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.