Yet it can be argued and it has been argued that despite the imperative need of an occupational force with its almost unlimited jurisdiction, such an occupying force simply represents the authority of victor over vanquished. In the discharge of its duties under the law which created it, this Tribunal is not called upon to answer the arguments just indicated, but a respect for the opinion of mankind invites a listing of the reasons which establish the justice of the procedure here invoked and the reasons which must invest its judgment with the solemnity and solidity of accepted international law.
In the first place, it is not Control Council Law No. 10 which makes abuse of civilian populations an international crime, nor even the decision of the International Military Tribunal, which in turn derived its power from the London Charter which had as its antecedent the Moscow Declaration of 1943. International law is not a body of codes and statutes, but the gradual expression, case by case, of the moral judgments of the civilized world, and no international law textbook of the last century ever sanctioned the deportation of a civilian population for labor. Although under Article 52 of the Hague Regulations, the inhabitants of occupied countries may be used for the needs of the occupying army, such civilians may be utilized only in proportion to the resources of the country, and they may not under any circumstances be required to take part in military operations against their own country. L. Oppenheim’s Treatise on International Law (Vol. II, Sixth Edition, page 345) states flatly that there is no right to deport inhabitants to the country of the occupant for the purpose of compelling them to work there.
It is submitted, however, that though this is the law and so recognized, total warfare, as it raged in World War II, suspended, if it did not outrightly abrogate, all these rules heretofore respected and esteemed as binding on civilized nations. In this respect defense counsel argues that “modern warfare, having as its aim total annihilation of the armed production of the enemy, brought with it to a great extent warfare against the civilian population,” and he cites total blockade as an illustration of his thesis. It is true that total blockade affects the entire blockaded population, as indeed air raids strike at the most helpless and harmless of the enemy’s civilians. The writer of this opinion was witness many times to the death and mutilation of inhabitants, including women, children, and old men, in Luftwaffe air raids aimed at legitimate war targets. German civilians also paid with their lives for living in their own country. And thus, it would seem in principle, that if civilians may legitimately be killed through military action, though noncombatant, they may certainly be made to work. But it does not follow that because military necessity unintentionally victimizes a civilian population, political domination may strip them of their civil rights and subject them to intentional torture and possible death. With all its horror modern war still “is not a condition of anarchy and lawlessness between the belligerents, but a contention in many respects regulated, restricted, and modified by law.” (Oppenheim, ibid., 421.)
Though the adversaries descend into the pit of bloody combat, there is always open to them the means of re-ascending to the level of nonhostile negotiations. The matter of temporary truces for recovering the dead and succoring the wounded, the making of arrangements through international relief organizations for the treatment of prisoners, the granting of safe passage through the lines of persons mutually agreed upon by the parties, all are instances which refute the logical development of defense counsel’s argument that total warfare justifies the abandonment of every restriction and authorizes the combatants to use all manners and means to win the conflict.
And no one was in a better position to understand this than the defendant. He had participated as a soldier in the First World War; he had, following the war, entered distinguished private enterprise; he had travelled extensively and was induced by none other than Hitler himself to enter the Air Ministry long before the outbreak of World War II because of his talents and abilities. It is idle for defense counsel to say that Milch “was never a good National Socialist.” If joining a political party, accepting its benefits and preferments, rising to supreme heights in grade and distinction, offering never-flagging loyalty to the Fuehrer, even in the face of a declared acknowledgment that the Fuehrer was leading Germany to disaster, if this does not make one a full-fledged National Socialist, then nothing does.
Milch did not simply passively ignore international law, he actively expressed a knowledgeable contempt for it. We have seen how he declared at one of the Central Planning Board meetings that “International law cannot be observed here.”
Defense counsel made much of the point that the German people did not want war, and the defendant himself described how when the first tanks moved through the streets of Berlin, the inhabitants of that city were silent and worried. But it is not clear how this observation advances the innocence of the defendant. If anything it adds to his moral guilt because the evidence reveals only too well that to the fullest extent of his energies he prosecuted a war which he states was against the will and interests of his people. The indictment has not charged him with waging aggressive war, but in view of his participation in the 23 May 1939 conference when Hitler outlined quite clearly his aggressive intentions, and in view of his (Milch’s) never tiring efforts in the war’s various phases—at the front, in the air, in production, in inspection—it cannot be said that to his trained mind the war had the aspects of a defensive and not an aggressive conflict. Although Milch has here repudiated belief in the master race theory, yet we know that he went through a formal procedure to establish the absence of Jewish blood in his veins. This procedure even took the embarrassing turn of statements concerning his parentage. In doing this, Milch could not help but know that the Jews were being persecuted by the political party to which he voluntarily belonged. Nor will the Tribunal believe his declaration that he knew of only two concentration camps in all of occupied Europe. For the Tribunal to acknowledge this statement would be to declare Milch weak-minded if not non compos mentis. Milch, was constantly threatening workers with the concentration camp. These threats he attributes to excessive anger as he does all his outbursts, to which we have already called attention.
Milch would have the Tribunal believe that his violent language was never intended to produce results. He explained that his declaration that Italian prisoners of war attempting to escape should be shot does not constitute cruelty because, in the words of his counsel, “all countries have prisoners shot who attempt to escape.” This contradicts another statement made in court wherein he lauded prisoners who sought to regain their freedom. When confronted with inconsistencies of this character, the defendant invariably sought refuge in the statement that he was never taken seriously in his threats to shoot, hang, or whip. He informs us that he never used a whip, that everybody knew he exaggerated, that nobody took him seriously, and that he did not have full control of himself. But Erhard Milch was not the village idiot. He carried a field marshal’s baton, and the lifting of that baton compelled obedience no matter how idiotic might be the demand. Further, Milch’s imprecations were not simple interjections; they frequently carried the appearance of orders already given or about to be issued. He may never have actually penned a death warrant or called out the SD with its murder squads, but is it so certain that underlings beyond his cognizance did not carry into effect his sometimes very clear directions on punishments to be inflicted?
Violent language is not as innocuous as Milch would have the present world believe. Even if it should be true that his immediate circle laughed at his fulminations, as was testified, there is no assurance that others laughed. A field marshal’s fraternizations are necessarily limited. There were not many who had the privilege to stand beside him, as did General Vorwald, and philosophically muse; “Now his neck is getting red again.” There were necessarily hundreds in the course of six years of war who, attending his various meetings, were not informed that his fire and brimstone were froth. Vorwald can laugh at a field marshal and a field marshal can laugh at a Hitler, but the comedy ceases there. Milch has ridiculed Hitler’s speeches and pointed out that certain portions of the Fuehrer’s orations were known as the “Adam and Eve” section. He indicated further that many of Hitler’s thunderings were mere bluff, but who can say today that he was bluffing?
Hitler’s most potent force for evil was language. With all that he has to answer for at the bar of history, it can be doubted that there exists proof that he with his own hands killed any man or even the proverbial fly. Hitler’s armory was language. It was Hitler’s language which mesmerized the German nation. Every one has said so. He had no other abilities. He was no soldier. All the generals were agreed on that. He could not ride a horse, he could not drive a car, he could not build a fence. He could hang paper and he could talk, and the German people regarded that talk as substance. And on the phosphorescent sea of his wildly undulating phrases they launched the ship of their well-being with the tragic result that fragments and splinters of that ship now piteously stare at one from every nook and corner of this once prosperous and happy land.