The third and final condition, under which deportation becomes illegal, occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner. A close study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal or whenever the deportation is characterized by inhumane or illegal methods.
Article II (1) (c) of Control Council Law No. 10 specifies certain crimes against humanity. Among those is listed the deportation of any civilian population. The general language of this sub-section as applied to deportation indicates that Control Council Law No. 10 has unconditionally contended as a crime against humanity every instance of the deportation of civilians. Article II (1) (b) names deportation to slave labor as a war crime. Article II (1) (c) states that the enslavement of any civilian population is a crime against humanity. Thus Law No. 10 treats as separate crimes and different types of crime “deportation to slave labor” and “enslavement.” The Tribunal holds that the deportation, the transportation, the retention, the unlawful use, and the inhumane treatment of civilian populations by an occupying power are crimes against humanity.
The Hague and Geneva Conventions codify the precepts of the law and usages of all civilized nations. Article 31 of the Geneva Convention provides that labor furnished by prisoners of war shall have no direct relation to war operations. Thus the convention forbids (1) the use of prisoners of war in manufacture or transportation of arms or ammunitions of any kind; and (2) the use for transporting of matériel intended for combat units. The Hague Regulations contain comparable provisions. The essence of the crime is the misuse of prisoners of war derived from the kind of work to which they are assigned, in other words, to work directly connected with the war effort. The Tribunal holds as a matter of law that it is illegal to use prisoners of war in armament factories and factories engaged in the manufacture of airplanes for use in the war effort.
Now, considering the basic charges and the law governing the charge against the defendant in which it alleges his responsibility for and participation in the medical experiment program, the fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the person, and other inhumane acts. The provisions of Control Council Law No. 10, which are applicable to this charge, to wit, Article II, are “b. War crimes” and “c. Crimes against humanity.” The bill of indictment charges:
“A. War crimes, namely violations of the laws and customs of war as to medical experiments performed involuntarily upon persons, some of whom were prisoners of war and citizens of countries who were at war with the German Reich, and other deported citizens from other countries who were at war with the German Reich involving the commission of murders, tortures, and other inhumane acts.
“B. Crimes against humanity, namely medical experiments performed upon involuntary German nationals and nationals of other countries in the course of which brutalities, murders, and other inhumane acts were committed.”
The prosecution contends that the defendant Milch did not personally participate in or personally direct, counsel, or initiate such medical experiments but that the same was done by members of his command and that he was personally responsible for their conduct by virtue of the authority that he held over his subordinates.
In this connection in the recent case before the United States Supreme Court in re Yamashita, the opinion of which was handed down by the Supreme Court of the United States at the October term, 1945, of said Court, some of the pertinent holdings in this case are as follows:
“It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.
“This is recognized by the annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land. Article I lays down the condition which an armed force must fulfill in order to be accorded the rights of lawful belligerents, that it must be commanded by a person responsible for his subordinates.