If the Hague Convention on Land Warfare is examined for a definite rule concerning deportation and forced labor, it will be realized that no such regulation exists. 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 two armies with already prepared material, and after it was used up the fight would be ended. The idea of a long war consuming huge amounts of material and requiring a continuous production with all available labor was for the Hague Convention on Land Warfare not yet a problem ripe for discussion.
Article 52 of the Hague Convention on Land Warfare, which deals with the right to requisition, touches on the matter; but it can be seen that the rules deal only with purely local requirements of an army which appears fully equipped and has only supplementary local requirements. It is characteristic for the purely local meaning that the requisitioning authority 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 to requisition in international law accordingly quotes 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 an army can demand practically everything necessary for the satisfaction of its requirements. There are only two limitations: It may not take more than it needs and not more than is compatible with the resources of the country.
The idea of a local obligation to furnish services will have to be adapted to modern warfare. The Hague Convention on Land Warfare envisaged the employment of smiths and wheelwrights necessary for the maintenance of the equipment of the army; work within the home country of the occupying power was, in view of undeveloped transportation conditions, impracticable and remained unconsidered.
Today the necessary work will no longer be done in the vicinity of the front-lines but must be carried out in the belligerents’ own countries, so that it must be possible to demand that labor should be available at the only place where it can be done and where it is necessary. It must also be possible to demand such labor for modern war requirements of mass production for current replacements. What is necessary at any given time can be asked for, the amount depending on prevailing conditions. If in earlier times, according to the principle “the war feeds the war,” an army far removed from its homeland was even to a large extent equipped in occupied territory, it must surely be possible today to supply the army by moving the workers to the factories in the belligerent’s own country. The evolution of the laws of warfare is influenced by the requirements which these laws have to serve.
With the basic idea of the obligation to furnish services the basic idea on limitations will have to be accepted, too. These limitations must also be interpreted to apply to the changed conditions. While the obligation to furnish services is justified, no more work may be demanded than the occupying power requires of its own people at home. The intensity of the war as total war must be taken into consideration. The obligation to work may thereby assume considerable proportions.
The meaning and the purpose of the Hague Convention on Land Warfare is certainly not to place the nationals of a defeated state in a better position than those of the victorious state which occupied the country. This, however, would be the result if the Hague Convention on Land Warfare were interpreted according to its original wording. If this is maintained, then France, which had surrendered unconditionally together with all the other occupied countries, would have been able to look on in security while Germany, strangled by the blockade, was exhausting herself in an indefatigable struggle by sacrifices of life and property. Can one really demand that the prisoner in a besieged fortress should live more comfortably than the defender of the fortress? If Germany today could live according to the romantic concepts of the Hague Convention on Land Warfare, this would certainly be preferable to the burden of the peace treaty to be expected.
Actually, the Hague Convention on Land Warfare has not been adhered to even in its original interpretation, if it is true that already before the conclusion of the armistice the Soviet Union as occupying power transferred the population on a large scale from the eastern parts of Germany for the purpose of performing labor outside Germany. The Tribunal could obtain official information about this through an inquiry with the Control Council. I also have information that German civilian internees are used for work in France today. Here too the Tribunal could obtain official information.
The second limitation of the obligation to work is embodied in the rule that no participation in war operations against the home country of the worker may be demanded. Any work done for the occupying power indirectly benefits its war effort; the prohibition is therefore restricted to direct participation in operations of the fighting force. The literature on international law contrasts the participation in military operations with the permissible participation in preparations. Participation in war operations in this sense was not asked of any worker; on the contrary, the purpose was to employ workers away from these operations and without disturbance by the war.
Consequently only such activity as is directed against the workers’ own country is forbidden, thus taking the feelings of the individual into consideration. No protection of the enemy state is thereby intended. Wherever, therefore, the individual renounces his country and in a struggle of ideologies opposes the government of his country, such a restriction no longer applies. In connection with this I wish to point to the vast number of foreigners who adopted such an attitude and who, in part, still live in Germany today.