Just as for the various kinds of deportation, the difference between the kinds of slave labor, according to the Charter, must be clarified. Here, too, a clue to the interpretation is provided by the terminology of the different languages, though not because of their clarity and consistency but by the 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 forcés and réduction en esclavage, the Russian version accordingly rabstvo (slavery) and poraboshtshenie (enslavement). It is not discernible how the terms chosen differentiate in re. Basing upon the fact that labor inconsistent with laws of humanity must be carried out under more severe conditions than other labor and assuming “slave labor” to be the severest forms of labor, it will be seen that no definition can be derived from this terminology of the Charter and that more of an ethical discrimination and stigmatization 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 poraboshtshenie for the inhuman form of labor, whereas the labor not inconsistent with laws of humanity is called “forced labor,” travaux forcés, and prinudidjenaja rabota. Slave labor (“slave labor,” travaux forcés, and rabstvo) consequently is the general term comprising both kinds.
What does this definition mean for the defense of the Defendant Sauckel? He admits having negotiated “compulsory labor” in the form of obligatory labor which, as stated before, has been termed “slave labor” in general. He denies, however, having demanded “slave labor,” which might be looked upon as inhuman labor, in other words, enslavement. A different standard applies, just as for deportation, to these two categories; “obligatory labor” is only a war crime and must be judged according to the rules of war; crimes against humanity, as I already stated above in connection with deportation as a crime against humanity, bear the additional characteristics of being connected with war crimes or crimes against peace. If it can be proven 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, Section VIII (H), as a separate war crime under the title of “Conscription of Civilian Labor,” the mobilization of manpower as directed by the Defendant Sauckel, which I shall call “regulated labor mobilization,” and mentions only “forced labor.” The French version speaks here of travaux forcés and uses terms such as les obligèrent à travailler and mis en obligation; the Russian version follows this and also speaks only of “compulsory labor” as prinuditjelnaja rabota but does not refer to this as 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 that would break international law.
The rules of international law are authoritative in determining the question whether “regulated labor mobilization” is a war crime. The Charter cannot prohibit what international law permits in wartime. Such precepts of international law are laid down in the agreements on the rules of war and in the general legal principles and usages as applied by all states.
The Prosecution bases its opinion that labor mobilization is a war crime 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 labor mobilization 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 a basis for the laws of warfare with which we are concerned here. Whether it was recognized by all the states involved here is, from a practical point of view, of little importance, for inasmuch as it was not recognized or cannot be directly applied, it is a case of a shortcoming in international law which is filled as a matter of course according to the principles of the belligerent’s needs and his duty to respect the laws of humanity. The principles of international law as established in the Hague Convention on Land Warfare are in all cases an important guide.
The Prosecution quotes, in the first place, Article 46 of the Hague Convention on Land Warfare, which is designed to safeguard the fundamental rights of the population. It is typical for labor mobilization that it does restrict liberty, whereas this particular basic right is not protected by this article.