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.