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.