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.