Chapter XXXII: Section III: of the Hague Convention, entitled “The Military Authority

over the Territories of the Enemy State,” relates to economic questions. These clauses are very clear and need not be discussed. If the Tribunal will allow me to recall them in reading, here is Section III of the Hague Convention which I put into the document book as Document Number RF-114, and which is entitled, “The Military Authority over the Territories of the Enemy State”:

“Article 42: A territory is considered occupied when it is
placed actually under the authority of the hostile army. The
occupation extends only to the territories where this authority
has been established and can be exercised.

“Article 43: The authority of the legitimate power having in
fact passed into the hands of the occupant, the latter. . .”

THE PRESIDENT: I think we can take judicial notice of these articles of the Convention.

M. GERTHOFFER: I shall therefore not read this article, since the Tribunal knows the Convention, and shall simply limit myself to certain juridical remarks.

These texts of the Hague Convention show in a very clear way that the Germans could seize in occupied countries only what was necessary for the maintenance of troops indispensable in the occupation of the territories. All items which were levied beyond these limits were in violation of the texts which you know, and consequently these acts were acts of plundering.

Counsel for the Defense may contend that all these prescriptions must be put aside, because Germany had set herself the goal of continuing the war against Britain, the U.S.S.R., and the United States of America. The Defense may claim that, because of this, Germany was in a state of need and had to counter the prescriptions of the Hague Convention, trying to interpret the Article 23 G as allowing destruction or seizure even of private property.

I shall immediately answer that this text does not lay down rules relating to the conduct of the occupant in enemy territory. These last prescriptions are contained, I repeat, in Articles 42 to 56, but they referred to the conduct, which the belligerents must observe in the course of the combat.

The words “to seize” in the sentence, “. . . to seize enemy property except in cases where . . . these seizures are absolutely demanded by military necessity,” mean—and there can be no discussion as to translation because actually the French text is binding—the words “to seize” mean not to appropriate a thing, but to put it under the protection of the law with a view to leaving it unused, in the state in which it was found, and keeping it for its true owner or for whoever can show right to it. Such a seizure permits the military authority, as long as the action lasts, to prevent the owner from using the property against its troops, but it does not authorize the military authority in any case to appropriate it for itself.

Acts of economic plunder are all contrary to the principles of international law and furthermore are formally provided for by Article 6b of the Charter of the International Military Tribunal of August 1945.

These constant violations of the Hague Convention had the result of enriching Germany and permitted her to continue the war against Britain, the Soviet Union, and the United States, while they ruined the invaded countries, the populations of which, subjected to a regime of slow famine, are now physically weakened and, but for the victory of the Allies, would be on the road to progressive extermination.

These inhuman deeds therefore constitute War Crimes which come within the competency of the International Military Tribunal as far as the leaders of the Reich are concerned.

Before finishing this rapid summary of juridical questions, the Tribunal will permit me to refute in advance an argument which will certainly be presented by the Defense, especially as far as economic plunder is concerned. They will claim that your high jurisdiction did not exist, that international penal law had not yet been formulated in any text when the defendants perpetrated the acts with which they are at present charged, and that therefore they could not be condemned to any sentence whatsoever by virtue of the principle of non-retroactivity of penal laws.

Why, Gentlemen, is this principle adopted by modern legislation? It is indisputable that any person who is conscious of never having violated any legal prescription could not be condemned because of acts which were committed in such circumstances.

For example, somebody issues a check without funds to cover it, before his country had adopted a penalty for such an offense. But the case which is submitted to you is quite different. The defendants cannot maintain that they were not conscious of having violated legislation of any kind. First of all, they violated international conventions: The Hague Convention of 1907, the Kellogg-Briand Pact of 27 August 1938, and then they violated all the penal laws of the invaded countries.

How, in these proceedings, shall economic plunder be qualified? Theft, swindling, blackmail, and even, I will add, murder—since, in order to attain their aims, the Germans have premeditated and committed numerous murders which enabled them to intimidate the population in order to plunder them better.

From the point of view of domestic law, these deeds certainly fall under the application of Articles 295 and the following ones of the French penal code, and especially of Article 303, which stipulates as guilty of murder all offenders, of whatever category, who, to execute their crimes, resort to torture or perpetrate barbarous acts. I will add that the defendants violated even the German criminal code, in particular under Articles 249 and following.

Counsel for the Defense will certainly stress that some leaders of the invaded countries were in agreement with the Reich Government as to the economic collaboration, and that consequently the Reich Government cannot be charged with acts which derive from these agreements.

Such arguments must be refuted:

1.) If, in all the invaded countries, patriots resisted with more or less courage, it is true that some of them, out of inertia, fear, or self interest, turned traitors to their country. They have been or will be condemned. But the crimes committed by certain of them cannot be exonerating or even extenuating circumstances in favor of the defendants, especially since the latter had very often put these traitors in to manage the occupied countries. The fact of having brought individuals to turn traitor to their country only aggravates, on the contrary, the heavy charges against the defendants.

2.) These so-called agreements had all been obtained by pressure or by threat. The concluded contracts show that they were solely in favor of Germany, who, as a matter of fact, never brought any compensation or illusory benefits—very often their burdensome nature is seen from the mere reading of such contracts, as I will have the honor to show in certain particular cases.

With these explanations my general observations on the economic pillage are concluded, and if the Tribunal is willing we can examine the particular case of Denmark.

When the Germans invaded Denmark, contrary to all the prescriptions of the law of nations and to their engagements, they were not certain of rapidly dominating Western Europe. At first they laid down the principle that they would not take anything in the country, but after their success of May 1940 their attitude changed; and little by little they treated Denmark more or less like the other occupied countries.

Nevertheless, they sought to achieve annexation pure and simple, and took rigorous measures against the population only in the course of 1942, when they saw that they would not be able to win Denmark over. From the economic point of view, and to assure their domination, they tried to have at their disposal the majority of the Danish means of payment, and they used to this effect two methods which to a great extent were used by them in other countries: (1) The levying of a veritable tribute of war, under the pretext of maintaining their army of occupation; (2) the functioning of the so-called clearing agreement to their almost exclusive benefit. These two methods should be studied in Chapter I of this statement.