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[con…] sented to the German step. No actual hostilities evolved
in either case; but it would be illogical to construe that the rules and
customs of war should apply to the case of Bohemia and Moravia but not to the
case of Austria. The rightful Austrian Government which emerged after the
Germans left Austria, in fact, considered those who collaborated with the
invaders as traitors, i.e., as persons acting for the benefit of the enemy.
In the case of both Austria and Czechoslovakia, war was used, in the
words of the Kellogg Pact, as “an instrument of policy” and it was
used so successfully, owing to the overwhelming war strength of Germany, that
no resistance was encountered. It was, so to speak, in either case a unilateral
war. It would be paradoxical, indeed, to claim that a lawful belligerent who
had to spend blood and treasure in order to occupy a territory belligerently,
is bound by the restrictions of the Hague Convention whereas an aggressor who
invades a weak neighbor by a mere threat of war is not even bound by the Hague
Regulations. The proven facts show conclusively that spoliation was performed,
due to the physical supremacy enjoyed by the invader.
Professor Quincy
Wright wrote in the American Journal of International Law (January, 1947),
volume 41, page 61: |
| |
“The law of war has been
held to apply to interventions, invasions, aggressions, and other uses of armed
force in foreign territories even when there is no state of war * * *.”
|
To supplement his view, he referred to Professor Wilson’s
treatise on International Law, third edition, and to the illustrations given by
the group of experts on international law, known as the Harvard Research on
International Law, article 14 of Resolutions on Aggression, published in the
American Journal of International Law (1939), volume 33, supplement page 905.
Professor Wright expressed the same view in 1926. (American Journal of
International Law (1926), Vol. 20, p. 270.) Quoting various authorities and
many precedents he stated: |
| |
“Publicists generally agree
that insurgents are entitled to the privileges of the laws of war in their
relations with the armed forces of the de jure
government.” |
I am of the opinion that the Berndorfer plant was acquired by
coercion on the part of Krupp and with the active assistance of the German
Reich, and that this acquisition was an act of spoliation within the purview of
the Hague Regulations and authorities above cited.
The defendants Krupp
and Loeser took active and leading parts in the acquisition of this plant, and,
in my opinion, are guilty of spoliation with respect thereto.
|
1460 |
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