1. FINAL ARGUMENT by Dr. Robert Servatius, Defense Counsel

May it please the Tribunal:

The defense of the defendant Sauckel has, in the first place, to deal with the charge of "slave labor".

What is slave labor?

One cannot accept this as an established concept comprehending all the occurrences with which the defendant Sauckel is, in a bewildering abundance, charged under the heading slave labor.

Those actions, particularly, ought first to be examined from a juridical point of view. The legal basis for this examination is the Charter.

However, this Charter does not say what is to be understood by "slave labor" and what by "deportation." Therefore, these concepts should be clarified by interpretation. Article 6 of the Charter speaks, in two passages and from two different points of view, of "deportation" and of "slave labor". Deportation is called both a war crime and a crime against humanity, and forced labor appears as well as "slave labor" under the heading of war crimes and as “enslaving" under the heading of crimes against humanity. The question, under what heading the deployment of labor (Arbeitseinsatz) of the defendant Sauckel should fall is of decisive importance; if it is a war crime, then it should be judged exclusively by martial law. If it is a crime against humanity, then the latter presupposes the commission of a war crime or of a crime against peace.

It follows thereof that deportation mentioned in Article 6(b) cannot be the same thing as deportation according to Article 6(c) nor can forced labor according to Article 6 (b) be identical with forced labor of Article 6(c). The difference between the two kinds is to be found in the fact that something contrary to humanity has to be added to the war crimes.

The correctness of this interpretation may also be recognized in the terminology of the Charter, however fluctuating it may be. For instance, the Russian text for deportation as a war crime chooses the word "uvod", which only means removal from a place, while on the other hand it uses, for crimes against humanity of the same kind, the technical expression "ssylka" under which penal deportation under the rule of the czars is understood as identical in sense with deportation as penal deportation.

One can deduce therefrom that simple removal from occupied

territory for labor purposes is only to be considered as a war crime, but that removal becomes a crime against humanity when it assumes the penal character of a transportation of prisoners. Yet the question arises whether, beyond this, according to the Charter, any removal of the population is punishable as a war crime, without considering whether it occurs for deployment of labor or for other reasons. According to the text of the Charter, the latter seems at first sight to be the case, as it renders punishable "removal for slave labor, or for any other purpose." Upon closer examination, however, it becomes evident that this rule does not seem to be meant in such a sense, as there are cases in which a removal is not only consistent with international law but even becomes imperative.

Accordingly, the Charter should only be understood to mean that the prerequisite of the punishable is not just plain "removal" but the composite concept "removal for slave labor” and “removal for any other purpose".

The clause "or for any other purpose" should be understood so as to mean only that an illegal purpose corresponding to slave labor exists. If removal of any kind was to be made punishable, then the qualifying addition "for slave labor or for any other purpose" would be contradictory to common sense.

This identification is important for the defendant Sauckel, as otherwise the existence of deportation classified as a war crime I would be evident from the acts admitted by him. Just as for the various kinds of deportation, the difference between the kinds of slave labor according to the Charter should be clarified. Here too a clue for the interpretation is given by the terminology of the different linguistic versions of the text, but not because of their clarity and consistency, but by their very opposite.

The English version speaks of "slave labor" as a war crime and of "enslavement" as a crime against humanity; the French version states "travaux forces" and "reduction en esclavage"; the Russian version accordingly "rabstvo" (-slavery) and "poraboschtschenie" (-enslavement). It is not discernible how the chosen terms differentiate in re.

Starting from the fact that labor inconsistent with humanity must be carried out under more severe conditions than other labor, and considering that "slave labor" appears to be the severest form of labor conditions, one sees that no definition can be derived from this terminology of the Charter, rather that an ethical valuation and stigmatization of the incident is intended.

Accordingly, an objective division of the kinds of labor should, be carried out, independent of the terminology, by considering

exclusively the degree of severity of labor conditions. If one tries to analyze the terminology used, one finds the designation "enslavement", "esclavage", and "poraboschtschnie" for the inhuman form of labor, whereas the labor not inconsistent with humanity is called "forced labor", "travaux forces", and "prinudidjenaja rabota". Slave labor (Slave labor, travaux forces, and rabstvo) consequently is the general term comprehending both kinds.

What does this verification mean for the defense of the defendant Sauckel? The defendant Sauckel admits having negotiated the "forced labor" in the form of compulsory labor which, as stated before, is being termed by "slave labor" in general. He denies, however, having demanded slave labor, which could have been considered as inhuman labor, i.e., enslavement. A different standard applies here, just as for deportation, to the facts of these two cases; "compulsory labor" is but a war crime and is to be judged according to rules of war; the crime against humanity has, as already stated above for the deportation as crimes against humanity, the additional features of connection with war crimes or crimes against Peace.

If it can be proved that the mobilization of manpower, as ordered by the defendant Sauckel, was permitted by the rules of war, then the same act cannot be held to be a crime against humanity.

The indictment too has made a difference as to the kinds of labor. It has treated, under paragraph 3, Chapter VIII H, as a separate war crime under the title of "Conscription of civilian labor", the mobilization of manpower directed by the defendant Sauckel, which I shall call "regulated labor conscription", "geordneten Arbeitseinsatz" and speaks here only of "forced labor"; the French version speaks here of "travaux forces" and uses terms such as "les obligerent a travailler" and "mis en obligation"; the Russian version follows this and also speaks only of "enforced labor" as "prinuditjelenaja rabota", but not of this being slave labor.

The defendant Sauckel does not deny the facts taken here as a basis, but I shall submit the legal reasons which justify this mobilization of labor and I shall prove that it does not involve any war crime inconsistent with international law.

The rules of international law are authoritative when considering the question whether "regulated labor conscription" is a war crime. The Charter cannot prohibit what international law permits in wartime. Such international law is laid down in the agreements on rules of war and in the general legal principles and usages as they are applied by the States.

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The Prosecution, when judging the labor conscription as a war crime, bases it on the definitions of the Hague Convention on Land Warfare, as well as on the agreements and rules of war and the criminal codes of the countries concerned. If it is shown that the labor conscription is permitted by international law, then a judicial inquiry into the penal regulations is, of course, not necessary. The Hague Convention on Land Warfare can be considered as basis for the law of warfare with which we are concerned here. Whether it was recognized by all states involved here is of practically little importance as, inasmuch as it was not recognized or cannot be directly applied, there is a gap in the international law which is closed in accordance with the principles of necessity for belligerent and with the duty for staying within the boundaries 'of humanity. The principles of international law as established in the Hague Convention on Land Warfare are in all cases an important guidance.

The Prosecution quotes in the first place Article 46 of the Hague Convention on Land Warfare which is to safeguard the fundamental rights of the population. It is typical of forced labor that it restricts liberty, but it is exactly this basic right which is not protected by this article.

If the Hague Convention on Land Warfare is examined for a definite rule concerning deportation and forced labor it will be realized that there is no such regulation. Just as in the sphere of air warfare and the use of new weapons, the Hague Convention on Land Warfare could not deal with questions, which at the time of its drafting were far from the mind of the contracting parties. The first world war was still fought between 2 armies with already prepared material and the fight should be ended after it was used up. The idea of a long war which was a war of material and which required a continuous production with all available labor was for the Hague Convention on Land Warfare no problem to be discussed.

Article 52 of the Hague Convention on Land Warfare which deals with the principle of the right for requisition touches on the matter under discussion, but it can be seen that the rules deal only with the merely local requirements of the army which appears to be equipped and which has only additional local requirements.

It is characteristic, for the purely local meaning, that the authority for requisitions is entrusted to the local commanders in contrast to Article 51 of the Hague Convention on Land Warfare which permits only an independent commanding general to impose compulsory contributions. The literature about the right for

requisition in international law quotes accordingly only examples of local significance.

Although Article 52 of the Hague Convention on Land Warfare can accordingly not be directly applied, its basic principles are nevertheless binding on the belligerents.

The basic idea is that the army can demand practically everything that is necessary for the satisfaction of their requirements. There are only two limitations, it can not take more than it needs, and not more than is compatible with the resources of the country. The idea of the local duty for supply "oertlichen Leistungspflicht" is to adapt to modern warfare. The Hague Convention on Land Warfare thought of the use of smiths and wheelwrights which were necessary for the maintenance of the equipment of the army; work inside the country of the occupying power was, with regard to the undeveloped transportation conditions, out of the question and could not be considered.

Today, the necessary work cannot be done any more near the front lines but must be done in the belligerents' own countries. It must therefore be possible to demand labor only where it can be done and where it is necessary. It must be possible to demand this work also for the new war requirements of mass production for the current replacements.

What is necessary at any given time can be demanded and the amount depends on the respective conditions. If in earlier times, according to the principle, "the war supplies the war," the equipping of the army, detached from the homeland with regard to transportation, was also done on a large scale in the occupied territory, it must be possible today to supply the army by moving the workers to the factories in the country of the belligerent. The evolution of the law of warfare is influenced by the requirements to which this law has to serve.

With the basic idea of the duty for supply, the basic idea of the limitation has to be accepted. These limitations must also be interpreted in accordance with the changed conditions.

If the duty for supply is justified, no more work can be demanded than the occupying power demands from its own people at home. The intensity of the war as total war must be taken in consideration. The duty for supply may hereby become very large.

The meaning and the purpose of the Hague Convention on Land Warfare are certainly not to place the nationals of a defeated state in a better position than those of the victorious state which occupies the country. This, however, would be the result if the Hague Convention on Land Warfare would be interpreted according to its original wording. If this is claimed, France which had uncon