THE PRESIDENT: The Tribunal will sit in closed session this afternoon and will not sit in open session after 1 o’clock.
DR. THOMA: Mr. President, may it please the Tribunal, with regard to the question of the justification of the decree concerning the compulsory labor service of the inhabitants of the Eastern Territories, I should like to continue on Page 33.
Thus the following principle recognized by international law is indicated:
Measures undertaken by an occupying power in occupied territory are legal as long as they are not in opposition to a proven stipulation of the international rules of warfare. The occupying power is therefore assumed to be entitled to the full exercise of all powers derived from territorial sovereignty over an occupied territory. According to the uniform opinion of experts on international law the occupying power acts by virtue of an original law of its own, guaranteed and defined as to content solely by international law, in the interest of its own conduct of the war as well as for the protection of the civil population in the occupied territory. I quote Heyland from Handbuch des Völkerrechts.
“The inhabitants of the occupied territory no longer have a duty of allegiance to the enemy sovereign but only to the occupying power; the will of the occupying power rules and decides in the occupied territory; the occupying power is the executor of its own will; its own interests alone are decisive for the exercise of its sovereign rights and, therefore, it is at liberty to act against the interest of the enemy state.”
In view of Article 52 of the Hague Rules of Land Warfare the right to conscript labor in the occupied territory is acknowledged. It is stipulated here that labor services may be demanded from the inhabitants of the occupied territory; the demand must be limited to the requirements of the occupation forces; it must be in proportion to the resources of the country and must be of such a nature as not to compel the population to participate in military operations against their own country. In these stipulations I cannot discern any prohibition of labor conscription in occupied territories; on the contrary, I consider that an approval of compulsory labor service can be clearly deduced from them. The employment of such labor in war industry is undoubtedly in accordance with the requirements of the occupation forces and, in my estimation, it is equally beyond doubt that this constitutes no commitment to military operations. The Rules of Land Warfare contain no stipulations as to whether labor service may be demanded only in the home country or whether the conscript may be transported into the native land of the occupying power for the purpose of rendering labor services there. Thus, the general principle holds good that the occupying power is assumed to be entitled to exercise to the utmost extent all powers deriving from territorial sovereignty.
If one takes the correct view that the international rules of warfare should tend to humanize war by limiting the rights of the belligerents and that the trend in this direction should be continued, one must consider on the other hand that the stern reality of war tends toward the opposite direction.
THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is your contention that the Hague Rules authorize the deportation of men, women, or children to another country for the purpose of labor service.
DR. THOMA: Mr. President, I propose to speak about the interpretation of the Hague Rules of Land Warfare and I am dealing here with the question as to whether it is permissible to transport inhabitants of the country in order to meet the requirements of the occupying forces. I have stated my position here that laborers can also be transported into the country of the occupying power. About children, of course, I have said nothing. I did not say anything about Jews either. I only spoke about persons able to work, who were required to work in accordance with the necessities of the occupying power, and I said it was admissible for them to be transported into the home country of the occupying power. I leave this problem to the discernment of the Tribunal.
THE PRESIDENT: The Tribunal would like to have any authorities in international law which you have to cite for that proposition.