“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)
“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-113) 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 ownjudgment, 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-344-7;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 relatingto 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.”
“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-344-7). 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.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; U. S. 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 semi-finished 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 theRuestungsobmannpursuant 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 related 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 occupation(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 Van 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 52 (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.
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.