These separate reasons, however, make it possible to draw a conclusion in regard to the sentence of the judgment which states that the defendant recommended more drastic and more cruel measures.
It has been proved through the evidence that utterances to that effect were made by the defendant only in smaller circles and while he was in a state of excitement. It has been proved that no action was ever taken in conformity with these utterances. It has been proved that the defendant never asked for action pursuant to such utterances. It has been proved that he did not have any executive power in regard to any measures whatsoever. It has finally been proved that the record concerning such utterances must in part be incorrect.
Therefore, it has not been proved that the defendant approved such cruelties or demanded them in earnest.
C
The objection must be raised that the Military Tribunal did not clarify at all the legal questions which were raised by the defense in connection with the fact that the Russian Government has explicitly renounced the Hague Convention concerning Land Warfare and the previous Geneva Conventions. Since the Decree Number 7 of the Military Government for Germany provides, in Article XV, that reasons have to be given for the sentence, the Tribunal would have had to state its position in regard to these questions. This also constitutes a defectiveness of the verdict and this defect may possibly have had an influence on the award of the punishment.
D
The Military Tribunal has extensively referred on page 14 and 15 to the verdict of the International Military Tribunal against Speer. The Tribunal has therefore made the reasons of the International Military Tribunal its own to a large extent.
But consequently the Military Tribunal would have had to examine the problem of extenuating circumstances. The defense has already pointed out that the fact that he organized protected factories constituted for Speer an extenuating circumstance. During the trial it has been clearly proved that Milch was the first who already in 1941 organized protected factories, and that he was, therefore, the inventor of this kind of employment.
The problem of extenuating circumstances involves further the examination of the question, whether Milch had more to do with the utilization of foreign workers and prisoners of war than Speer. This examination was omitted. Exhibit Milch 55 and also all the evidence proved that Speer’s participation in the utilization of foreign workers and prisoners of war was considerably more extensive.
If the Tribunal had examined the extenuating circumstances, then the result would undoubtedly have been that the defendant would have been allowed extenuating circumstances on a large scale. Due to the fact that the responsibility of Speer was greater than that of Milch, Milch should not have received a more severe sentence than Speer.