I am of the opinion from the evidence offered on the part of the prosecution that illegal and inhuman medical experiments were conducted at Dachau by Luftwaffe physicians who were under the command and subordinate to the defendant Milch and from which a great number of deaths ensued to concentration camp inmates and that great pain and suffering and permanent disability resulted to many others. I find as a fact from the evidence offered on the part of the prosecution that Dr. Erich Hippke was the Medical Inspector of the Luftwaffe and was the direct subordinate of the defendant Milch; that Hippke gave authority and ordered Dr. Rascher, a Luftwaffe physician, in the early spring of 1941 to use concentration camp inmates and prisoners of war as high-altitude experimental subjects for the benefit of the Luftwaffe. I further find, as a fact, that the witness Hippke at no time communicated this information to the defendant Milch, nor has the prosecution offered any direct evidence to the effect that the defendant Milch knew that such experiments had been conducted until after their completion. All of the testimony and the evidence, both for the prosecution and the defense, is to the effect that the defendant Milch did not have such knowledge of the high-altitude or low-pressure experiments which were carried out and completed by Luftwaffe physicians at Dachau until after the completion of such experiments. The evidence offered as to the knowledge or responsibility of the defendant Milch was not of such a nature as to show guilty knowledge on his part of said experiments.

As to the cooling or freezing experiments performed at concentration camp, Dachau, for which the defendant is charged with responsibility, I find as a fact that the defendant ordered experiments to be conducted at the camp for the benefit of the Luftwaffe. In a letter from Milch to Obergruppenfuehrer Wolff of the SS, dated 20 May 1942, the following is stated:

“In reference to your telegram of 12 May our medical inspector reports to me that the altitude experiments carried out by the SS and Luftwaffe at Dachau have been finished. Any continuation of these experiments seems essentially unreasonable. However, the carrying out of experiments of some other kind in regard to perils at high sea would be important. These have been prepared in immediate agreement with the proper offices. Oberstabsarzt Weltz will be charged with the execution and Stabsarzt Rascher will be made available until further order in addition to his duties with the medical corps of the Luftwaffe. A change of these measures does not appear necessary and an enlargement of the task is not considered pressing at this time.”

Further evidence makes it manifestly plain that subsequent to the receipt of the letter of Wolff, officers of the Luftwaffe, under the command and subordinate to the defendant, conducted medical experiments on concentration camp inmates at Dachau, against their will, by placing such experimental subjects in tanks of water of freezing temperatures, and requiring them to remain there for long periods of time while certain medical data concerning such subjects was gathered; and that as a result of such experiments, many of the human subjects died or were gravely injured.

The defendant admits giving orders for the conduct of experiments within the scope of the authority conferred by the letter, but contends that he did not know of, or contemplate, that the experiments would be conducted in an illegal manner or would result in the injury or death of any person. The defendant further asserts that he did not know or have any reason to believe that the experiments were conducted in such manner until after they had been completed. He therefore insists that he was and is not responsible for the unlawful manner in which the experiments were actually conducted by the Luftwaffe officers, and that he is not guilty of any crime as a result thereof.

The Tribunal, in its majority opinion, has fully considered the decision of the United States Supreme Court in the judgment in re Yamashita, and has found that said decision is not controlling in the case at bar. In weighing the evidence, the Tribunal was mindful of the fact that the defendant gave the order and directed his subordinates to carry on such experiments, and that thereafter he failed and neglected to take such measures as were reasonably within his power to protect such subjects from inhumane treatment and deaths as a result of such experiments. Notwithstanding these facts, the Tribunal is of the opinion that the evidence fails to disclose beyond a reasonable doubt that the defendant had any knowledge that the experiments would be conducted in an unlawful manner and that permanent injury, inhumane treatment or deaths would result therefrom.

Therefore, the Tribunal found that the defendant did not have such knowledge as would amount to participation or responsibility on his part and therefore found the defendant not guilty on charges contained in count 2.

CONCLUSIONS

(1) I concur in the opinion of the Tribunal that war crimes and crimes against humanity were committed by the defendant, including deportation, enslavement, and mistreatment of millions of persons; and that as a result thereof and in furtherance of such treatment, murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts were committed in a large scale measure upon citizens of occupied countries, prisoners of war, Jews, and other nationals. I agree further that the defendant was a principal in, accessory to, ordered, abetted, and took a consenting part therein. I also agree that for such acts and conduct on the part of the defendant, he is guilty of charges contained in count number one of the indictment.

The evidence produced during the trial upon the charges contained in this count showed conclusively that countless millions of persons were unlawfully deported, enslaved, and murdered. Especially were the Jews mistreated, tortured and murdered merely because they were Jews and their extermination desired. History discloses the fact that as early as the year 1349 in the city of Nuernberg, and within sight of where this opinion is being written, the citizens of Nuernberg drove the Jews from their city, confiscated their property, and erected a market place on the site of the Ghetto and the Liebfrauenkirche in place of the Synagogue. The hatred of the Aryan German for the Jew seems to have been constant during the many intervening years. History will record such conduct as a blot upon the name of the present German generation for many years to come.