Chapter VII: of the Treaty of Versailles discusses criminal (1)

responsibility incurred in the launching and waging of the conflict which was then the Great War. Article 227 accused William of Hohenzollern, previously Emperor of Germany, of a supreme offense against international morality and against the sacred character of treaties. Article 228 acknowledged the right of the Allied and Associated Powers to bring persons guilty of acts contrary to the laws and customs of war before military tribunals. Article 229 provided that criminals whose acts were not of precise geographical location were to be referred to inter-Allied jurisdiction.

The provisions of the Treaty of Versailles were repeated in the conventions which were signed in 1919 and 1920 with the powers allied with Germany, in particular in the Treaty of Saint-Germain and in that of Neuilly. That is how the idea of war crime was affirmed in international law. The peace treaties of 1919 not only defined the concept of infraction, they formulated the terms of its repression. The defendants were aware of this, just as they were aware of the warnings of the governments of the United Nations. They no doubt hoped that the repetition of the factual circumstances, which hampered the punishment of the criminals in 1914, would permit them to escape their just punishment. Their presence before this Tribunal is the symbol of the constant progress which international law is making in spite of all obstacles.

International law had given a still more precise definition of the term “war crime.” This definition was formulated by the commission which the preliminary peace conference appointed on 25 January 1919 to disentangle the various responsibilities incurred in the course of the war. The report of the Commission of Fifteen of 29 March 1919 constitutes the historical basis of Articles 227 and following of the Treaty of Versailles. The Commission of Fifteen based its investigation of criminal responsibilities on an analysis of the crimes liable to involve them. A material element enters into the juridical settlement of any infraction. Its definition is, therefore, the more precise as it includes an enumeration of the facts which it encompasses. That is why the Commission of Fifteen set up a list of War Crimes. This list includes 32 infractions. These are particularly:

1. Murders, massacres, systematic terrorism; 2. killing of hostages; 3. torture of civilians; 8. confinement of civilians in inhuman conditions; 9. forced labor of civilians in connection with military operations of the enemy; 10. usurpation of sovereignty during the occupation of occupied territories; 11. forced conscription of soldiers among the inhabitants of the occupied territories; 12. attempts to denationalize the inhabitants of occupied territories; 13. looting; 14. confiscation of property; 17. imposition of collective fines; 18. wilful devastation and destruction of property; 25. violation of other rules concerning the Red Cross; 29. ill-treatment of wounded and prisoners of war; and 30. use of prisoners of war for unauthorized work.

This list, which already includes the grievances against the defendants enumerated in the Indictment and from which we have just quoted a few facts, is significant because the War Crimes which it encompasses all present a composite character. They are crimes against both international law and national law. Some of these crimes constitute attacks on the fundamental liberties and constitutional rights of peoples and of individuals; they consist in the violation of public guarantees which are recognized by the constitutional Charter of the Nations whose territories were occupied; violation of the principles of liberty, equality, and fraternity which France proclaimed in 1789 and which the civilized states guarantee in perpetuity. These War Crimes are violations of public international law, since they represent a systematic refusal of acknowledgment of all respective rights of both occupying and occupied power; but they also may be analyzed as violations of public national law, since they mean forcibly transforming the constitutional institutions of the occupied territories and the juridical statute of their inhabitants.

More numerous are crimes which constitute attacks on the integrity of the physical person and of property. They are allied with war law regulations and include violations of international law and customs.

But the international conventions, it should be noticed, determine the elements constituting an infraction more than they actually establish that infraction itself. The latter existed before in all national legislatures; it was to some extent a part of the juridical inheritance common to all nations; governments agreed to affirm its international character and to define its contents. International penal law is thus superimposed on national law, which preserves its repressive basis because the war crime remains, after all, a crime of common law. National penal law gives the definition of this. All the acts referred to in Article 6 of the Charter of 8 August 1945, all the facts encompassed by the third Count of the Indictment of 18 October 1945 correspond to the infractions of common law provided for and punished by national penal legislation. The killing of prisoners of war, of hostages, and of inhabitants of occupied territories falls, in French law, under Articles 295 and following of the Penal Code, which define murder and assassination. The mistreatment to which the Indictment refers would come under the heading of bodily injuries caused intentionally or through negligence which are defined by Articles 309 and following. Deportation is analyzed, independently of the murders which accompany it, as arbitrary sequestration, which is defined by Articles 341 and 344. Pillage of public and private property and imposition of collective fines are penalized by Articles 221 and the following of our Military Code of Justice. Article 434 of the Penal Code punishes voluntary destruction, and the deportation of civilian workers may be compared with the forced conscription provided for by Article 92. The oath of allegiance is equivalent to the exaction of a false oath in Article 366, and the Germanization of occupied territories may be applied to a number of crimes, the most obvious of which is forced incorporation in the Wehrmacht in violation of Article 92. The same equivalents can be found in all modern legislative systems and particularly in German law.

The crimes against persons and property of which the defendants are guilty are provided for by all national laws. They present an international character because they were committed in several different countries; from this there arises a problem of jurisdiction, which the Charter of 8 August 1945 has solved, as we have previously explained; but this leaves intact the rule of definition.

A crime of common law, the war crime is, nevertheless, not an ordinary infraction. It has a character peculiarly intrinsic—it is a crime committed on the occasion or under the pretext of war. It must be punished because, even in time of war, attacks on the integrity of the physical person and or property are crimes if they are not justified by the laws and customs of war. The soldier who on the battlefield kills an enemy combatant commits a crime, but this crime is justified by the law of war. International law therefore intervenes in the definition of a war crime, not in order to give it essential qualification but in order to fix its outer limits. In other words, every infraction committed on the occasion or under the pretext of hostilities is criminal unless justified by the laws and customs of war. International law here applies the national theory of legitimate defense which is common to all codes of criminal law. The combatant is engaged in legitimate defense on the battlefield; his homicidal action is therefore covered by a justifying fact. But if this justifying fact is taken away the infraction, whether ordinary crime or war crime, remains in its entirety. To establish the justifying fact, the criminal action must be necessary and proportional to the threat to which it responds. The defendants, against whom justice is demanded of you, can plead no such justification.

Nor can they escape their responsibility by arguing that they were not the physical authors of the crimes. The war crime involves two responsibilities, distinct and complementary: that of the physical author and that of the instigator. There is nothing heterodox in this conception. It is the faithful representation of the criminal theory of complicity through instructions. The responsibility of the accomplice, whether independent or complementary to that of the principal author, is incontestable. The defendants bear the entire responsibility for the crimes which were committed upon their instructions or under their control.

Finally, these crimes cannot be justified by the pretext that an order from above was given by Hitler to the defendants. The theory of the justifying fact of an order from above has, in national law, definite fixed limits; it does not cover the execution of orders whose illegality is manifest. German law, moreover, assigns only a limited rule to the concept of justification by orders from above. Article 47 of the German Military Code of Justice of 1940, although maintaining in principle that a criminal order from a superior removes the responsibility of the agent, punishes the latter as an accomplice, when he exceeded the orders received or when he acted with knowledge of the criminal character of the act which had been ordered. Goebbels once made this juridical concept the theme of his propaganda. On 28 May 1944 he wrote in an article in the _Völkischer Beobachter_, which was submitted to you by the American Prosecution, an article intended to justify the murder of Allied pilots by German mobs:

“The pilots cannot validly claim that as soldiers they obeyed
orders. No law of war provides that a soldier will remain
unpunished for a hateful crime by referring to the orders of his
superiors, if their orders are in striking opposition to all
human ethics, to all international customs in the conduct of
war.”

Orders from a superior do not exonerate the agent of a manifest crime from responsibility. Any other solution would, moreover, be unacceptable, for it would testify to the impotence of all repressive policy.

All the more reason why orders from above cannot be the justifying fact for the crimes of the defendants. Sir Hartley Shawcross told you with eloquence that the accused cannot claim that the Crimes against Peace were the doing of Hitler alone and that they limited themselves to transmitting the general directives. War Crimes may be compared to the will for aggression; they are the common work of the defendants; the defendants bear a joint responsibility for the criminal policy which resulted from the National Socialist doctrine.

The responsibility, for German war criminality, because it constituted a systematic policy, planned and prepared before the opening of hostilities, and perpetrated without interruption from 1940 to 1945, rests with all the defendants, political or military leaders, high officials of National Socialist Germany, and leaders of the Nazi Party.

Nevertheless, some among them appear more directly responsible for the acts taken as a whole, particularly those facts connected with the French charges, that is to say, crimes committed in the Western occupied territories or against the nationals of those countries. We shall cite:

The Defendant Göring as Director of the Four Year Plan and President of the Cabinet of Ministers for Reich Defense; the Defendant Ribbentrop in his capacity as Minister of Foreign Affairs in charge of the administration of occupied countries; the Defendant Frick in his capacity as Director of the Central Office for occupied territories; the Defendant Funk in his capacity as Minister of Reich Economy; the Defendant Keitel, inasmuch as he had command over the occupation armies; the Defendant Jodl, associated in all the responsibilities of the preceding defendant; the Defendant Seyss-Inquart in his capacity as Reich Commissioner for the occupied Dutch territory from 13 May 1940 to the end of the hostilities.

We will examine more particularly among these defendants, or among others, those responsible for each category of acts, it being understood that this enumeration is in no wise restrictive.

The Defendant Sauckel bears the chief responsibility for compulsory labor in its various forms. As Plenipotentiary for Allocation of Labor, he carried out the intensive recruiting of workers by every possible means. He is in particular the signer of the decree of 22 August 1942, which constitutes the charter for compulsory labor in all occupied countries. He worked in liaison with the Defendant Speer, Chief of the Todt Organization and Plenipotentiary General for Armament in the office of the Four Year Plan; as well as with the Defendant Funk, Minister of Reich Economy; and with the Defendant Göring, Chief of the Four Year Plan.

The Defendant Göring participated directly in economic looting in the same capacity. He appears often to have sought and derived a personal profit from it.

The Defendant Ribbentrop in his capacity as Minister of Foreign Affairs was no stranger to these acts.

The Defendant Rosenberg, organizer and Chief of the Einsatzstab Rosenberg, is particularly guilty of the looting of works of art in the occupied countries.

The chief responsibility for the murders of hostages lies with the Defendant Keitel, the drafter notably of the general order of 16 September 1941, with his assistant, the Defendant Jodl, and with the Defendant Göring who agreed to the order in question.

The Defendant Kaltenbrunner, Himmler’s direct associate and chief of all the foreign police and security offices, is directly responsible for the monstrous devices to which the Gestapo had recourse in all occupied countries, devices which are only the continuation of the methods originated in the Gestapo by its founder, in Prussia, the Defendant Göring. The Defendant Kaltenbrunner is likewise directly responsible for the crimes committed in deportation camps. Moreover, he visited these camps of deportation, as will be proved by the French Delegation in the case of the Mauthausen Camp. The Defendant Göring knew of and gave his approval to the medical experiments made on prisoners. The Defendant Sauckel forced prisoners by every possible means to work under conditions, which were often inhuman, for the German war production.

The Defendant Keitel and his assistant, the Defendant Jodl, are responsible for treatment contrary to the laws of war inflicted upon war prisoners, for murders and killings to which they were subjected, as well as for handing over great numbers of them to the Gestapo. The Defendant Göring shares their responsibility for the execution of Allied aviators and soldiers belonging to the commando groups. The Defendant Sauckel directed the work of war prisoners for the German war production in violation of international law.

The Defendant Keitel and the Defendant Kaltenbrunner both bear the chief responsibility for the terrorist actions carried out jointly by the German Army and the police forces in the various occupied countries and notably in France against the Resistance, as well as for the devastations and massacres carried out against the civilian population of several French departments. The Defendant Jodl shares in this responsibility, most particularly through his initial order, “Fight against Partisan Bands,” dated 6 May 1944, which provides for “collective measures against the inhabitants of entire villages.” These blows against mankind are the result of racial theories of which the Defendant Hess, the Defendant Rosenberg, and the Defendant Streicher are among the instigators or propagandists. The Defendant Hess participated notably in the elaboration of this subject, which is found in _Mein Kampf_.

The Defendant Rosenberg, one of the principal theorists of racial doctrine, exercised the function of special delegate for the spiritual and ideological training of the Nazi Party. The Defendant Streicher showed himself to be one of the most violent anti-Semitic agitators. In the execution of the policy of Germanization and Nazification responsibility is shared between the Ministry of Foreign Affairs, that is to say, the Defendant Ribbentrop; the General Staff, that is, the Defendants Keitel and Jodl; the Central Office for all the occupied territories, that is, the Defendant Frick.

The major National Socialist culprits had their orders carried out in the divers Nazi organizations, which we ask you to declare criminal, in order that each of their members may be then apprehended and punished.

The Reich Cabinet, the Leadership Corps of the Nazi Party, the General Staff, the High Command of the German Armed Forces represent only a small number of persons whose guilt and punishment must ultimately result from the evidence, since they participated personally and directly in the decisions, or ensured their execution through some eminent person in the political or military hierarchy, and without being able to ignore their criminal nature.

The leaders of the Nazi Party are unquestionably in the forefront of those who participated in the criminal enterprise, and around the Defendants Keitel and Jodl the military High Command directed the Army to the execution of hostages, to pillage, to wanton destruction, and to massacres.

But perhaps it will seem to you that the punishment of hundreds of thousands of men who belonged to the SS, to the SD, to the Gestapo, to the SA, will give rise to some objection. I should like to try, should this be the case, to do away with that objection by showing you the dreadful responsibilities of these men. Without the existence of these organizations, without the spirit which animated them, one could not understand how so many atrocities could have been perpetrated. The systematic War Crimes could not have been carried out by Nazi Germany without these organizations, without the men who composed them. It is they who not only executed but willed this body of crimes on behalf of Germany.

It may have seemed impossible to you that the monstrous barbarity of the National Socialist doctrine could have been imposed upon the German people, the heir, as are our people, of the highest values of civilization. The education by the Nazi Party of the young men who formed the SS, the SD, and the Gestapo, explains the hold Nazism exercised over all Germany. They incarnated National Socialism, and permitted it to accomplish, thanks to the guilty passiveness of the whole German population, a part of its purpose. This youth, those who carried out the tenets of the regime, were trained in a veritable doctrine of immoralism, which results from the ideology that inspired the regime. The myth of the race removed from war in the eyes of these disciples of Nazism its criminal character.

If it is proved that a superior race is to annihilate races and peoples that are considered inferior and decadent, incapable of living a life as it should be lived, before what means of extermination will they recoil? This is the ethics of immorality, the result of the most authentic Nietzscheism, which considers that the destruction of all conventional ethics is the supreme duty of man. The crime against race is punished without pity. The crime on behalf of race is exalted without limit. The regime truly creates a logic of crime which obeys its own laws, which has no connection whatsoever with what we consider ethical. With such a point of view, all horrors could have been justified and authorized. So many acts which appear incomprehensible to us, so greatly do they clash with our customary notions, were explained, were formulated in advance in the name of the racial community.

Add that these atrocities and these cruelties were perpetrated within the rigid framework created by the “esprit de corps,” by the soldierly solidarity which bound individuals and insured the legitimacy of the crime an unlimited field of action. The individuals who committed them would not only be covered by the regime itself, but spurred on by the discipline and the “camaraderie” of these corps, imbued with Nazi criminality.

The Nazi youth was invited to go through an extraordinary adventure. Having unlimited power at its disposal, thanks to the Party and its massive grip, it was first of all called upon to implement the grandiose dreams of National Socialist Pan-Germanism.

The Party exercised a rigid selection of its youth, and neglected no incentive. It solicited from its youth the desire to distinguish itself, to accomplish exploits beyond the common order and beyond nature. The young Nazis in the Gestapo and the SS knew that their acts, no matter how cruel or how inhumane they might be, would always be judged legitimate by the regime, in the name of the racial community, of its needs, and of its triumphs. The Nazi Party, thanks to the young men of the SS, of the SD, and of the Gestapo, had thus become capable of accomplishing in the field of criminality what no other person or nation could have committed.

The members of these organizations became voluntarily the authors of these innumerable crimes of all kinds, often executed with disconcerting cynicism and with artful sadism in the concentration camps of Germany as well as in the various occupied countries, and especially in those of Western Europe.

The crimes are monstrous. The crimes and the responsibility for them have definitely been established. There is no possible doubt. Nevertheless throughout these tranquil sessions of this Trial, extraordinary in the history of the world, in view of the exceptional nature of the justice which your High Tribunal is called upon to render before the United Nations and the German people and before all mankind a few objections may arise in our minds.

It is our duty to discuss this exhaustively, even if it is only sub-conscious in us, for soon a pseudo-patriotic propaganda may take hold of Germany, and even may echo in some of our countries.

“Who can say: I have a clean conscience, I am without fault? To use different weights and measures is abhorred by God.” This text from the Holy Scriptures (Proverbs XX, 9-10) has already been mentioned here and there; it will serve tomorrow as a theme of propaganda, but above all, it is profoundly written in our souls. Rising in the name of our martyred people as accusers of Nazi Germany, we have never for a moment repressed it as a distasteful reminder.

Yes, no nation is without reproach in its history, just as no individual is faultless in his life. Yes, every war in itself brings forth iniquitous evils and entails almost necessarily individual and collective crimes, because it easily unleashes in man the evil passions which always slumber there.

But we can examine our conscience fearlessly in the face of the Nazi culprits; we find no common measure between them and ourselves.

If this criminality had been accidental; if Germany had been forced into war, if crimes had been committed only in the excitement of combat, we might question ourselves in the light of the Scriptures. But the war was prepared and deliberated upon long in advance, and upon the very last day it would have been easy to avoid it without sacrificing any of the legitimate interests of the German people. And the atrocities were perpetrated during the war, not under the influence of a mad passion nor of a war-like anger nor of an avenging resentment, but as a result of cold calculation, of perfectly conscious methods, of a pre-existing doctrine.

The truly diabolical enterprise of Hitler and of his companions was to assemble in a body of dogmas formed around the concept of race, all the instincts of barbarism, repressed by centuries of civilization, but always present in men’s innermost nature, all the negations of the traditional values of humanity, on which nations, as well as individuals, question their conscience in the troubled hours of their development and of their life; to construct and to propagate a doctrine which organizes, regulates, and aspires to command crime.

The diabolical enterprise of Hitler and of his companions was also to appeal to the forces of evil in order to establish his domination over the German people and subsequently the domination of Germany over Europe and perhaps over the world. It planned to incorporate organized criminality into a system of government, into a system of international relations, and into a system of warfare, by unleashing within a whole nation the most savage passions.

Nationalism and serving their people and their country will perhaps be their explanation. Far from constituting an excuse, if any excuse were possible in view of the enormity of their crime, these explanations would make it still more serious. They have profaned the sacred idea of the fatherland by linking it to a willed return to barbarism. In its name they obtained—half by force, half by persuasion—the adherence of a whole country, formerly among the greatest in the order of spiritual values, and have lowered it to the lowest level. The moral confusion, the economic difficulties, the obsession with the defeat of 1918 and with the loss of might and the Pan-Germanic tradition are the basis of the empire of Hitler and of his companions over a people thrown off its balance; to abandon oneself to force, to renounce moral concern, to satisfy a love of collectivity, to revel in lack of restraint are the natural temptations strongly implanted in the German, which the Nazi leaders exploited with cynicism. The intoxication of success and the madness of greatness completed the picture and put practically all Germans, some without doubt unconsciously, in the service of the National Socialist doctrine by associating them with the diabolical enterprise of their Führer and his companions.

Opposing this enterprise men of various countries and different classes rose, all of them animated by the common bond of their human lot. France and Great Britain entered the war only to remain faithful to their given word. The peoples of the occupied countries, tortured in body and soul, never renounced their liberty nor their cultural values, and it was a magnificent epic of clandestine opposition and of Resistance which through a splendid heroism testifies to the spontaneous refusal of the populations to accept the Nazi myths. Millions and millions of men of the Soviet Union fell to defend not only the soil and independence of their country, but also their humanitarian universalism. The millions of British and American soldiers who landed on our unhappy continent carried in their hearts the ideal of freeing from Nazi oppression both the occupied countries and the peoples who willingly or by force had become the satellites of the Axis and the German people.

They were all of them together, whether in uniform or not, fighters for the great hope which throughout the centuries has been nourished by the suffering of the peoples, the great hope for a better future for mankind.

Sometimes this great hope expresses itself with difficulty or loses its way or deceives itself or knows the dread return to barbarism, but it persists always and finally constitutes the powerful lever which brings about the progress of humanity despite everything. These aspirations always reborn, these concerns constantly awakened, this anguish unceasingly present, this perpetual combat against evil form in a definitive manner the sublime grandeur of man. National Socialism only yesterday imperiled all of this.

After that gigantic struggle where two ideologies, two conceptions of life were at grips, in the name of the people whom we represent here and in the name of the great human hope for which they have so greatly suffered, so greatly fought, we can without fear and with a clean conscience rise as accusers of the leaders of Nazi Germany.

As Mr. Justice Jackson said so eloquently at the opening of this Trial, “Civilization could not survive if these crimes were to be committed again,” and he added, “The true plaintiff in this Court is civilization.”

Civilization requires from you after this unleashing of barbarism a verdict which will also be a sort of supreme warning at the hour when humanity appears still at times to enter the path of the organization of peace only with apprehension and hesitation.

If we wish that on the morrow of the cataclysm of war the sufferings of martyred countries, the sacrifices of victorious nations, and also the expiation of guilty people will engender a better humanity, justice must strike those guilty of the enterprise of barbarism from which we have just escaped. The reign of justice is the most exact expression of the great human hope. Your decision can mark a decisive stage in its difficult pursuit.

Undoubtedly even today, this justice and this punishment have become possible only because, as a first condition, free peoples emerged victorious from the conflict. This is actually the link between the force of the victors and the guilt of the vanquished leaders who appear before Your High Tribunal.

But this link signifies nothing else but the revelation of the wisdom of nations that justice, in order to impose itself effectively and constantly upon individuals and upon nations, must have force at its disposal. The common will to put force in the service of justice inspires our nations and commands our whole civilization.

This resolution is brilliantly confirmed today in a judicial case where the facts are examined scrupulously in all their aspects, the penal nature of the offense rigorously established, the competency of the Tribunal incontestable, the rights of the defense intact, total publicity insured.

Your judgment pronounced under these conditions can serve as a foundation for the moral uplift of the German people, first stage in its integration into the community of free countries. Without your judgment, history might incur the risk of repeating itself, crime would become epic, and the National Socialist enterprise a last Wagnerian tragedy; and new Pan-Germanists would soon say to the Germans:

“Hitler and his companions were wrong because they finally
failed, but we must begin again some day, on other foundations,
the extraordinary adventure of Germanism.”

After your judgment, if only we know how to enlighten this people and watch over their first steps on the road to liberty, National Socialism will be inscribed permanently in their history as the crime of crimes which could lead it only to material and moral perdition, as the doctrine which they should forever avoid with horror and scorn in order to remain faithful or rather become once more faithful to the great norms of common civilization.

The eminent international jurist and noble European, Politis, in his posthumous book entitled _International Ethics_ reminds us that, like all ethical rules, those which should govern international relations will never be definitely established unless all peoples succeed in convincing themselves that there is definitely a greater profit to be gained by observing them than by transgressing them. That is why your judgment can contribute to the enlightenment of the German people and of all peoples.

Your judgment must be inscribed as a decisive act in the history of international law in order to prepare the establishment of a true international society excluding recourse to war and enlisting force permanently in the service of the justice of nations; it will be one of the foundations of this peaceful order to which nations aspire on the morrow of this frightful torment. The need for justice of the martyred peoples will be satisfied, and their sufferings will not have been useless to the progress of mankind.

THE PRESIDENT: M. De Menthon, would you prefer to continue the case on behalf of France this afternoon, or would you prefer to adjourn?

M. DE MENTHON: We are at the disposal of the Court.

THE PRESIDENT: Well then, if that is so, then I think we better go on until 5 o’clock.

M. DE MENTHON: It might be preferable to adjourn, because M. Faure’s brief which is going to be presented will last at least an hour. Perhaps it is better to adjourn until tomorrow morning. However, we will remain at the disposal of the Court.

THE PRESIDENT: When you said that the proof which will now be presented would take an hour, do you mean by that that it is an introductory statement or is it a part of the main case which you are presenting?

M. DE MENTHON: Your Honor, it is part of the general case.

THE PRESIDENT: Would it not be possible then to go on until 5 o’clock?

M. DE MENTHON: Yes, quite so.

M. EDGAR FAURE (Deputy Chief Prosecutor for the French Republic): Mr. President and Your Honor, I propose to submit to the Tribunal an introduction dealing with the first and the second part of the French case.

The first part relates to forced labor; the second part to economic looting. These two over-all questions are complementary to each other and form a whole. Manpower on the one hand and material property on the other constitute the two aspects of the riches of a country and the living conditions in that country. Measures taken with regard to the one necessarily react on the other, and it is understandable that in the occupied countries German policy with regard to manpower and economic property was inspired from the very beginning by common directing principles.

For this reason the French Prosecution has deemed it logical to submit successively to the Tribunal those two briefs corresponding to the letters “H” and “E” of the third Count of the Indictment. My present purpose is to define these initial directives covering the German procedure in regard to manpower and to material in the occupied territories.

When the Germans occupied the territories of Denmark, Norway, Holland, Belgium, Luxembourg, and part of continental France, they thereby assumed a material power of constraint with regard to the inhabitants and a material power of acquisition with regard to its property. They thus had in fact the possibility of utilizing these dual resources on behalf of the war effort.

On the other hand, legally they were confronted with precise rules of international law relating to the occupation of territories by the military forces of a belligerent state. These rules very strictly limit the rights of the occupant, who may requisition property and services solely for the needs of the army of occupation. I here allude to the regulation annexed to the Convention concerning the Laws and Customs of War signed at The Hague on 18 October 1907, Section III, and in particular to the Articles 46, 47, 49, 52, and 53. If it please the Tribunal, I shall merely cite the paragraph of Article 52 which defines in a perfectly exact manner the lawful conditions of requisition of persons and property:

“Requisitions in kind and of services may be demanded of
communities or of inhabitants only for the needs of the army of
occupation. They will be proportionate to the resources of the
country and of such a nature that they do not imply for the
population the obligation of taking part in war operations
against their native country.”

These various articles must, moreover, be considered in the general spirit defined in the preamble of the Convention, from which I take the liberty of reading the last paragraph to the Tribunal:

“Until such time as a more complete code of the laws of war can
be enacted, the High Contracting Parties deem it opportune to
state that in cases not included in the regulations adopted by
them, populations and belligerents remain under the safeguard
and direction of the principles of the law of nations derived
from the established usages among civilized nations, the laws of
humanity, and the requirements of public conscience.”

From this point of view it is very evident that the total exploitation of the resources of occupied countries for the benefit of the enemy’s war economy is absolutely contrary to the law of nations and to the requirements of public conscience.

Germany signed the Hague Convention and it must be pointed out that she made no reservations at that time except with regard to Article 44, which relates to the supply of information to the belligerents. She made no reservation with regard to the articles which we have cited nor with regard to the preamble. These articles and the preamble, moreover, reiterate the corresponding text of the previous Hague Convention of 28 July 1899.

German official ratifications of the Conventions were given on 4 September 1900 and 27 November 1909. I have purposely recalled these well-known facts in order to emphasize that the Germans could not fail to recognize the constant principles of international law to which they subscribed on two occasions, long before their defeat in 1918 and consequently outside the alleged pressure to which they referred in regard to the Treaty of Versailles.

While on this subject of juridical theory, may I point out that in the arrangement signed at Versailles on 28 June 1919 in connection with the military occupation of the territories of the Rhine, reference is made in Article 6 to the Hague Convention in the following terms:

“The right of requisition in kind and in services as formulated
by the Hague Convention of 1907 will be exercised by the allied
and associate armies of occupation.”

Thus, the governing principles of the rights of requisition by the occupiers is confirmed by a third international agreement subscribed to by Germany, who in regard to the occupation of her own territory is here the beneficiary of this limitation.

What, then, will the conduct of the Germans be like, in view of this factual situation, which involves power and temptation, and in view of this legal situation which involves a limitation?

The Tribunal is already aware, by virtue of the general presentation of the American Prosecution, that the conduct of the Germans was to profit by the fact and to ignore the law.

The Germans systematically violated international rules and the law of nations, as far as we are concerned, both by forced labor and by spoliation. Detailed illustrations of these acts in the Western countries will be laid before you in the briefs which will follow my own. For my part I propose to concentrate for a moment on the actual concepts which the Germans had from the outset. In this connection I shall submit to the Tribunal three complementary propositions.

First Proposition: From the very beginning of the occupation, the Germans decided, in the interests of their war effort, to seize in any way possible all the resources, both material and human, of the occupied countries. Their plan was not to take any account of legal limitations. It is not under the spur of occasional necessity that they subsequently perpetrated their illicit acts, but in pursuance of a deliberate intention.

Second Proposition: However, the Germans took pains to mask their real intentions; they did not make known that they rejected international juridical rules. On the contrary, they gave assurance that they would respect them. The reasons for this camouflage are easy to understand. The Germans were anxious from the beginning to spare public opinion in the occupied territory. Brutal proceedings would have aroused immediate resistance which would have hampered their actions. They also wished to deceive world opinion, and more particularly American public opinion, since the United States of America had at that time not yet entered the war.

The third proposition which I lay before the Tribunal results from the first two. As the Germans contemplated achieving their aims and masking their intentions, they were of necessity bound to organize a system of irregular means, while maintaining an appearance of legality. The complexity and the technical character of the proceedings they used enabled them easily to conceal the real state of affairs from the uninitiated or the merely uninformed. These disguised means proved, in fact, just as efficient and perhaps even more so than would have been brutal seizure. They moreover enabled the Germans to have recourse to such brutal action the day they deemed that this would yield them more advantages than inconvenience.

We are of the opinion that this analysis of the German intentions is of interest to the Tribunal for, on the one hand, it demonstrates that the illicit acts were premeditated and that their authors were aware of their reprehensible character; and on the other hand, it enables one to understand the scope and extent of these acts, despite the precautions taken to mask them.

The evidence which the Prosecution will submit to the Tribunal refers chiefly to the second and third propositions, for as regards the first, that is to say, the criminal intention and premeditation, it is demonstrated by the discrepancy between the facade and reality.

I say in the first place that the Germans at the time of the occupation made a pretense of observing the rules of international law. Here is, by way of example, a proclamation to the French population, signed by the Commander-in-Chief of the German Army. This is a public document which is reproduced in the _Official Journal_, containing the decrees issued by the military governor for French occupied territories, Number 1 dated 4 July 1940. I submit to the Tribunal this document, which will bear Number RF-1 of the French documentation; and from it I cite merely the following sentence:

“The troops have received the order to treat the population with
regard and to respect private property provided the population
remains calm.”

The Germans proceeded in identical manner in all the occupied countries. I also submit to the Tribunal the text of the same proclamation, dated 10 May 1940, which was published in the _Official Journal_ of the Commander-in-Chief in Belgium and in the north of France, Number 1, Page 1, under the title “Proclamation to the Population of Belgium.” The German text, as well as the Flemish text, bear the more complete title, “Proclamation to the Population of Holland and Belgium.” In view of the identical nature of these texts, this copy may be considered as Document Number RF-1 (bis) of the French documentation.

I now submit another proclamation entitled, “To the Inhabitants of Occupied Countries!” dated 10 May 1940, and signed “The Commander-in-Chief of the Army Group.” This is likewise published in the _Official Journal_ of German ordinances. This will be Document Number RF-2 of the French documentation. I will cite the first two paragraphs:

“The Commander-in-Chief of the German Army has given me
authority to announce the following:

“I. The German Army guarantees the inhabitants full personal
security and the safeguard of their property. Those who behave
peacefully and quietly have nothing to fear.”

I also quote passages from Paragraphs V, VI, and VII:

“V. The administrative authorities of the state, communities,
the police, and schools shall continue their activities. They
therefore remain at the service of their own population. . . .

“VI. All enterprises, businesses, and banks will continue their
work in the interest of the population. . . .

“VII. Producers of goods of prime necessity, as well as
merchants, shall continue their activities and place their goods
at the disposal of the public.”

The passages which I have just quoted are not the literal reproduction of international conventions, but they reflect their spirit. Repetition of the terms, “at the service of the population,” “in the interest of the population,” “at the disposal of the public” must necessarily be construed as an especially firm assurance that the resources of the country and its manpower will be preserved for that country and not diverted in favor of the German war effort.

We pass now Document under Number RF-2 (bis) to the next of the same proclamations signed by the Commander-in-Chief of the Army Group and published in the _Official Journal_ of the Commander-in-Chief in Belgium, numbered as above, Page 3.

Finally, on 22 June 1940, an armistice convention was signed between the representatives of the German Government and the representatives of the _de facto_ authority which was at that time assuming the Government of France. This convention is likewise a public document. It will be submitted to the Tribunal at a later stage as the first document of the economic case. At this stage I merely wish to cite a sentence of Paragraph 3, which reads as follows: “In the occupied districts of France the German Reich exercises all the rights of an occupying power.”

This constitutes then a very definite reference to international law. Moreover, the German plenipotentiaries gave in this respect complementary oral assurances. On this matter I submit to the Tribunal, in the form of French Exhibit Number RF-3 (Document RF-3), an extract from the deposition made by Ambassador Leon Noel in the course of proceedings before the French High Court of Justice. This extract is reproduced from a book entitled _Transcript in extenso of the Sessions of the Trial of Marshal Pétain_, printed in Paris in 1945 at the printing office of the official journals and constitutes a document admissible as evidence in accordance with the Charter of the Tribunal, Article 21. This is the statement of M. Leon Noel, which I desire to cite to the Tribunal. M. Leon Noel was a member of the French Armistice Delegation.

THE PRESIDENT: Are you going to present this document to us?

M. FAURE: This document is presented to the Tribunal. We have given to the Tribunal the transcript of the proceedings, and in the book of documents the Tribunal will find the excerpt I am now quoting.

THE PRESIDENT: We are not in possession of it at present. I do not know where it is.

M. FAURE: I think that possibly this document was handed to the Secretariat of the Tribunal rather late, but it will be here immediately. May it please the Tribunal, I merely intend to read a short extract from this document today.

THE PRESIDENT: We will have it tomorrow, I hope?

M. FAURE: Certainly, Mr. President.

[_Quoting._] “I have also obtained a certain number of replies
from German generals which I believe could have been
subsequently used—from General Jodl, who in the month of May
last signed at Reims the unconditional surrender of Germany and
from General (subsequently Marshal) Keitel, who a few weeks
later was to sign in Berlin the ratification of this surrender.
In this way I led them to declare in the most categorical manner
that in no event would they interfere with administration, that
the rights which they claimed for themselves under the
convention were purely and simply those which in similar
circumstances international law and international usage concede
to occupation armies, that is to say, those indispensable for
the maintenance of security, transportation, and the food supply
needs of these armies.”

These assertions and promises on the part of the Germans were therefore formal. Now, even at that time, they were not sincere. Indeed, not only did the Germans subsequently violate them, but from the very beginning they organized a system whereby they were enabled to accomplish these violations in the most efficacious manner and at the same time in a manner which enabled them to some extent to mask them.

As far as economy and labor are concerned, this German system comes from a very simple idea. It consisted in supervising production at its beginning and its end. On the one hand, the Germans embarked immediately upon the general requisitioning of all raw materials and all goods in the occupied countries. Thenceforth, it would depend upon them to supply, or not to supply, raw material to the national industry. They were thus in a position to develop one branch of production rather than another, to favor certain undertakings, and, inversely, to oblige other undertakings to close down. As events and opportunities demanded, they organized this appropriation of raw materials, principally with a view to facilitating their distribution in their own interest but the principle was continuously maintained. They thus held, as it were, the key of entrance to production. On the other hand, they also held the exit key, that is to say, of finance. By securing the financial means in the form of the money of an occupied country, the Germans were able to purchase products and to acquire, under the pretense of legality, the output of the economic activity of the country. In point of fact, the Germans obtained for themselves from the outset such considerable financial means that they were easily able to absorb the entire productive capacity of each country.

If the Tribunal finds it suitable, I will interrupt at this point.

[_The Tribunal adjourned until 18 January 1946 at 1000 hours._]

THIRTY-SEVENTH DAY
Friday, 18 January 1946

_Morning Session_

M. FAURE: Mr. President, Your Honors. At yesterday’s session I explained to the Tribunal the principles of the provisions made by the Germans to ensure the seizure of raw materials and the control of finance in the occupied countries.

These provisions will be demonstrated by numerous documents which will be presented to the Tribunal in the course of the presentation of the case on economic spoliation and forced labor. I shall not quote these documents at this moment since, as I pointed out yesterday, the purpose of my introduction is limited to the initial concepts of the Germans in these matters. I shall cite only one document, which reveals the true intentions of the Germans in the very first period. This document bears our Document Number RF-3 (bis), and I offer it in evidence to the Tribunal.

It relates particularly to Norway. It consists of a photostatic copy, certified, of a transcript of a conference held in Oslo, 21 November 1940, under the presidency of the Reich Commissioner. I would point out to the Tribunal that we submit this document as being particularly significant, because Norway is a country which was occupied at a very early date by the Germans. The date of 21 November 1940, which you see, refers to the very earliest period of the German occupation, and moreover, in the text of the conference, allusion is made to the situation of the 7 months preceding.

You will find there the exact psychology of the occupation as it existed in this period of April 1940 to November 1940, that is to say, at the time, or even before, when the Germans, while invading other countries, made the reassuring proclamations which I read to the Tribunal yesterday.

There were 40 personages present at the conference, of whom State Secretary Dr. Landfried represented the Reich Ministry of Economics. This is how the Reich Commissioner expresses himself:

“Today’s conference is the continuation of a conference which
was held in Berlin. On this occasion I should like, first of
all, to stress and establish definitely that the collaboration
between the Wehrmacht and the Reich Commissioner is exemplary. I
must protest against the idea that the Wehrmacht carried out its
financial task here in a muddled and irresponsible manner. We
must also take into account the particular circumstances which
then prevailed in Norway and which still partially prevail.

“Certain tasks were fixed by the Führer which were to be carried
out within a given time.

“At the conference in Berlin the following points were settled,
which we can take as a basis of today’s conference. There is no
doubt that the country of Norway was utilized for the execution
of the tasks of the Wehrmacht during the last 7 months in such a
way that a further drain on the country without some
compensation is no longer possible in view of the future tasks
of the Wehrmacht.

“I considered it from the beginning my obvious duty in my
capacity as Reich Commissioner to devote my activities to
mobilizing all the economic and material forces of the country
for the purposes of the Wehrmacht and not to call on the
resources of the Reich as long as I am in a position to organize
such resources in the country.”

I will stop quoting the words of the Reich Commissioner at this point, and now I shall cite the terms of the reply of Dr. Landfried, which you will find a little lower down in the document:

“I am very glad to be able to state that we have succeeded here
in Norway . . . in mobilizing the economic forces of Norway for
German needs to an extent which it has not been possible to
attain in all the other occupied countries. I must thank you
especially in the name of the Minister of Economics for having
succeeded in inducing the Norwegians to achieve the greatest
possible results.”

I think the Tribunal will have observed the series of expressions which are used in this document and which are quite characteristic. The Reich Commissioner says that from the very beginning, his duty was to mobilize all the economic and material forces of the country for the purposes of the Wehrmacht, and Dr. Landfried answers that they succeeded in mobilizing the economic forces to an extent which it has not been possible to attain in all the other occupied territories.

Thus we see that Dr. Landfried does not say that the Germans had, in Norway, a particular concept of occupation and that in the other countries they used a different procedure; he says that it was not possible to do as well in the other countries. The only limitation he recognizes is a limit of fact and opportunity, which will soon be overcome, but in no wise a limitation of law. The idea of a legal limitation never enters his mind, any more than it comes to the mind of any of the 40 personages present.

It is not here a question of an opinion or initiative of a regional administrative authority, but rather of the official doctrine of the Reich Cabinet and the High Command, since 40 high officials were present at this conference, and especially the representative of the Minister for Economy.

I should like to stress at this point that this German doctrine and these German methods for the mobilization of the resources of the occupied countries necessarily extend to the labor of the inhabitants.