This question is not easy to answer, if one bears in mind the special underlying circumstances and realizes that it was a case here of an open struggle between the occupying power and the population, with official support from the enemy. In case of uprisings and organized general resistance one cannot disclaim the applicability of the military laws as practiced by the combat troops. Necessity alone must be the decisive factor in this case. International law has put only one limit to coercive measures in forbidding, in Article 50 of the Hague Convention on Land Warfare, collective punishment of an entire population for the deeds of individuals for which the population cannot be held partially responsible. It is essential that such partial responsibility shall have been established by actual events and not construed through orders. It is not specified wherein collective punishment may consist. The limitations of humanity, as I already pointed out, must be respected, but in war this is a vague conception; necessity and practical value must always have preference.
Next to the manner of recruiting labor, the conditions of work may represent an ill-treatment which can be looked upon as a war crime. On principle, there can be no question of ill-treatment whenever the foreign workers are generally treated in the same way as the workers of the home country. Different treatment is only permissible when special circumstances justify it. Whereas generally foreign workers work on the same level as the Germans, the so-called, Eastern Workers were discriminated against. The most striking difference here was the limitation of freedom. If this had been arbitrary, that would be sufficient reason for declaring this to be ill-treatment. But the reasons for this limitation of freedom were not arbitrary; they were conditioned by the State’s need for security. During wartime the presence of an enemy alien in the country always represents a danger, and it is for that very reason that originally the bringing in of foreign workers had been dispensed with. Only when necessity demanded the utilization of foreign workers did the need of security have to be taken into account simultaneously. The measures to be taken will depend upon the danger, which will vary according to the attitude of the alien. Whereas police measures with regard to the French were almost imperceptible, the Eastern Workers were in the beginning kept under supervision in camps.
The natural interest of the state lies in attaining security by winning the aliens over inwardly because their collaboration is desired. This will never be achieved by depriving them of their freedom. As long as the attitude of the alien cannot be clearly assessed, especially if he be like the citizens of the Soviet Union, propagandistically trained, more stringent control may be necessary. However, it must not develop into permanent captivity, and should at most constitute a sort of quarantine. To deprive people without guilt of their liberty for an extended period is not admissible, because that would correspond to a forbidden collective punishment. The mere assumption of danger is not sufficient to justify such limitations; there must be certain acts which show that such foreign workers appear dangerous even under normal working conditions. The custody of Eastern Workers behind barbed wire and without permission to go out, as ordered by Himmler, must be regarded as ill-treatment if it is a permanent practice.
The Defendant Sauckel, guided by a feeling that in this matter the limits of the permissible had been overstepped, immediately took steps against this and in a tough fight against Himmler demanded and obtained the withdrawal of barbed wire and the prohibition to go out, as can be seen from the ensuing decrees, Document Number Sauckel-10, Exhibit USA-206.
Where in spite of later arrangements the old methods were still applied by the police, Sauckel always intervened whenever he heard of such occurrences. This has been confirmed repeatedly by witnesses. I refer particularly to Exhibit Sauckel-10, the statement by the witness Goetz.
Another controversial point was the identification by a badge “Ost,” which was maintained until 1944 and then replaced by a national insignia. This identification of the Eastern Workers, who were free to move among the population, was necessary for security reasons. This cannot be considered ill-treatment. The distaste for this sign shown by the Eastern Workers was chiefly due to the defamation of this badge by propaganda, and the Defendant Sauckel always tried to change this insignia and to replace it by a national insignia such as the other workers wore voluntarily. He finally prevailed here also against Himmler (Document RF-810, Page 12).
Equality must also exist between a nation’s own workers and foreign workers with regard to the rules concerning maintenance of discipline. With all belligerent states the war has raised the same problem as to how to deal with those workers who do not properly fulfill their work duties; that is to say, slackers, shirkers, and saboteurs. The practice of discharge, common in peacetime, is ineffective during war; on the other hand, deserters from work cannot be tolerated today by any belligerent. In cases amounting to sabotage, police and penal measures were called for, the principal one being a short term in a labor training camp; in certain extreme cases, imprisonment in a concentration camp was inflicted. Document 1063-PS, RF-345, shows the similarity in the execution of the regulations as applied to Germans and foreigners.
Such police measures, which are caused by disloyal conduct of the worker, are justified. The Wartburg Document RF-810 shows in the report of the expert Dr. Sturm that such measures were carried out on a very moderate scale and that only 0.1 to 0.2 per thousand were thus punished.
Hence it follows that the issue of regulations concerning the maintenance of discipline is not yet in itself an ill-treatment which might form the basis for a crime against humanity. Such ill-treatment, however, can consist of excesses such as did occur outside the competence of the Defendant Sauckel. He can only be held responsible for those if he himself was subjectively to blame in that he knew of such excesses and approved of them although he might have prevented them.
In summing up one can say that the “regulated mobilization of labor” is permissible in international law and that restrictions imposed on workers within the limits of necessities must be permitted for reasons of state security. On the other hand, excesses in carrying out the regulations must be looked upon as ill-treatment and may amount to crimes against humanity. Responsibility for those rests with whoever has instigated them or who, within the sphere of his competence, failed to prevent them in the performance of his duty. When measuring the grave charges brought against the Defendant Sauckel by the standards of the aforesaid legal considerations, it will be necessary first of all to single out those fields in which the evidence reveals him to be absolutely clear of any responsibility.