Records of this sort, which were taken down in the way described above and which are not submitted for perusal and approval by the parties concerned, are worthless in the production of evidence. They cannot in themselves alone serve as an adequate means of proof either to charge or convict the defendant. They can, therefore, only be made use of to the detriment of the parties implicated when the content matter is confirmed by other material brought for evidence from sources other than these minutes. In the present case there is no confirmation from other evidence that Göring actually made the statement contained in Item 20 or made a request to Hitler to that effect.
The note dated 21 May (Document 731-PS) fails to provide support for the claim. The note, “General Korten, according to a speech by the Reich Marshal, reports...” cannot, in view of the defendant’s uncontested statement, possibly mean that the Reich Marshal delivered an address on this matter in Hitler’s quarters but solely that Korten reported on this subject to the Reich Marshal and that Korten informed the Reich Marshal of Hitler’s order.
The rest of the examination of evidence has made it clear beyond doubt that Göring was against a special treatment of enemy terrorist airmen who had been shot down and that he opposed Hitler’s order.
The witness Colonel Bernd von Brauchitsch pointed out during his interrogation on 12 March 1946 that in the spring of 1944 there was a sudden increase in losses among the civilian population through machine gun attacks by enemy airmen. These attacks by enemy airmen were directed, within Germany, against civilians working in the fields, secondary railway lines without any military importance, and against pedestrians and cyclists. This constituted a gross violation of the Hague Rules of Land Warfare, according to which any combat act against the noncombatant population of the country is prohibited; and any attack or shelling of open cities, villages, residences, or buildings is forbidden.
According to the opinion of the witness Von Brauchitsch, this behavior, which quite evidently violated international law, caused Hitler to order specific measures against these aviators, besides general defensive measures. In this regard Hitler advocated, as far as it is known to the witness, the most severe measures; lynch action was to have a free run.
This attitude of Hitler toward the violations of international law by enemy aviators, however, did not meet with the approval of the Armed Forces, especially not with that of Reich Marshal Göring and his Chief of Staff, General Korten. Both of them did condemn to the utmost the attacks of enemy aviators, which were exclusively directed against the defenseless civilian population. However, they nevertheless opposed the handing over of defenseless, shot-down aviators to the aroused mob for lynch action; and they did not consider such measures to be an appropriate means of combating this conduct, however much in violation of international law.
The witness General Koller expressed himself to the same effect. Early in June 1944 General Korten informed this witness of the fact that the Führer intended to decree an order to the effect that terrorist aviators were to be surrendered to public fury.
In the course of repeated conversations the witness Koller and General Korten arrived at the opinion that the conception of the Führer must be rejected. They certainly considered the direct attacks of low-flying enemy planes on individual civilians, women and children, concentrations of civilians, school classes and kindergartens out on walks, farmers at work in the fields, as well as attacks on public passenger trains and hospitals, to be ruthless. However, the two did not see a way out or a solution of the difficult problem in the Führer’s order. They were of the opinion that such an order was contrary to basic military conceptions, the Articles of War, and international law, and that it would give rise to numerous evils through which both enemy and German crews would come to harm. And finally such an order might exercise, by its effects, a harmful influence on the morale of German crews.
All these reasons caused the Armed Forces to reject Hitler’s demand, and their attempts were now directed toward preventing the conception of Hitler from being put into practice. The witness Von Brauchitsch credibly states that the Armed Forces now looked for a way out finally found in the fact that the higher command levels were deceived by measures which were not actually carried out.
The witness Von Brauchitsch was ordered by Reich Marshal Göring to define in discussions with the OKW the concept of terrorist aviators. In the subsequent discussions and exchanges of correspondence those cases were mentioned which represented violations of international law and which were to be considered criminal acts. By this definition of the concept, lynch law was to be prevented. The exchange of correspondence, which lasted for quite a long period of time, showed the tendency of the office to protract the matter as much as possible.