The objections that not Russia’s conception but that of the United States of America matters here is not justified. Existing regulations between two states can only be judged on the legal relations valid for those two states. If both states regulate a given question in agreement with conclusive acts in the same way, that regulation becomes international law valid for the relations of those two states and must be taken into consideration by all other states. It is the right of sovereign states to regulate their relations as they wish. Other states have no right to interfere in the right of sovereignty and they must acquiesce in the legal conception existing between those two states regarding any issue concerning their citizens. Therefore, legal opinions of another state must not be taken as a basis for the judging of actions which occurred between the nationals of these two states.
As in Milch’s sphere of competency Russian prisoners of war were used neither at the front nor as orderlies, he cannot be found guilty so far as the treatment of Russian prisoners of war is concerned.
All this also applies to the treatment of the Russian civilian population whose rights could have been cared for by the Hague Convention for land warfare alone. Here, too, Russia’s express withdrawal from the convention is of great importance.
In my opinion it cannot be argued that Germany attacked Russia and that, for the reason, employment of the civilian population would be illegal even if this were not illegal in itself. That alone would mean that Germany would be bound to the regulations and that Russia was not. From the point of view of international law, this is an impossible situation. For two belligerent states, there cannot be a different international law.
Moreover, the validity of the regulations laid down in the Hague Convention for land warfare can be cancelled by a special factor which precludes lawlessness. In all codes of law of the civilized world, the law of so-called emergency situations exists. This conception of law must also be applied to international law. That Germany was in an emergency situation in the sense that the use of the civilian population for labor in the occupied territories was only caused by the emergency situation, I showed in detail a little while ago. Modern war means total war and as such has suspended, in several points, international law as it existed up to now. It is uncontested that according to the Hague Convention for land warfare actions of combat against the civilian population are forbidden. Modern air warfare, having as its aim total annihilation of armament and production of the enemy, brought with it to a great extent warfare against the civilian population without any of the belligerents regarding such combat actions as forbidden according to the Hague Convention on Land Warfare. This also applies to the total blockade of a country which aims at starving the population of that country. These comprehensive ways of waging war which hit all classes of the population permit, in my opinion, to a state which is at war, especially on account of the fact that its civilian population is brought into the strife, to use for its purposes labor from occupied countries so as to maintain its production and armament.
Concerning the relations of the other nations involved in the war, there is no doubt that for the above the Hague Convention on Land Warfare and the Geneva Convention of 1929 are valid. But it is just as clear that it is left to the nations to change and abolish these regulations by special agreements between one another. A good example here is the Armistice Treaty signed in 1944 between the Russian and Romanian governments according to which Romania had to pledge itself to put at the disposal of Russia a large number of people for reconstruction purposes. Complying with this agreement, in January 1945 many thousand members of the Romanian state were deported to Russia by compulsion and against their will. This case shows what, in such matters, may be legal and valid. Moreover, that agreement was made under some force of bayonets, as in all history is usually the case with every treaty between a conquered and conquering state. The Defense Exhibit 47 proves that in the case of Germany the Control Council (see sec. VI, number 19 of the Proclamation No. 2) imposed on the German authorities even without a treaty, but simply on unilateral orders, the same obligation, i.e., to put at disposal labor for personal services inside and outside Germany. That such orders could naturally only be fulfilled by the German authorities by means of a labor service law will not be contested by anybody.
These one-sided orders given by the victor to the vanquished, whether they be issued on the basis of an armistice brought about by force of arms or on the basis of command or law following the unconditional surrender of a state, are not contrary to law.
It should, therefore, be stated that the rules of the Hague Land Warfare regulations can be suspended between two states. I have given proof for the fact that there were between Germany and France agreements whereby the French population had to make themselves available for work in Germany, first, by volunteering, and later, on the basis of a law for compulsory labor issued by the French Government. No restrictions were laid down to what extent and for what purpose these people were to be employed.
The objection has been raised that the Vichy Government was a government of traitors, but it was that government which concluded the armistice with Germany, and throughout the war all Frenchmen, including those in de Gaulle’s camp, would raise passionate protests when they thought that one of its articles had been violated. Thus, they all acknowledged that an armistice could be concluded and was concluded. Once you acknowledge the existence of an armistice agreement, you cannot, logically or legally, deny the legality of the government which has concluded the armistice. You must eat your cake as it is and you must not pick out the plums alone.
As for the situation in Holland and Belgium, both those countries surrendered unconditionally. According to international law Germany was, therefore, in a position in its dealings with the authorities of these countries to regulate the labor commitments of the civilian population unilaterally in the same manner as this has now been handled in regard to the German population by the Control Council.