Chapter XIII · GERMANIZATION AND SPOLIATION (continued 2)

AX.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 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 Jan.-31 Oct. 1942 an estimated 10 × 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 workersw orking 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.” (1741-PS)

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 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 of the creation of a greater European economic space. This ideological attitude in itself gives him the correct position 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 Finanzministeriums). 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 Germany 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 (3608-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 16 December 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 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; 3608-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 July 10, 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 Emission 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 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 point.

(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) of 1.IX.1939 (Sec. 15, paragraph 1, No. 5, and Sec. 2a)” (ECR-149).

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 and 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 used German Reichsmarks as currency in the Netherlands, for purposes unrelated to the needs 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. 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, 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-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 own 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-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 relating 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-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 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 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.

LEGAL REFERENCES AND LIST OF DOCUMENTS RELATING TO GERMANIZATION AND SPOLIATION

DocumentDescriptionVol.Page

Charter of the International Military Tribunal, Article 6, especially 6 (b, c).I5

International Military Tribunal, Indictment Number 1, Sections III; VIII (E, J).I15, 43, 51

3737-PSHague Convention of 1907 respecting the Laws and Customs of War on Land, Annex, Articles 49, 52, 53, 55.VI598, 599

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Note: A single asterisk (*) before a document indicates that the document was received in evidence at the Nurnberg trial. A double asterisk (**) before a document number indicates that the document was referred to during the trial but was not formally received in evidence, for the reason given in parentheses following the description of the document. The USA series number, given in parentheses following the description of the document, is the official exhibit number assigned by the court.

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*061-PSSecret Bormann letter, 11 January 1944, concerning large-scale organization for withdrawal of commodities from occupied territories for use of bombed-out population in Germany. (USA 692)III105

*294-PSTop secret memorandum signed by Brautigam, 25 October 1942, concerning conditions in Russia. (USA 185)III242

*661-PSSecret thesis from the Academy of German Law, January 1940, on Resettlement. (USA 300)III472

*686-PSDecree of the Fuehrer and Reich Chancellor to strengthen German Folkdom, 7 October 1939, signed by Hitler, Goering, Lammers and Keitel. (USA 305)III496

*862-PSMemorandum by General Friderici, Plenipotentiary of the Wehrmacht to the Reich Protector of Bohemia and Moravia, initialled by Keitel, Jodl and Warlimont, 15 October 1940, concerning plan to Germanize Czechoslovakia. (USA 313)III618

*910-PSNotes on Himmler’s plan for Germanization of Poland, 27 and 30 March 1942, from the Main Office, Interior Administration, initialled “Dr. S. H.”. (USA 310)III639

997-PSTop secret report by Seyss-Inquart concerning the situation in the Netherlands—Exploitation and Nazification in period 29 May to 19 July 1940.III641

*1029-PSPaper entitled “Instructions for a Reich Commissar in the Baltic States”, 8 May 1941, found in Rosenberg’s “Russia File”. (USA 145)III690

*1058-PSExcerpt from a speech, 20 June 1941, by Rosenberg before people most intimately concerned with Eastern Problem, found in his “Russia File”. (USA 147)III716

*1352-PSReports concerning the confiscation of Polish agricultural properties, 16 and 29 May 1940, signed Kusche. (USA 176)III916

1445-PSReport on conference at Ministry of Economics regarding use of Belgian and Dutch capital investments in southeastern European enterprises, 15 June 1940.IV20

*1456-PSThomas memorandum 20 June 1941; Keitel consulted about resources of USSR. (USA 148)IV21

1741-PSCollection of documents relating to the French Armistice.IV228

1765-PSReport of the Commissioner for the Four Year Plan Plenipotentiary for Special Missions on Black Market Activities, 15 January 1943.IV325

*1918-PSSpeech by Himmler to SS officers on day of Metz. (USA 304)IV553

1991-PSSixth report on activity and final report of the German Armistice Delegation for Economy, and of Delegate of Reich Government for Economic and Financial Questions with French Government, 1 July 1943 to 17 August 1944.IV605

*1997-PSDecree of the Fuehrer, 17 July 1941, concerning administration of Newly Occupied Eastern Territories. (USA 319)IV634

2149-PSLetter, 11 December 1942, to Foreign Office, enclosing statement of German Reichsbank concerning question of an increase of French contributions to Occupation expenses.IV758

*2233-D-PSFrank Diary. Regierungsitzungen. 1941. October-December. Entry of 16 December 1941 at pp. 76-77. (USA 281)IV891

*2233-G-PSFrank Diary. 1939. 25 October to 15 December. (USA 302)IV903

*2233-H-PSFrank Diary. Tagebuch. 1941. Part II. Entry of 19 April 1941. (USA 311)IV904

*2749-PSTitle page of publication of Academy for German Law, 7th year, 1940. (USA 301)V390

*2915-PSExtracts from German Labor, June-July 1942. (USA 306)V580

*2916-PSCommitment of Manpower Doctrines-Orders-Directives, published by Office of Reich Commissioner for strengthening of National Character of German People, December 1940. (USA 307)V581

3602-PSReport on conversation (interview) between Mr. Hemmen and Mr. de Boisanger, 4 October.VI314

3603-PSReport on conversation between Mr. Hemmen and Mr. de Boisanger, 10 October.VI314

3604-PSDecree concerning rationing of industrial goods from Official Gazette of Military Commander in Belgium and Northern France, 1940-41, p. 37, Sec. 1.VI315

3605-PSRationing decree, 27 May 1940, from Official Gazette of Military Commander in Belgium and Northern France, 1940-41, p. 37, Sec. 4.VI315

3606-PSRationing decree, 27 May 1940, from Official Gazette of Military Commanders in Belgium and Northern France, 1940-41, p. 38, Sec. 10.VI316

3607-PSPublic Notice on Board of Directors of Reichskreditkasse, from Official Gazette of Military Commander in Belgium and Northern France, 1940-41, p. 65.VI316

3608-PSPublic Notice of Establishment of a Clearing system between Belgium and German Reich, 10 July 1940, from Official Gazette of Military Commander in Belgium and Northern France.VI317

3609-PSDecree for execution of rationing decree in Belgium, 5 November 1940, from Official Gazette of Military Commander in Belgium and Northern France.VI318

3610-PSDecree regarding Plant Commissars, 29 April 1941, from Official Gazette of Military Commander in Belgium and Northern France, 1940-41, p. 599.VI319

3611-PSDecree on economic measures against Jews, 31 May 1941, from Official Gazette of Military Commander in Belgium and Northern France, 1940-41, p. 620, Sec. 17.VI320

3612-PSDecree regarding prohibition of manufacturing of certain products, 6 August 1942, from Official Gazette of Military Commander in Belgium and Northern France, 1942, p. 986, Sec. 1.VI321

3613-PSProclamation to Netherlands population, 25 May 1940, from Official Gazette for Occupied Dutch Territory, No. 1, 5 June 1940.VI321

3615-PSReport by Ostrow on examination of records of Reichskreditkasse, 29 September 1945.VI322

3616-PSDecree on prohibition to establish and enlarge enterprises and on shutting down enterprises, 30 March 1942, from Official Gazette of Military Commander in Belgium and Northern France, 1942, p. 865.VI388

*EC-3Letter of Liaison Staff at Supreme Headquarters, Armament Procurement Office directed to General Thomas, Chief of Wi Rue Amt, Berlin, 25 November 1941. (USA 318)VII242

EC-21Memorandum of Posse, 8 January 1940.VII249

EC-34Report No. 1 on activities of Military Administration for month of November 1940.VII254

EC-41Notice concerning seizure of security properties of Dutch and Belgian holdings, 23 May 1940.VII255

EC-43Report on conferences at Ministry of Economics, 20 August 1940, regarding acquisition of shares in important foreign enterprises in Southeast Europe.VII258

EC-69Memorandum of General Holder, 13 December 1939, regarding treatment of economical questions at the OKH.VII262

EC-84Report of Lt. Colonel Helder on reconversion of the economy, 7 December 1940.VII263

EC-86Report on financial contributions of the Occupied Areas.VII264

EC-87Report on contribution of Netherlands for German War economy.VII278

EC-101Affidavit by Schmid-Lossberg, 21 September 1945, concerning Holland, Belgium and France.VII280

EC-113Covering letter, 8 July 1940, to letter from Supreme Command of Armed Forces, concerning decision of Fuehrer in Armistice questions, and memorandum of Goering, 5 July 1940.VII291

*EC-126Economic Policy Directive for Economic Organization, East, Agricultural Group, 23 May 1941. (USA 316)VII295

EC-137Memorandum of Goering, 2 August 1940, regarding extension of German interests in foreign enterprise, and covering letter.VII309

EC-155Collection of planned decrees on economic matters, from Military Administration-Economy, pp. 50-74.VII312

EC-256Letter from Dr. Lammers to Goering and Funk, 12 October 1937.VII346

EC-261Letter from Funk to all Ministries, 14 March 1938, regarding appointment of Sarnow, deputy of Plenipotentiary for War Economy.VII371

EC-263Note on draft of decree on confiscation of private Polish property.VII373

EC-267Development and Position of French Industry in area of Military Commander, France, in 1941, from Report on Economy by Military Commander, France.VII376

*EC-305Minutes of meeting on 12 February 1940, under Chairmanship of Goering concerning labor supply in the East. (USA 303)VII402

EC-323Telegram signed Schleier, dated Paris 26 April 1941.VII406

EC-335Report of the Military Administration in Belgium and Northern France, January-March 1943.VII407

EC-336Report of the Reich Minister for Occupied Eastern Territories, 26 November 1942, concerning treatment of Poles under his jurisdiction.VII408

EC-344-7Report on Armament Economy in

Poland, 1939-1940.VII416

*EC-344 16 and 17Thomas report, 20 August 1940, summarizing experience with German Armament Industry in Poland 1939-40 and extract from report by Captain Dr. Varain on same subject. (USA 297)VII419

*EC-347Directives for operation of the Economy in Occupied Eastern Territories. (USA 320)VII421

EC-401Letter from Office Four Year Plan, 8 July 1942, on seizure of Belgian gold.VII439

*EC-410Appendix to Goering’s directive of 19 October 1939 concerning the economic administration of Occupied Territories. (USA 298)VII466

*EC-411Order by Hess concerning the reconstruction of certain industrial enterprises in Poland, 20 November 1939. (USA 299)VII469

EC-422Extracts from History of the War Economy—and Armament Staff in France.VII481

EC-427Letter from Lammers to Reichsbank Directorate, 20 January 1939, on appointment of Funk as President of Reichsbank.VII484

*EC-453Letter to Himmler, 21 September 1943, and list of contributions by his friends. (USA 322)VII510

*EC-454Letter to Himmler, 27 August 1943, regarding contributions by his friends. (USA 321)VII512

EC-465Letter from Commissar with the Netherlands Bank, 9 December 1940, with November report to Fuehrer.VII518

EC-468Letter from Commissar at the Netherlands Bank, 10 February 1941, with report for January 1941 to Fuehrer.VII524

EC-469Memorandum on meeting in Duesseldorf, 25 May 1940.VII536

EC-470Special Events in the field of procurement of means of production, raw material, semi-finished products.VII538

EC-471Armament Inspectorate Netherlands—War Diary for time from 1 January-31 March 1943.VII538

*EC-472Directives of Reich Marshal Goering concerning economic organization of Occupied Eastern Territories. (USA 315)VII539

EC-472-AWar Diary of Armament Inspectorate from 10 April 1940-30 September 1942.VII540

EC-473Extract from History of Armament Inspectorate—Netherlands.VII542

EC-474Letter, 1 June 1940, enclosing report of Armament Inspectorate Netherlands.VII542

EC-485Minutes on Goering Meeting, 1 October 1940, on the economic exploitation of Occupied Territories.VII543

EC-560Extract from War Diary of Armament Inspectorate—Belgium 21 January 1941, regarding right to remove machinery.VII584

EC-604Letter from Military Commander in Belgium and Northern France, 1 May 1942.VII584

EC-605Letter of the Commissar with the Emission Bank in Brussels, 29 October 1942, with enclosure.VII585

EC-606Minutes concerning conference with Field Marshal Goering at Karinhall, 30 January 1940.VII588

EC-613Memorandum on contributions of French economy in favor of France performed at instigation of Military Commander in France.VII602

EC-614Memorandum of the Military Commander in France.VII602

EC-615Notes by General Thomas on Meeting with Colonel General Keitel, 1 December 1939.VII603

EC-616Interference of War Economy and Armament Staff with raw material rationing boards from Situation Report of War Economy and Armament Staff of France.VII603

EC-617Extracts from Situation Report of War Economy and Armament Staff of France.VII604

EC-618Service instructions for Economic Squads.VII604

EC-619Clearing agreement of 14 November 1940, for French-German payments.VII608

EC-620Directive of Goering on exploitation of the Occupied Western Territories, 26 August 1940.VII608

ECH-1Final report of Military Commander Belgium, Part 10, Section I, concerning German-Belgian trade.VII609

ECH-2Report on Economic Planning of Military Commander Belgium and Northern France, 13 September 1940.VII610

ECH-3Final Report of Chief of Military Administration in Belgium and Northern France.VII611

ECH-4Annual report of Military Commander of Belgium and Northern France, 15 July 1941.VII613

ECH-5Final Report of Military Commander in Belgium and Northern France.VII615

ECH-6Final report of Military Commander in Belgium and Northern France.VII620

ECH-7Final Report of Supervisory Office with Military Commander in Belgium and Northern France on legalized exploitation of black market in Belgium and Northern France.VII622

ECH-9Circular of Military Commander, 19 June 1943, concerning prohibition of black market purchase.VII629

ECH-10Final Report of Military Commander on machinery clearing.VII629

ECH-11Final Report of Military Commander on Church Bell drive in Belgium.VII631

ECH-12Report of Activity Department for “Protection of Art” of Military Commander Belgium and Northern France.VII632

ECH-14Letter from Speer, 23 June 1943, with covering letter.VII632

ECH-15Draft of letter to Falkenhausen, 22 May 1944.VII634

ECH-16Memorandum from Military Administration Department for Culture, 17 May 1944, concerning requisition of scientific instruments.VII635

ECH-19Final Report of Military Commander showing total picture of consolidation of Belgian Textile Industry.VII636

ECH-21Letter from Military Commander in Belgium and Northern France to General Falkenhausen, 12 October 1940, and annexes.VII637

ECH-22Final Report of Military Commander, concerning foreign exchange and gold.VII639

ECH-23Report of Military Commander on supplies in the German interest in Belgium and Northern France in 1941.VII641

ECH-24Introduction to Final Report of Military Commander by Dr. Beyer.VII642

ECR-14Memorandum from Commissar at the Belgian National Bank on Clearing Transfers, 24 March 1941.VII642

ECR-24Annual report of the Commissar at the National Bank of Belgium, covering period May 1940-May 1941.VII642

ECR-32Memorandum from Reich Marshal of the Greater German Reich Commissioner for the Four Year Plan, 11 June 1941, on occupation costs in Belgium and covering letters.VII667

ECR-35Memorandum from Special Commissioner West of the Reichskreditkassen, 2 August 1941.VII670

ECR-39Memorandum from Military Commander in Belgium and Northern France, 2 August 1941, concerning procurement of Occupation Costs in Belgium, and covering letter.VII671

ECR-59Memorandum from Military Commander in Belgium and Northern France, 2 October 1941, on contributions from Belgium to the limit of its capacity, and covering letter.VII676

ECR-72Memorandum from Special Commissioner West of RKK, 22 December 1941, ordering Emission Bank to pay out clearing transfer.VII681

ECR-89Letter from Military Commander in Belgium and Northern France, 2 March 1942, concerning payment for German Military Expenditures in Belgium through clearing; and letter of transmittal.VII682

ECR-104Letter from Military Commander in Belgium and Northern France, 24 April 1942, concerning payment of expenses of German Armed Forces in Belgium in clearing.VII685

ECR-106Memorandum from Commissar at the National Bank of Belgium, 1 May 1942, on use of occupation funds for black market purchases and political purposes.VII686

ECR-115Teletype, 27 July 1942, on position of Reichsbank regarding requisition of Belgian gold.VII689

ECR-132Report of the Commissar at the National Bank of Belgium, 1 December 1942, covering period August-October 1942.VII690

ECR-142Letter from Military Commander in Belgium and Northern France, 22 February 1943, on exchange of RKK notes in Belgium.VII695

ECR-149Third Annual Report of the Commissar at the National Bank of Belgium, 5 June 1943.VII700

ECR-155-AMemorandum from Special Commissioner West of Reichskreditkassen, 7 December 1943, on occupation costs.VII716

ECR-166Memorandum from Special Commissioner West of Reichskreditkassen, 10 May 1944, concerning cash situation of Chief Paymaster at Military Commander in Belgium and Northern France.VII718

ECR-172Letter from Reichskommissar for Occupied Territories of Belgium and Northern France, 21 July 1944, concerning equalization of monthly balance in giro traffic of Reichskreditkassen.VII720

ECR-173Report of Commissar at the National Bank of Belgium, 15 August 1944, on total occupation charges and Belgium clearing balance.VII721

ECR-174Report of the Commissar of the Netherlands Bank for the month May 1941, dated 12 June 1941.VII726

ECR-175Letter from RKK Amsterdam to Central Administration of RKK Brussels, 18 May 1941, concerning occupation costs.VII732

ECR-176Letter from RKK Amsterdam to Central Administration of RKK Brussels, 27 May 1941, concerning occupation costs.VII733

ECR-177Letter from RKK Amsterdam to Central Administration of RKK Berlin, 30 June 1941, concerning occupation costs.VII735

ECR-178Letter from RKK Amsterdam to Central Administration of RKK Berlin, 25 July 1941, concerning occupation costs.VII735

ECR-179Letter from RKK Amsterdam to Central Administration of RKK Berlin, 28 August 1941, concerning occupation costs.VII735

ECR-180Letter from RKK Amsterdam to Central Administration of RKK Berlin, 30 September 1941, concerning occupation costs.VII736

ECR-181Letter from RKK Amsterdam to Central Administration of RKK Berlin, 28 October 1941, concerning occupation costs.VII737

ECR-182Letter from RKK Amsterdam to Central Administration of RKK Berlin, 29 November 1941, concerning occupation costs.VII737

ECR-183Letter from RKK Amsterdam to Central Administration of RKK Berlin, 6 January 1942, concerning occupation costs.VII738

ECR-184Letter from RKK Amsterdam to Central Administration of RKK Berlin, 30 January 1942, concerning occupation costs.VII739

ECR-185Letter from RKK Amsterdam to Central Administration of RKK Berlin, 27 February 1942, concerning occupation costs.VII740

ECR-186Letter from RKK Amsterdam to Central Administration of RKK Berlin, 28 March 1942, concerning occupation costs.VII740

ECR-187Letter from RKK Amsterdam to Central Administration of RKK Berlin, 30 April 1942, concerning occupation costs.VII741

ECR-188Letter from RKK Amsterdam to Central Administration of RKK Berlin, 13 July 1942, concerning occupation costs.VII742

ECR-189Letter from RKK Amsterdam to Central Administration of RKK Berlin, 13 August 1942, concerning occupation costs.VII743

ECR-190Letter from RKK Amsterdam to Central Administration of RKK Berlin, 31 August 1942, concerning occupation costs.VII743

ECR-191Letter from RKK Amsterdam to Central Administration of RKK Berlin, 30 September 1942, concerning occupation costs.VII744

ECR-192Letter from RKK Amsterdam to Central Administration of RKK Berlin, 6 November 1942, concerning occupation costs.VII744

ECR-193Letter from RKK Amsterdam to Central Administration of RKK Berlin, 7 December 1942, concerning occupation costs.VII745

ECR-194Letter of Commissar at the Netherlands Bank Amsterdam, enclosing report on contributions of Holland for Germany during the first year of occupation, 28 May 1941.VII745

ECR-195Letter from RKK Amsterdam to Central Administration of RKK Berlin, 21 April 1942, concerning Dutch East Help.VII747

ECR-196Report of the Commissar of the Netherlands Bank, 9 May 1941.VII748

ECR-197Circular of the Reichsminister of Economics in foreign exchange matters, 31 March 1941.VII749

*L-70Speech by Himmler at Bad Schachen, 14 October 1943, on the Question of Security. (USA 308)VII818

*L-221Bormann report on conference of 16 July 1941, concerning treatment of Eastern populations and territories. (USA 317)VII1086

*R-92Instruction for internal use on application of law concerning property of Poles of 17 September 1940; copy of monthly report 31 May 1942 with statistics on farms and estates seized and confiscated in the Incorporated Eastern Territories; copy of letter from SS officer to Himmler, 20 November 1940. (USA 312)VIII61

*R-112Orders issued by Reich Commissioner for the Consolidation of German nationhood, 16 February 1942, 1 July 1942, 28 July 1942. (USA 309)VIII108

*R-114Memoranda of conferences, 4 and 18 August 1942, concerning directions for treatment of deported Alsatians. (USA 314)VIII122