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]]