(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.