing was "not regulated by an agreement, but has been regulated unilaterally by my proclamation of 10 July 1940" (EC-604). The Military Commander made clear the absolute power asserted by the German authorities over the Belgian Note Banks (as the Germans described the Emission and National Banks). He stated: "*** The claim made to the Commissar that the Emission Bank is entitled to ask in every case for detailed explanation of compensation payments coming from Germany is incorrect. The clearing activities between Germany and Belgium are not regulated by an agreement but have been regulated unilaterally by my proclamation on 10 July 1940 and are not subject to any Belgian control. Inter-alia the transfer of all payments which have been specially authorized by the Reich Ministry of Economy has been expressly permitted ***." (EC-604) (d) The Commissar freely invoked his directive power over the Note Banks. 1. When, in April 1941, the clearing balance of the Emis- [Page 1070] sion Bank exceeded 1,500,000 bfrs the Emission Bank refused to pay out several large sums arising by virtue of German-Belgian "capital" transactions. Thereupon, the Commissar issued an order directing the bank to make the payment. (ECR-24) 2. In December 1941, the Emission Bank refused to pay out a sum of 43,256,000 RM transferred from Paris. The Commissar thereupon issued an order directing the bank to do so. (ECR-172) 3. In October 1942, the Emission Bank refused to pay out certain amounts expended for purchases on the Belgian black market. The military administrator, however, "held down the increasing resistance of the Note Banks which culminated at the end of October of this year in a public threat of resignation by the Governor of the National Bank by the heaviest pressure, and forced the Note Banks, while emphasizing his willingness to negotiate on certain Belgian proposals, again to take up the global clearing transfers for German procurement agencies which were cut off for a period" (ECR-132). The nature of this pressure is explicitly shown in the following communication from the Commissar to the President of the Emission Bank dated 29 October 1942: "The Military Commander has ordered me to inform you of the following: "The requested extension of time for the resumption of business relations with the Armed Forces Clearing Institute (Wehrmachtverrechnungskasse) and for the payment of the arrears of RM 60 million have been denied. An official will determine tomorrow at 10 a.m. whether payment has been made. "Severest measures against you and all responsible parties must be expected in case of failure to pay. "If acts of sabotage occur on the equipment and the values of the National Bank or the Emission Bank, you and the gentlemen designated on the enclosed list will be held responsible personally and your property will be seized. Your liability is a joint one." (EC-605) France The "credit" balance of the Bank of France under the Franco- German clearing established on 14 November 1940 amounted to 4,400,000,000 RM as of September 1943 (3615-PS). The clearing [Page 1071] arrangement was designed, of course, principally for the financing of exports, that is, for purposes not related to the needs of the occupation army. (EC-619) Coercion in the establishment of the Franco-German clearing is readily demonstrable. Extreme pressure was brought to bear, particularly in regard to the rate of exchange established in the agreement, by threatening to cut off communications between "occupied" and "nonoccupied" zones in France (3602-PS; 3603-PS), a step which would have destroyed the last vestige of economic order in France. The harsh terms of the agreement, which required the Bank of France to make immediate payment for exports to Germany regardless of the balance of trade, fixed the rate of exchange at 20 francs to the mark (as compared to 10 to 1 before the war), and gave Germany a unilateral option to cancel at any time, forcibly suggest that the agreement would not voluntarily have been accepted. (EC-619) Holland The clearing system between Holland and Germany was of short duration, being cancelled effective 1 April 1941, when free transfer of Reichsmarks to Holland was introduced. (See infra, D, (5).) It is therefore not deemed of sufficient importance to warrant discussion at this (3) The Nazi conspirators unlawfully took over the gold reserve of the National Bank of Belgium and the Netherlands Bank in the interest of the German general war effort. Belgium The gold of the National Bank, deposited with the Bank of France and transferred to Dakar, was brought to Berlin pursuant to German-French "agreement" in the amount of 545,700,000 RM (ECR-149), and there deposited with the Reichsbank in Berlin (ECR-24). Because of the "high demands on gold and foreign exchange" which led to a "considerable straining of the reserves" (EC-401), the "Reich Government felt itself required to lay claim to the gold of the National Bank for the Reich" (ECR-149). A decision to proceed by requisitioning under paragraph 52 of the Hague Regulations (EC-401) was not executed, apparently because of fears on the part of the Reichsbank that title thus acquired would not be recognized (ECR-115). On order of Goering (ECH- 5, part 9, Annex XIII), the gold was then "requisitioned on 19 September 1942 by the Oberpraesident of the Province of Mark Brandenburg for the Deputy of the Four-Year Plan, on the basis of the Reich Contribution Law (Reichsleistungsgesetz) [Page 1072] of I.IX.1939 (Sec. 16, paragraph 1, No. 5, and Sec. 2a)" (ECR-1149). Holland As shown above, part of the Dutch "voluntary" contribution to the "war against Bolshevism" was paid in gold. The gold was, in fact, taken from the Netherlands Bank. (EC-401) (4) The Nazi conspirators unlawfully compelled the nationals of the occupied countries to surrender and offer for sale all precious metals ad foreign exchange to the local central banks, which delivered them to the German Reichsbank. Belgium By German decree of 17 June 1940 and administrative orders issued pursuant thereto the Belgians were required to surrender gold and foreign exchange notes to the Emission Bank, which in turn, delivered the loot to the Reichsbank (ECR-24). By May 1943, the Reichsbank had acquired in this fashion gold and foreign exchange of the value of 23,400,000 RM. (ECR-149) Holland Gold and foreign exchange delivered by the Netherlands Bank to the Reichsbank "on the basis of the direction of the Reichsmarshal" (Goering) amounted to 74,000,000 RM through November 1940. (EC-465) France It is believed that the same practice was followed in France, but evidence as to details has not been found in the German documents presently available. (5) The Nazi conspirators issued German Reichsmarks as currency in the Netherlands, for purposes unrelated to the need of the occupational troops, which currency they caused to be freely exchanged for gulden by the Netherlands Bank. The Nazi conspirators, animated in part by the view that the Netherlands were "akin in blood to the German nation" (3613- PS), sought to promote a "mutual interpenetration of the German and Netherlands economies" through the acquisition by Germans of Dutch participations (EC-468) and Dutch investment in German securities. (ECR-174) To this end, restrictions on the free transfer of Reichsmark and gulden across the German-Dutch border were removed. Conversations between the Reich Economics and Finance Ministers in October 1940 led to the first step in this direction, the issuance by the Economics Minister of a Circular (Runderlass) -- No. [Page 1073] 89/40 -- which produced substantial changes in the foreign exchange control along the German-Dutch borders (EC-468). This provided, inter-alia, that RM 1,000 or its equivalent in gulden could be taken across the German-Dutch border by travelers or in border trade without permit, and permitted Germans to transfer to Holland up to 5,000 RM per person per month for any purpose except purchase of goods without any permission (EC-468). These relaxations were made effective in Holland by free exchange of Reichsmarks for gulden by the Netherlands Bank, introduced "on the initiative" of the Commissar, and by enforced acceptance of Reichsmark currency by the Dutch business population. (EC-468) The Reichsmarks thus made available in the Netherlands were mainly used to purchase Dutch securities on the stock exchange (EC-468). Permission to make such purchases was extended to a large number of German banks by the German Ministry of Economics. The transfers were made with "reluctance" by the Dutch, in connection with which the Reich Commissar at the Netherlands Bank observed, "it may be pointed out with some justification that an out-payment of gulden made against a Reichsmark credit, which can only result through the burdening of the Netherlands State credit, represents no genuine transfer" (EC-468) . Notwithstanding the objections of the then Commissar at the Netherlands Bank (EC-468), circular 87/40 was soon followed by No. 29/41 of 31 March 1941, which abolished almost completely all restrictions on the free use of the Reichsmark in Holland (ECR-197). Circular 29/41 provided that all foreign exchange transactions between Germany and the Netherlands were freed of control, the only important exception being that German investments of more than 100,000 gulden in Holland required permission of the Reichskommissar in the Netherlands. The clearing agreement was abolished, and payments between Germany and the Netherlands were permitted by simple bank checks, drafts, or postal money orders. A simultaneous order by the Reich Commissar for the Occupied Netherlands Areas lifted all restrictions set by Netherlands foreign exchange law on such transactions (ECR- 197). After this "introduction of free payments traffic" or "removal of the foreign exchange frontiers," payments for exports from Holland were made in Germany "through the accounts of the banks, mainly through the account of the Netherlands Bank, [Page 1074] which takes on the exchange into gulden means of payment without further formalities." (ECR-174) This exchange presumably merely continued the practice introduced earlier at the "instigation" of Seyss-Inquart. At all events, the President of the Bank, van Tonningen, was a Nazi agent, and his acts may be charged to the Nazi conspirators. The result of this radical step was this: "Ever since the introduction of free payments traffic the status of the Netherlands Bank is mainly influenced by the taking up of Reichsmarks. On 31 March 1941, the day before the introduction of free payments traffic, the Netherlands Bank had a total stock of about 83 million RM of Reichsmark credits, on 30 April 1941 of about 213 million RM, and on 31 May 1941 of about 366 million RM. Thus, in the two months after the removal of the foreign exchange frontier, it has taken up about 283 million RM, the gulden equivalent, at the rate of RM 132.7 equals florin 100, on the basis of the transfer agreement with the Reichsbank." (ECR-174) Thus the Netherlands Bank was caused to pledge its credit (in the form of Dutch currency) in exchange for a Reichsmark credit. In this manner the Nazi conspirators were enabled to exact from the bank a loan unlimited in quantity and beyond the bank's control, by the simple expedient of writing out a check in Germany. E. Argument and Conclusion. The acts of the Nazi conspirators as revealed by the evidence constitute war crimes within the meaning of Article 6 (B) of the charter of the International Military Tribunal. Two general observations should be made at the outset. In the first place, the pertinent provisions of the Hague Regulations (3737-PS) are controlling. The Germans entered into an Armistice Agreement with only one of the countries under discussion (France), and the Franco-German Armistice Agreement of 22 June 1940 contains nothing which purports to confer on the occupant powers broader than those which may be exercised under the Hague Regulations. Article 3 of the Armistice reserves to Germany in the occupied zone "all the rights of the occupying power." No other provision is material here. The language of Article 3 plainly does not purport to qualify in any way the otherwise binding terms of the Hague Regulations. The German position (EC-11) that "the rights of Article 3 are more extensive than the rights of the occupation power in the Hague Regulations" and permitted Germany to base thereon "all measures which are, according to her own [Page 1075] judgment, necessary for the continuation of the war against England," is therefore plainly untenable. Secondly, the collaboration of certain French, Dutch, and Belgian officials is legally immaterial and does not serve to shield the Nazi conspirators from responsibility for the acts done in the territory under German control. Belgium, Holland, and a large part of France were under German occupation throughout the period in question and, after 10 November 1942, so-called Vichy France was overrun and occupied as well. It is accepted doctrine that governmental authority is completely, albeit temporarily, vested in the occupant during the period of its control. Whether the occupant elects to employ the existing administrative machinery and personnel or substitute its own, is solely a question of political and administrative convenience; the choice is without legal significance. The civil administration of an occupied country, it may be confidently asserted, has no independent legal status whatever. (1) The acts of the Nazi conspirators as revealed by the evidence are prohibited by the Hague Regulations. (a) The forcible removal of machinery, foodstuffs, and raw materials. It has been shown above that the Nazis forcibly removed large quantities of machinery, foodstuffs, and raw materials to Germany, including even church bells and the strategic metals contained in the transmission systems of the occupied countries. Articles 52 and 53 of the Hague Regulations (the only pertinent provisions) provide no basis for such action. Article 52 of the Hague Regulations declares that requisitions in kind and services shall not be demanded except for "the needs of the occupation army," a limitation deliberately substituted for the less restrictive one of "military necessity" which had previously been contained in the Brussels Declaration of 1874 (Conference Internationale de la Paix, La Haye, 1899, Part I, p. 60; Part III, pp. 45, 181). It is settled that requisitions for export to the country of the occupying power is violative of Article 52 (see Feilchenfeld, The International Law of Belligerent Occupation, Washington, 1942, pars. 148-149, and cases cited). The argument, advanced by the Germans in defense of such requisitions during the first World War (see Garner, International Law and World War, Vol. II, p. 126,n) and frequently again during the recent conflict (EC-44-7; ECH- 16), that the limitations of Article 52 may be disregarded in case of military necessity, is not well founded. Article 23g, which permits the destruction of private property when "imperatively demanded by the necessities of war," is included among the provisions re- [Page 1076] lating to the rights of belligerents in the conduct of military operations, and has no relation to the powers of a belligerent in an occupied area in which conflict has ceased (see Garner, loc. cit. supra). The latter are governed, so far as material here, by Articles 42-56. Apart from Article 23g, there is no basis whatever for the German position. The Hague Regulations are limitations on the powers which may be exercised under the plea of military necessity (II, Oppenheim, International Law, 6th Edition Revised, edited by Lauterpacht, p. 185, n.1). An exception for cases of alleged military necessity, therefore, cannot be implied. The deliberate substitution of the present terminology in lieu of the vague limitations of "military necessity" as contained in the Brussels Declaration of 1874, moreover, would seem to remove all basis for a contrary construction. Article 53 provides no better support for the Nazis' action. The second paragraph, relating to private property, states: "All appliances, whether on land, on sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive- of cases governed by naval law, depots of arms and, generally, all kinds of munitions of war, may be seized even if they belong to private individuals, but must be restored and compensation fixed when peace is made." This Article, it may be conceded, authorizes not only the sequestration but the use of all matters within its reach. The term "munitions of war," however, clearly refers only to chattels (Feilchenfeld, supra, par. 351). It does not, therefore, include machinery affixed to the realty. The German legal advisors uniformly so conceded during this war (EC-560; EC-84; EC-263; EC-544-7). The suggestion that Article 53 is subject to an implied exception in the case of military necessity (EC-344-7) is, for reasons noted above, untenable. It is equally clear that the deliberate removal of the-metal content of the transmission systems in the occupied areas is without legal basis. Article 53 in terms requires restoration when peace is made and, whatever exceptions may be implied in case of munitions which are necessarily consumed by use, no basis can be found for the deliberate destruction of transmission facilities. The question as to the class of chattels included within the deliberately general term "munitions of war" is not free from doubt. The right of seizure is based on military necessity, namely, the danger of leaving at large things which are peculiarly adapted to warlike purposes (Spaight, War Rights on Land, p. [Page 1077] 512). It should accordingly be limited to those things which are "susceptible of direct military use" (see British Manual of Military Law, 1929, Amendment No. 12, par. 415; US Army Basic Field Manual on Rules of Land Warfare, FM 27-10, 1940, par. 332). Article 53, which contains no limitation restricting seizures to the needs of the occupation army, would otherwise completely nullify the deliberate limitations on the right of requisition imposed in Article 52. In this view, raw materials and even semifinished goods, save perhaps such goods as are normally part of military equipment, would seem outside the reach of Article 53. (b) The control and direction of production and distribution in the German interest. The planned control and direction of the economy of the occupied countries in the interest of the German war effort constitute a violation of Article 52. This seems clearly true to the extent that production and sale for export to Germany were ordered by the Ruestungsobmann pursuant to Speer's directive late in 1943. It would seem equally true of the earlier method of control by prohibitions and restrictions. For the net effect of the priority system was to leave no alternative to producing in the German interest save to cease operations. And even this alternative was not available, since the power to appoint a commissar in case of recalcitrant plants was expressly reserved. Article 53, which is limited to chattels and has no relation to the demanding of personal services in any event, provides not even a remote basis for the imposition of the controls in question. In what has been said, it is not meant to be suggested that an occupant is without power to institute a system of rationing for articles in short supply with the aim of securing an equitable distribution among the population of the occupied area. Such a measure is plainly related to the promotion of economic order and there is nothing in the Hague Regulations which restricts even requisition for the needs of the local population. The Nazi controls, however, were exercised, not in the interest of the local population, but to fulfill the general war requirements of Germany, in the Reich as well as in the occupied area. (c) Levy of occupation charges for purposes not relate to the needs of the occupation army. Article 49 of the Hague Regulations limits the levy of occupation charges to the "needs of the army or of the administration of the territory in question." The only purpose for which such contributions may be levied (other than for the financing of the costs of administration, a matter not material here), is to supply the needs of the army of occupa- [Page 1078] tion (Conference Internationale de la Paix, La Haye, 1899, Pt. I, p. 60; Feilchenfeld, supra, par. 167; Spaight, supra, pp. 384-392). The power to levy contributions is reserved in order to permit an equitable distribution among the entire community of costs which, if supplies were requisitioned, would fall directly and solely on the owners of the requisitioned property (Spaight, supra, pp. 387-389). Accordingly, the levy of contributions to finance exports or for other purposes unrelated to the needs of the army in the territory in question would seem plainly forbidden (Feilchenfeld, supra, par. 167; Spaight, supra, pp. 384- 392). Moreover, as Article 49 refers to the occupation army only, the levy of contributions to support the troops engaged in military operations against an enemy located outside the boundaries of the occupied country or to finance other general war expenses would seem prohibited. (d) Forced loans. Forced loans can be justified only as contributions and are therefore subject to the same limitations (Feilchenfeld, supra, par. 185). The forced loans under the Belgian-German and Franco-German clearing arrangements, were executed largely to finance exports to Germany, that is, for nonoccupation purposes. (e) The exchange of reichsmarks for gulden by the Netherlands Bank. These transactions, whether viewed as resulting in a loan or merely in an exchange, constitute a contribution of money for nonoccupation purposes. It may be assumed that they were carried out "voluntarily" while the Netherlands Bank was under the immediate direction of Rost Van Tonningen. This circumstance is immaterial, however, since an Tonningen was a civil official appointed by Seyss- Inquart, and his authority, like that of civilian officials in occupied areas generally, was derived solely from that of the occupant. (f) The taking over of gold of the National Bank of Belgium and the Netherlands Bank. That the gold of the National Bank of Belgium was private property is not disputed; the Nazi conspirators proceeded on this view in the original decision to requisition under Article 2 (EC-401, second enclosure). Confiscation under Article 53, first paragraph, therefore, was not open to the Nazi conspirators; so far as appears they never considered such a step. It may be assumed for purposes of argument that gold is subject to requisition under the Hague Regulations. Requisition may be made, however, only for the needs of the occupation army. It cannot be resorted to to relieve the "considerable straining of the reserves" of Germany. [Page 1079] The gold reserve of the Netherlands Bank, it is believed, is private property, no less than that of the National Bank of Belgium. In this view, the taking over of the gold of the Netherlands Bank was likewise illegal. There is, of course, no basis in law for exacting a contribution for the so- called "war against Bolshevism," to use the Nazis' phrase. And, for the reasons indicated above, it is immaterial whether these "contributions" were "voluntarily" made by Van Tonningen. (g) The compulsory surrender of gold and foreign exchange. The requirement of surrender of gold and foreign exchange for ultimate delivery to the Reichsbank amounts in substance to a requisition and cannot be supported because obviously done solely to maintain the reserves of foreign exchange for the total war effort, not for the needs of the occupation army alone. (h) The acquisition of business interests. The Nazis' acquisition of Belgian, Dutch, and French participations was unlawful. That this is so in the case of the sales ordered by the Ministry of Economics is clear (EC-43). The conclusion should be the same even when sale was not expressly ordered. These purchases were financed through the clearing system (which, as shown above, constituted a forced loan) and out of occupation cost funds. Since such expenditures bore no relation to the needs of the occupation army or, indeed, served any purpose other than to enrich the Nazi conspirators and their nominees, the Nazi program for acquisition of participations was in plain violation of Article 49 of the Hague Regulations. (2) Such acts constitute "plunder of public or private property" within the meaning of Article 6 (B) of the Charter of the International Military Tribunal. Save as they may be authorized by International Law (and' hence "consented" to by the occupied countries), the acts complained of are of a character condemned by the criminal code of the occupied countries and, indeed, of all civilized nations. Absent such authority, the forcible permanent taking of money or other property whether from Government agencies or private persons, constitutes larceny or, as known in the international law of belligerent occupation, "pillage" (Garner, supra, pp. 472-473). The question of which court or courts may try and punish for the offense is one of jurisdiction only (see Garner, supra, pp. 475-480) and has been resolved by the Agreement and Charter of the International Military Tribunal.
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