V. CLOSING STATEMENTS
A. Closing Statement of the Prosecution[[143]]
Mr. Clark Denny: We close today the trial of a major war criminal—a leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen. The evidence set forth before the Tribunal has shown that Erhard Milch was primarily implicated as a leader in a program to bring laborers into Germany by force, of allocating them to the various segments of the German war economy, and of munitions.
We deal here with a top military and economic planner who at all times was fully informed as to the aims and objectives of the Nazi plan. Unlike his colleagues Speer and Sauckel, Milch entered the conspiracy early. The defendant was one of a small group of men who constituted the leadership of the Reich.
Before dealing directly with the responsibility of the defendant for the crimes charged in the indictment, as shown by the evidence, we should like to review, briefly, the law applicable to these crimes.
THE LAW
The indictment charges and the evidence has connected the defendant with a wide variety of crimes incident to the enforced labor program of the Nazi regime. In themselves, these crimes are not new except in their enormity. In domestic law they have, from ancient times, borne such familiar titles as assault, battery, murder, kidnapping and pillage. In international law the principles which protect the individual from undue interference with his person and his personal freedom have given rise to a series of kindred precepts governing the conduct of a nation which has gained factual control over the citizens of another state. We shall consider briefly some salient precepts and prohibitions of international law up to, and including the provisions of Control Council Law No. 10.
Much of the labor which supplied Germany with the tools of total war was exacted from people who had been uprooted from their homes in occupied territories and imported to Germany. Displacement of groups of persons from one country to another is the proper concern of international law insofar as it affects the community of nations.
The law has recognized that some conditions may justify the transfer of people from one country to another. Correspondingly, and with much more relevance to the present case, international law has enunciated certain conditions under which the fact of deportation becomes a crime.
If the transfer is carried out without a legal title, as is the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has prevented temporarily the rightful sovereign from exercising power over its citizens.
Articles 43, 46, 49, 52, 55, and 56 of the Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as a crime the deportation of civilians from an occupied territory. However, Article 52 states the following conditions under which services may be demanded from the inhabitants of occupied countries:
| 1. | They must be for the needs of the army of occupation; |
| 2. | They must be in proportion to the resources of the country; and |
| 3. | They must be of such a nature as not to involve the inhabitants in the obligation to take part in military operations against their own country. |
Insofar as this section limits the conscription of labor to that required for the needs of the army of occupation, it is clear that the use of labor from occupied territories outside of the area of occupation is forbidden by the Hague Regulations.
The illegality of the deportation of civilians in territories under belligerent occupation was demonstrated in the First World War when the Germans attempted a deportation program of Belgian workers into Germany. This measure met with world-wide protest and was abandoned after about four months.
Among the voices raised in protest against the deportation of Belgians by Germany in 1916-1917 was that of Lansing, Secretary of State. He wrote:
“The Government of the United States has learned with the greatest concern and regret of the policy of the German Government to deport from Belgium a portion of the civilian population for the purposes of forcing them to labor in Germany, and is constrained to protest in a friendly spirit but most solemnly against this policy which is in contravention of all precedent and all principles of international practice which have long been accepted and followed by civilized nations in their treatment of noncombatants in conquered territory.”
Other protests were lodged with the German Government by Spain, Switzerland, Netherlands, and Brazil, all neutral countries. International lawyers all over the world condemned Germany’s action in the strongest terms.
The opposition in the German Reichstag accused the government of violating the Hague Convention and refused to vote for the war budget.
It is worthy of note, in passing, that the defendant has testified at this trial that he knew of this effort at deportation of labor on the part of Germany in the First War and that he was much interested in the investigation conducted by a Reichstag Committee concerning this matter. He could not have followed this investigation, as he admits he did, without learning that the deportation in question was a violation of international law.
The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal. A conspicuous example of illegality of purpose is found when the deportation is for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country.
An attempt has been made by the defense in this trial to show that persons were deported from France into Germany legally and for a legal purpose, by pointing out that such deportations were authorized by agreements between Nazi and Vichy French authorities. This defense is both technically and substantially deficient. Many of the Vichy Government’s highest officials, who held office by reason of and under the protection of Nazi power, have been punished for treason by the present legitimate government. And, too, the agreements themselves were illegal—because they were exacted under duress, and because they were void ab initio because of their immoral content. It is common knowledge that even the puppets of Vichy did not of their own accord agree to the Nazi deportation measures. It is equally clear that these agreements were contra bonos mores. Then, too, it was illegal for any French Government to conclude agreements which provided for the compulsory mass deportation of French workers to aid the enemy’s war effort. At the time of the agreement between Germany and Vichy there was merely a state of suspension of hostilities. French resistance had not ceased, and the outcome of the war continued to be uncertain. Lastly, the deportation agreements were invalid because their manifest purpose was to aid Germany in the commission of the crime of aggressive war. That an agreement in furtherance of an act which is illegal in international law is invalid has been stated by various authorities. For example, Professor Charles Cheney Hyde, of Columbia University, defines as internationally illegal “agreements which are concluded for the purpose of, and with a view to, causing the performance of acts which it (international law) proscribes.”
Professor Hall, page 382 of the 8th Edition of International Law (1924), declares:
“The requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of international law and their undisputed applications * * *.”
Lauterpacht on International Law by L. Oppenheim, in volume I, page 706, states:
“It is a unanimously recognized customary rule of international law that obligations which are at variance with universally recognized principles of international law cannot be the object of a treaty.”
The final condition under which deportation becomes illegal occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner.
A study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements, that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal, or whenever the deportation is characterized by inhumane or illegal methods.
Article II (1) (b) lists under war crimes “ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory.” It is clear that Law No. 10 establishes the following separate and distinct crimes: ill-treatment of civilians from occupied territories; deportation to slave labor of such civilians; and deportation for any other purposes of such civilians.
The prohibition of deportation of civilians from occupied territories irrespective of the purpose, as stated in Control Council Law No. 10, is a recognition of the principle of international law that a power in belligerent occupation has no right or authority (title) to deport the citizens of the occupied territories. The separate specification as a war crime in Law No. 10 of ill-treatment of civilians from occupied territories is a recognition of the rule of international law, as heretofore discussed, that even an otherwise lawful deportation (by an authority having title and for a legitimate purpose) is rendered illegal where the deportees are ill-treated.
Without entering into a detailed discussion of the evidence, it should be pointed out at this point, that all these conditions for criminal deportation were abundantly present in the enforced labor program of Germany during the 2d World War, and that the knowing connection of the defendant with all phases of illegal deportation has been established.
Article II (1) (c) of Control Council Law No. 10 specifies certain crimes against humanity. Among these is listed the “deportation * * * (of) any civilian population * * *”. The general language of this sub-section, as applied to deportation, indicates that Control Council Law No. 10 has indeed unconditionally condemned, as a crime against humanity, every instance of the deportation of civilians. Under this sub-section, there would seem to be no room for argument as to the legality of any agreement on the part of any government, legitimate or illegitimate, which allows deportation of its subjects in time of war.
We come now to a consideration of the crime of enslavement. Whereas Article II (b) names deportation to slave labor as a war crime, Article II (1) (c) states that the “enslavement * * * (of) any civilian population” is a crime against humanity. Thus, Law No. 10 treats as separate crimes, and different types of crime, “deportation to slave labor” and “enslavement.”
Article II (b) does not specify as a crime the detention (as distinguished from the deportation) of civilians for use as slave labor or for any other purpose. However, the section does stipulate that any atrocities or offenses against persons which constitute violations of the laws or customs of war, including but not limited to deportation to slave labor, are war crimes. Use or detention of persons from occupied territories for slave labor or for any other purpose, in and of themselves, do constitute violations of the laws and customs of war. Ergo, such use or detention is a war crime within II (1) (b) of Law No. 10.
The crime against humanity which is termed “enslavement” in Article II (1) (c) of Law No. 10 is susceptible of two meanings. It can be understood to embrace the initial act of deprivation of the freedom of another, and an act whereby such deprivation is continued, or either of them, or it may be interpreted as referring only to the initial measures whereby a person is deprived of his freedom.
It is the contention of the prosecution in this case that all phases of the slave labor program, the taking, the transportation, the detention, the use and the inhuman treatment of foreign workers as practiced by the Nazi state and participated in by the defendant, constitute enslavement within the meaning of Article II (1) (c). No sufficient reason appears for the limitation of the crime to the mere initial act. In every true and complete sense a person is enslaved from the moment when his liberty is taken from him until the time when it is restored to him. It is more than probable that if Law No. 10 is intended to limit the crime of enslavement to the initial measures under which a person was deprived of his liberty, there would have been some definite indication, either in the language or in the context of the statute.
Even if we were to concede the narrowest possible meaning for the term “enslavement” in Article II (1) (c), so as to understand by it only the first acts of deprivation of liberty, all acts under which such people were kept in an enslaved status would be crimes against humanity, because the same section defines as such any atrocities and offenses committed against the civilian population. By express proviso “enslavement” and “deportation” are only illustratively mentioned, and “other inhuman acts committed against any civilian population” constitute crimes against humanity.
The result is that whether we adopt the broad interpretation of the term “enslavement” or the narrower one, the deportation, the transportation, the retention, the use and the inhuman treatment of civilian populations are crimes against humanity. The prosecution charges that the defendant was criminally connected with all the phases of the slave labor program, whether these divisions be comprehended within the technical term “enslavement” or be divided between the crime of “enslavement” and that of “other inhuman acts.”
We shall now make brief comment on the subject of the treatment and use of prisoners of war. The Hague and Geneva Conventions merely codify the precepts of the laws and usages of all civilized nations. Article 31 of the Geneva Convention provides that “labor furnished by prisoners of war shall have no direct relation to war operations.” Thus the Convention forbids:
1. The use of prisoners of war in manufacture or transportation of arms or munitions of any kind, and
2. The use of prisoners of war for transporting material intended for combat units.
The Hague Regulations contain comparable provisions.
The essence of the crime of the misuse of prisoners of war derives from the kind of work to which they are assigned—in other words, to work directly connected with the war effort. The prosecution would like to recall to the court the evidence which connects the defendant with both the illegal employment of prisoners of war and with their abusive treatment. The Tribunal will recall that the defendant ordered the murder of prisoners of war who attempted to escape. We will discuss this crime more fully later. It will be remembered that there never has been a substantial denial of the fact that prisoners of war were used to man German antiaircraft batteries. Nor is it subject to doubt that prisoners were used in air armament industries over which the defendant exercised supervisory control.
We now come to the consideration of the basic charges and the law governing the defendant’s complicity in, and responsibility for, the Medical Experiments Program. The fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the person, and other inhuman acts.
The applicable provisions of Control Council Law No. 10, Article II, are (b) war crimes, (c) crimes against humanity. In connection with the criminal Medical Experiments Program, the prosecution submits that the defendant is guilty of—
(a) War crimes, namely violations of the laws and customs of war, as the medical experiments performed upon involuntary persons, some of them nationals of countries at war with the German Reich, involved the commission of murders, tortures, and other inhuman acts.
(b) Crimes against humanity, namely medical experiments performed upon involuntary German nationals and nationals of other countries, in the course of which, brutalities, murders, and other inhuman acts were committed.
Before we pass from the law involved in this case to a consideration of the evidence, we wish to mention the legal basis for the prosecution’s contention that the defendant must share the guilt which attaches to the slave labor program and the conduct of medical experiments upon unconsenting human beings. Control Council Law No. 10 defines for us the theory upon which this trial proceeds in Article II, paragraph 2, when it says:
“Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) an accessory to the commission of any such crime, or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime. * * *” [Emphasis added.]
Without wishing to limit the scope of the testimony in this case, the Tribunal’s attention is directed to the evidence which has established that the defendant, as a member of the Central Planning Board, and the Jaegerstab, and as Generalluftzeugmeister, and in every one of his capacities, was connected with “plans and enterprises” for the commission of war crimes and crimes against humanity, and was a “member of organizations and groups”, within the meaning of subdivisions (d) and (e) of paragraph 2, “connected with the commission of such crimes”.
Count One, paragraph 6, of the indictment charges the defendant Milch with guilt in the murder of prisoners of war who had attempted to escape from enforced labor in German war industry. The gist of this crime is murder, which is, and always has been, prohibited by every country which laid any claim to civilization. It was specified as a war crime under the Hague and Geneva Conventions and under the provisions of Article II of Control Council Law No. 10. The evidence which connects the defendant with this crime will be discussed in another part of this summation.
Law Number 10, Article II, paragraph 3 provides that the death penalty or lesser sentences may be prescribed for the commission of war crimes and crimes against humanity as defined in the statute.
We turn now from the law to the evidence. In the presentation of its case in chief, the prosecution first offered evidence to describe the slave labor program in Germany in all its stark terror. It then turned to a presentation of the proof which connected the defendant with the slave labor program in two of his principal capacities, as member of the Central Planning Board and as member of the Jaegerstab. Next there was put in evidence the documents which established the defendant’s connection with the medical experiments, and finally, after the defense had put in its case, the defendant was confronted with the evidence of additional documents which connected him with the detention and mistreatment of slave labor in his capacity as Generalluftzeugmeister. In summing up the evidence the prosecution wants to keep roughly the same order. It will deal in turn with the evidence of the defendant’s activities as member of the Central Planning Board and as member of the Jaegerstab. The documents relating to the defendant as Generalluftzeugmeister will then be dealt with and, in conclusion, the defendant’s implication in the criminal medical experiments will be discussed.
When, in the course of presenting the evidence, we first turned our attention from the general documents which established the body of the crime of slave labor to the documents which were to prove the defendant’s connection with that crime, we asked the Court’s attention to certain key words which we said would run like small threads through our proof. These words were cited to be “procurement, allocation and use”. It was stated that we would often use them. We offered many documents to prove Milch’s connection with each of the functions described by these key words. Once again, we ask the Tribunal to keep these words in mind.
The Central Planning Board, which was established in April 1942, served as a means of consolidating in a single agency all controls over German war production. The minutes of the Central Planning Board which have been submitted to the Tribunal reflect the dominant role played by the defendant at meetings of the Board.
The best evidence of the scope and authority of the Central Planning Board is contained in the Board’s own minutes. The first conference of the Central Planning Board was held on 27 April 1942. The duties and responsibilities of the Board were announced in these words:
“The Central Planning in the Four Year Plan (decree of the Reich Marshal of Greater Germany [Goering] of 22 April 1942) is a task for leaders. It encompasses only principles and executive matters. It makes unequivocal decisions and supervises the execution of its directives. The Central Planning does not rely on anonymous institutions difficult to control but always on individuals and fully responsible persons who are free in the selection of their working methods and their collaborations, as far as there are no directives issued by the Central Planning.”
Then, six months later, on 20 October 1942, the statutes of the Central Planning Board were published and distributed. A portion of these states:
“The Central Planning Board created by the Fuehrer and Reich Marshal in order to unify armament and war economy deals only with the decision of basic questions. Professional questions remain the task of the competent departments which in their field remain responsible within the framework of the decisions made by the Central Planning Board.”
It is addressed to: “The highest Reich authorities, the Reich Protector, the Governor General and the executive authorities in the occupied countries.” The letter of transmittal stated in part:
“Enclosed I send you for your information the statutes of the Central Planning Board with the request to support the office of the Central Planning Board in every possible way in its work, and to direct, more particularly, your section chiefs and reporters to forward all information requested orally, or by writing, in the shortest possible time. By this collaboration by your section chiefs and reporters, the building up of larger machinery in the framework of the Central Planning Board is to be avoided.”
The International Military Tribunal found that the Central Planning Board “had supreme authority for the scheduling of German production and the allocation and development of raw material”.
It needs no emphasis that the effective performance of these functions necessarily involved the Board in the requisitioning and distribution of labor, and the records of the Board, which have been submitted, leave no doubt that the Board exercised the authority conferred upon it in the field of labor. The International Military Tribunal in its opinion found that the Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor, and that the Board determined the basic allocation of this labor within the German war economy.
In assessing the guilt of the defendant Funk, the Court said:[[144]]
“In the fall of 1943, Funk was a member of the Central Planning Board which determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from occupied territories. Funk did not appear to be particularly interested in this aspect of the forced labor program, and usually sent a deputy to attend the meetings, often SS General Ohlendorf, the former Chief of the SD inside of Germany and the former Commander of Einsatzgruppe D. But Funk was aware that the Board of which he was a member was demanding the importation of slave laborers, and allocating them to the various industries under its control.”
Bearing in mind the fact that Funk was a minor member of the Board, how much greater is the responsibility of the defendant who was a dominant figure on the Board throughout its existence.
There is no need to review in historical detail the defendant’s personal participation in the criminal activities of the Board. A few references to the pattern for 1944 will suffice. The Tribunal will recall that Albert Speer, the other dominant member of the Board, was ill during most of this period.
On 4 January 1944, demands were made at a Hitler conference that Sauckel produce four million new workers from the occupied countries. The defendant was present at the conference, and at this meeting, Sauckel, in pledging himself to perform his recruitment tasks, indicated that the demands could be met only by Himmler, and the promise of assistance was forthcoming from the Reich Leader SS.
The allocation of this labor to the various sectors of the German economy was determined by the Board at its 53d meeting. The defendant was the presiding officer at this meeting. The chart compiled by Milch and found in his files shows his personal knowledge of the sources of the labor being allocated.
Sauckel was, however, unable to satisfy completely these demands. He reported this inability at its 54th meeting. This meeting of the Board was presided over by the defendant, and the minutes which we have submitted show the subordinate position occupied by Sauckel with respect to the Board. The Tribunal will recall Sauckel’s opening statement:
“Field Marshal, gentlemen, it goes without saying that we shall satisfy as far as possible the demands agreed upon by the Central Planning Board.”
And then later on in the meeting:
“If I am to fulfill the demands which you present to me * * *.”
We shall not review in detail the minutes of this meeting, but the Tribunal’s attention is again directed to the fact that Sauckel was questioned closely by the defendant who suggested that the Wehrmacht be assigned to the task of assisting in the recruitment drive. The defendant suggested that French workers be coerced by a system of premeditated starvation. In dealing with the problem of Italian laborers, the defendant suggested that only those who went to Germany or worked in protected factories be given food.
As a further means of meeting the manpower shortage, consideration was given to possible measures for increasing the productive power of prisoners of war. Accordingly, on 5 March 1944, a conference was held at the Fuehrer Headquarters. It is evident from the minutes which have been submitted to the Tribunal that the defendant was in attendance. The Tribunal will recall that the decision was made to give the direction of the Stalags to the SS, in order to increase the production power of the prisoners. This was not to apply to the Americans or the English. The Tribunal will take judicial notice of the methods of the SS.
On 7 July 1944, Sauckel issued a report showing new manpower placed at the disposal of German war industry during the first half of 1944. We shall not review in detail this report, but merely state that it is proof of the Board’s directive to Sauckel.
This report, however, showed a deficit, and on 11 July 1944 a further conference was held to solve the question of how greater compulsion could be exerted on persons to work in Germany. The defendant has testified that he was in virtual retirement from production matters since late June 1944. Yet the record of this conference shows that he was present. The result of this conference was the greater utilization of the Wehrmacht in the recruitment of forced labor. The directive of Field Marshal von Kluge, which has been submitted in evidence, makes specific reference to the results of this conference.
Here, in brief, we have the picture. The defendant and the Board, of which he was a dominant member, requisitioning forced labor from Sauckel, allocating this labor to the various sectors of the German war economy, and later improvising new and more brutal techniques of force and terror for the recruitment of new labor.
The defense, besides denying the power and authority of the Central Planning Board, has challenged the authenticity and accuracy of its transcripts. The prosecution has been compelled to rely upon these minutes for much of its proof.
In this connection, it might be said that these same transcripts constituted the basis for findings of fact by the International Military Tribunal. They are quoted in the decision of that Court.
The statutes of the Central Planning Board, mentioned a few minutes ago, show the extreme care taken to insure the accuracy of reporting these meetings, as well as action taken or ordered to be taken. The statutes of the Board provide in part:
“In order to have the conferences properly prepared and to have the execution of the decisions supervised, the Central Planning Board appoints an office. This office consists of the deputies appointed by each of three members of the Central Planning Board; one of these three deputies shall be appointed chief of the office.”
Then follows a handwritten marginal note which I shall omit.
“In accordance with the attached distribution of work the office appoints reporters. These reporters are at the disposal of all members of the Central Planning Board. The office appoints one reporter to keep the record.”
And then, tasks of the office:
“The office prepares the meetings of the Central Planning Board in such a manner that the members of the Central Planning Board have the agenda and the material of discussion 24 hours in advance. For this purpose the office conducts preliminary talks with the competent departments, etc.
“On the strength of the record made by the reporter, the office sees to the execution of the decisions of the Central Planning Board by the competent agencies, and sees to it that the deadlines fixed are complied with.
“The members of the office keep the members of the Central Planning Board informed between the sessions.”
The minutes of these meetings which have been submitted to this Tribunal show that these proceedings were recorded and transcribed with characteristic German detail and accuracy. We need only refer to the charts and tables, and the remarks quoted in the transcripts. Of the 59 meetings fully covered by these official reports, 41 were prepared and signed by Ministerialrat Steffler, who was personally responsible for the accuracy and completeness of these reports.
Without the Central Planning Board the slave labor program could not have functioned.
THE JAEGERSTAB.
Here we have the defendant in immediate contact with the slave labor program at its peak. By the testimony of the defendant, it was he who conceived and instigated the formation of the Jaegerstab. Speer and the defendant constituted its leadership. Speer’s participation was nominal and it was the defendant who directed its activities and acted as its chairman. Speer was ill during part of the Jaegerstab’s existence and has stated to the Court that he did not preside at a meeting.
The Jaegerstab assumed control over fighter production when the exploitation of foreign forced labor in air armament had already reached unparalleled heights. On 16 February 1944, the defendant had told his colleagues in the Central Planning Board that “our best new engine is made 88 percent by Russian prisoners of war.” On 25 March, he told his engineers that soon the percentage of foreign personnel in the aircraft industry would reach 90 percent. Reich Leader SS Himmler, reporting to Goering on 9 March 1944 on the employment of concentration camp personnel in the aircraft industry, stated that nearly 36,000 prisoners were employed and that an increase to 90,000 was expected. The formation of the Jaegerstab is partly explainable in terms of the battle to increase the manpower resources available for fighter production.
The Jaegerstab was assigned top priority. Projects for the recruitment and commitment of manpower were discussed by the Jaegerstab. The evidence presented before the Tribunal has shown that questions of manpower were time and time again referred to the defendant. We have seen him agreeing to use his prestige and influence upon Sauckel in efforts to obtain new workers for aircraft production. When manpower in sufficient numbers was not forthcoming through normal channels, the Jaegerstab did not shrink from other methods of obtaining its labor. When necessary the Jaegerstab recruited its own labor, either directly or by engineering “snatching” expeditions for the seizure of manpower arriving on transports from the East.
The defendant’s frank admission to his subordinates that “international law cannot be observed here” characterizes best his own participation in the activities of the Jaegerstab. Where, as was the case with France, transfers of production facilities were concerned, the defendant advocated the stripping of the country and the deportation of its people as prisoners of war. When the discussion turned to PW’s, the defendant was quick to suggest their transfer to places under air attack. When the transportation of Italian civilian conscripts directly recruited by the Jaegerstab for service in Germany was in question, it was the defendant who advocated the shooting of those who attempted to escape.
The Jaegerstab was no mere discussion group. As an agency with absolute authority over fighter production, the Jaegerstab acted by orders and directives. The Jaegerstab fixed hours of labor and conditions of work. It was the Jaegerstab, for example, which established the 72-hour work week in the aircraft industry.
In addition to its jurisdiction over fighter production, the Jaegerstab was charged with the program for the decentralization of the German aircraft industry, both to above ground bombproof installations and to subterranean locations. Much of the labor employed in both phases of the project was concentration camp labor. The defendant must have known this fact.
One phase, the transfer to new installations underground, was under the immediate supervision of SS Gruppenfuehrer Heinz Kammler. Kammler was a member of the Jaegerstab. Where, as was the case in some instances, labor was not forthcoming in sufficient quantity, Kammler informed the Jaegerstab of his intention to take large numbers of persons into protective custody for use on his projects. Members of the Jaegerstab knew that manpower shortages on the construction projects were at least in part due to the high death rate. The conditions of employment on the projects have not been substantially disputed. The Jaegerstab was well informed of these conditions. While on trips with the Jaegerstab, Kammler visited these projects and his fellow members of the Jaegerstab were well advised as to the manner in which workers employed on them were treated. Where it was necessary to hang thirty people merely as an example to others, Kammler reported this fact to the Jaegerstab.
A second phase of the program, the transfer of fighter production to bombproof factories above ground, was carried out for the Jaegerstab by Stobbe-Dethleffsen and later Xaver Dorsch. While Stobbe-Dethleffsen and Dorsch were immediately in charge, it was the Jaegerstab which received the funds and raw materials necessary for the carrying out of this project. When sufficient progress had not been made under Stobbe-Dethleffsen, the Jaegerstab demanded that Dorsch carry out this program. The defendant was a leader in the planning which preceded Dorsch’s appointment.
By the testimony of Dorsch, Milch was one of a small group which worked out with Goering the details of the project, including the question of manpower. Dorsch was represented on the Jaegerstab by Schlempp, and later Knipping, deputies designated for this particular purpose. Schlempp informed the Jaegerstab on the progress of the work, both orally and in writing. Dorsch received manpower from the Jaegerstab. This was the immediate concern of Schmelter.
Early in April 1944 the defendant represented the Jaegerstab at conferences with Hitler where the decision was first taken to carry out deportations. Shortly thereafter, the defendant received written confirmation of the results of this conference, as did Himmler, who was to procure the workers. Progress reports were made and delivery dates agreed upon. Then came the disappointing news that the first transports arriving at Auschwitz consisted primarily of old men, women, and children. Later on there were reports as to the successful allocation of this personnel. The testimony of Dorsch shows that these Jews were used on the construction projects, that the conditions under which they lived were intolerable, and that the death rate on the project was excessive.
In closing this phase of the case, it is submitted that the defendant never resigned from the Jaegerstab. While it is true that the defendant at Goering’s behest was removed from certain offices in the Air Ministry in the summer of 1944, he retained his membership in the Jaegerstab until its dissolution, the prosecution contends.
As Generalluftzeugmeister the defendant had complete control over aircraft production. In this field his authority was unlimited. In particular it has been shown that the defendant requisitioned labor for the aircraft industry with knowledge of the brutal and inhumane techniques employed in recruiting these laborers, and that he gave directives for the criminal treatment of these laborers at the centers of production.
There is evidence that the defendant presented the labor demands of the aircraft industry to Sauckel. The Tribunal will recall that in his affidavit Sauckel stated that it was the defendant who produced the manpower figures for aviation. In view of the position occupied by Sauckel in the slave labor program, this statement is of special importance.
The statement of Sauckel is in agreement with the statements of Hermann Goering, the defendant’s superior in the Luftwaffe. In his interrogation the former Reich Marshal stated that the defendant was in charge of the division for labor employment in the Air Ministry and that the industry demands for labor in air armament were made by the defendant.
Even the defendant’s collaborator Albert Speer testified to the same effect when he stated:
“The requests of the air armament industry for laborers were presented by Milch and he did not permit anyone to take this right away from him until March 1944.”
The defendant as Generalluftzeugmeister was acquainted with the methods employed in recruiting this manpower. In fact, many of the practices indulged in by Sauckel were formulated at conferences at which the defendant was in attendance. The Tribunal will recall that the defendant was present at a conference in which Goering announced his plan to use the Luftwaffe in the recruitment drive to capture laborers in Holland. The Tribunal’s attention is also drawn to the Generalluftzeugmeister meeting of 25 January 1944 in which methods for the more expeditious deportation of young Czechs for work in the Luftwaffe were discussed.
The defendant also knew that prisoners of war and concentration camp personnel were included in the manpower he was requisitioning and distributing to the aircraft industry. We have seen him trying to increase their numbers in the industry under his control, and we have seen him ordering and abetting the inhumane treatment of this labor.
As chief of aircraft production, the defendant regulated the treatment of foreign forced labor in the German aircraft industry. The defendant fixed hours of labor and conditions of work and by directives to his subordinates set basic policies for the handling of this labor within the industry.
Where foreign workers refused to work, the defendant ordered that they be shot. When these wretched slaves attempted to revolt, the defendant directed that some of their numbers be killed, regardless of personal guilt or innocence. In the case of prisoners of war who attempted to escape, the defendant ordered that they be shot.
When the “contracts” of workers under his control expired, the defendant ordered their compulsory extension, and when workers attempted to change jobs, he advocated that they be put in concentration camps.
In the case of Italians who refused to work, the defendant ordered that they be beaten and so informed his chief, Goering. And where Frenchmen refused to work in French factories under his control, the defendant stated that he would deport them by force and bring them to Germany or to the East. Similar policies were applied by the defendant in the case of Polish workers.
No more need be said about the Generalluftzeugmeister. The Tribunal has seen the documents containing the minutes of the meetings. The documents dealing with this phase of the case are particularly revealing in showing the fanaticism of the defendant and the enthusiasm with which he recommended ruthless treatment of the hapless victims of German occupation policies.
We will now restate the pattern originally presented in terms of the proof brought forward at the trial in order to ascertain to what extent the defendant’s culpability has been established with reference to the medical phase.
First, the body of the crime. The prosecution contends that in violation of the laws of war and all the laws of humanity criminal high-altitude and freezing experiments were carried on by Luftwaffe physicians.
The testimony of Dr. Erich Hippke, the Medical Inspector of the Luftwaffe, is of interest on this subject. Hippke stated that Dr. Rascher, a Luftwaffe physician at the time, came to Hippke with a proposal to use prisoners as high-altitude experimental subjects in May 1941.
Hippke was in a receptive frame of mind, for it was essential that the scope of these experiments be widened and new human subjects were needed. The researchers working on the tests had developed a certain immunity so that results of self-experimentation did not give a true picture of the reactions.
With the aid of Himmler and the SS, the Luftwaffe was able to proceed with the experiments which were allegedly necessary in the interests of German military aviation medical knowledge. But lest one be inclined to believe that these pressure experiments were considered as minor nuisances to the subjects concerned, with no real dangers, note the words of Dr. Hippke:
“I asked him,” speaking of Rascher, “how he would be able to obtain such persons for experimentation, and he justified himself by saying that he had connections with the SS who had charge of such penal prisoners. There were such penal prisoners in Dachau and he would be in a position to obtain them for these purposes. I myself, because of my inner personal feelings on the matter, was very much against these experiments and could not make up my mind whether I should approve such experimentation.”
From the very beginning of the plan to conduct these experiments, Dr. Hippke had strong mental reservations concerning the moral principles involved in the task which the Luftwaffe doctors were about to undertake. During the coming year Hippke weighed the problem, and it was with some misgiving that he finally allowed his doctors to begin the experiments, saying to them: “Please, children, go carefully.”
But, tragically enough, his “children” did not go carefully. Instead, they ran amuck with their scientific apparatus and tests. The pressure experiments which were supposed to have been helpful to fliers of the Luftwaffe degenerated into so-called “X-experiments”, which meant “execution” experiments.
Seventy to eighty persons were murdered during the spring and summer of 1942 when the pressure experiments were carried on at Dachau.
During the subsequent freezing experiments a comparable number of concentration camp inmates forfeited their lives to the sadistic Dr. Rascher and his Luftwaffe associates.
Dr. Romberg himself admits having seen three persons die in the low-pressure chamber and concedes that at least nine other deaths may well have occurred when he was absent from his post at Dachau.
Wolfram Sievers,[[145]] the manager of the Ahnenerbe, the SS Research Institute, witnessed the death of an experimental subject in the freezing tank.
There is adequate evidence that the low-pressure and freezing experiments were carried out by Luftwaffe physicians for the benefit of the Luftwaffe. There has been no valid denial of the fact that the defendant was the Luftwaffe official responsible for the deaths and cruelties suffered in these twin torture chambers, the pressure chamber and the freezing tank.
Now, let us examine in more detail the second basic charge of the prosecution, namely, that the defendant was officially connected with these experiments which violated the laws of war and humanity.
We have the “Wolffy” letter of 20 May 1942 in which the defendant tells Obergruppenfuehrer Wolff of the SS that “the altitude experiments carried out by the SS and the Luftwaffe at Dachau have been finished.” In this same letter Milch announces that experiments in connection with perils on the high seas would be important; that the necessary arrangements have been made and, since the low-pressure chamber is no longer needed, it must be moved from Dachau. Thus the defendant has entered the picture and established his official connection with the high-altitude experiments and the low-temperature experiments, which proved to be considerably more than mere harmless chilling tests.
If, as the defendant contends, he was not officially responsible for these Luftwaffe medical experiments, then it should follow that other persons connected with them would not take cognizance of the defendant in this matter. The contention is ridiculous.
The witness Wolff had the following to say regarding a meeting he had with Milch in August or September 1942:
“Thereafter, we had discussed our official questions. I inquired about how he was, and if everything between the Luftwaffe and the SS was all right. During that occasion we also spoke about these experiments very shortly, if at all, and we spoke of the invaluable help which the SS was giving us by providing these voluntary inmates, which was helping us with our medical material which could be used at the front.”
It is to be noted that they talked about the experiments and Wolff asked how the Luftwaffe SS relations were. It is submitted that this demonstrates that Wolff regarded the defendant as the top man in the Luftwaffe Medical Experiments Program, as indeed he was.
Then there are the two letters addressed to Milch by Himmler and Wolff, substantially alike in content; Himmler’s, dated November 1942, in which he cites the opposition that exists among “Christian medical circles” to conducting experiments on helpless, involuntary concentration camp inmates. He refers to the narrow-mindedness of such medical men, which “will take at least another ten years” to remove. But this narrow-mindedness did not trouble the consciences of Himmler or the defendant Milch. Decidedly not. In the words of the Reich Leader SS: “We two should not get angry about these difficulties.”
The prosecution submits that Himmler would not have written a letter in this tenor unless he was certain that his good friend Milch would be in complete agreement with his views.
And how did Himmler regard Milch in connection with the experiments? As a casual onlooker, with a purely academic interest in the results obtained? No, Himmler knew that Milch possessed the over-all command, the ultimate authority in the Luftwaffe; that the Inspector General of the Luftwaffe was the man to refer to whenever a question arose as to the disposition of the pressure chamber or the status of Dr. Rascher. Witness Himmler’s request in his letter:
“I beg you to release Dr. Rascher, Stabsarzt in the reserve, from the air force and to transfer him to me to the Waffen SS. I would then assume the sole responsibility for having these experiments made in this field and would put the results, which we in the SS need only for the frost injuries in the East, entirely at the disposal of the air force.”
The logical corollary to this statement is inescapable. If Rascher was not transferred to the SS and remained with the air force, the responsibility would not be Himmler’s alone. And we must remember that Rascher did not leave his Luftwaffe post until the year 1943 after the experimental atrocities had been largely completed. Then where did this responsibility rest? Himmler had no doubts; it was on the shoulders of the defendant.
Nor did Karl Wolff, Himmler’s right-hand man, have any doubts as to the responsible person in the Luftwaffe, with reference to the medical experiments. He, too, wrote to Milch requesting that Rascher be released from the Luftwaffe and transferred to the SS. Here was a man, who, by his own testimony, “had a good comradely relationship” with the defendant. On the direct examination, Wolff testified regarding his connection with Milch:
“Q. In your position during the war did you have any official dealings with Milch?
“A. Yes.
“Q. In what connection?
“A. During peacetime—that is, from 1933 on, until 1939—there was a personal cooperation between Milch and me. All difficulties between the Luftwaffe and the SS were handled at personal conferences in a very comradely way. This usage also took place during the war.”
It is because of the situation above described, that the prosecution has called Wolff the liaison man between Himmler and the SS on the one hand, and the defendant and the Luftwaffe, on the other.
The testimony and affidavit of Walter Neff, the Dachau prisoner who later became a block leader in Dachau, is of interest. This man saw Rascher often. Was Milch’s name mentioned by Rascher in connection with the medical experiments? It was. In his affidavit, which he did not repudiate when testifying before this Court, Neff said:
“The name of Field Marshal Milch was frequently mentioned in Dachau. Every time I asked Dr. Romberg how long the cars and the low-pressure chambers would remain in Dachau, he assured me that Milch would attend to everything. Dr. Rascher said to me that he had communicated with Milch personally and that the cars would remain in Dachau as long as he specified.”
Dr. Siegfried Ruff,[[146]] an important figure in the medical experiments program, head of the research section of the DVL, recognized the defendant Milch as the supreme authority in the experimental program. In his affidavit Ruff said:
“The entire medical research for aviation was under General Dr. Erich Hippke, in his capacity as Chief of the Medical Service, until 1944, and subsequently under Professor Dr. Schroeder. As Chief of the Medical Service, General Hippke was immediately subordinate to Field Marshal Milch * * *. The chain of command for these experiments was Milch—Hippke—Ruff—Romberg.”
Again there is the chart drawn up by Dr. Oskar Schroeder,[[147]] outlining the official Luftwaffe channels through which orders flowed from Milch to Hippke, and from Hippke to the various doctors engaged in the actual process of experimentation. Schroeder thus knew definitely that Milch was the Luftwaffe Chief in the medical experiments program. He later succeeded Hippke as Medical Inspector. Consequently, his chart is entitled to material weight in the proof offered by the prosecution.
Rudolf Brandt,[[148]] adjutant to Himmler, often had occasion to deal with correspondence between the Luftwaffe and the SS, regarding the experiments. In referring to Himmler’s request that Milch order Dr. Rascher to be transferred to the SS, Brandt wrote a letter to Wolfram Sievers, of the Ahnenerbe Society, stating—
“I assume that the Field Marshal will of himself give the necessary orders, and then confine himself to sending a brief answer to the Reich Leader SS.”
And Sievers writing to Brandt about the use of the low-pressure chamber says—
“The putting at our disposal of the low-pressure chamber, however, will be possible then only if the Reich Leader SS writes in person to Field Marshal Milch concerning this.”
These two men, Sievers and Brandt, were not uninformed of the course of the medical experiments nor of the competent personnel in the Luftwaffe and SS in this matter. On the contrary, Sievers admitted witnessing the death of an experimental subject in the freezing tank, and the subsequent autopsy, while Rudolf Brandt stated in his affidavit—
“Field Marshal E. Milch and Professor Hippke, Inspector of the Medical Service of the Luftwaffe, were fully informed about the low-pressure experiments. Actually these experiments could not have been conducted without the knowledge and approval of these men, as they were conducted for the benefit of the Luftwaffe and the experimenting persons were mostly Luftwaffe physicians.”
In the eyes of other persons, the defendant was the dominant force behind the Luftwaffe participation in the Medical Experiments Program. The defense has brought forward no adequate proof to show that they were mistaken. It is the conviction of the prosecution that no such proof exists.
The Commander in Chief of the Luftwaffe, Reich Marshal Hermann Goering, was thoroughly familiar with the organization which was his brain child, the Luftwaffe, and the way it functioned. What importance did Milch’s position have in Goering’s mind?
His affidavit reads—
“Included among the responsibilities of the Office of the Inspector General was the conduct of all research and experiments and of all matters pertaining to health and sanitation inspection * * *.
“That Generaloberstabsarzt Erich Hippke was the Sanitation Inspector of the Luftwaffe during the period from 1941 through 1944; that the Office of the Sanitation Inspector was directly responsible for the conduct of all research and medical experiments; that the Office of the Sanitation Inspector, of which Generaloberstabsarzt Erich Hippke was the head, was directly subordinate to the Inspector General, former Field Marshal Milch, and that former Field Marshal Milch was responsible for all action taken by Generaloberstabsarzt Hippke, or by the Office of the Sanitation Inspector or its subordinates.”
It has been established that criminal experiments, high-altitude and freezing, were carried on at Dachau by Luftwaffe physicians, working under the orders and supervision of competent Luftwaffe authorities.
We have shown that all Luftwaffe personnel connected with, or knowing about these experiments, from those closest to the place where the experiments were conducted—Dr. Rascher, and Walter Neff—to those high up in the positions of command—Goering and Schroeder—looked to Milch as the ultimate authority in the Medical Experiments Program. An investigation of the attitudes and convictions of the SS officials concerned in this program discloses the same picture.
Could all these men have been mistaken? Were they writing to and referring to the wrong man when they contacted the defendant? To put forward such a proposition is to deny the facts. There was no error, the facts are indisputable.
The defendant was and is officially responsible for the Medical Experiments Program of the Luftwaffe.
Lastly, we come to the question of the defendant’s knowledge of the experiments which were being carried out at Dachau for the Luftwaffe.
Throughout direct examination by his defense counsel, the defendant has consistently denied receiving reports authored by Rascher or in any other way being informed of the criminal nature of those experiments, until the time of this trial.
However, he was very much interested in altitude experiments as such. The following excerpt is from his testimony under questioning by Dr. Bergold:
“Q. Witness, how far were you interested in these high-altitude experiments in question as GL?
“A. We were interested in the real altitude tests as I know it exactly, because I want to state this figure as 13,500 meters, and we added 500 meters in order to get a square figure. However, we knew that this last 500 meters, which I have mentioned, we were not too interested in that. We were only interested in the first place in cabin planes, too, after a certain test had been carried out on 388-cabin suits, whether it did not succeed or fail, because a person could not move properly the way those suits were, due to low pressure up there in the air is felt much more than here on the ground.”
The Tribunal’s attention is directed to this figure of 14,000 meters, which is approximately ten miles. Milch wanted that altitude simulated in the pressure chamber and the human reactions studied.
It was on 20 May 1942 that Milch wrote his letter to Wolff. Here he said that Hippke had reported to him that the altitude experiments carried out by the SS and Luftwaffe at Dachau were finished. Mention was made of Rascher’s availability for the forthcoming experiments dealing with sea perils. And Milch stated that the low-pressure chamber could no longer remain at Dachau. In this one letter, the defendant demonstrates his knowledge that the SS and the Luftwaffe were conducting, and had completed, altitude experiments at Dachau and that Dr. Rascher was involved.
There is the letter of 4 June 1942 to Hippke, wherein the defendant exhibits his authority in regard to the low-pressure chamber and the tasks of Dr. Rascher.
On 25 August 1942, Himmler wrote to the defendant enclosing the report on the high-altitude experiments. Moreover, he asked Milch to receive Drs. Rascher and Romberg for a lecture and presentation of the film on the experiments. Himmler suggested that Milch refer the matter to the Reich Marshal “because of its importance”.
This last statement should dispel any possible doubts as to the attention accorded these experiments by official German military circles. In fact, the defendant himself admitted discussing the experiments with Goering on 13 September 1942. The defendant spoke of Himmler’s interest in the program, and the apprehension felt by the Medical Inspector Hippke, although “he did tell me that everything was all right.” The disposal of the pressure chamber was settled in this talk with Goering.
The defendant has said that the experiments, reports, and other aspects of the matter were not known to him, partly because he had no time for this, and partly because he had no technical knowledge of the subject. He would have this Court believe that the experimental program was a minor matter—one that the Inspector General of the Luftwaffe would not pay close attention to. Yet we have seen that it was important enough so that Himmler was frequently corresponding with the defendant or others on the subject. It was important enough for the defendant to bring the matter to Goering’s attention, even to the details of the disposition of the low-pressure chamber.
On 31 August 1942, the defendant wrote to Himmler, acknowledging receipt of the report on altitude experiments, and telling Himmler that he was “informed about the current experiments”.
While on the stand the defendant attempted to explain this letter by referring to the usage of German Ministries, where the form “I” means the Ministry as such. But he admitted that he had written the closing sentences of this letter “I remain yours, as ever, etc.” Here he did not deny that “I” was used in its ordinary sense. It is neither logical nor capable of belief that in the same letter to Himmler, defendant would use the word “I” in two different senses.
It was also on 31 August 1942 that Hippke discussed the experiments with the defendant, expressing doubts and misgivings. In reply to Milch’s question, Hippke told him that these doubts had not been substantiated.
Thus it can be seen, from Milch’s testimony itself, that a cloud of suspicion and evil hovered over the entire Medical Experiments Program.
It is useless, indeed futile, to punish the perpetrators of criminal acts on the one hand, and to ignore those in high positions who have made possible the commission of the crimes. The defendant has belabored the term “duty” in the course of his testimony. He has spoken of his solemn oath to Hitler and to the German people. It would seem that it was incumbent upon the defendant to acquaint himself with the activities of his subordinates, at least to the extent that he should have known that people were being murdered in experiments, which from the evidence, were useless as far as the advancement of the knowledge of aviation medicine is concerned.
The present case is not without judicial precedent. A close analogy can be drawn between it and a recent case decided by the Supreme Court of the United States, in re Yamashita [U. S. Reports, Vol. 327, October term 1945, Nos. 61 and 672]. The procedural and jurisdictional questions therein decided are of no moment to us now, but the facts of the Yamashita case are similar to those of the Milch case, and the opinion rendered by the Court is particularly in point in the matter of responsibility for senior officers.
General Yamashita was the Commanding General of the 14th Army Group of the Imperial Japanese Army in the Philippines.
Upon surrendering to United States Forces, he was indicted and tried as a war criminal before a Military Tribunal on the following charge—“while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines, and he * * * thereby violated the laws of war.”
The Court summed up the issue as follows:
“The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”
The Court cited Articles 1 and 43 of the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention, and Article 26 of the Geneva Red Cross Convention of 1929. It then stated—
“These provisions plainly imposed on petitioner, who at the time specified was Military Governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power, and appropriate in the circumstances, to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized and its breach penalized by our own military tribunals.”
The Court thereupon denied the petition for certiorari and leave to file petitions, for writs of habeas corpus, and prohibition.
In the case of the medical experiments, we have a much less complex situation. There is no question of a senior officer in an occupied country, rather we are faced with a simple direct chain of command problem: Milch—Foerster—Hippke. Had Milch given the order, the experiments would have been terminated, but no order of termination was given—people were murdered and Rascher remained in the Luftwaffe until he was transferred to the SS in March 1943. The defendant had an affirmative duty to know what was going on, and an affirmative duty to act so as to stop the experiments. That he was ignorant of the true state of affairs is unbelievable in view of the letters and the testimony of those who were below him. Field marshals are not made as are noncommissioned officers. The road is a long one in any army from the position of private to the lofty peak of a field marshal. The defendant would have you believe that his powers were similar to those of a private first class. Yet we have seen him, high in the councils, a confidant of Hitler, one who could disagree with Goering, whose deputy he was on occasion, a man who was so thoroughly skilled a soldier that he seriously requested an assignment as a division commander, although his service had been in the air force for a decade prior to the request. If the defendant was not the responsible officer in connection with the medical experiments, then the scourge of the Wehrmacht has not touched the continent of Europe. There is no one who knows better than the defendant the principle of responsibility in any army. By holding the office which he held, he had the duty to control the activities of those who were his subordinates, to insure that they conducted themselves as soldiers and not as murderers. He has failed woefully in the task.
We have concluded now our remarks regarding the criminal activities of the defendant in his various capacities with respect to the slave labor program and the medical experiments. It remains only for us to deal briefly with the defendant’s participation in the murder of two Russian escapees, to discuss his defense of irresponsibility because of a bad temper, to discuss the use of PW’s, and to touch upon the testimony of some of the witnesses who appeared in his behalf, and the record of the meeting of 23 May 1939.
The defendant has maintained that he knew nothing about the shooting of the two Russian officers who attempted to escape in February 1944. We have his own statement, made at a time when the general situation, from the Wehrmacht’s point of view, was acute but not forlorn. The International Military Tribunal has stated in its judgment concerning Fritz Sauckel,[[149]] speaking of a statement made by Sauckel at a Central Planning Board meeting, “Although he now claims that the statement is not true, the circumstances under which it was made, as well as the evidence presented before the Tribunal, leave no doubt that it was substantially accurate.” The word “circumstances” as there used refers to a meeting of the Central Planning Board on 1 March 1944. Milch made his statement at the prior meeting held on 16 February 1944 (53d). The letters submitted by the defense in connection with this episode are interesting. The first and second from Schmidtke on 10 January, and from Gangolf on 13 January, refer to a similar incident other than that with which we are here concerned. The third letter from Winterstein on 12 January says nothing about the deaths. The affidavit of Prell, other than stating that the deaths occurred on a Saturday, is of no value. The witness Barthelmess, who made an affidavit though a resident of Nuernberg, was not called. The affidavits of Klein and Popp were offered; each is in a prison camp in the American Zone, yet neither was called. The letter of Janko recites the facts in a context suggestive of the words used by the defendant when he described the incident in the 53d meeting of the Central Planning Board on 16 February 1944. Here, too, it is submitted that the circumstances under which the statement was made leave no doubt that it was substantially accurate. The defendant boasted of his prowess as a commander who ordered executions when he would impress those who curried his favor at the Central Planning Board meetings, but now he says he had no authority to give orders and if he had given them, they would not have been obeyed.
The defendant has offered, as a plausible reason for the employment of Russian, French, and Italian prisoners of war, the fact that various historical events made it unnecessary to abide by the terms of the convention concerning prisoners of war. The witness von Neurath testified that Russia had renounced the conventions in question, and hence Germany could renounce them as to Russia. As for France, it is contended that the alleged government headed by Pierre Laval had concluded an arrangement with the Reich which made it legal to employ prisoners of war in tasks forbidden by the Conventions. A similar reason is advanced for the use of Italian prisoners, the concluding of an arrangement between the Reich and Mussolini. The International Military Tribunal made a finding with respect to this matter.[[150]]
“The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the U.S.S.R. was not a party to the Geneva Convention, is quite without foundation. On 15 September 1941 Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on 8 September 1941.”
I might add that Admiral Canaris was a member of the German Navy. Resuming the quotation—
“He”—Canaris—“then stated, ‘The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of general international law on the treatment of prisoners of war apply. Since the 18th century these have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people * * *. The decrees for the treatment of Soviet prisoners of war enclosed are based on a fundamentally different viewpoint.’
“This protest, which correctly stated the legal position, was ignored”.
The defendant was a soldier of some experience, he knew it was improper, even criminal, to have the Russian prisoners work in the Luftwaffe factories, but he paid no attention to the breach of this duty of the soldier. The manner in which the Reich bludgeoned a treaty from the French is too well known to warrant discussion. It cannot be contended with any seriousness that the French prisoners of war, who were negotiated into slavery by a puppet government, were voluntary employees of the Germans. Indeed the witness Le Friec has testified that when he was taken to work in the airplane factory, he was told that he would “work on baby carriages”. The position of the defendant with reference to Italian prisoners of war and their illegal employment is still more absurd, if that is possible. The Wehrmacht had moved into Italy early in the war, and in 1943, when the Badoglio government concluded an armistice with the Allies, the Wehrmacht continued to occupy the northern part of Italy as an occupying power. They allegedly made a treaty with the by then tottering shadow of the former sawdust Cæsar and proceeded to bring the Italian prisoners of war to the Reich to work. Here again the soldiery had been sold into bondage by their former chief. The record shows that the Russian, French, and Italian prisoners of war were used to work in airplane factories. Whether they made the fighter plane, Me 109, or the jet fighter, Me 262, or the transport plane, Ju 52, is of little moment. In the total warfare in which the Reich was engaged, there is one certainty, that nothing was being constructed which was not part of the war armament program.
The International Military Tribunal stated in this connection—[[151]]
“Many of the prisoners of war were assigned to work directly related to military operations, in violation of Article 31 of the Geneva Convention. They were put to work in munitions factories and even made to load bombers, to carry ammunition and to dig trenches, often under the most hazardous conditions. This condition applied particularly to Soviet prisoners of war. On 16 February 1943, at a meeting of the Central Planning Board, * * * Milch said: ‘We have made a request for an order that a certain percentage of men in the Ack-Ack artillery must be Russians; 50,000 will be taken altogether. Thirty thousand are already employed as gunners. This is an amusing thing, that the Russians must work the guns’ ”.
That every aircraft factory in the Reich had antiaircraft batteries to protect it goes without saying. Who would know better than the defendant that such use was made of the Soviet prisoners of war? Further, this type of artillery was a part of the Luftwaffe and not a separate branch in the ground forces, as it is in the U.S. Army. The witness Foerster has testified that Soviet prisoners of war worked at the gun positions. If the number two man in the German air force could not have done anything toward arranging that the prisoners of war did not work in the factories, or work the guns, then no one in the Wehrmacht could have done anything about the situation.
We have heard much of the defendant’s violent temper and the resulting statements which, witnesses assert, were never taken seriously by those who heard them. The explanations offered by the defense are as frivolous as the alleged outbursts were frequent. It would have been difficult, if not impossible, for one who occupied the positions held by the defendant, to accomplish anything if his subordinates had to sift all of the strong statements he made, in an effort to determine which of them were seriously said. Further, his strong statements about the procurement and treatment of laborers are closely aligned with the grim reality as we have seen it. We submit that this man of violent temper believed in, and consciously advocated, the ruthless measures he recommended, and that his subordinates, to the best of their ability, complied with his recommendations. It is not reasonable to assume that one with his power could have made statements, of the kind of which we have heard here, and that he would then rely on the good offices of those who were around him to insure that nothing was done as a result of these statements. The Reich was not a country of innocent victims of one tyrant, but rather it was composed of a series of tyrants, each like the master tyrant, each with his own group of subordinates, who carried out the wishes and whims of their respective chiefs. If all men who held positions of authority in the Reich are to be believed when they say that they were personally opposed to criminal excesses, then we have the fantastic conclusion that these crimes were committed in the face of influential and unanimous opposition.
The witnesses produced by the defense left a little to be desired. Without indulging in exhaustive detail, a few statements made by some are worth comment.
The witness Koenig said that he didn’t know Himmler was head of the SS until 1945.
The witness von Brauchitsch did not know families were broken up and sent to concentration camps. It was this man, the aid to Goering, who passed on the Terboven letter of May 1942 to the defendant. The Court will recall that the letter told of the attempted escape and the resulting concentration camp detention of the Norwegians. It was the defendant who said that an attempt to escape by a prisoner of war is an honorable thing. Would not a similar effort on the part of some Norwegians merit something less than a concentration camp? Brauchitsch had said a little earlier that he did not know that foreigners were in concentration camps.
The witness Felmy has stated that some Yugoslav partisans were sent to Germany as laborers.
The witness Schniewind, who was present at the conference of 23 May 1939, did not under any circumstances gain the impression that aggression was announced.
The witness Vorwald, a subordinate of the defendant and hence his concern for these proceedings, may be assumed as being something short of disinterested, was thoroughly glib and exceptionally agreeable. He even agreed with the statement, on cross-examination, that the forces of the Reich were no longer in Africa in 1943. It is a matter of historical record that the invasion of that Continent began in November 1942 and that the campaign was concluded in the spring of the following year.
The witness Koerner, still laboring under the spell of the former leaders, stated that he believed Goering to be the last great man of the Renaissance.
The last witness of whom we shall speak is Karl Wolff. In his affidavit he spoke of meetings between Himmler and Milch over coffee and cigars. He spoke of the great cultural works of the SS. Was he speaking of Dachau and Mauthausen? With some vehemence, he insisted that he had deported only 1,050 Jews from all of Italy. He knew nothing of Dachau that led him to believe that anything unusual was happening there; although he did say that, in his visit there in 1942, the place was so clean that one could have eaten from the floor.
These represent a fair cross section of the witnesses, all of whom had roles of varying importance in the tragedy with which we are here concerned. Even as the defendant contends that he knew nothing of what went on, so do they echo the same refrain.
Much time has been spent in attempting to discredit the Schmundt record of the 23 May 1939 meeting. The Court is familiar with the findings which have been made by the International Military Tribunal on this subject. There has been no additional light thrown on the matter by the evidence here presented to indicate that the Schmundt record is anything other than a correct record of the events which transpired at the meeting.
We wish to discuss now in conclusion one document offered by the prosecution. This we have saved until the last because we believe that of all the evidence presented by the prosecution it is most typical of the defendant as a man and as a Nazi. We refer to the minutes of the conference of air force engineers and others which was presided over and was addressed by the defendant on 25 March 1944. This document, like so many others in this case, was initialed by the defendant.
The defendant stated that, as of the date of the conference, “We have in our employ today approximately 60 percent foreigners * * *.”
He continued, “The ratio is gradually approaching 90 percent foreigners, with 10 percent German managers.”
These are statements by a man who said he did not know about the extent to which foreign labor was used in his own industry, let alone in Germany. He stated that—
“The Fuehrer order provides clearly that the fighter plane program, which the Jaegerstab is starting, has priority over all other fields of armament * * *.”
He showed knowledge of the production of tanks and infantry munitions. He spoke of having the air force production “to an extent safely underground” in four months’ time. It is here that he stated that he was head of the Jaegerstab and that Saur was his deputy and Chief of Staff. Touching on his conferences with the various plant officials, he stated—
“On the spot the individual gentlemen are then told—supported by the combined authority of the State, the Wehrmacht, and the Party, that is Saur and me, Speer is unfortunately still on sick leave, otherwise he would also be present—what it is all about.”
He commented on labor—
“Thus, all pertinent questions are dealt with in the conferences about the commitment of labor and all competent men, who have anything to do with the commitment of labor, meet, especially the president of the competent provincial labor office. Thus it is determined on the spot, in the individual spheres, what the factory lacks.”
This is the man who has constantly maintained that he had nothing to do with labor. One can readily imagine a session between the Luftwaffe field marshal and a labor office chief.
We have heard the defendant deny and re-deny any knowledge of the slave labor program as such, let alone the extent to which it went. It is our contention that anybody who walked the streets of Germany could not have failed to have become aware of the activities which were being carried on by Sauckel and his henchmen.
He makes an interesting reference to bureaucracy:
“It is an error to believe that civilian offices are more bureaucratic than military offices. On the basis of my continuous and extensive experience, I can assure you exactly the opposite is true.”
This from one who would have the Tribunal believe that his staff and officers were one big happy family who ran things in a rather casual catch-as-catch-can fashion.
Speaking of the arrival of laborers, he said—
“In brief, the people arrive there and are put to work there. If any doubts exist as to whether a request is justified—for the people are not requested by numbers, but as electricians, blacksmiths, fitters, turners, as unskilled laborers, as foreigners—then this is settled. If the result shows that the request for people is not justified, then the matter is referred to a commission and this commission examines the facts within 48 hours. If it becomes apparent that dirty dealings are going on, my special court martial is called into play, and it hands down a quick decision.”
This from a man who has stated that he had no power to give orders. He stated further, “the normal work week in our industry is 72 hours.” The witness Krysiak testified that they worked 84 hours at the factory where the Mauthausen inmates were employed.
Speaking of the difficulties that resulted from the hoarding of spare parts by the various foremen, he said—
“Now it is your task to teach these people some sense and to put the entire system of hoarding on a sensible basis. I therefore ask you, as the senior authorities in the field: teach that to these people by force. There is no sense in writing letters. Such letters are not read. They would not understand them anyhow.”
The wish of a field marshal is as an order, and he advocated the use of force on his own people. The extent to which he urged that they go was expressed a few lines further on when he stated—
“Whoever hoards supplies must be punished immediately. By punishment I also mean shooting. For if these people are told what is at issue here, and they still try to hide parts of their supplies or to cover them up, that is dirty dealing and a crime against Germany. I want to say that very clearly and I want to say it in very sincere words, so that you yourselves will realize that we are dealing here with a question which is of decisive importance for Germany’s well-being, that we are not dealing with an ordinary point of discussion but with a question which decides about the life and death of Germany.”
He advocated killing Germans, not slackers but hoarders. He consciously used strong language, yet he would have it believed that he never spoke harshly except in a rage and that nothing ever came from his outbursts. He indicated knowledge of the overall figures on the breakdown of working hours.
“In considering the figures one has to know that 52 percent of the total man-hours are spent in equipping a plane and only 48 percent in building the aircraft frame and engine.”
He has said that he was powerless to do anything about requests from industry, yet he stated—
“If I want something from industry, then industry comes and says, ‘Yes, I have those and those requests.’ Only then can I do what you want.”
He again speaks of the death penalty when he says—
“Gentlemen, in this connection I may call your attention to another important point. If I visit an office and find out that something is being hidden there, then I ask for the death penalty for such a crime today. That is fraud. That is sabotage of the German armament industry.”
Can it be seriously contended that these words were regarded by the listeners as mere outbursts?
Next we have another illuminating passage on his attitude toward prisoners of war.
“Then there is still the human factor. We often had considerable difficulty with the human factor. The fluctuation there is very considerable. The quota of the Luftwaffe in the distribution of manpower was considerably lowered. The foreigners run away. They do not keep any contract. There are difficulties with Frenchmen, Italians, Dutch. The prisoners of war are partly unruly and fresh. The people are also supposed to be carrying on sabotage. These elements cannot be made more efficient by small means. They are just not handled strictly enough. If a decent foreman would sock one of those unruly guys because the fellow won’t work, the situation would soon change. International law cannot be observed here. I have asserted myself very strongly and, with the help of Saur, I have represented the point of view very strongly that the prisoners, with the exception of the English and the Americans, should be taken away from the military authorities. The soldiers are not in a position, as experience has shown, to cope with these fellows who know all the answers. I shall take very strict measures here and shall put such a prisoner of war before my court martial. If he has committed sabotage or refused to work, I will have him hanged right in his own factory. I am convinced that that will not be without effect.”
These words are strangely reminiscent of his speech at the 53d meeting of the Central Planning Board. He knew he had advocated and participated in flagrant violations of international law and here he went on record on this subject.
We see the defendant making a “big request” of the Quartermaster General and calling for “energetic action” by the chief of supply. This was a meeting of considerable moment and these statements did not go unheeded.
He spoke of the laborers.
“* * * We in the Luftwaffe armament industry have Russians, French prisoners of war, Dutch, and members of 32 other nations. The obtaining of interpreters alone presents a big difficulty there.”
Then he adds—
“We, the Quartermaster General and Generalluftzeugmeister, have already agreed that we are to balance the personnel also. Above all it is necessary that the member of the troops be treated in exactly the same way as the industrial worker.”
We have a strong statement concerning the feelings of the German worker. He said—
“By unjust treatment the German worker means that the treatment is not the same for all. That is what makes the German worker indignant. He wants everyone to be treated the same way. He wants justice and does not want to be ill-treated in words or any other way. He cannot stand it and he is right in not being able to stand it.”
The defendant advocated that the German worker be carefully handled. The Tribunal has heard from the witnesses Ferrier, Le Friec, and Krysiak how the foreign workers were handled.
He outlined the working program for the Easter week end—
“Finally I ask that the troops receive the fundamental order to work on Good Friday, the Saturday before Easter, and on Easter Monday in the same way as the people in the factories. The soldiers just do not have to go on furlough either. They must be told why.”
Are these the words of a man who is without authority to issue orders concerning the troops?
He acknowledged his employment of Russian prisoners of war and advocated that shirkers among the factory laborers be whipped back to their jobs. He said—
“I further ask for support by the Luftwaffe physicians. With all the rabble that we have among the foreign workers there is of course a lot of shirking. At the moment the Russians—that is, the Russian prisoners of war—are feigning a lot of fatigue and illness. The incidence of sickness of one and a half to two percent which we have had up to now has at least doubled, and in some factories it has been increased to eight, nine, and ten percent. That is, of course, done by previous agreement. There the official physicians must undertake an examination and if the physicians, who have to be very strict, find out that it is not true, then we return the fellows to work by means of the whip. Then the whip serves as cure.”
He again spoke of orders that have been given.
“If the factory knows: Now we are going to be attacked, and it has a few trench shelters but does not have a bombproof shelter or the like, then the people simply ran away from the factory automatically at each raid after the first one, and they could usually not be caught the next day either. That applies particularly to the foreigners. We have therefore now issued the following order, and have equipped the superiors accordingly with weapons and pistols: As soon as a factory which has already been attacked a few times can count on the raid’s being aimed at that particular factory again, then the personnel leave the factory, but in closed groups by shops, under the leadership of the man in charge of the shop, and, to the extent that they are German personnel, they leave singing military songs.”
Are superiors armed with weapons and pistols to lead contented German workers away from a factory in case of an air-raid? Little wonder that the foreigners who had been brought in like chattels ran away when the opportunity presented itself. Were these workers who were fleeing, voluntary workers?
Commenting on the gravity of the task of fighter production, and the importance of the months of April and May 1944, he said—
“That will be decided in six to eight weeks. If we succeed in this, then we will once again have time to carry out all the other tasks and jobs of this war and can also achieve greater successes in other fields.”
Were the “other fields” tasks to be accomplished in the sowing of seeds of the Reich’s culture?
The defendant has said that he knew nothing about the living conditions of the foreigners. It is obvious that he knew something, for he said—
“I also ask you to be of considerable assistance in the question of lodging in connection with the question of the relationship between our military personnel at the airfields and the workers. If we bring the people over to work, we also have to provide them with places to live. As far as foreigners are concerned, this has to be done in some suitable way. They cannot be put together with our people, just like that. But they should not be so far away from the airfield that one cannot get them to work at all.”
No, don’t let them live with the native workers, but be sure that they live close enough to the factory so that they can put in their 72 hours a week!
The importance of the fighter program is emphasized when he said—
“There are no laws of bureaucracy, there are no regulations, there is nothing at all as important as the task of winning the war.”
The defendant could not agree with anything that Hitler stood for after March 1943. He was trying to get out, but here he speaks of Hitler and his henchmen—men who, he said, were leading Germany to certain catastrophe:
“It is quite surprising how the population has endured this thing so far and how it always gets on its feet again when it is led in the proper way by true leaders who, thank God, are present among the people through the Party and the rest of the leadership. But you must not forget, gentlemen, war nerves have reached a point which cause us in the leadership group worry.”
He has said that he was not a wholehearted Nazi, but here he referred to himself as one of the true leaders and this at a time when the hands on the clock tolling the hours of the Reich were approaching twelve. Yet he would have you believe that he was a minor man.
He did not confine his speaking efforts solely to the Luftwaffe; he was one of the leaders, and as such it was natural that he should address the armament feeder industry. On that subject he said—
“What I am telling you today was told the other day to the entire armament feeder industry—that includes the blacksmiths, foundries, crankshaft workers of the iron producing industry, etc. They were likewise exhorted to produce the maximum. In the same way the Gauleitungen, all of the provincial offices, wherever we were, were addressed by us to that effect. But everyone considers that if he does not do his duty, we do not ask whether there is a law, we ask only that he is the responsible one, and that we will seize him no matter who he is.”
His first peroration is indicative of his attitude.
“Please go wherever you are going and knock everybody down who blocks your way! We cover up everything here. We do not ask whether he is allowed to or whether he is not allowed to. For us, there is nothing but this one task. We are fanatics in this sphere. We do not even consider letting anything at all distract us from that task. No order exists which could prevent me from fulfilling this task. Nor shall I ever be given such an order.”
Yes, the defendant was a fanatic. Too, he was one who could cover up. It was a willful man who could say that.
There is an interesting statement concerning the number of employees of the Luftwaffe. The defendant set it at 1.8 million. This is somewhat in excess of the .5 million figure that one witness mentioned.
It has been insisted that he had nothing to do with labor, it has been insisted that he could give no orders, yet in his second peroration to the same speech, he said—
“We have given orders that will make you laugh. Some labor control office or other suddenly declared that the Jaegerstab was not entitled, according to paragraph so-and-so, to establish a 72-hour workweek; it was not valid. I said: The gentleman is herewith informed, if he should say such a thing once more, he will be picked up; I have excellent cellars in this house. Then the opposition disappears immediately. But you have to count on such things, and the difficulty for you is that, in order to get through all the junk, one should clean out, first of all, a whole lot of little pigsties. Something will come out of this whole affair with us, yet. Whoever of my technical people from the Ministry does not earn his keep with the Jaegerstab now, and does not cooperate, I guarantee that he will never appear again in this Ministry, in the machine where I give the orders.”
Is this the man who said he could not have people sent to concentration camps? The witness Krysiak was “picked up” for having said in 1940 that Germany would lose the war. He was arrested by the Gestapo as the result of a private conversation. It is unbelievable that a field marshal could not, and did not, exercise the same power.
Today is the third anniversary of the speech of 25 March 1944 made by the defendant. His closing remarks on that day detail decisively the philosophy of the then field marshal of the Luftwaffe. Those assembled had been listening to their chief since midmorning. The hour was late. The hands of the clock were past twelve. Germany was in the fifth year of war. The defendant was concluding his speech. He said—
“Gentlemen, I know, not every subordinate can say: for me the law no longer exists, but he has to have someone who covers up for him. Not out of cowardice, but if you act according to the spirit of the old field service regulation, ‘Abstaining from doing something hurts us more than erring in the choice of the means’, and if, moreover, you keep in touch and immediately clarify difficult points so that something can be done, then we are willing to accept the responsibility, whether this is the law or not. I see only two possibilities for me and for Germany; either we succeed and thereby save Germany, or we continue these slipshod methods and then get the fate that we deserve. I prefer to fall, while I am doing something that is against the rules but that is right and sensible, and be called to account for it, and, if you like, hanged, rather than be hanged because Papa Stalin is here in Berlin or the Englishmen. I have no desire for that. I would rather die in a different way. But I think we can accomplish this task, too. We are in the fifth year of war—I repeat: The decision will come during the next six weeks. Heil Hitler!”
The time is at hand for another decision, a decision which will follow the dictates of sound reason. The record which will be made by this Tribunal and its judgment will be one that shall give courage to peaceful free men everywhere. Indeed, the defendant is fortunate that the decision in the present case is in the hands of those who do believe that the law exists and will continue to exist. There is no place for passion or for prejudice in the ceaseless tasks, the seeking of truth and the establishing of justice.
[143] Mr. Clark Denney delivered the closing statement before the Tribunal on 25 March 1947, Tr. pp. 2436-2488.
[144] Trial of the Major War Criminals, vol. I, p. 306, Nuremberg, 1947.
[145] Defendant in case of United States vs. Karl Brandt, et al. See Vol. I.
[146] Defendant in case of United States vs. Karl Brandt, et al. See Vol. I.
[147] Same as preceeding footnote.
[148] Same as preceeding footnote.
[149] Trial of the Major War Criminals, vol. I, p. 321, Nuremberg, 1947.
[150] Ibid., p. 232.
[151] Ibid., p. 246.
B. Closing Statement of the Defense[[152]]
Dr. Friedrich Bergold: May it please the Tribunal. In my opening statement I drew a picture of the defendant Milch which differs considerably from the description given by the prosecution. It is my hope that in the long course of producing evidence I have given proof that my conception is the full truth.
According to the testimony of the witness Richter, the affidavit of the witness von Mueller and according to the defendant Milch’s own testimony, nobody can doubt that Milch has never been a good National Socialist. His love for peace and his longing for a final understanding between the nations of Europe, especially between Belgium, France, England, and Germany, became completely obvious. No one who believes in justice would refuse to believe him if he states that he regarded the war as a misfortune. He was also one of the few intelligent men to admit Germany’s defeat in the First World War. There was no proof supplied that in any way prior to 1933 he supported any armaments. His testimony and military affidavit from von Mueller have shown that under his management the Luftwaffe was always a peaceful instrument of communication among the nations. It is to be regretted that the examination of foreign politicians, such as Van Zeeland, Pierre Cot, and Delbos, were not permitted, because only then the personality of Milch would have been shown in its true light. He must have been a peaceful and just man; otherwise, all these statesmen would not have had confidence in him. Even the witness delegate Messersmith, whose affidavit, Document 1760-PS, was introduced in the International Military Tribunal proceedings, affirmed that Milch condemned the coercive methods of the Nazis. He was different from the other Party members, so that after 1937 he lost Goering’s confidence. At that time he asked to be allowed to retire but in spite of his threat of suicide, he did not obtain that permission.
Such a man of such a past must be believed when he testified that even in 1939 he had no knowledge of Hitler’s aggressive intentions. Milch had misgivings about Hitler because he regarded the measures taken against Czechoslovakia as a breach of peace, and he was sufficiently intelligent to see that Britain would no longer tolerate such violations. Hitler was dishonest with him and always put before him his intentions for peace, even forbidding him the manufacture of bombs. The defendant never requested the manufacture of bombs because he intended to lead a war of offense, but only because, understanding the international situation, he was convinced that England would fight against the Nazi regime.
Up to that time, your Honor, nobody can find any inconsistency in the defendant’s outlook. It was no offense if he requested a Wehrmacht for his country in view of the world situation, and therefore he favored a reasonable rearmament. As long as all nations were peace-minded and maintained armies, Germany had the right to maintain armed forces as well. I beg you to remember that the defendant demanded from his superiors that rearmament should be effected in a slow and reasonable manner and that he had differences with them on account of this.
It was not for nothing, your Honor, I repeat that. Only for one to keep all these things in mind will it be possible to judge whether or not the defendant’s statement regarding the conference of 23 May 1939 is correct. A man who loves peace and works for peace was present at that conference and states today, or testified that the speech in question did not contain any mention of aggressive war against Poland or any other country. He even testified in this courtroom that this speech did not have the contents as it is laid down in the Schmundt protocol.
I realize that the International Military Tribunal came to the conclusion that the Schmundt protocol is correct. All defendants and witnesses who were heard at that time declared that the contents of the speech were not of so aggressive a nature as it is laid down in the minutes. The defense counsel made a mistake at that time of not calling all the witnesses which I requested. Nobody went to the trouble of critically examining the text of the record. I can understand why the IMT reached a different conclusion, having heard only the defendants’ general objection, which remained unsubstantiated in detail. Nowhere is it yet permissible in law to maintain the verdict of a previous court when new and better evidence has been submitted.
The witnesses Warlimont, Schniewind, Engel, and Raeder stated that several passages of the Schmundt record contained a number of false assertions regarding Hitler’s words. Warlimont testified that he was not present, although he is listed as among those present. Milch’s testimony made it absolutely definite that Goering was not present. If there were only so few persons present and there were mistakes made concerning the presence of persons, the record must have been made up a long time after the event, otherwise no faults of that kind would have been possible. Schniewind testified that a number of points contained in the Schmundt record were never discussed at that time at all. He had the opinion that many ideas laid down in the record were borne out at a later period, that is to say, 1940. These ideas concerned, for example, the use which could be made of war production after the defeat of France, the importance of aircraft carriers for convoys, the collaboration of Italy, and the break-through of the Maginot Line by this force, about Japan, and last but not least, the so-called Fuehrer Decree. By the statement of Felmy it is proved forever that the so-called Fuehrer order was given only on 12 December 1940. Even Raeder stated that the principles of the Fuehrer order were laid down at another occasion and that they were accordingly carried out afterwards. This other occasion was given by the statement of Felmy. Also Raeder did not hear anything about Japan; he considered it impossible that Italy and the break-through of the Maginot Line were discussed and he also states that nobody mentioned a better production of cruisers. He also testified that in that meeting a two-front war was not mentioned because he, as an officer, would have noticed that. Furthermore, he testified that Belgium and Holland were not referred to and that after the speech Goering did not open a debate. Even though the witness was not present at all times, it is rather strange that he should not have heard mention of any of the very points not heard by the other witnesses. The defendant Milch gave you the precise details of those points of the speech which were not mentioned at the time, and he was even in a position to tell you when these various points were first conceived.
Who, assuming responsibility for justice, can still seriously maintain the findings of the IMT now that these precise statements have shown us the errors of the Schmundt record? A record containing so many grave mistakes is no longer of probative value and can never be made the basis for any judgment. I am convinced that after this trial the historians of the whole world will regard the Schmundt record as the product of a later period, i.e., between the fall of 1940 and the spring of 1941 and that they will regard it as the result of time, drawn up to make Hitler, then regarded as the victor, seem possessed of a prophetic gift which in reality he never had.
The conference did take place on 23 May 1939; that is true. Its real topics, however, can no longer be stated on the basis of the Schmundt record. Thus, the statements made in the first Nuernberg trial gain a different and greater significance. Never again, therefore, will it be possible for anyone to say that on that occasion Hitler preached war and the enslavement of Europeans.
There is yet another argument possible against this record, which, it is alleged, also contains the plan for slave labor. Document EC-194, Exhibit 8, and 016-PS, Exhibit 13, submitted by the prosecution, show in all clarity that the use of European peoples in German armament works was a measure forced by the emergencies of the war and that the idea was born and realized only by the military difficulties resulting from the war with Russia.
With clean hands and a pure heart, Milch entered the war in August 1939 having previously advised Goering to fly to Britain to prevent the war. He himself became the victim of Hitler’s deception, and he himself believed that the war had been forced upon Hitler. Who can disregard justice to such an extent as to reproach Milch with having held that belief? It is his misfortune, but not his guilt, to have been deflected from the truth by misleading propaganda. Who would so misinterpret patriotism, heretofore regarded as one of man’s noblest instincts, as to reproach Milch for having done in 1939 his duty as a soldier?
He never prepared any aggressive wars. In every case he was informed shortly before the event, and nothing is more typical of the opinion his superiors held of him than the fact that he chanced to hear about the preparations for the war against Russia through a subordinate, who had been told of Hitler’s plan before the field marshal was told. The first Nuernberg trial has already shown that Milch saw Goering at once in an effort to prevent that war. Goering himself admitted this. Milch’s good intentions were of no avail because Goering turned him down. As Milch’s superior officer, he even went so far as to forbid Milch to see Hitler and to tell him that he, Goering, would prevent Milch from being admitted to Hitler’s presence.
One of your Honors, in putting questions to the defendant, aimed to show that it might be regarded as incriminating to the defendant that he did not resign in 1941 or at least in 1943. Your Honors, only if one has lived in Germany these last years is it possible truly to judge that problem. As I said in my opening speech, one can judge the man only against his background, through his upbringing, from which usually nobody can escape no matter in what country he lives. Milch was brought up as a soldier. He absorbed ideas which for centuries were regarded as true and inviolate laws. It is no guilt for him not to have freed himself from them. I have said this once before.
At that time nobody in Germany was in a position to protest against certain events, against certain aims of the Party. All that one could do was to criticize things within one’s own immediate circle and tell one’s intimate collaborators how to improve matters. If in Germany anybody had attempted at any time to express criticism publicly, either by word or by publicly resigning, nobody would have been the wiser for it. This system was so ruthless and its stranglehold over public opinion so great that it would and could suppress anything.
You need only remember that during the first IMT trial it was shown that von Papen’s criticism in his Marburg speech was completely withheld from the German public. Had Milch done anything, nobody would have heard about it, and his action would have been useless, perhaps senseless, as nothing would have been changed for the better. Your Honors may not know that six to eight generals, including General von Falkenhausen, once Commander in Chief in Belgium, and Colonel General Halder, one of Germany’s highest and best leaders, were thrown into concentration camps because they had deviated from Hitler’s line. This is not connected with 20 July 1944. Nobody in Germany knew about this. Pictures of General Count Sponeck were sold as of a hero two years after this man had vanished into a concentration camp. Such were the lies and the deceptions of Goebbels’ propaganda. We have learned since the end of the war that prior to 20 July 1944, there were 50 to 60 generals in Moabit prison, without anyone in Germany knowing anything about that. You will understand the full falsehood of propaganda when you recall the base distortions by which the dismissals of Generals von Blomberg and von Fritsch were announced to the German public.
Believe me, your Honors, protests in Germany were not possible at that time. The only result would have been the futile death of the protesting person. If Milch had attempted to fly abroad, his whole family—such were the detestable methods of those in power—would have been put to death on the basis of what was known as family responsibility.
Milch cannot be reproached with not having refused service and allegiance. No soldier could do this. Should a member of the Anglo-American Air Forces suddenly have refused to go out on an operation which would bring death to innocent women and children, he would not have been regarded as a hero. He would have been put before a court martial.
That Milch did not participate in an attempt on Hitler’s life, who would accuse him of that? Although he was an energetic man, the defendant was, because of several concussions of the brain which he suffered, inclined to terrifying fits of rage, or ranting speeches, but the evidence has shown that in his heart of hearts he was kind and soft. He would ameliorate sentences already passed, and as the witness Richter testified, he compensated for a fine, which he inflicted himself, by secretly passing into the family of the punished man a very large sum of money, larger than the fine itself. The witness Vorwald expressly stated that basically Milch was a man soft of heart, who conducted himself *self soft, who only in a rage caused by disease and worry utters harsh words never followed by action, is not capable of murder. Thus, no just man will charge him with not liquidating Hitler, and Milch did what in his conscience he felt to be possible and necessary. He had the courage of telling the dictator to his face what he thought of the situation. He demanded that Hitler desist from his plans, dismiss the most important men, such as Goering, Ribbentrop, and Keitel, give up the supreme command, and establish a cabinet of equal powers, and he finally desired that peace should be brought about.
Your Honors, it would be easy to say that as a field marshal he did not thereby endanger himself. The statement of the next witness Krysiak, the fate of the generals which I mentioned to you, show what was done in Germany to men who did such things, but the defendant went one step further. He succeeded in inducing Goering also to demand the end of the dictatorship and the instituting of a Reich cabinet. Your Honors, this means that this defendant thereby risked his life. He could not foresee that nothing would happen to him. That nothing did happen to him was not due to his rank, but to Hitler’s opinion that this man was not yet dispensable. Everybody can only be sentenced according to his potentialities. Your Honors must not compare conditions in your free and noble country to those in Germany. Only the German world as it was should be the basis of your judgment here. It is not true to say that Milch gave his continued support to the objectionable aims of the Party. He continued to do his duty because, as he testified, he wished to prevent the worst from happening to his people, the total destruction of the cities and of Germany’s culture. It was his constant hope to organize the defense in such manner as to prevent bombing warfare from taking its full effect, that same bombing warfare which is the scourge of mankind, whatever one may think of its military value. Would it be for us to judge him on the fact that he did not obtain his aim because of the stupidity and failings of his superiors? Milch furthermore testified before you that by an improved defense he hoped to achieve better peace terms for his people. I can assure your Honors that since 1941 Goebbels’ propaganda told the German people time and again of the horrible terms the enemy would impose on them in the event of peace. That included an item to the effect that the whole of the German male population would be castrated should Germany lose the war so that the German people would perish. Who has the courage to say it is despicable for a man of battle to organize a defensive system under the news impact of such items in order to obtain better peace terms?
It would be a distortion to say that Milch thus believed Hitler’s aim of destroying Europe, for he knew that the war was lost. He was intelligent enough to see that with the lost war the end of Hitler’s ideology would come. It was not the Party he wanted to serve when he hoped for less severe peace terms with a better defense, but a lost war that would not mean the loss of the legal rights of a whole nation as is the case unhappily today. Only he who comprehends and understands all these things can appreciate Milch’s actions and judge them fairly. And later, when he saw that his objective of saving the German people from the worst would fail, Milch withdrew from the regime. He could not resign on his own. That, for a soldier in Germany, was an impossibility. He did not choose to act dishonorably, which no one can expect from a decent man. In Germany soldiers are removed from their offices only by their superiors. Thus, as he put it himself, Milch could only organize his own elimination from office by gradually transferring his tasks to Speer’s Ministry. As his superiors thereupon regarded him as superfluous and were glad to be rid of this man, Milch was finally free. Then began the scheme on the part of his superiors to liquidate him. Such was the position of Milch, the man, and such by and large were his motives. For him to have acted in this and no other way is not dishonorable, and only he can cast the first stone who never in his born days gave in to public opinion in defiance of his better judgment, who has never considered his superiors, and who proved himself to be above his upbringing, and had the courage of fighting for his convictions even with the most brutal methods.
Before dealing with the details of the indictment I should like to make these basic points. The prosecution created the impression that under the conspiracy count it would hold Milch responsible for everything in totality that was done in connection with labor assignments and experiments within the confines of the Luftwaffe, nay, within the confines of the German government departments. This is not admissible. The indictment may be referred to Control Council Law No. 10. Nothing is mentioned there that conspiracy to commit crimes against humanity or war crimes constitutes a punishable offense. Only conspiracy against peace is punishable. The way the law is formulated, particularly count 2 of Article 2, makes it clear beyond doubt that activities listed therein only concern participation but no independent types of crime. Where there is an independent crime then also in the case of war crimes and crimes against humanity there would have to be a provision similar in count 1-A, Article 2 of the Control Council law where a crime is defined as “participation in a common plan or conspiracy for the purpose of committing one of the crimes above set forth.” In this connection the verdict of the IMT must also be considered. At the end of the sixth part of the verdict it states:[[153]] “Count one, however, charges not only the conspiracy to commit aggressive war, but also to commit war crimes and crimes against humanity,” but the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides: “Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in count 1, that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate, and wage aggressive war. And under figure 8, the IMT states further:[[154]] “As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a) dealing with crimes against peace.” The verdict was so formulated because the Charter was unclear at this point. As above stated, the Control Council law contains no such provisions, so much the less because in this case conspiracy does not constitute a separate crime. The provision set forth in Article 2, paragraph 2, No. 6, “whoever was connected with this planning or execution”, is only a form of individual defense and cannot be put on a par with the concept of the common plan or conspiracy. Article 2 defines clearly the type of crime referred to in paragraph 1, namely (1) the individual crime of violation of peace; (2) conspiracy against peace; (3) individual war crimes; (4) individual crimes against humanity; and finally, the form of participation in paragraph 2. Therefore, it is rendered that a so-called conspiracy to commit war crimes and crimes against humanity is not a punishable offense.
It has to be examined therefore whether Milch made himself guilty of any individual type of participation. It would have to be shown that either as a principal or accessory he participated in a crime or that he especially ordered or initiated it. It would have to be proved that he gave his approval for a definite crime. That approval, however, cannot refer to a general approbation but can only be considered as participation in crime if, by his approval, he strengthened and stiffened the criminal will of the perpetrators. It must therefore be made clear that he knew of the individual crimes and that he intended to put them into action by means of his approval. Even in that case his subsequent approval would not suffice; since still nowhere in the world is anyone punished because of an inner or moral attitude. Finally, it must be examined whether Milch was connected with the planning or commission of such crimes. Here again it must be understood, of course, that this connection must be capable of causing the crime, and that Milch knew about the connection and therefore the crime. The question of membership in any organization or association which was connected with the execution of crimes requires special examination. It is clear that mere membership, as such, in any organization wherein any member may at one time have committed a punishable act cannot make every other member of that organization punishable. Otherwise a monstrous situation would arise where the commander in chief of a large army was punishable if any member of that army committed a war crime. Where in this world in all time has it happened that in such a huge organization as wartime armies’ soldiers did not at one time or another commit punishable acts? This is inevitable and it occurs in all armies. It can therefore only be a question here whether the organization or the association of which the defendant was a member had as its particular purpose the commission of war crimes or crimes against humanity.
Letter (f) of Article 2, paragraph 2, must be considered here. Since Milch is not charged with a crime against peace, it would also have to be especially proved that he participated in the common plan of conspiracy for the commission of crimes against the peace. That he held high office cannot of its own make him punishable. This is also evident from the Tribunal of the IMT who acquitted three persons who held equally high office in Germany.
Bearing in mind these points of view, one has to examine the individual counts of the indictment. In answer to the prosecution’s charge that Milch in February 1944 had ordered two Russian officers to be shot, Exhibits Milch 40 to 44, and the testimony of the witness Vorwald have proven that the said officers were shot on the basis of an expressed order by Hitler who received, through political channels, the report of the incident earlier than Milch. Exhibits Milch 40 to 44 and the testimony of Vorwald have made it clear that Milch, first of all, had no possibility of issuing such an order, and secondly, that he did not cause its being ordered, and thirdly, that he only gained knowledge of the incident after the officers had been shot.
The witness Vorwald was in a position to testify that Milch even angrily protested against such an order.
The passage in the record of the 53d meeting of the Central Planning Board of 16 February 1944 contained in Defense Exhibit 11, can therefore not be made the basis for a judgment. Whoever, knowing the German language, reads the text critically must realize that the utterances of Milch recorded therein are contradictory in themselves and, therefore, cannot possibly contain the real statements made by Milch. They are contradictory to the true course of events; they are contradictory to Milch’s real authority, and finally, they are contradictory to the inner attitude of the defendant who himself angrily described this act as a crime.
It is significant for the question of the probative value of all verbatim records submitted to consider that such recording of the true events is found here. Such records containing such mistakes cannot be made the basis for a judgment. If we assume, however, that Milch really made these utterances which are so wrong, then this passage would remove all doubt that Milch during moments of excitement was no longer master of his thoughts and words and, therefore, cannot be held responsible for them. It would be a serious offense against justice, however, if judgment was to be pronounced on the basis of such stenographic notes taken by an unknown person who may have been in error.
Milch is furthermore accused of having abetted, participated in, and been connected with cruel and inhuman experiments carried out on concentration camp inmates at Dachau. I believe that here, too, evidence has shown that Milch is innocent. It has been proved by the clear, although long-winded, deposition of the witness Hippke that the defendant had heard for the first time on 31 August 1942 that human experiments were being carried out on others than the volunteering members of the Luftwaffe; that is, at a moment when the high-altitude experiments were already completed and when the freezing experiments were about to be completed.
In this connection I recall that the final report on freezing experiments was available in print already on 10 October 1942, so that these experiments too must have been completed by a considerably earlier date. On 31 August 1942, the defendant learned merely from Hippke that human experiments had been carried out on criminals who had been sentenced to death and who had volunteered to obtain a pardon. He was told expressly that nothing had happened so far during these experiments. It is obvious that experiments as such do not in themselves constitute an offense against humanity, whether or not they are in use in some foreign countries. At any rate much evidence has already been submitted by the defense in the medical trial, proving that, also in democratic states of the world, experiments have been carried out and are being carried out on volunteering criminals, experiments which constitute a danger to the life and health of the experimental subject.
The prosecutor has submitted in evidence his last exhibit, Document 1971-PS, Prosecution Exhibit 161, showing irrefutably that Himmler too had ordered that only men sentenced to death are to be used for these experiments. Hippke did not even misinform Milch. That, besides the experiments which were of importance to the Luftwaffe, Himmler had also started secret experiments is shown from this very Exhibit 161 because therein Himmler directs Rascher to continue these special experiments on which he had reported to him and even to carry out revival experiments.
Both witnesses Ruff and Romberg have testified unanimously that nothing has happened during these experiments. Death casualties had occurred during Rascher’s own experiments which he carried out on Himmler’s behalf. Only the aim of these experiments remained unclear to the witness, which is now being clarified by Exhibit 161, but Milch had no knowledge of all this. He fully believed what Hippke told him, nor did he ever have any cause to distrust Hippke and he could not distrust him more as he knew that high-altitude experiments had already previously been carried out on Luftwaffe personnel of his own air force without any danger being involved. Not even Hippke has had any knowledge of cruelties and death casualties. How much the less can be proved that the defendant could have had any knowledge. It does not say anything against the defendant that he had signed already before 31 August 1942 some letters which had been submitted to him by his offices. Nobody has been able to state that Milch had dictated these letters at all. It could not even be proved that he had seen or read the letters from the SS to which these letters refer. It is impossible for a man who has such a burden of work and such a large sphere of tasks as the defendant to take care of every trifling matter in his office, that these letters—which to anybody who has no knowledge of the underlying facts appear harmless and unimportant—could also not arouse the defendant’s suspicion. Should he be charged with responsibility for them then, this would be a responsibility which could not be borne by anybody. This would mean to overestimate human working capacity. It is the very idea of any great organization to relieve the chiefs or the heads of attentions to details in order to make them free for the main tasks. If such a man were to be asked to take care of everything, then the organization would be unsuccessful and no man in the world could form a great work comprising many people, and no man in the world would be willing to head such an organization if the chief of the organization should be held responsible for everything that his subordinate agencies commit. Everybody has the right generally to trust his subordinates as long as he has no reason to distrust them.
Hippke’s descriptions were unimpeachable and gave no reason for misgivings. His tenure of office at that time was irreproachable so that Milch had not to distrust Hippke’s activities and all the less so because already at an earlier date human experiments had been carried out by the Luftwaffe in a manner above reproach. Milch has testified to the effect that he had not read the report on high-altitude experiments. Evidence has shown that he has not seen the film nor could he have cause for this film to be shown, only if he would have stayed in Berlin, but he was not even in Berlin on that day; therefore, he could not become suspicious from what occurred. Likewise Milch never received the report on freezing experiments nor did he ever get a final report on this matter.
Finally, Milch had no reason to distrust the fact that the SS participated in the experiments. He knew that Hippke was part of it and was therefore entitled to believe that everything was in order. Therefore, Milch was neither a principal in nor an accessory to, nor has he ordered or instigated these experiments. He has never given his consent to the crimes committed because he had no knowledge whatsoever of them nor was he connected with their planning or their execution, nor was he a member of any organization aiming at the commission of such crimes. It is not the aim of the Luftwaffe to carry out such criminal experiments, and with the DVL he had nothing to do at all. It is irrelevant that at that time Rascher was a member of the Luftwaffe. Exhibit 161 proves that Rascher received the orders to execute the crimes as a member of the SS from Himmler himself and also carried them out in that capacity. Finally, it must be said that the Wolff letter of November 1942 was only written after the crimes were committed. It has not been proved that Milch ever saw this letter. He was not in Berlin when the letter arrived. That he has testified. The letter was sent to the Medical Inspectorate which only answered it in 1943 as Hippke has testified. Also, the fact that Rascher was transferred to the SS had nothing to do with the defendant. That was a matter settled outside of his competency. The personnel chief of the Luftwaffe was at no time subordinated to him, and it must also be taken into consideration that, according to the evidence, Milch had no knowledge of Rascher’s having committed any crimes. One cannot charge Milch with the fact that Rascher referred to him. The testimony of Neff and Defense Exhibit 56, the affidavit of Punzengruber, have shown to this Tribunal that Rascher was a confirmed liar whose statements have no probative value and, therefore, I believe that Milch in this matter too has shown to this Tribunal his complete innocence.
Before I go into the charges against Milch for his participation in the so-called slave labor program, I must make a few fundamental statements. I shall begin by examining the question as to what extent the Hague Convention on land warfare and the Geneva Convention of 1929 were valid for the treatment of Russian prisoners of war. By the statements of witness von Neurath, it has been confirmed that the U.S.S.R. in 1919 specifically withdrew from the Hague Convention on land warfare as well as the former Geneva Convention. Jurists will not dispute the fact that a formal withdrawal from agreements is of greater importance in the relations between states than the act of joining such a convention. Even if one were of the opinion that the Hague Convention on land warfare and the Geneva Convention represented merely the codification of already existing international law, so that the state that did not join the conventions would also be bound to this already existing international law in all details, even in such a case the expressly stated withdrawal from such a convention must mean also a withdrawal from the natural international law. If this were not the case, the withdrawal from such conventions would be an act without meaning which such intelligent politicians as those found in the U.S.S.R. would never undertake. Nor is this conception of mine contradicted by the expert opinion offered in the first Nuernberg trial (Canaris Doc. No. EC-338)[[155]] because this expert opinion is only concerned with the order of Hitler and Keitel regarding the killing and cruel treatment of prisoners. It is, of course, clear that inhumane acts do not become permissible because of withdrawal from conventions. What we must examine here, however, is purely the question whether or not, and for what activities, such prisoners of war may be used. Detailed regulations of international law, which in themselves do not contain atrocities, can in my opinion be nullified by expressly withdrawing from a convention codifying existing international law. Finally, we wish to draw attention to Article 82, paragraph 2, of the Geneva Convention of 1929 which contains the following regulation: “If in wartime one of the belligerents is not a member of the convention, the regulations of this convention remain valid, nevertheless, for the belligerents who have signed the convention.” This does not mean that the signatories are bound to the Geneva Convention also with regard to the treatment of soldiers of a nonsignatory power, but only with regard to soldiers of the signatories who are at war. Article 82, paragraph 2, of the Geneva Convention, therefore, states that with regard to the relations of nonsignatories the convention is not valid. The regulation was made so that it should not be thought that if a nonsignatory participated in the war the Geneva Convention would not apply to that war.
That my opinion was shared by the U.S.S.R. becomes clear beyond doubt from Defense Exhibit 49 presented by me, which contains the decision of the Council of the Peoples Commissioners of the U.S.S.R. of 1 July 1941. This decision does not mention any limitation with regard to the use of prisoners of war for labor except for the regulations under number 25. According to this, prisoners of war may not be used as workers in the battle zone nor for the personal needs of the administrations, or by other prisoners of war (orderly services). Defense Exhibit 51, concerning employment of German women prisoners of war in Russia, also reveals the same conception of the U.S.S.R.
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.
As far as Poland is concerned, that country, on the basis of the partitioning agreement between Russia and Germany, had lost its sovereignty. That such partitioning agreements can abrogate the existence of a state has already been historically proved by the former partitioning agreements of the bordering countries in regard to the Polish state. Moreover, the agreements concluded between the victorious nations after this war have abrogated the sovereignty of the German state over very large areas in the East and thus have created new sovereignty for the population of these territories. Germany released the Polish prisoners of war and could at any time issue legal labor directives as regards the Polish civilian population since the latter were under German sovereignty.
So far as the Italian prisoners of war are concerned, the evidence has shown that the Mussolini Government, which at the time was the covenant government in that part of Italy not occupied by the allied forces, made them available for work in the armament industry, especially after Germany had to manufacture armaments for Mussolini’s Italy. Here it should also be mentioned that Milch’s opinion that Italian prisoners of war who fled from a transport should be shot does not mean a cruelty. All countries of the world have prisoners shot who attempt to escape as proved by me in Defense Exhibit 26. So far as the civilian population of other southeastern states are concerned, they were only recruited and employed as free workers based on approval by the legally existing governments of these countries.
In addition, it is interesting to point out that the agreement between France and Germany, according to which France was supposed to allocate French civilians for the labor commitment in exchange for the release of prisoners of war, had a parallel in the discussion of the question regarding the fate of German prisoners of war still in allied countries. In France, in particular, the request has been made to make possible the release of German prisoners of war by making available German civilians as workers in place of the prisoners of war. This, too, is evidence to the effect that such an agreement is not contrary to international law.
That, your Honors, is the legal position as I must present it.
In regard to the question of guilt, a special point has still to be considered. All legal theories consider that the defendant is not liable for punishment if after careful consideration and careful inquiries he has gained the conviction that his action was permissible. It has been shown that in Germany prisoners of war and foreign civilians were being employed within the war production even at the time when Milch had not yet taken over the office of the GL (Generalluftzeugmeister—Air Ordnance Master General). In other words, he was already confronted with the situation, the exploitation of which he is being reproached for today.
The testimony of the witness Vorwald and that of the defendant himself showed that Milch made inquiries from the competent authority as to whether the employment of prisoners of war and foreign civilians which he planned to use was admissible under the existing regulations. He has testified here that he received an affirmative answer. Furthermore, he testified that the admissibility of the utilization of foreign civilian workers was discussed soon after the First World War in a large staff committee of the German Reichstag. The chairman of that staff committee was Prof. Dr. Schuecking, a legal authority of repute, who had become known throughout the world as a passionate champion of pacifism and democracy. This committee, as the defendant gathered from the discussions held at the time, could not and did not find that employment of foreign civilian workers in armament industry was inadmissible.
Impressed by his earlier experience, the defendant had the right to believe the information given to him by his superior office that employment of foreign manpower and of prisoners of war was admissible. Moreover, this information was not issued without reason. The reasons given for it were rather in accordance with the reasons which I have described in detail above. How should Milch, who is not a legal expert, who as a layman did not understand anything about applicable international law, how could he form a different opinion? It is the right of every citizen to believe the legal information supplied by his superior and the concomitant authorities, for no one can impose upon a citizen the duty to undertake on his own independently an examination of the legal questions involved. In a modern state this would result in an untenable situation whereby every one of the citizens would acquire his own conception of law. Differing opinions abroad Milch was not in a position to hear since he was not allowed to read foreign newspapers nor listen to foreign broadcasts, nor did he do so.
He acted in good faith, and that has to be considered in his favor today, the more since he knew and may well have assumed that these measures were only temporary and were forced by the necessities of war.
[At this point the following discussion took place:]
Presiding Judge Toms: Is it a principle of the German law that ignorance of the law is an excuse for violating it?
Dr. Bergold: It is a principle inasmuch as if somebody has been misled by his superiors on the significance of the law. Everybody must inquire what the law is, but if his superior authorities give him certain information, he can rely on that.
Q. Suppose a person is advised by his own counsel as to the law, and counsel is wrong, does that excuse the client?
A. The client’s lawyer is not sufficient. The authority must be a government official.
Q. Well, suppose a high government official, a man in high authority who was not a lawyer, advised his subordinate as to his legal rights and duties, and that advice was wrong?
A. That would mean that there would be an excusable error, an excusable legal error.
Q. If, for example, Goering, who was a person in high authority, advised Milch that he had the legal right to go out and shoot a person, would that be justification for Milch’s doing so, legally?
A. No. Because as to the question of whether you can commit murder or not everybody knows about that; but the point as to whether the employment of foreigners was admissible under international law is a very tricky legal point, and there, of course, there is a difference.
Q. You mean that every one is supposed to know that he cannot shoot a man.
A. Yes. Everybody knows that.
Q. But everyone is not supposed to know that he can force a man to unwilling labor?
A, No. He is not obliged to know that. That is why Milch applied to receive this information about international law.
Q. You make a distinction between homicide and slavery?
A. Yes. I make a difference not, perhaps, as in this exact example, but I make a difference between the natural knowledge of law, which everybody has, and special questions and special knowledge not shared by everybody in the state. The point whether you can kill or steal is common knowledge, but the question whether international law permits the employment is not something which everybody knows. This question is one which only specialists and legal experts can decide, and if any man concerned tries to obtain information as to whether it is permissible, and obtains that information from a specialist of a governmental department who says, yes, then it does not become permissible in itself, but we have what is known as an excusable legal error.
Q. Would you take the same position as to enforced civilian labor?
A. Yes, on the whole question whether anyone can employ foreign workers or prisoners of war.
Q. I would like to get this straightened out.
A. There are a number of other difficult legal points which I need not go into here. This is certainly an example of what occupies us here.
Q. That is true. I want to get your position perfectly clear. I think it is—
A. Let’s take, for example, the question whether, in any foreign country which is occupied, the occupier may issue occupation money; let’s assume that this is punishable according to some international regulation which is difficult to interpret and which a layman is not in a position to know. Now, if the Reich Bank, as expert, told the governor of the occupied country that it was permissible, then the chief of this occupied country, the military authority, would have an erroneous opinion for which he could not be held guilty.
Q. Now, that theory of law becomes a very uncertain guide, does it not? It depends upon interpretation of not the lawyers, nor the professors, but of high government officials; they make the law.
A. No. My client inquired of the competent offices, not of Goering, but of the competent offices, namely the legal departments. In all the ministries there were legal departments, also in the Reich Air Ministry and in the Wehrmacht itself. They employed specially trained experts. I draw your attention to—
Q. Just a minute. Then the head legal experts make the law as far as the defendant is concerned?
A. No, no, he does not make the law but he tries to, and that is, of course, the legal error that—
Q. He makes the law by which the defendant may govern himself?
A. Yes, for this special case, as long as he does not hear an opinion to the contrary, let’s assume.
Q. Oh, what happens after he does hear the opinion to the contrary, then which law does he abide by?
A. In that case he can act no longer at all. If he acts, he acts on what is known from the Roman law as “eventual dolus”, an evil intention, in case he comes up against the law. I assume that the term “eventual dolus” is known to your country, too.
Q. Supposing that he gets two conflicting opinions from the legal ministry, or one of the legal advisers in a high place tells him he may do a thing, and another in an equally high place says he may not, how does that solve the dilemma?
A. In that case he must not commit the act, because his attention has been drawn to the difference in the legal opinions, and that is where we have the “eventual dolus”. If he does not depend on it, and does it on his own risk, then in that risk he committed a wrong.
Q. I am frank to say that this is a new and startling legal theory. Did you understand that?
A. Yes. I understood.
Presiding Judge Toms: Well, we have your position.
[Dr. Bergold continues.]
His good faith, however, was reinforced by the fact that all the measures against English and American prisoners of war, which are being objected to, were not carried out. That the reasons expressly stated for this were that no agreement except a change in the regulations had been conveyed normally to the British and American prisoners of war. Whoever has the least psychological insight will understand that the observing of the Geneva Convention principles towards those two countries must have made the deviation from them in respect to other countries appear to the defendant as authorized, all the more as this deviation had been based on presence of other agreements, or the lack of other protective measures.
As far as the question of actual recruiting and using of manpower is concerned, a differentiation must be made between recruiting, bringing foreign laborers to the country, and their treatment on the whole on the one hand, and on the other hand their use within Germany in the labor assignment.
May it please the Tribunal, the case in chief, and the submitted documents of the prosecution, especially the Exhibits No. 13, 14, 14-A, 15, 15-A, and 17 eliminated any doubt as to the fact that Sauckel alone was competent for the recruiting of foreign laborers and their transport to Germany and for the treatment of the foreign workers, and that Hitler over and over again confirmed against the attacks of Speer that he was the only competent man. Not one single document has been submitted which would show that Milch participated in the recruiting, transfer to Germany, and treatment of the workers. The witnesses Speer, Koerner, Richter, Hertel, Eschenauer, Pendele, Vorwald, as well as Milch himself, have testified under oath that neither they nor the defendant knew anything about all the abuses which have become evident in the sphere of Sauckel’s work.
I call your attention to Document 407-II-PS, Defense Exhibit 3, which reveals how Sauckel always and everywhere emphasized that he took care of the foreign workers to the best of his ability. In this exhibit he makes the assertion that foreign workers have never in the history of the world been treated as well as they were treated by him in this most severe of all wars. The testimony of the witness Schmelter and of Milch has shown that Sauckel had made the same declarations and told the same lies to them also. There is no need for any further statement to the effect that the recruitment and even the forced transport of the workers into the Reich on the basis of an order could have been carried out in an absolutely humane manner and that all these atrocities, murders, and tortures which took place need not have occurred. Such actions are not of necessity connected with such events. The fact that in the East and in France, parts of the population were called up and drafted by classes by means of labor service decrees could not and did not have to make Milch suspicious. Forced drafting of people occurs in all countries which have a compulsory military service or labor service. Examples of the latter are Germany and Bulgaria. The latter state had ordered service according to each group before the Hitler regime existed, and how could Milch, after all, have found out about the inhuman acts in the recruitment and transport into the Reich and the treatment within the Reich? Obviously, only if he had observed such incidents himself or if complaints reached him through his subordinates or through these foreign workers themselves.
Milch testifies here in a creditable manner that during the entire course of the war he had never observed such conditions. During all these years he made his trips by plane and, in some exceptional cases, by special train; that in this way he could naturally not observe such facts is quite clear. The witnesses have confirmed that they never reported abuses to him. The only things he heard were isolated complaints that the food was inadequate at times or that there was a lack of clothing and shoes. In themselves, these were conditions which resulted at the time from the wartime emergency and applied also to the German civilian population. All of the above-mentioned witnesses and Milch have, however, confirmed that Milch on his own part immediately ordered that the conditions should be remedied.
These incidents, however, cannot be called inhuman acts or atrocities, cannot be called crimes. The witnesses Pendele, Hertel, and Vorwald, as well as the defendant himself, have testified that the foreign workers never brought any complaints to the defendant. They all expressed their happiness. It may be that they shied away from complaining to Milch. That, however, was not Milch’s fault. He had the right to believe the assurances of the persons he questioned, the more so because his conversations with them were carried out in the friendliest, even the most cheerful manner.
Now, how could Milch have found out about these incidents? I have already mentioned that he could not obtain knowledge about that from foreign reports, because he did not receive such reports. Thus, it should be established that Milch was not responsible, first, for the directive for the so-called slave labor; secondly, the recruitment of manpower; third, the inhuman acts perpetrated in connection with this, the transport to Germany, and the crimes connected therewith, and finally, fifth, the treatment of foreign workers in Germany and the atrocities committed in connection therewith.
He knew nothing at all about them. He did not commit these crimes; neither as a principal nor as an accomplice. He neither ordered such crimes nor instigated them. He did not take a consenting part in them either. On the contrary, he always eliminated minor abuses and constantly saw to it that the conditions of the foreign workers were ameliorated by special gifts. He was in no way connected in a causative manner with the planning or execution of these crimes, and here I refer you to my earlier legal statement, for he would have had to know about them, that such atrocities, murders, and other inhuman acts occurred in connection with the recruitment, transfer to Germany, and treatment within Germany if he is to be held responsible for them. Neither did he belong to the organization which was connected with the recruiting, transport, and treatment, namely, the Organization Sauckel. If at all, he could be charged only with the utilization of foreign workers.
No just man who values that name can, by virtue of knowledge subsequently acquired, condemn the actions which a defendant committed at an earlier time in ignorance of what later became known. Today the whole world is full of the horrors which have been brought to light. It is not true, however, that these horrors were desired by the supreme leadership. That Sauckel acted independently here and that he alone bears the guilt is shown by Defense Exhibit 3, in which Sauckel lied to Hitler, saying that workers had never been treated so well as by him.
I do not wish to defend Hitler. As a German, I myself have every reason to raise the most bitter and serious charges against the man whose account of guilt can never be paid up, but here it must be said that Hitler could hardly have included the commission of atrocities and murders in his plan for the foreign workers, for if that had been the case, Sauckel would not have had to lie as he did. Then he would not have had to pretend to his lord and master that he was treating the foreign workers so well. Such lies, such deceit, are practiced only by the subordinate who is aware that he has violated instructions and that he can be punished by his superior.
Document R-124, Defense Exhibit 32 shows clearly that in two cases Sauckel acted against Hitler’s instructions in committing his crimes. Therefore, even Sauckel’s labor organization was not created for the purpose of committing atrocities, murders, and other inhumane acts. Sauckel and a number of his subordinates made themselves guilty on their own accounts, and as guilty persons they strove to keep secret and to cover up their crimes. That the defendant cannot be responsible for these secret acts is hardly to be doubted.
I realize that in answer the prosecution will remind me of all the documents with severe statements by Milch which have been submitted to the Tribunal. This is a serious count of the indictment, but one can achieve clarity on the complex of questions thus brought up only if one considers whether Milch made these severe statements only against foreign workers and prisoners of war or whether they were simply a part of his nature.
The witnesses Richter, Foerster, Hertel, Eschenauer, Pendele, and Vorwald have confirmed that Milch in his tantrums threatened even his German subordinates, his best workers, with hanging and shooting, and here in this room several men have appeared on the witness stand whom the defendant shot or hanged in words. This clearly shows that the defendant was not one-sidedly filled with hatred of the members of foreign nations; besides, this was hardly to be expected in the character of a man who for years energetically worked for peaceful collaboration with other peoples and who despised the racial doctrine and the idea of the “master race”. Rather, it makes it clear that he threw out such wild expressions only when he was excited, so that his subordinates acquired the habit of laying bets on the number of people who would be shot, when they knew that exciting matters were up for discussion. I read a number of passages to you from the notorious speech before the quartermasters and fleet engineers, in which he raged against those present and against himself in the same terms as he used against the foreigners. And in other documents submitted by the prosecution, one can find such expressions used against Germans, against members of the leading class of the German people, and against German workers. All this proves that an unfortunate inclination of Milch is here expressed for which, like a sick person, he cannot be held responsible, especially since he never carried out the punishments which he threatened. All the witnesses whom I have called to the stand from Milch’s entourage have testified that he used such terms only in tantrums. These tantrums occurred frequently, and always when he had met with major difficulties in the way of his work to save Germany from complete destruction. He was a sick man. He suffered several very serious accidents, all with severe brain concussions. It is an old experience of medicine that such people are easily excitable, and you must not forget how much this man had on his mind. He was a clairvoyant. He knew that the war was lost for Germany. He realized what horrors Germany was doomed to through the increasingly violent air war. He knew what help was possible in the distress of his people, and he had to stand helplessly by while his short-sighted and perhaps malevolent superiors frustrated, hampered, and prohibited all his precautions. In such severe physical distress, even a healthy man would become so irritable that he would be subjected to violent outbursts of anger. How much more violent would these outbursts be in the case of the sick defendant. His distressed soul housed in a suffering body, helplessly exposed to its worries, reacted in this way to relieve the tension.
Many witnesses, in particular the witness Vorwald, have told you that when such excitement occurred the defendant even changed physically, that the back of his neck became red and swollen and that afterwards he no longer knew what he said while he was in such a state. That this testimony, especially that of the witness Vorwald is true, is shown with actual certainty by the incidents between the defendant and Goering on the occasion of the report on the crimes committed by Terboven in Norway on the civilian population, and Document R-134, Exhibit 159 of the prosecution. The prosecution without justification bitterly reproached the defendant for failure to protest against this monstrosity. The defendant in his defense was not able to answer that he had done so. Vorwald has testified that this process took place in connection with an outburst of anger about precisely that incident, and because the testimony of Vorwald that the defendant did not remember afterwards what had happened during his period of excitement is true, the defendant was not able to carry out a full answer in his own defense because of his excitement. He did not remember. Your Honors, it is clear you have achieved deep insight into the souls of men. Therefore, surely you are able to judge that this incident has revealed the truth of what the defendant and his witnesses have told you. Otherwise he would be able to cite his protest as a defense against the charge of the prosecution.
Now, I assume that the prosecution will object that these fits of rage occurred much too frequently and that they are therefore not a pathological symptom but a normal expression of his character. Your Honors, this can be disputed by a very simple consideration. The so-called GL (Generalluftzeugmeister—Air Ordnance Master General) meetings took place twice a week. That means that from the time when the defendant took office there were a total of about 160 meetings. In addition, there were 60 meetings of the Central Planning Board. Finally there were about 30 Jaegerstab meetings, altogether about 250 meetings in which the defendant participated. The meetings lasted many hours. According to my concept the average number of pages of verbatim transcript of the GL was about 200 for a single meeting, or about 30,000-32,000 pages for the GL alone. If one includes the transcripts of other meetings then one comes to figure approximately at least of about 35,000 pages for all the transcripts at a conservative estimate. This is an enormous figure from all these many meetings. From all these many, many pages of transcript, the prosecutor has been able to submit only a very few pages with only very occasional extravagant statements. Therefore, the question is asked whether this was the normal tone of the defendant. It is also significant that in the meetings of the GL, such outbursts occur much more frequently than in the transcripts of the Jaegerstab or the transcripts of the Central Planning Board. In the GL meetings the defendant was in his own realm among us “parson’s daughters”, as the witness Vorwald said. Such outbursts naturally occurred there more often because according to experience a human being can let himself go more easily among his most intimate friends than among his subordinates. Nevertheless the outbursts remained isolated.
How curious is it that the emotional disturbances of the defendant occurred repeatedly in connection with the same subjects of discussion, for example, in the question of the work done by the French industry, the French people, the question of so-called slackers, or the discussion of threatening and inciting remarks made by foreigners. Sometimes several outbursts occurred at brief intervals, one after the other. Why, your Honors? Because the matters that excited the defendant were not settled. But this leads us to the question of whether the defendant followed up these wild words with deeds. He never did. Just consider, for example, the question of slackers or the question of the work done by the French industry, the French people. These apparently so malevolent orders issued in anger were not carried out. These stones were repeatedly laid in the path of the defendant. Here, your Honors, I ask you to penetrate into the depth of the circumstances with the understanding that characterizes a legal person. The defendant repeatedly became excited, for example, over the so-called slackers, Germans unwilling to work whom he considered to be traitors. Each time he issued strict orders, expressed wild threats, but would it not have been the most natural thing for this excitable man on all these occasions, which followed one on the heels of the other, to shout at his subordinates and to reproach them, to ask them why the orders which he had given and supported before in anger and which he had advanced repeatedly had not long since been carried out? Would that not have been the most natural and the first thing that he would have done in his anger if he had really expected and wanted his wild orders carried out? Your Honors, look at it from the human point of view. Revive all the experiences of your long and no doubt rich lives and examine with me whether I am not right in what I say.
I challenge my learned opponent to show me in all these instances, which are really appalling, one single expression indicating that the defendant objected to the failure to carry out his earlier threatening orders. Not a single word can be found and here, your Honors, the truth becomes so obvious that no intelligent man can ignore it. It sounded incredible in the mouth of the witnesses when they said again and again that no such orders were carried out. It has been put to the defendant that it is improbable that a field marshal did not expect his orders to be carried out and that all his subordinates did not immediately rush to carry out his orders, but the man who is sitting before you told the truth in spite of all appearances to the contrary, for if he as a field marshal had expected his orders issued in anger to be carried out then he would surely at one time or another have expressed dissatisfaction because they had not been carried out. But he did nothing except to get angry from his sickness and his anxiety about his people. It is clear not only from the Terboven case that he actually knew nothing about what he had screamed out and that he never seriously pressed home his demands. The Court has questioned him repeatedly about these expressions. He always supplied that he did not remember them and he did not believe that he had said so. He has often had to tell you that what he shouted was wrong if he had actually said it. That too seemed incredible at first, but as this man afterwards no longer knew what he said in these attacks then he cannot testify about them. It is also clear that a man in such a fit speaks many untruths and one cannot assert that he lied deliberately. The man, as I say today, has told you the truth as far as he can know it to the best of his knowledge and belief. These transcripts cannot convict him of untrustworthiness. Moreover, in many cases the transcripts are no doubt full of mistakes, distortions, and errors. I have shown you a number of passages which must be wrong. I have shown you transcripts such as NOKW-359, Exhibit 75, which speak of Milch’s presence and statements although on that day he could not have been present in the Jaegerstab. This is also true of some records of ostensible GL meetings. I have also proved that other transcripts make no logical sense in German and that several statements must have been run together there. Today, of course, no one can say whether these various statements were all made by the defendant. Many witnesses which I have examined on this matter, for example, to name but a few, Richter, Pendele, Hertel, Speer, and Vorwald, have testified that the transcripts contained many errors and that they were never corrected, that they were sometimes even intentionally distorted when the defendant attacked his superiors. Such passages were either left out or changed in such a way that the attacks on the person in question were no longer recognizable. But who would seriously consider it permissible to use such faulty transcripts as evidence?
All the witnesses from the entourage of the defendant have told you finally that in these Central Planning Board, as well as in the Jaegerstab and GL meetings, that in addition to transcripts reproducing the individual speeches and opinions so-called records of results were drawn up which contained only the really important decisions, orders, and regulations. They alone were valid for the subordinates. Those concerned acted according to them alone. It is noteworthy that the prosecution has not submitted a single one of those records of results containing any inhuman orders issued by the defendant. I beg of you, your Honors, not only to give severe consideration to the weaknesses of the defense, I beg you to draw your severe conclusions from the weaknesses of the prosecution as well. The fact that no incriminating records of results have been submitted proves once more that these threats were never carried out.
Your Honors, in disturbed times other men, too, sometimes say things which cannot be taken seriously. Men can be charged only according to their deeds, not according to their chatter. If you have access to Churchill’s speech made in his first excitement after Dunkirk, you can see what violations of international law he recommended to the civilian population of England when he called upon them to prevent a German airborne landing. But he never actually issued any such orders, and so no one will try him for that. When the late General Patton said at one time that he intended to continue to collaborate with such of the German Nazis as were specialists, some excited American newspaper ran this headline: “Patton Should Be Shot.” Who would be so stupid as to call these newspapers inhuman? No one in the world; no one takes such excited words seriously. No one can say that these outbursts of anger meant that Milch approved the atrocities which occurred elsewhere in Germany.
The affidavits of Kruedener, Defense Exhibit 37, Lotte Mueller, Defense Exhibit 38, the testimony of witnesses Koenig, Vorwald, Pendele, have all shown that this man always and everywhere tried to help people in distress. He, who ostensibly wanted to force the foreign workers and concentration camp inmates to work by means of starving them, had the concentration camp inmates supplied with food from his estate near Rechlin in order to improve their diet. Thus, in his actions, he did the opposite of what he shouted in his anger. But one could raise a very serious charge to the effect that Milch by his thoughtless manner of speaking incited the elements throughout the country which committed such misdeeds. But this again, your Honors, is untrue. You have not heard one single example here of anyone having acted according to Milch’s words and having referred to having done so. These displays of fury only occurred among people who knew Milch and knew that he could not be taken seriously in such moments. All witnesses have stated for you that these fits only became known to the circle of intimates.
I lived in Germany throughout the war. Although the sins of the high-ranking leaders of the Reich were eagerly discussed among the people, I never heard one word about Milch’s fits of rage. In reply to my question the witness Vorwald stated convincingly that nobody spoke about these incidents to other persons because they did not wish to expose their superior to whom they were attached. His loyal followers surrounding him with a cordon of silence. Nothing could be more understandable, and every decent person who respects his superior will and must act in the same manner, for, in spite of his occasional fierceness, Milch was popular with his subordinates. The witnesses Richter, Hertel, Pendele and Vorwald, among others, testified before you that Milch was highly esteemed. Richter actually called him the best and fairest superior whom he had ever met in all his life. Here, your Honors, in this praise Milch’s true nature appears before our eyes.
I believe, therefore, to be justified in saying that one cannot and must not judge Milch by his wild talk. To infer guilt from that would mean to pass a judgment which could never be upheld before justice. Nobody may be judged by empty phrases. I would like to tell you a true story here which occurred in Germany during the discussions about a new, more stringent National Socialist penal code. At that time the Party took the point of view that criminal intent in itself was punishable, and thus, during a meeting of the Penal Law Commission in connection with the question of the meaning of murder, a long debate developed as to whether a person who intended to bring about the death of an enemy by prayer was to be punished by death for murder. The majority of Party members concurred with this mad opinion on the punishment of criminal intent. The sensible ones protested against it for a long time. When the debate was nearing its end, Dr. Guertner, the Reich Minister of Justice at the time, a clear-sighted man, rose and with one single sentence made reason prevail. These were his words: “Gentlemen, I do not understand you. All my life a corpse has been part of a murder.” The narrow-minded Party doctrinaires had to give in to the scornful laughter that followed these words. And in that way I should like here to think of Milch’s wild talk and exclaim, “Where is the corpse?”
In my opinion the only remaining question which needs serious discussion is merely that of the employment of foreign workers, of PW’s, and of concentration camp inmates. To begin with, it must be mentioned that the prosecution in its opening speech maintained that Milch more than anybody else in Germany was occupied with the employment of forced labor in Germany. That statement, however, is in no way correct. That, at least, has been clarified by the evidence beyond all doubt, it seems to me. There can be no doubt that Sauckel and Speer had considerably more to do with so-called forced labor than Milch, quite apart from Hitler and Goering themselves.
It is necessary to visualize clearly the scope of Milch’s sphere of activities and of his authority. Your Honors, even if you were only to check the three part Defense Exhibit 55 which I submitted, even to a superficial scrutiny only, you would realize immediately that Speer alone had a great deal more to do with this work than Milch. Speer was in charge of all armaments for the army and navy which, measured in human beings, by far exceeded the Luftwaffe, and alone exceeded the volume of the Luftwaffe armament many times, in particular as Milch only dealt with the construction of airplanes and as all equipment for the crews, in fact were part of the army equipment. Furthermore, Speer was in charge of all other productions in the German Reich. Finally, after the establishment of the Jaegerstab, Speer was also placed in charge of all armaments for the Luftwaffe. This Defense Exhibit 55, to which the defendant has sworn and which is based on the prosecution’s own Exhibit 58, reveals a much greater and more comprehensive scope of Speer’s organization. It was he, who as the central authority, not only controlled an apparatus with considerably more tasks, he alone also had at his disposal the executive authorities in the country, who dealt with all matters which had to be taken, whereas Milch had no executive organs at his disposal. He had, therefore, no executive powers whatsoever. Speer alone was in charge of the powerful main committees, the main industrial rings, in which the captains of industry exerted their influence and power.
He was also in charge of the armament commissions and armament officials of the armament inspectorates and armament detachments in the defense districts. And lastly, the Gau plenipotentiaries and provincial economic offices in the whole country listened to him. He was with Hitler almost every week, and therefore, he possessed much more influence to which Sauckel’s power—
[At this point, the following discussion took place:]
Presiding Judge Toms: May I ask you what was Koerner’s special interest?
Dr. Bergold: I am not speaking about Central Planning Board here. I am only speaking about the GL.
Q. I know, but in the Central Planning Board what particular field was Koerner interested in—the navy?
A. Koerner? No. He was mainly in charge of agriculture. He testified to that effect.
Presiding Judge Toms: Very well.
[Dr. Bergold continues.]
Speer was with Hitler almost once a week and had therefore much more influence to which Sauckel’s power set the only limit. The man, Milch, never possessed such a machine. The GL was nothing but a technical agency in the Reich Air Ministry which generally, as the witnesses Vorwald and Hertel confirmed, was told by the General Staff of the Luftwaffe what was to be constructed. If Milch had really been the powerful man as the prosecution describes him, it would have been possible for him to carry out his plan for Germany’s air defense. But the achievement of this goal for which this man worked with unbelievable effort and with all energy was denied to him simply because he was only in charge of a technical office which could not make any decisions whatsoever. Hitler, Goering, and the General Staff of the Luftwaffe decided what this man had to construct and what plans he was to carry out. He carried them out within the framework of the task with which he was entrusted, always being suspended in the middle, without ground under his feet, without the direct authority to give orders to industry, without influence on the supply of manpower and materials; he could only get influence through the Central Planning Board, and there too the fundamental decisions were made by Hitler, by the latter himself, on the advice of Speer. It is not necessary for me to name all the witnesses. All his collaborators have testified to that effect.
May it please the Tribunal, if you examine the statements made by Hertel and Vorwald, you will gather from them beyond any doubt that the GL had nothing to do at all with the question of labor, with the recruiting, transportation, and assignment of workers. The GL, and this cannot possibly be doubted by anyone after hearing all these witnesses and especially after Milch’s testimony, had merely to make the blueprints for airplanes and the construction necessary for this purpose, and then to place the orders with the completely independent industry, following in all this the instructions of the General Staff and the orders given by Hitler and Goering. All witnesses from the GL have confirmed before you that the GL had nothing to do at all with the labor question; that he did not request one single worker or exert any influence on Sauckel. It is true that requests for labor passed, for statistical reasons as well as for control purposes, through the GL office. But it is important to remember and never to forget that industry submitted its real labor requests throughout the country to the labor exchange offices which were Sauckel’s agencies and to the armament inspectorates and armament detachments which were Speer’s agencies.
Vorwald and the defendant himself have shown you with unmistakable clearness that the only thing which the GL had to do with these requests was merely that he examined these requests of industry concerning the material point as well as the labor point, and that he then reported to the Speer Ministry whether and in how far the requests of industry were exaggerated and false and if the GL considered fewer material and less manpower to be adequate.
Now, what does such an activity actually mean? Surely not, as the prosecution submits, the enslavement of new workers, but exactly the contrary; namely their reduction. If the GL had not exercised this activity, Sauckel would have got much larger requests from industry and he would have procured this labor by means of more forceful methods than he actually did. That industry had to request workers in order to carry out its tasks assigned by Hitler, Goering, and the General Staff of the Luftwaffe, who were the authorities who decided on the extent of the construction program of air armaments, was however not caused by the GL. He was nothing else but an executive organ in the chain of command from Hitler, Goering, and the General Staff. He was merely the technical agency which had to make the blueprints and constructions, and then, after approval by higher authorities, had to submit them to industry for the undertaking of the orders.
This, your Honors, is the recital of the evidence produced on the activity of the GL, and the only thing which the GL did in the framework of this activity was to reduce to the lowest level the requests for labor made by industry, for the many reasons that he was sufficiently expert to look through the exaggerated requests of industry which could never get enough workers. It is significant that the GL minutes which have been submitted nowhere reveal a discussion of real manpower guidance, but, at the utmost, that once a few questions were discussed for information purposes. It is furthermore highly significant that among the entire organizations of the GL there were no offices for labor assignment and labor research as was the case in the Armament Ministry of Speer (see Defense Exhibit 55), but merely for statistics of the personnel. There is nothing to clarify the real situation better than this fact.
Has the fact that industry, which had to carry out Hitler’s construction program, employed foreign workers, prisoners of war, concentration camp inmates, been caused by the defendant? Industry had employed these people before the beginning of Milch’s tenure; it employed them because Hitler had ordered through Sauckel that industry had to employ these people—not in order to obtain slave labor for slave labor’s sake—but only for the reason to be able to throw still more Germans into the greedy jaws of the fiendish war and thus surely causing disaster for Germans as well as for other peoples.
As far as the GL is concerned—the least reproach can be cast upon Milch, of all the reproaches that can be cast upon him. It only consists in that he passed orders on to the air armament industry (and where did this not occur during the war?), and that he saw to it that no exaggerated requests for material and manpower were made.
The prosecution has proved nothing which could contradict these statements. But Milch has—and this, too, has been proved—not only curtailed exaggerated labor requests of industry by means of his statistics, thus preventing the increase of foreign labor, but in addition to that, as was stated by the witnesses Brauchitsch, Pendele, Hertel, Vorwald, and others, he always endeavored seriously and successfully to maintain the German workers in the factories; and in doing so he even saved German workers who should have been drafted, at least to the amount of 70,000 for the air armament factories, keeping thus on a lower level further requests for foreign workers and their assignment. A man who, as the prosecution means, is keen on slave labor does not act in that way.
Finally, there is another point to be mentioned in this connection. The International Military Tribunal—which, by the way, states expressly in its verdict against Sauckel that there is no doubt of Sauckel having had the over-all responsibility for the slave labor program—that Tribunal stated in its verdict against Speer that it has to be considered as a mitigating circumstance in his favor, that by setting up protected factories Speer had kept many workers in their homelands. Your Honors will remember the depositions of Hertel, Vorwald, and Milch, of which it results that as early as 1941 Milch, first together with Udet and later on alone, had factories working in France on the basis of a free agreement with the French plants in order to employ French workers in their home country. These agreements were, as has been testified to by Foerster, completely free, because in 1941 the industry of that part of France which at that time had not yet been occupied had concluded them. Therefore, Milch was the inventor of the idea to have labor employed on the spot in foreign countries. It was not only in France that he, being the first, carried that out. You have heard that this occurred also in Holland and in Hungary. Now, if the International Military Tribunal counted this circumstance as a mitigating one for Speer, it must all the more be credited to the defendant who acted that way not merely from 1943 onward, as did Speer according to his own statement in this trial, but already as early as 1941, and was the first to do so. In this instance again the defendant proved to be a man who endeavored to mitigate as much as possible the difficulties which had arisen from the prevailing emergency. That much as far as the defendant’s activity as GL is concerned.
When I come to consider in how far Milch’s activity on the Central Planning Board could be charged against him, I am aware that some of the minutes of the Central Planning Board could, in themselves, be interpreted as a charge against Milch. But if your Honors consider that out of sixty meetings of the Central Planning Board the prosecution could only list fifteen meetings in which labor questions were discussed—this being done in some instances in a perfunctory and casual way—it results from this fact already that the Central Planning Board, as to its aim, was not charged with the guiding of manpower, which at that time was the focal point of many schemes in all countries and, above all, in Germany.
In this trial there was much argument between the prosecution and the defense as to the significance and the essence of the Central Planning Board until, eventually, with the help of the key Document NOKW-245, Prosecution Exhibit 157, the argument was decided. There it says literally, “Speer and I (that is, Milch) are of the opinion that he (Sauckel) has to be incorporated somehow in the Central Planning Board in order to get the labor assignment, as well as the material, into our hands. At the present time we have no possibility to steer it.” These words were voiced on 23 February 1943 after the Central Planning Board had been in existence for already one year. These words were not voiced at that time for the purpose of ex post facto whitewashing, but they expressed the complete truth and have characterized the situation in quite simple and clear words for always and unmistakably. No decree has been submitted, nor order of Hitler has been proved, to show that this situation was changed. At no time, indeed at no time, was Sauckel a member of the Central Planning Board. If the prosecution wants to consider the wish Milch uttered at that occasion as incriminating, they are at liberty to do so. However, this is not a punishable deed, and nobody can tell what amount of good Milch could have done if he had factually been in charge of the labor assignment. His other deeds account for the assumption that he would certainly have stopped abuses and would have mitigated all that was necessary as far as possible. The members of this trial would not believe, at first, in the depositions of all the witnesses who have been heard here, including Koerner, stating that the Central Planning Board dealt with labor questions merely for reasons of information. The wording of the speeches seemed to contradict it. But, your Honors, the witnesses have also testified before you that the speeches could only be understood if they are read. Prosecution Exhibit 157 has put an end to all such doubts. Whoever wants to pronounce here the verdict with all the necessary seriousness cannot bypass this document. Nobody can contend any longer that the defendant has not told you the full truth. Therefore, his statement under oath is to be believed, which agrees with Speer’s statement in that the so-called labor assignment meetings were held with Sauckel always with the sole aim to obtain from Sauckel, who had reported so many false figures and was not scrupulous about telling the truth, eventually and for once, clear figures. Likewise, Document NOKW-195, Prosecution Exhibit 143, the report on the meeting of 28 October 1943, held at Goering’s place, shows a constant struggle with Sauckel in order to obtain true figures because Hitler would not believe that Sauckel’s figures were completely false. It has been proved that factually both Speer and Milch have been reproached because they did not fulfill the program made by Hitler, although many millions of workers had allegedly been at their disposal. Alone for air armament, according to Goering’s calculation based on Sauckel’s figures, five million workers should have been available—whereas the entire air armament employed a much lower total of people. As Hitler was a dangerous man and his reproaches could have disagreeable consequences, Speer and Milch cannot be blamed for wanting to get this subject clear; consequently, if they discussed this problem in detail—especially during the 53d and 54th meetings of the Central Planning Board—this has nothing to do at all with labor procurement. That these meetings have not been summoned by Milch—that they have been summoned by Speer and his ministry—has been proved. Milch presided over these meetings only because Speer was ill. But he only carried through the order of his friend Speer. But even these discussions do not alter the fact that the Central Planning Board as such had nothing to do with labor procurement. These very discussions were of a purely informative nature. By them the Central Planning Board did not obtain any influence on the carrying out of labor procurement nor on its distribution. How characteristic it is, however, for the personality of Milch that he used even this discussion about Sauckel’s figures in order to reduce the millions of new workers whom Hitler had ordered in January 1944 to quite a considerable extent.
In all the discussions submitted there is nowhere a word to be found, either to the effect that Milch had requested workers for his air armament. If the need for workers was under discussion, then always only, as the defendant himself confirmed, in regard to the basic industries—that is, mining and the iron industry and in regard to agriculture. It was always a question, as the records show, of the commitment of prisoners of war. But even according to the Geneva Convention prisoners of war may be employed in mining, in the production of iron, and in agriculture. These places of work are not actual armament industries.
That Milch did not have anything to do with the commitment of Russians in antiaircraft defense, which was not under him at all; that, on the contrary, he even opposed it, and that that part of the minutes of the 33d meeting of the Central Planning Board must be incorrect here, too, has been stated by the witnesses Hertel, Koenig, as well as others equally incontestably. It has now been proved that this order was issued by the OKW directly via Goering.
Thus Milch, in his capacity as member of the Central Planning Board, was neither perpetrator of, nor accomplice in, crimes; nor did the Central Planning Board have as its purpose the commission of such crimes. Its sole purpose was the distribution of raw materials—an activity which is not prohibited under any conditions.
The third activity of Milch which could bring him in connection with the so-called slave labor was the activity on the Jaegerstab. Were one to view this membership in the Jaegerstab from the point of view of the prosecution, one could perhaps maintain the previously formed opinion that this activity was limited to the increased use of slave labor. The testimony of Speer, Vorwald, and Milch, however, have shown that the Jaegerstab had two main aims, namely, first, to raise the production of fighter planes and, secondly, to facilitate Milch’s resignation from his office by transferring the entire air armament industry to the ministry of Speer.
Formerly, to be sure, Milch was one of the chairmen of this Jaegerstab, but the witnesses—among them Schmelter, Hertel, Eschenauer and Vorwald—have testified that the actual chairman of this Jaegerstab was Saur. Milch very soon withdrew from the Jaegerstab; in March 1944 he still participated in fifteen meetings, in April only eight, in May only five, and in June only two. Nothing proves the veracity of the testimony of the defendant more than the quite obvious decrease in his participation. If one considers the fact that the Jaegerstab held its meetings daily one realizes how rapidly the decrease in the activity of the defendant was. If one considers furthermore that he was not always present at the meetings at all, that he did not hear most of the details of the discussions at these meetings, one can say with certainty that he was really not the man who had the biggest influence in the Jaegerstab, and who performed the practical work there. The expression “breakfast director”, which the witness Dorsch applied to the defendant, characterizes the situation excellently. The Jaegerstab was concerned with labor questions only insofar as it guided the so-called transfer of workers who were already working in industry, in the event changes in production occurred, especially effecting, as far as possible, their transfer from closed down bomber factories to fighter plane factories. However, in this connection it is almost exclusively a question of so-called skilled workers, as the witness Schmelter, a specialist in this field, has confirmed. In this process no new workers of any kind were introduced into industry. The witness Schmelter, however, finally expressly confirmed that no real influence was exerted on Sauckel and his offices. Wishes regarding the transfer were merely referred to the Organization Sauckel. This fact in particular was emphasized in the statement of Schmelter with all the clarity desirable.
Thus, it has been proved in regard to this committee, too, that it had nothing to do with the bringing of workers into Germany from abroad, nor dealt with their redistribution. Thus, it was also not the purpose of the Jaegerstab to decide labor questions. Finally, it has thus been clarified that the ministry of Speer was the office which handled labor questions, insofar as it was necessary in the framework of the transfers. On the basis of the submitted documents, it seems at first as though the Jaegerstab had initiated and carried out the building of underground factories or of concrete protected factories above ground. The witnesses Speer, Hertel, Eschenauer, Koenig, Pendele, as well as Milch, himself, however, all clearly and decisively confirmed that these constructions were ordered directly by Hitler and Goering, and that the defendant had opposed these orders because he considered them senseless. It has furthermore been declared that Hitler himself, handled the needs of workers for these undesirable constructions. The Jaegerstab was connected with these constructions, according to all the testimony, only to the extent that it had to examine which ones of the fighter plane factories had to be installed in them. In this connection it must be remembered that a number of these constructions were also allocated for armament factories of the Wehrmacht. Thus, Milch also cannot be charged with any responsibility in this count. He was neither formally nor actually in a position to prevent Hitler’s and Goering’s orders.
Nor had Milch anything to do with the allocation of Hungarian Jews to these factories, quite apart from the fact that it has been made clear that these Jews were allocated only in the summer of 1944, which was stated by the last prosecution witness, Krysiak, that is, at a time when Milch had withdrawn from his office for some time. It has been proved that Hitler issued relevant orders here and that the Jaegerstab trip to Hungary was entirely unconnected with this matter because it was undertaken solely for the purpose of a conference with the legal Hungarian government. These consultations were merely concerned with agreements regarding aircraft production by the Hungarian industry in the large caves near the Danube. Not one single document has shown that Milch either agreed to or welcomed the employment of Hungarian Jews.
To sum up, I may say then that even within the Jaegerstab Milch was neither a principal nor an abetter in the crimes listed in the indictment. I might add that it was not the purpose of the Jaegerstab to carry out such crimes. In any case he was by no means the leading man on that board. It has been found with certainty beyond all doubt that the Jaegerstab served the purpose of helping the defendant to withdraw from office.
Mention must also be made of the question of concentration camp inmates working. Before going into details, I should like to make a few basic remarks. From all the trials in which I acted as counsel, from the questions asked in this courtroom, from various discussions I have had with citizens of your country, I have, your Honors, attained the certainty that in your circles no one believes in the truthfulness of the defendants’ and all other witnesses’ statements, namely that the average German knew nothing about the happenings in the concentration camps and that the defendant did not know of the existence of such camps, with the exception of Dachau and Oranienburg. As most Germans certify to this and as all witnesses swear to this under oath, it is first of all difficult to understand why such statements are not believed. It can only be explained by the fact that the citizens of your country have been so much influenced by press propaganda and the newly discovered facts that they put more trust in the reports of their newspapers than in the assurances of the citizens of a country which is now known throughout the world as the place of origin of many atrocities.
But should such prejudice which does not originate from [one’s] own and actual experience influence the judgment? I believe and always have believed that it is one of the essential laws of justice to base one’s judgment strictly on facts which have become evident during a trial. It is a proven fact that in Germany no one was allowed to write about concentration camps; that the rules of secrecy which had been imposed by the dictatorial regime had to be kept very strictly; and that even the German authorities in case of their violating these rules of secrecy, were threatened with death, as I have proved by the submission of Defense Exhibit 36.
From the statement of the witness Roeder, who, incidentally, explained that the defendant had neither the power of passing a death sentence nor of sending people to concentration camps, you have learned that the concentration camp inmates spoke to nobody about their condition. Even the prosecution witness Krysiak has told you that the prisoners did not dare to lodge complaints to anybody. How could the Germans generally learn about conditions in concentration camps? Milch, too, could not and did not learn about them, as he has told you, for the secrecy was kept even among the highest authorities. May the propaganda of your country insist on the contrary as much as it likes, what I have stated here still remains true, and I can certify it myself.
I myself who during the time of the so-called Third Reich often enough defended men who were accused because of their political views, I, who was watched by the Gestapo, who was attacked in the public newspapers of Nuernberg and especially was mentioned with name in the notorious “Stuermer” on account of my defense of unhappy Jews, I, too, didn’t learn anything about these camps, although clients came to me after their release from the concentration camp Dachau. I always asked them and I always received the answer that they had nothing special to report. It was, of course, no pleasant life, but they reported that it was not so bad.
I would ask you, your Honors, to consider how we could have learned of these conditions.
May I remind you in this connection that deeds have been committed in the east of the former German territory, in the Sudeten-German border territories of Czechoslovakia, and other countries, deeds which, even if one imagines them at their worst, remain far behind the truth. About these atrocities the international press has kept silent although one day history will speak and one will learn about them with horror. I have refused to give proof of the events which were brought about by your armies after the collapse. I could have mentioned many deeds which can be called nothing but grave infringements against the Geneva Convention. I could have given you a picture of how in the prisoners’ camps in the early days hundreds of German prisoners died of starvation. I am not accusing anyone. Shortcomings of organization and of human nature but not express orders and rules account for it.
I only mention this, your Honors, in order to point out that you did not learn about this and that it is only our unhappy and wretched people who know about it. But we who have had the bitter experience of the power of propaganda and of the force of secrecy know that ignorance of such matters can be excused and believed. Therefore, no one may say from the outset that all the unanimous statements by witnesses and the declarations of Milch are to be disbelieved. They have been sworn to; and the verdict must take them into consideration.
According to these it is certain that Milch only knew of the employment of concentration camp inmates in the Heinkel plant in Oranienburg and that he was of the opinion that these were German criminals and German political prisoners, of whose mistreatment, however, he had no knowledge. The use of prisoners and convicts is not a crime against humanity. This, however, should not have to be mentioned. In all countries in the world it is customary for prisoners to be obliged to work. In Germany this was even regulated by law to such an extent that the prisoners who were condemned to prison, that is, not to the penitentiary, also had to work. For a prisoner to have to work is not an atrocity. An atrocity can be seen only if the prisoner has to do this work under conditions which injure his health or which are inhuman.
But Milch did not know that the food, the housing, and the treatment of the prisoners were inhuman. One would have to prove such knowledge before one could punish him for it. You have heard, on the contrary, that he always did everything possible when he heard of individual cases of abuse. He even tried to help, as the Kruedener affidavit, Defense Exhibit 37, proves, in a case where he was not competent. As the testimony of Kruedener revealed this was a case of inadequate accommodations. Moreover, as the witness Koenig has testified, he instituted an improvement in the food given the prisoners at Rechlin on his own initiative, and he generally saw to it that workers got better rations.
But that does not mean that he knew that those prisoners were starving. It was unfortunately so that because of the total blockade of Germany by the Allied forces the food available to the civilian population of Germany was very poor. I myself had only had the minimum ration card; and I could tell you a long story about how difficult it was to work on such rations. Milch, however, obtained better food for everyone working under him for armament. It was he who was the first to obtain extra rations for his air armament industry because the workers worked overtime. As a number of records of the Central Planning Board and the Jaegerstab show, he obtained additional rations for the prisoners of war and, for example, sent the Russians into agriculture so that they might get better food there and be padded a little. He had an office set up in the Jaegerstab in order to obtain additional food and clothing for the workers, as the witness Schmelter has testified.
The improvement in the food of the inmates of Rechlin concentration camp was part of these measures. If he did this through his estate, it was because he had no influence with the administration of the concentration camps in respect of the issue of additional ration cards.
It would not correspond with justice if he was pronounced punishable for the employment of concentration camp inmates under these conditions. The compulsory labor of prisoners has always been lawful in Germany even before the Third Reich. He knew nothing of cruelties and atrocities or inhuman treatment. Therefore, his consent to these cannot be proved.
If I may summarize then, I believe that my opening statement for the defense had correctly revealed that Milch was not a slave holder, moreover that he never aspired to be one, that he was of the opinion that the employment of such workers was permitted, and finally that he had done everything to keep down the employment of foreign workers as much as possible and to make it as humane as possible. At any rate the prosecution’s description of him is in no way accurate, and could only originate from a misunderstanding of the man, his speeches, and of his background. Sauckel and Speer had far greater responsibility in this connection. It was they who had real influence, and not Milch, but even in the case of Speer who was higher than Milch in his position, the International Military Tribunal has granted extenuating circumstances in connection with the manpower issue. I am convinced that Milch thought employing such labor was permissible, and that he did everything in his power to keep such employment to the lowest level and as human as possible.
I am conscious of the fact that the verdict of the International Military Tribunal is a great obstacle for me, and nevertheless the Tribunal was merely composed of human beings, and it had passed judgment under particularly difficult circumstances, and in composition it opened the door to politics into the courtroom. I do not need to remind you that in the English speaking countries, several verdicts of the Tribunal were subjected to very serious criticism. I myself here attacked one point of this verdict with better witnesses and better evidence, that with regard to slave labor, for example, the International Military Tribunal based itself upon a wrong assumption. Nobody stated there that the U.S.S.R. had called off the Hague Convention of Land Warfare. I checked up on those features of defense, and I found that all the time it was only talk that the U.S.S.R. had not become a partner of the convention. The statement of von Neurath revealed that notice of withdrawal was expressly given.
Here we not only pronounce penalty verdicts or judgment, but also political judgments, whether we want to or not. Especially in politics there is always some fluctuation. Every day new facts turn up, which throw different light upon things. The distance of time which always grows greater and greater and separates us from the irritating events of the past allows an ever clearer judgment. The man who returns from battle is always confused. The more he becomes calm the more he admits justice towards his enemy.
Honorable Judges of this Tribunal, when you judge please don’t forget the whole personality of Milch. He always concerned himself as a good and noble man, and I am not only convinced of that as his counsel but also as a human being. The world would have a different outlook if his superiors had listened to his advice, which was intended to serve the people of this world, and the common will of the people, and peace. In his heart he always took the side of the fighter who fought for united Europe, which now has been joined also by his former enemy number one, Churchill. May this statement of Milch which has thrown new light upon things serve this aim. Poor and tortured Europe needs an enduring peace. May his statements also open the eyes of those among the German people who still cannot give up their misconceptions of many years, and show them what crime has been committed against them.
But you, Honorable Judges, must recognize from the attitude of the defendant Milch that he never became unfaithful to himself, and even if he had been perhaps under the spell of erroneous conception, he has always wanted the best for his and other people.
I have profound confidence in you, Honorable Judges, that you, equally detached from your own people, will find an independent, true and righteous judgment that corresponds to the truth. I shall consider it as an honor for my person if I have contributed to this through my painstaking labor.
[152] Defense Counsel Dr. Friedrich Bergold delivered the closing statement before the Tribunal on 25 March 1947, Tr. pp. 2377-2435.
[153] Trial of the Major War Criminals, vol. I, p. 226.
[154] Ibid., p. 253.
[155] Memorandum of 15 September 1941 from Canaris to Keitel concerning an OKW order regulating the treatment of Soviet prisoners of war, contained in Nazi Conspiracy and Aggression, vol. VII, p. 411, U.S. Government Printing Office, Washington, 1946.
VI. FINAL STATEMENT OF THE DEFENDANT,
25 MARCH 1947[[156]]
Defendant Erhard Milch: Since I became a soldier in 1910 my work has been devoted to my German people. In the First World War I was at the front from the first to the last day. Then with others I built up the German air lines, and when in 1933 the government asked me to enter the Air Ministry, despite many misgivings, I could not refuse to take up that task because it was pointed out to me that I could not turn a deaf ear to this call of the German people.
I have remained faithful to the idea which I conceived at the time of the air lines, that all nations must collaborate, particularly the European nations. Pressed together in a small area, and whenever possible, mostly outside my actual sphere of work, I dedicated myself to that task. I was opposed to war because my experiences from the First World War showed me that the living standard of any people would not be improved by war, and on the contrary everybody would be grievously harmed.
It was for me a matter of course, even in the late great war, the planning of which was unknown to me, to do my duty in my post. My full effort was dedicated to the air defense of the German homeland. This I conceived to be the only possibility to obtain bearable peace terms. Even though I had nothing to do with the employment of workers, including foreign workers, I considered it to be my duty to make precise investigations into the admissibility of work by foreigners, investigations which were answered in the affirmative; I also made efforts to keep the numbers as low as possible and to see to it they would work in protected factories in foreign countries.
I always made efforts to improve the living conditions of all types of workers.
My statements made to the best of my knowledge and conscience to this Tribunal were directed to the world at large, and above all to the German people, in order to show that only by peaceful understanding of the nations among each other could life and civilization be secured in future and that understanding was not only necessary but also possible if good will prevails. But I also wanted to show my fellow Germans quite clearly that an autocratic government which is not controlled must end in disaster.
My personal fate is of no consequence in this connection. I am interested only in one thing—that the German people should, as soon as possible, be relieved of their untold suffering and should join the community of nations as an equal partner.
[156] Tr. pp. 2489-90.