Q. Then, you modify your statement that Hitler was wrong? You say that

he might have been right?

A. No, no, I am not saying that. What I am trying to say is that it was

my point of view that the question whether the head of the state was to

be overthrown or not was a matter for the constitution, and that for

this eventuality the constitution and the state must surely have powers,

means through which in such cases there could be intervention; but then

it could not be the task of any individual general to take steps in such

questions, which were, after all, unlawful.

* * * * *

-----

[139] The defendant Milch testified in his own behalf on eight full

trial days (March 11, 12, 13, 14, 17, 18, 19, and 20, 1947). His

testimony is recorded in 581 mimeographed pages (_Tr. pp. 1696-2276_).

[140] Wolfgang Vorwald, former Commander of Luftgau (Air Force

Administrative Command) VII, Munich.

[141] Defendant in case of United States _vs._ Ernst von Weizsaecker, et

al. See Vols. XII, XIII, XIV.

[142] Doc. R-124, Pros. Ex. 48-A, Conference of 1 March 1944, pp.

484-498.

V. CLOSING STATEMENTS

A. Closing Statement of the Prosecution[143]

MR. CLARK DENNY: We close today the trial of a major war criminal—a

leader in a slaving operation, the enormity of which is without

historical parallel; a principal in a crime of murder in the ironic

masquerade of scientific progress which has shocked alike the world of

medicine and the world of laymen. The evidence set forth before the

Tribunal has shown that Erhard Milch was primarily implicated as a

leader in a program to bring laborers into Germany by force, of

allocating them to the various segments of the German war economy, and

of munitions.

We deal here with a top military and economic planner who at all times

was fully informed as to the aims and objectives of the Nazi plan.

Unlike his colleagues Speer and Sauckel, Milch entered the conspiracy

early. The defendant was one of a small group of men who constituted the

leadership of the Reich.

Before dealing directly with the responsibility of the defendant for the

crimes charged in the indictment, as shown by the evidence, we should

like to review, briefly, the law applicable to these crimes.

_THE LAW_

The indictment charges and the evidence has connected the defendant with

a wide variety of crimes incident to the enforced labor program of the

Nazi regime. In themselves, these crimes are not new except in their

enormity. In domestic law they have, from ancient times, borne such

familiar titles as assault, battery, murder, kidnapping and pillage. In

international law the principles which protect the individual from undue

interference with his person and his personal freedom have given rise to

a series of kindred precepts governing the conduct of a nation which has

gained factual control over the citizens of another state. We shall

consider briefly some salient precepts and prohibitions of international

law up to, and including the provisions of Control Council Law No. 10.

Much of the labor which supplied Germany with the tools of total war was

exacted from people who had been uprooted from their homes in occupied

territories and imported to Germany. Displacement of groups of persons

from one country to another is the proper concern of international law

insofar as it affects the community of nations.

The law has recognized that some conditions may justify the transfer of

people from one country to another. Correspondingly, and with much more

relevance to the present case, international law has enunciated certain

conditions under which the fact of deportation becomes a crime.

If the transfer is carried out without a legal title, as is the case

where people are deported from a country occupied by an invader while

the occupied enemy still has an army in the field, the deportation is

contrary to international law. The rationale of this rule lies in the

supposition that the occupying power has prevented temporarily the

rightful sovereign from exercising power over its citizens.

Articles 43, 46, 49, 52, 55, and 56 of the Hague Regulations, which

limit the rights of the belligerent occupant, do not _expressly_ specify

as a crime the deportation of civilians from an occupied territory.

However, Article 52 states the following conditions under which services

may be demanded from the inhabitants of occupied countries:

1. They must be for the needs of the army of occupation;

2. They must be in proportion to the resources of the country; and

3. They must be of such a nature as not to involve the inhabitants in

the obligation to take part in military operations against their

own country.

Insofar as this section limits the conscription of labor to that

required for the needs of the army of occupation, it is clear that the

use of labor from occupied territories outside of the area of occupation

is forbidden by the Hague Regulations.

The illegality of the deportation of civilians in territories under

belligerent occupation was demonstrated in the First World War when the

Germans attempted a deportation program of Belgian workers into Germany.

This measure met with world-wide protest and was abandoned after about

four months.

Among the voices raised in protest against the deportation of Belgians

by Germany in 1916-1917 was that of Lansing, Secretary of State. He

wrote:

“The Government of the United States has learned with the

greatest concern and regret of the policy of the German

Government to deport from Belgium a portion of the civilian

population for the purposes of forcing them to labor in Germany,

and is constrained to protest in a friendly spirit but most

solemnly against this policy which is in contravention of all

precedent and all principles of international practice which

have long been accepted and followed by civilized nations in

their treatment of noncombatants in conquered territory.”

Other protests were lodged with the German Government by Spain,

Switzerland, Netherlands, and Brazil, all neutral countries.

International lawyers all over the world condemned Germany’s action in

the strongest terms.

The opposition in the German Reichstag accused the government of

violating the Hague Convention and refused to vote for the war budget.

It is worthy of note, in passing, that the defendant has testified at

this trial that he knew of this effort at deportation of labor on the

part of Germany in the First War and that he was much interested in the

investigation conducted by a Reichstag Committee concerning this matter.

He could not have followed this investigation, as he admits he did,

without learning that the deportation in question was a violation of

international law.

The second condition under which deportation becomes a crime occurs when

the purpose of the displacement is illegal. A conspicuous example of

illegality of purpose is found when the deportation is for the purpose

of compelling the deportees to manufacture weapons for use against their

homeland or to be assimilated in the working economy of the occupying

country.

An attempt has been made by the defense in this trial to show that

persons were deported from France into Germany legally and for a legal

purpose, by pointing out that such deportations were authorized by

agreements between Nazi and Vichy French authorities. This defense is

both technically and substantially deficient. Many of the Vichy

Government’s highest officials, who held office by reason of and under

the protection of Nazi power, have been punished for treason by the

present legitimate government. And, too, the agreements themselves were

illegal—because they were exacted under duress, and because they were

void _ab initio_ because of their immoral content. It is common

knowledge that even the puppets of Vichy did not of their own accord

agree to the Nazi deportation measures. It is equally clear that these

agreements were _contra bonos mores_. Then, too, it was illegal for any

French Government to conclude agreements which provided for the

compulsory mass deportation of French workers to aid the enemy’s war

effort. At the time of the agreement between Germany and Vichy there was

merely a state of suspension of hostilities. French resistance had not

ceased, and the outcome of the war continued to be uncertain. Lastly,

the deportation agreements were invalid because their manifest purpose

was to aid Germany in the commission of the crime of aggressive war.

That an agreement in furtherance of an act which is illegal in

international law is invalid has been stated by various authorities. For

example, Professor Charles Cheney Hyde, of Columbia University, defines

as internationally illegal “agreements which are concluded for the

purpose of, and with a view to, causing the performance of acts which it

(international law) proscribes.”

Professor Hall, page 382 of the 8th Edition of International Law (1924),

declares:

“The requirement that contracts shall be in conformity with law

invalidates, or at least renders voidable, all agreements which

are at variance with the fundamental principles of international

law and their undisputed applications * * *.”

Lauterpacht on International Law by L. Oppenheim, in volume I, page 706,

states:

“It is a unanimously recognized customary rule of international

law that obligations which are at variance with universally

recognized principles of international law cannot be the object

of a treaty.”

The 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 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) (_b_) lists under war crimes “ill-treatment or

deportation to slave labor or for any other purpose, of civilian

population from occupied territory.” It is clear that Law No. 10

establishes the following separate and distinct crimes: ill-treatment of

civilians from occupied territories; deportation to slave labor of such

civilians; and deportation for any other purposes of such civilians.

The prohibition of deportation of civilians from occupied territories

irrespective of the purpose, as stated in Control Council Law No. 10, is

a recognition of the principle of international law that a power in

belligerent occupation has no right or authority (title) to deport the

citizens of the occupied territories. The separate specification as a

war crime in Law No. 10 of ill-treatment of civilians from occupied

territories is a recognition of the rule of international law, as

heretofore discussed, that even an otherwise lawful deportation (by an

authority having title and for a legitimate purpose) is rendered illegal

where the deportees are ill-treated.

Without entering into a detailed discussion of the evidence, it should

be pointed out at this point, that all these conditions for criminal

deportation were abundantly present in the enforced labor program of

Germany during the 2d World War, and that the _knowing connection_ of

the defendant with all phases of illegal deportation has been

established.

Article II (1) (_c_) of Control Council Law No. 10 specifies certain

crimes against humanity. Among these 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 indeed unconditionally condemned, as a crime against

humanity, every instance of the deportation of civilians. Under this

sub-section, there would seem to be no room for argument as to the

legality of any agreement on the part of any government, legitimate or

illegitimate, which allows deportation of its subjects in time of war.

We come now to a consideration of the crime of enslavement. Whereas

Article II (_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.”

Article II (_b_) does not specify as a crime the detention (as

distinguished from the deportation) of civilians for use as slave labor

or for any other purpose. However, the section does stipulate that any

atrocities or offenses against persons which constitute violations of

the laws or customs of war, _including but not limited to_ deportation

to slave labor, are war crimes. Use or detention of persons from

occupied territories for slave labor or for any other purpose, in and of

themselves, _do_ constitute violations of the laws and customs of war.

Ergo, such use or detention is a _war crime_ within II (1) (_b_) of Law

No. 10.

The _crime against humanity_ which is termed “enslavement” in Article II

(1) (_c_) of Law No. 10 is susceptible of two meanings. It can be

understood to embrace the initial act of deprivation of the freedom of

another, and an act whereby such deprivation is continued, or either of

them, or it may be interpreted as referring only to the initial measures

whereby a person is deprived of his freedom.

It is the contention of the prosecution in this case that all phases of

the slave labor program, the taking, the transportation, the detention,

the use and the inhuman treatment of foreign workers as practiced by the

Nazi state and participated in by the defendant, constitute enslavement

within the meaning of Article II (1) (_c_). No sufficient reason appears

for the limitation of the crime to the mere initial act. In every true

and complete sense a person is enslaved from the moment when his liberty

is taken from him until the time when it is restored to him. It is more

than probable that if Law No. 10 is intended to limit the crime of

enslavement to the initial measures under which a person was deprived of

his liberty, there would have been some definite indication, either in

the language or in the context of the statute.

Even if we were to concede the narrowest possible meaning for the term

“enslavement” in Article II (1) (_c_), so as to understand by it only

the first acts of deprivation of liberty, all acts under which such

people were kept in an enslaved status would be crimes against humanity,

because the same section defines as such any atrocities and offenses

committed against the civilian population. By express proviso

“enslavement” and “deportation” are only illustratively mentioned, and

“other inhuman acts committed against any civilian population”

constitute crimes against humanity.

The result is that whether we adopt the broad interpretation of the term

“enslavement” or the narrower one, the deportation, the transportation,

the retention, the use and the inhuman treatment of civilian populations

are crimes against humanity. The prosecution charges that the defendant

was criminally connected with all the phases of the slave labor program,

whether these divisions be comprehended within the technical term

“enslavement” or be divided between the crime of “enslavement” and that

of “other inhuman acts.”

We shall now make brief comment on the subject of the treatment and use

of prisoners of war. The Hague and Geneva Conventions merely codify the

precepts of the laws 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 munitions of any kind, and

2. The use of prisoners of war for transporting material

intended for combat units.

The Hague Regulations contain comparable provisions.

The essence of the crime of the misuse of prisoners of war derives from

the kind of work to which they are assigned—in other words, to work

directly connected with the war effort. The prosecution would like to

recall to the court the evidence which connects the defendant with both

the _illegal employment_ of prisoners of war and with their abusive

treatment. The Tribunal will recall that the defendant ordered the

murder of prisoners of war who attempted to escape. We will discuss this

crime more fully later. It will be remembered that there never has been

a substantial denial of the fact that prisoners of war were used to man

German antiaircraft batteries. Nor is it subject to doubt that prisoners

were used in air armament industries over which the defendant exercised

supervisory control.

We now come to the consideration of the basic charges and the law

governing the defendant’s complicity in, and responsibility for, the

Medical Experiments 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

inhuman acts.

The applicable provisions of Control Council Law No. 10, Article II, are

(_b_) war crimes, (_c_) crimes against humanity. In connection with the

criminal Medical Experiments Program, the prosecution submits that the

defendant is guilty of—

(_a_) War crimes, namely violations of the laws and customs of

war, as the medical experiments performed upon involuntary

persons, some of them nationals of countries at war with the

German Reich, involved the commission of murders, tortures, and

other inhuman 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 inhuman acts were committed.

Before we pass from the law involved in this case to a consideration of

the evidence, we wish to mention the legal basis for the prosecution’s

contention that the defendant must share the guilt which attaches to the

slave labor program and the conduct of medical experiments upon

unconsenting human beings. Control Council Law No. 10 defines for us the

theory upon which this trial proceeds in Article II, paragraph 2, when

it says:

“Any person without regard to nationality or the capacity in

which he acted, is deemed to have committed a crime as defined

in paragraph 1 of this Article, if he was (_a_) a principal or

(_b_) an accessory to the commission of any such crime, or

ordered or abetted the same or (_c_) took a consenting part

therein or (_d_) _was connected with plans or enterprises

involving its commission or_ (_e_) _was a member of any

organization or group connected with the commission of any such

crime_. * * *” [Emphasis added.]

Without wishing to limit the scope of the testimony in this case, the

Tribunal’s attention is directed to the evidence which has established

that the defendant, as a member of the Central Planning Board, and the

Jaegerstab, and as Generalluftzeugmeister, and in every one of his

capacities, was connected with “plans and enterprises” for the

commission of war crimes and crimes against humanity, and was a “member

of organizations and groups”, within the meaning of subdivisions (_d_)

and (_e_) of paragraph 2, “connected with the commission of such

crimes”.

Count One, paragraph 6, of the indictment charges the defendant Milch

with guilt in the murder of prisoners of war who had attempted to escape

from enforced labor in German war industry. The gist of this crime is

murder, which is, and always has been, prohibited by every country which

laid any claim to civilization. It was specified as a war crime under

the Hague and Geneva Conventions and under the provisions of Article II

of Control Council Law No. 10. The evidence which connects the defendant

with this crime will be discussed in another part of this summation.

Law Number 10, Article II, paragraph 3 provides that the death penalty

or lesser sentences may be prescribed for the commission of war crimes

and crimes against humanity as defined in the statute.

We turn now from the law to the evidence. In the presentation of its

case in chief, the prosecution first offered evidence to describe the

slave labor program in Germany in all its stark terror. It then turned

to a presentation of the proof which connected the defendant with the

slave labor program in two of his principal capacities, as member of the

Central Planning Board and as member of the Jaegerstab. Next there was

put in evidence the documents which established the defendant’s

connection with the medical experiments, and finally, after the defense

had put in its case, the defendant was confronted with the evidence of

additional documents which connected him with the detention and

mistreatment of slave labor in his capacity as Generalluftzeugmeister.

In summing up the evidence the prosecution wants to keep roughly the

same order. It will deal in turn with the evidence of the defendant’s

activities as member of the Central Planning Board and as member of the

Jaegerstab. The documents relating to the defendant as

Generalluftzeugmeister will then be dealt with and, in conclusion, the

defendant’s implication in the criminal medical experiments will be

discussed.

When, in the course of presenting the evidence, we first turned our

attention from the general documents which established the body of the

crime of slave labor to the documents which were to prove the

defendant’s connection with that crime, we asked the Court’s attention

to certain key words which we said would run like small threads through

our proof. These words were cited to be “procurement, allocation and

use”. It was stated that we would often use them. We offered many

documents to prove Milch’s connection with each of the functions

described by these key words. Once again, we ask the Tribunal to keep

these words in mind.

The Central Planning Board, which was established in April 1942, served

as a means of consolidating in a single agency all controls over German

war production. The minutes of the Central Planning Board which have

been submitted to the Tribunal reflect the dominant role played by the

defendant at meetings of the Board.

The best evidence of the scope and authority of the Central Planning

Board is contained in the Board’s own minutes. The first conference of

the Central Planning Board was held on 27 April 1942. The duties and

responsibilities of the Board were announced in these words:

“The Central Planning in the Four Year Plan (decree of the Reich

Marshal of Greater Germany [Goering] of 22 April 1942) is a task

for leaders. It encompasses only principles and executive

matters. It makes unequivocal decisions and supervises the

execution of its directives. The Central Planning does not rely

on anonymous institutions difficult to control but always on

individuals and fully responsible persons who are free in the

selection of their working methods and their collaborations, as

far as there are no directives issued by the Central Planning.”

Then, six months later, on 20 October 1942, the statutes of the Central

Planning Board were published and distributed. A portion of these

states:

“The Central Planning Board created by the Fuehrer and Reich

Marshal in order to unify armament and war economy deals only

with the decision of basic questions. Professional questions

remain the task of the competent departments which in their

field remain responsible within the framework of the decisions

made by the Central Planning Board.”

It is addressed to: “The highest Reich authorities, the Reich Protector,

the Governor General and the executive authorities in the occupied

countries.” The letter of transmittal stated in part:

“Enclosed I send you for your information the statutes of the

Central Planning Board with the request to support the office of

the Central Planning Board in every possible way in its work,

and to direct, more particularly, your section chiefs and

reporters to forward all information requested orally, or by

writing, in the shortest possible time. By this collaboration by

your section chiefs and reporters, the building up of larger

machinery in the framework of the Central Planning Board is to

be avoided.”

The International Military Tribunal found that the Central Planning

Board “had supreme authority for the scheduling of German production and

the allocation and development of raw material”.

It needs no emphasis that the effective performance of these functions

necessarily involved the Board in the requisitioning and distribution of

labor, and the records of the Board, which have been submitted, leave no

doubt that the Board exercised the authority conferred upon it in the

field of labor. The International Military Tribunal in its opinion found

that the Board requisitioned labor from Sauckel with full knowledge that

the demands could be supplied only by foreign forced labor, and that the

Board determined the basic allocation of this labor within the German

war economy.

In assessing the guilt of the defendant Funk, the Court said:[144]

“In the fall of 1943, Funk was a member of the Central Planning

Board which determined the total number of laborers needed for

German industry, and required Sauckel to produce them, usually

by deportation from occupied territories. Funk did not appear to

be particularly interested in this aspect of the forced labor

program, and usually sent a deputy to attend the meetings, often

SS General Ohlendorf, the former Chief of the SD inside of

Germany and the former Commander of Einsatzgruppe D. But Funk

was aware that the Board of which he was a member was demanding

the importation of slave laborers, and allocating them to the

various industries under its control.”

Bearing in mind the fact that Funk was a minor member of the Board, how

much greater is the responsibility of the defendant who was a dominant

figure on the Board throughout its existence.

There is no need to review in historical detail the defendant’s personal

participation in the criminal activities of the Board. A few references

to the pattern for 1944 will suffice. The Tribunal will recall that

Albert Speer, the other dominant member of the Board, was ill during

most of this period.

On 4 January 1944, demands were made at a Hitler conference that Sauckel

produce four million new workers from the occupied countries. The

defendant was present at the conference, and at this meeting, Sauckel,

in pledging himself to perform his recruitment tasks, indicated that the

demands could be met only by Himmler, and the promise of assistance was

forthcoming from the Reich Leader SS.

The allocation of this labor to the various sectors of the German

economy was determined by the Board at its 53d meeting. The defendant

was the presiding officer at this meeting. The chart compiled by Milch

and found in his files shows his personal knowledge of the sources of

the labor being allocated.

Sauckel was, however, unable to satisfy completely these demands. He

reported this inability at its 54th meeting. This meeting of the Board

was presided over by the defendant, and the minutes which we have

submitted show the subordinate position occupied by Sauckel with respect

to the Board. The Tribunal will recall Sauckel’s opening statement:

“Field Marshal, gentlemen, it goes without saying that we shall

satisfy as far as possible the demands agreed upon by the

Central Planning Board.”

And then later on in the meeting:

“If I am to fulfill the demands which you present to me * * *.”

We shall not review in detail the minutes of this meeting, but the

Tribunal’s attention is again directed to the fact that Sauckel was

questioned closely by the defendant who suggested that the Wehrmacht be

assigned to the task of assisting in the recruitment drive. The

defendant suggested that French workers be coerced by a system of

premeditated starvation. In dealing with the problem of Italian

laborers, the defendant suggested that only those who went to Germany or

worked in protected factories be given food.

As a further means of meeting the manpower shortage, consideration was

given to possible measures for increasing the productive power of

prisoners of war. Accordingly, on 5 March 1944, a conference was held at

the Fuehrer Headquarters. It is evident from the minutes which have been

submitted to the Tribunal that the defendant was in attendance. The

Tribunal will recall that the decision was made to give the direction of

the Stalags to the SS, in order to increase the production power of the

prisoners. This was not to apply to the Americans or the English. The

Tribunal will take judicial notice of the methods of the SS.

On 7 July 1944, Sauckel issued a report showing new manpower placed at

the disposal of German war industry during the first half of 1944. We

shall not review in detail this report, but merely state that it is

proof of the Board’s directive to Sauckel.

This report, however, showed a deficit, and on 11 July 1944 a further

conference was held to solve the question of how greater compulsion

could be exerted on persons to work in Germany. The defendant has

testified that he was in virtual retirement from production matters

since late June 1944. Yet the record of this conference shows that he

was present. The result of this conference was the greater utilization

of the Wehrmacht in the recruitment of forced labor. The directive of

Field Marshal von Kluge, which has been submitted in evidence, makes

specific reference to the results of this conference.

Here, in brief, we have the picture. The defendant and the Board, of

which he was a dominant member, requisitioning forced labor from

Sauckel, allocating this labor to the various sectors of the German war

economy, and later improvising new and more brutal techniques of force

and terror for the recruitment of new labor.

The defense, besides denying the power and authority of the Central

Planning Board, has challenged the authenticity and accuracy of its

transcripts. The prosecution has been compelled to rely upon these

minutes for much of its proof.

In this connection, it might be said that these same transcripts

constituted the basis for findings of fact by the International Military

Tribunal. They are quoted in the decision of that Court.

The statutes of the Central Planning Board, mentioned a few minutes ago,

show the extreme care taken to insure the accuracy of reporting these

meetings, as well as action taken or ordered to be taken. The statutes

of the Board provide in part:

“In order to have the conferences properly prepared and to have

the execution of the decisions supervised, the Central Planning

Board appoints an office. This office consists of the deputies

appointed by each of three members of the Central Planning

Board; one of these three deputies shall be appointed chief of

the office.”

Then follows a handwritten marginal note which I shall omit.

“In accordance with the attached distribution of work the office

appoints reporters. These reporters are at the disposal of all

members of the Central Planning Board. The office appoints one

reporter to keep the record.”

And then, tasks of the office:

“The office prepares the meetings of the Central Planning Board

in such a manner that the members of the Central Planning Board

have the agenda and the material of discussion 24 hours in

advance. For this purpose the office conducts preliminary talks

with the competent departments, etc.

“On the strength of the record made by the reporter, the office

sees to the execution of the decisions of the Central Planning

Board by the competent agencies, and sees to it that the

deadlines fixed are complied with.

“The members of the office keep the members of the Central

Planning Board informed between the sessions.”

The minutes of these meetings which have been submitted to this Tribunal

show that these proceedings were recorded and transcribed with

characteristic German detail and accuracy. We need only refer to the

charts and tables, and the remarks quoted in the transcripts. Of the 59

meetings fully covered by these official reports, 41 were prepared and

signed by Ministerialrat Steffler, who was personally responsible for

the accuracy and completeness of these reports.

Without the Central Planning Board the slave labor program could not

have functioned.

_THE JAEGERSTAB._

Here we have the defendant in immediate contact with the slave labor

program at its peak. By the testimony of the defendant, it was he who

conceived and instigated the formation of the Jaegerstab. Speer and the

defendant constituted its leadership. Speer’s participation was nominal

and it was the defendant who directed its activities and acted as its

chairman. Speer was ill during part of the Jaegerstab’s existence and

has stated to the Court that he did not preside at a meeting.

The Jaegerstab assumed control over fighter production when the

exploitation of foreign forced labor in air armament had already reached

unparalleled heights. On 16 February 1944, the defendant had told his

colleagues in the Central Planning Board that “our best new engine is

made 88 percent by Russian prisoners of war.” On 25 March, he told his

engineers that soon the percentage of foreign personnel in the aircraft

industry would reach 90 percent. Reich Leader SS Himmler, reporting to

Goering on 9 March 1944 on the employment of concentration camp

personnel in the aircraft industry, stated that nearly 36,000 prisoners

were employed and that an increase to 90,000 was expected. The formation

of the Jaegerstab is partly explainable in terms of the battle to

increase the manpower resources available for fighter production.

The Jaegerstab was assigned top priority. Projects for the recruitment

and commitment of manpower were discussed by the Jaegerstab. The

evidence presented before the Tribunal has shown that questions of

manpower were time and time again referred to the defendant. We have

seen him agreeing to use his prestige and influence upon Sauckel in

efforts to obtain new workers for aircraft production. When manpower in

sufficient numbers was not forthcoming through normal channels, the

Jaegerstab did not shrink from other methods of obtaining its labor.

When necessary the Jaegerstab recruited its own labor, either directly

or by engineering “snatching” expeditions for the seizure of manpower

arriving on transports from the East.

The defendant’s frank admission to his subordinates that “international

law cannot be observed here” characterizes best his own participation in

the activities of the Jaegerstab. Where, as was the case with France,

transfers of production facilities were concerned, the defendant

advocated the stripping of the country and the deportation of its people

as prisoners of war. When the discussion turned to PW’s, the defendant

was quick to suggest their transfer to places under air attack. When the

transportation of Italian civilian conscripts directly recruited by the

Jaegerstab for service in Germany was in question, it was the defendant

who advocated the shooting of those who attempted to escape.

The Jaegerstab was no mere discussion group. As an agency with absolute

authority over fighter production, the Jaegerstab acted by orders and

directives. The Jaegerstab fixed hours of labor and conditions of work.

It was the Jaegerstab, for example, which established the 72-hour work

week in the aircraft industry.

In addition to its jurisdiction over fighter production, the Jaegerstab

was charged with the program for the decentralization of the German

aircraft industry, both to above ground bombproof installations and to

subterranean locations. Much of the labor employed in both phases of the

project was concentration camp labor. The defendant must have known this

fact.

One phase, the transfer to new installations underground, was under the

immediate supervision of SS Gruppenfuehrer Heinz Kammler. Kammler was a

member of the Jaegerstab. Where, as was the case in some instances,

labor was not forthcoming in sufficient quantity, Kammler informed the

Jaegerstab of his intention to take large numbers of persons into

protective custody for use on his projects. Members of the Jaegerstab

knew that manpower shortages on the construction projects were at least

in part due to the high death rate. The conditions of employment on the

projects have not been substantially disputed. The Jaegerstab was well

informed of these conditions. While on trips with the Jaegerstab,

Kammler visited these projects and his fellow members of the Jaegerstab

were well advised as to the manner in which workers employed on them

were treated. Where it was necessary to hang thirty people merely as an

example to others, Kammler reported this fact to the Jaegerstab.

A second phase of the program, the transfer of fighter production to

bombproof factories above ground, was carried out for the Jaegerstab by

Stobbe-Dethleffsen and later Xaver Dorsch. While Stobbe-Dethleffsen and

Dorsch were immediately in charge, it was the Jaegerstab which received

the funds and raw materials necessary for the carrying out of this

project. When sufficient progress had not been made under

Stobbe-Dethleffsen, the Jaegerstab demanded that Dorsch carry out this

program. The defendant was a leader in the planning which preceded

Dorsch’s appointment.

By the testimony of Dorsch, Milch was one of a small group which worked

out with Goering the details of the project, including the question of

manpower. Dorsch was represented on the Jaegerstab by Schlempp, and

later Knipping, deputies designated for this particular purpose.

Schlempp informed the Jaegerstab on the progress of the work, both

orally and in writing. Dorsch received manpower from the Jaegerstab.

This was the immediate concern of Schmelter.

Early in April 1944 the defendant represented the Jaegerstab at

conferences with Hitler where the decision was first taken to carry out

deportations. Shortly thereafter, the defendant received written

confirmation of the results of this conference, as did Himmler, who was

to procure the workers. Progress reports were made and delivery dates

agreed upon. Then came the disappointing news that the first transports

arriving at Auschwitz consisted primarily of old men, women, and

children. Later on there were reports as to the successful allocation of

this personnel. The testimony of Dorsch shows that these Jews were used

on the construction projects, that the conditions under which they lived

were intolerable, and that the death rate on the project was excessive.

In closing this phase of the case, it is submitted that the defendant

never resigned from the Jaegerstab. While it is true that the defendant

at Goering’s behest was removed from certain offices in the Air Ministry

in the summer of 1944, he retained his membership in the Jaegerstab

until its dissolution, the prosecution contends.

As Generalluftzeugmeister the defendant had complete control over

aircraft production. In this field his authority was unlimited. In

particular it has been shown that the defendant requisitioned labor for

the aircraft industry with knowledge of the brutal and inhumane

techniques employed in recruiting these laborers, and that he gave

directives for the criminal treatment of these laborers at the centers

of production.

There is evidence that the defendant presented the labor demands of the

aircraft industry to Sauckel. The Tribunal will recall that in his

affidavit Sauckel stated that it was the defendant who produced the

manpower figures for aviation. In view of the position occupied by

Sauckel in the slave labor program, this statement is of special

importance.

The statement of Sauckel is in agreement with the statements of Hermann

Goering, the defendant’s superior in the Luftwaffe. In his interrogation

the former Reich Marshal stated that the defendant was in charge of the

division for labor employment in the Air Ministry and that the industry

demands for labor in air armament were made by the defendant.

Even the defendant’s collaborator Albert Speer testified to the same

effect when he stated:

“The requests of the air armament industry for laborers were

presented by Milch and he did not permit anyone to take this

right away from him until March 1944.”

The defendant as Generalluftzeugmeister was acquainted with the methods

employed in recruiting this manpower. In fact, many of the practices

indulged in by Sauckel were formulated at conferences at which the

defendant was in attendance. The Tribunal will recall that the defendant

was present at a conference in which Goering announced his plan to use

the Luftwaffe in the recruitment drive to capture laborers in Holland.

The Tribunal’s attention is also drawn to the Generalluftzeugmeister

meeting of 25 January 1944 in which methods for the more expeditious

deportation of young Czechs for work in the Luftwaffe were discussed.

The defendant also knew that prisoners of war and concentration camp

personnel were included in the manpower he was requisitioning and

distributing to the aircraft industry. We have seen him trying to

increase their numbers in the industry under his control, and we have

seen him ordering and abetting the inhumane treatment of this labor.

As chief of aircraft production, the defendant regulated the treatment

of foreign forced labor in the German aircraft industry. The defendant

fixed hours of labor and conditions of work and by directives to his

subordinates set basic policies for the handling of this labor within

the industry.

Where foreign workers refused to work, the defendant ordered that they

be shot. When these wretched slaves attempted to revolt, the defendant

directed that some of their numbers be killed, regardless of personal

guilt or innocence. In the case of prisoners of war who attempted to

escape, the defendant ordered that they be shot.

When the “contracts” of workers under his control expired, the defendant

ordered their compulsory extension, and when workers attempted to change

jobs, he advocated that they be put in concentration camps.

In the case of Italians who refused to work, the defendant ordered that

they be beaten and so informed his chief, Goering. And where Frenchmen

refused to work in French factories under his control, the defendant

stated that he would deport them by force and bring them to Germany or

to the East. Similar policies were applied by the defendant in the case

of Polish workers.

No more need be said about the Generalluftzeugmeister. The Tribunal has

seen the documents containing the minutes of the meetings. The documents

dealing with this phase of the case are particularly revealing in

showing the fanaticism of the defendant and the enthusiasm with which he

recommended ruthless treatment of the hapless victims of German

occupation policies.

We will now restate the pattern originally presented in terms of the

proof brought forward at the trial in order to ascertain to what extent

the defendant’s culpability has been established with reference to the

medical phase.

First, the body of the crime. The prosecution contends that in violation

of the laws of war and all the laws of humanity criminal high-altitude

and freezing experiments were carried on by Luftwaffe physicians.

The testimony of Dr. Erich Hippke, the Medical Inspector of the

Luftwaffe, is of interest on this subject. Hippke stated that Dr.

Rascher, a Luftwaffe physician at the time, came to Hippke with a

proposal to use prisoners as high-altitude experimental subjects in May

1941.

Hippke was in a receptive frame of mind, for it was essential that the

scope of these experiments be widened and new human subjects were

needed. The researchers working on the tests had developed a certain

immunity so that results of self-experimentation did not give a true

picture of the reactions.

With the aid of Himmler and the SS, the Luftwaffe was able to proceed

with the experiments which were allegedly necessary in the interests of

German military aviation medical knowledge. But lest one be inclined to

believe that these pressure experiments were considered as minor

nuisances to the subjects concerned, with no real dangers, note the

words of Dr. Hippke:

“I asked him,” speaking of Rascher, “how he would be able to

obtain such persons for experimentation, and he justified

himself by saying that he had connections with the SS who had

charge of such penal prisoners. There were such penal prisoners

in Dachau and he would be in a position to obtain them for these

purposes. I myself, because of my inner personal feelings on the

matter, was very much against these experiments and could not

make up my mind whether I should approve such experimentation.”

From the very beginning of the plan to conduct these experiments, Dr.

Hippke had strong mental reservations concerning the moral principles

involved in the task which the Luftwaffe doctors were about to

undertake. During the coming year Hippke weighed the problem, and it was

with some misgiving that he finally allowed his doctors to begin the

experiments, saying to them: “Please, children, go carefully.”

But, tragically enough, his “children” did not go carefully. Instead,

they ran amuck with their scientific apparatus and tests. The pressure

experiments which were supposed to have been helpful to fliers of the

Luftwaffe degenerated into so-called “X-experiments”, which meant

“execution” experiments.

Seventy to eighty persons were murdered during the spring and summer of

1942 when the pressure experiments were carried on at Dachau.

During the subsequent freezing experiments a comparable number of

concentration camp inmates forfeited their lives to the sadistic Dr.

Rascher and his Luftwaffe associates.

Dr. Romberg himself admits having seen three persons die in the

low-pressure chamber and concedes that at least nine other deaths may

well have occurred when he was absent from his post at Dachau.

Wolfram Sievers,[145] the manager of the Ahnenerbe, the SS Research

Institute, witnessed the death of an experimental subject in the

freezing tank.

There is adequate evidence that the low-pressure and freezing

experiments were carried out by Luftwaffe physicians for the benefit of

the Luftwaffe. There has been no valid denial of the fact that the

defendant was the Luftwaffe official responsible for the deaths and

cruelties suffered in these twin torture chambers, the pressure chamber

and the freezing tank.

Now, let us examine in more detail the second basic charge of the

prosecution, namely, that the defendant was officially connected with

these experiments which violated the laws of war and humanity.

We have the “Wolffy” letter of 20 May 1942 in which the defendant tells

Obergruppenfuehrer Wolff of the SS that “the altitude experiments

carried out by the SS and the Luftwaffe at Dachau have been finished.”

In this same letter Milch announces that experiments in connection with

perils on the high seas would be important; that the necessary

arrangements have been made and, since the low-pressure chamber is no

longer needed, it must be moved from Dachau. Thus the defendant has

entered the picture and established his official connection with the

high-altitude experiments and the low-temperature experiments, which

proved to be considerably more than mere harmless chilling tests.

If, as the defendant contends, he was not officially responsible for

these Luftwaffe medical experiments, then it should follow that other

persons connected with them would not take cognizance of the defendant

in this matter. The contention is ridiculous.

The witness Wolff had the following to say regarding a meeting he had

with Milch in August or September 1942:

“Thereafter, we had discussed our official questions. I inquired

about how he was, and if everything between the Luftwaffe and

the SS was all right. During that occasion we also spoke about

these experiments very shortly, if at all, and we spoke of the

invaluable help which the SS was giving us by providing these

voluntary inmates, which was helping us with our medical

material which could be used at the front.”

It is to be noted that they talked about the experiments and Wolff asked

how the Luftwaffe SS relations were. It is submitted that this

demonstrates that Wolff regarded the defendant as the top man in the

Luftwaffe Medical Experiments Program, as indeed he was.

Then there are the two letters addressed to Milch by Himmler and Wolff,

substantially alike in content; Himmler’s, dated November 1942, in which

he cites the opposition that exists among “Christian medical circles” to

conducting experiments on helpless, involuntary concentration camp

inmates. He refers to the narrow-mindedness of such medical men, which

“will take at least another ten years” to remove. But this

narrow-mindedness did not trouble the consciences of Himmler or the

defendant Milch. Decidedly not. In the words of the Reich Leader SS: “We

two should not get angry about these difficulties.”

The prosecution submits that Himmler would not have written a letter in

this tenor unless he was certain that his good friend Milch would be in

complete agreement with his views.

And how did Himmler regard Milch in connection with the experiments? As

a casual onlooker, with a purely academic interest in the results

obtained? No, Himmler knew that Milch possessed the over-all command,

the ultimate authority in the Luftwaffe; that the Inspector General of

the Luftwaffe was the man to refer to whenever a question arose as to

the disposition of the pressure chamber or the status of Dr. Rascher.

Witness Himmler’s request in his letter:

“I beg you to release Dr. Rascher, Stabsarzt in the reserve,

from the air force and to transfer him to me to the Waffen SS. I

would then assume the sole responsibility for having these

experiments made in this field and would put the results, which

we in the SS need only for the frost injuries in the East,

entirely at the disposal of the air force.”

The logical corollary to this statement is inescapable. _If_ Rascher was

not transferred to the SS and remained with the air force, the

responsibility would not be Himmler’s alone. And we must remember that

Rascher did not leave his Luftwaffe post until the year 1943 _after_ the

experimental atrocities had been largely completed. Then where did this

responsibility rest? Himmler had no doubts; it was on the shoulders of

the defendant.

Nor did Karl Wolff, Himmler’s right-hand man, have any doubts as to the

responsible person in the Luftwaffe, with reference to the medical

experiments. He, too, wrote to Milch requesting that Rascher be released

from the Luftwaffe and transferred to the SS. Here was a man, who, by

his own testimony, “had a good comradely relationship” with the

defendant. On the direct examination, Wolff testified regarding his

connection with Milch:

“Q. In your position during the war did you have any official

dealings with Milch?

“A. Yes.

“Q. In what connection?

“A. During peacetime—that is, from 1933 on, until 1939—there

was a personal cooperation between Milch and me. _All

difficulties between the Luftwaffe and the SS were handled at

personal conferences in a very comradely way. This usage also

took place during the war._”

It is because of the situation above described, that the prosecution has

called Wolff the liaison man between Himmler and the SS on the one hand,

and the defendant and the Luftwaffe, on the other.

The testimony and affidavit of Walter Neff, the Dachau prisoner who

later became a block leader in Dachau, is of interest. This man saw

Rascher often. Was Milch’s name mentioned by Rascher in connection with

the medical experiments? It was. In his affidavit, which he did not

repudiate when testifying before this Court, Neff said:

“The name of Field Marshal _Milch_ was frequently mentioned in

Dachau. Every time I asked Dr. Romberg how long the cars and the

low-pressure chambers would remain in Dachau, he assured me that

_Milch_ would attend to everything. Dr. Rascher said to me that

he had communicated with Milch personally and that the cars

would remain in Dachau as long as he specified.”

Dr. Siegfried Ruff,[146] an important figure in the medical experiments

program, head of the research section of the DVL, recognized the

defendant Milch as the supreme authority in the experimental program. In

his affidavit Ruff said:

“The entire medical research for aviation was under General Dr.

Erich Hippke, in his capacity as Chief of the Medical Service,

until 1944, and subsequently under Professor Dr. Schroeder. As

Chief of the Medical Service, General Hippke was immediately

subordinate to Field Marshal Milch * * *. The chain of command

for these experiments was Milch—Hippke—Ruff—Romberg.”

Again there is the chart drawn up by Dr. Oskar Schroeder,[147] outlining

the official Luftwaffe channels through which orders flowed from Milch

to Hippke, and from Hippke to the various doctors engaged in the actual

process of experimentation. Schroeder thus knew definitely that Milch

was the Luftwaffe Chief in the medical experiments program. He later

succeeded Hippke as Medical Inspector. Consequently, his chart is

entitled to material weight in the proof offered by the prosecution.

Rudolf Brandt,[148] adjutant to Himmler, often had occasion to deal with

correspondence between the Luftwaffe and the SS, regarding the

experiments. In referring to Himmler’s request that Milch order Dr.

Rascher to be transferred to the SS, Brandt wrote a letter to Wolfram

Sievers, of the Ahnenerbe Society, stating—

“I assume that the _Field Marshal will of himself give the

necessary orders_, and then confine himself to sending a brief

answer to the Reich Leader SS.”

And Sievers writing to Brandt about the use of the low-pressure chamber

says—

“The putting at our disposal of the low-pressure chamber,

however, will be possible then _only if the Reich Leader SS

writes in person to Field Marshal Milch concerning this_.”

These two men, Sievers and Brandt, were not uninformed of the course of

the medical experiments nor of the competent personnel in the Luftwaffe

and SS in this matter. On the contrary, Sievers admitted witnessing the

death of an experimental subject in the freezing tank, and the

subsequent autopsy, while Rudolf Brandt stated in his affidavit—

“Field Marshal E. Milch and Professor Hippke, Inspector of the

Medical Service of the Luftwaffe, were fully informed about the

low-pressure experiments. Actually these experiments could not

have been conducted without the knowledge and approval of these

men, as they were conducted for the benefit of the Luftwaffe and

the experimenting persons were mostly Luftwaffe physicians.”

In the eyes of other persons, the defendant was the dominant force

behind the Luftwaffe participation in the Medical Experiments Program.

The defense has brought forward no adequate proof to show that they were

mistaken. It is the conviction of the prosecution that no such proof

exists.

The Commander in Chief of the Luftwaffe, Reich Marshal Hermann Goering,

was thoroughly familiar with the organization which was his brain child,

the Luftwaffe, and the way it functioned. What importance did Milch’s

position have in Goering’s mind?

His affidavit reads—

“Included among the responsibilities of the Office of the

Inspector General was the conduct of all research and

experiments and of all matters pertaining to health and

sanitation inspection * * *.

* * * * *

“That Generaloberstabsarzt Erich Hippke was the Sanitation

Inspector of the Luftwaffe during the period from 1941 through

1944; that the Office of the Sanitation Inspector was directly

responsible for the conduct of all research and medical

experiments; that the Office of the Sanitation Inspector, of

which Generaloberstabsarzt Erich Hippke was the head, was

directly subordinate to the Inspector General, former Field

Marshal Milch, and that former Field Marshal Milch was

responsible for all action taken by Generaloberstabsarzt Hippke,

or by the Office of the Sanitation Inspector or its

subordinates.”

It has been established that criminal experiments, high-altitude and

freezing, were carried on at Dachau by Luftwaffe physicians, working

under the orders and supervision of competent Luftwaffe authorities.

We have shown that all Luftwaffe personnel connected with, or knowing

about these experiments, from those closest to the place where the

experiments were conducted—Dr. Rascher, and Walter Neff—to those high

up in the positions of command—Goering and Schroeder—looked to Milch

as the ultimate authority in the Medical Experiments Program. An

investigation of the attitudes and convictions of the SS officials

concerned in this program discloses the same picture.

Could all these men have been mistaken? Were they writing to and

referring to the wrong man when they contacted the defendant? To put

forward such a proposition is to deny the facts. There was no error, the

facts are indisputable.

The defendant was and is officially responsible for the Medical

Experiments Program of the Luftwaffe.

Lastly, we come to the question of the defendant’s knowledge of the

experiments which were being carried out at Dachau for the Luftwaffe.

Throughout direct examination by his defense counsel, the defendant has

consistently denied receiving reports authored by Rascher or in any

other way being informed of the criminal nature of those experiments,

until the time of this trial.

However, he was very much interested in altitude experiments as such.

The following excerpt is from his testimony under questioning by Dr.

Bergold:

“Q. Witness, how far were you interested in these high-altitude

experiments in question as GL?

“A. We were interested in the real altitude tests as I know it

exactly, because I want to state this figure as 13,500 meters,

and we added 500 meters in order to get a square figure.

However, we knew that this last 500 meters, which I have

mentioned, we were not too interested in that. We were only

interested in the first place in cabin planes, too, after a

certain test had been carried out on 388-cabin suits, whether it

did not succeed or fail, because a person could not move

properly the way those suits were, due to low pressure up there

in the air is felt much more than here on the ground.”

The Tribunal’s attention is directed to this figure of 14,000 meters,

which is approximately ten miles. Milch wanted that altitude simulated

in the pressure chamber and the human reactions studied.

It was on 20 May 1942 that Milch wrote his letter to Wolff. Here he said

that Hippke had reported to him that the altitude experiments carried

out by the SS and Luftwaffe at Dachau were finished. Mention was made of

Rascher’s availability for the forthcoming experiments dealing with sea

perils. And Milch stated that the low-pressure chamber could no longer

remain at Dachau. In this one letter, the defendant demonstrates his

knowledge that the SS and the Luftwaffe were conducting, and had

completed, altitude experiments at Dachau and that Dr. Rascher was

involved.

There is the letter of 4 June 1942 to Hippke, wherein the defendant

exhibits his authority in regard to the low-pressure chamber and the

tasks of Dr. Rascher.

On 25 August 1942, Himmler wrote to the defendant enclosing the report

on the high-altitude experiments. Moreover, he asked Milch to receive

Drs. Rascher and Romberg for a lecture and presentation of the film on

the experiments. Himmler suggested that Milch refer the matter to the

Reich Marshal “because of its importance”.

This last statement should dispel any possible doubts as to the

attention accorded these experiments by official German military

circles. In fact, the defendant himself admitted discussing the

experiments with Goering on 13 September 1942. The defendant spoke of

Himmler’s interest in the program, and the apprehension felt by the

Medical Inspector Hippke, although “he did tell me that everything was

all right.” The disposal of the pressure chamber was settled in this

talk with Goering.

The defendant has said that the experiments, reports, and other aspects

of the matter were not known to him, partly because he had no time for

this, and partly because he had no technical knowledge of the subject.

He would have this Court believe that the experimental program was a

minor matter—one that the Inspector General of the Luftwaffe would not

pay close attention to. Yet we have seen that it was important enough so

that Himmler was frequently corresponding with the defendant or others

on the subject. It was important enough for the defendant to bring the

matter to Goering’s attention, even to the details of the disposition of

the low-pressure chamber.

On 31 August 1942, the defendant wrote to Himmler, acknowledging receipt

of the report on altitude experiments, and telling Himmler that he was

“informed about the current experiments”.

While on the stand the defendant attempted to explain this letter by

referring to the usage of German Ministries, where the form “I” means

the Ministry as such. But he admitted that he had written the closing

sentences of this letter “I remain yours, as ever, etc.” Here he did not

deny that “I” was used in its ordinary sense. It is neither logical nor

capable of belief that in the same letter to Himmler, defendant would

use the word “I” in two different senses.

It was also on 31 August 1942 that Hippke discussed the experiments with

the defendant, expressing _doubts_ and _misgivings_. In reply to Milch’s

question, Hippke told him that these doubts had not been substantiated.

Thus it can be seen, from Milch’s testimony itself, that a cloud of

suspicion and evil hovered over the entire Medical Experiments Program.

It is useless, indeed futile, to punish the perpetrators of criminal

acts on the one hand, and to ignore those in high positions who have

made possible the commission of the crimes. The defendant has belabored

the term “duty” in the course of his testimony. He has spoken of his

solemn oath to Hitler and to the German people. It would seem that it

was incumbent upon the defendant to acquaint himself with the activities

of his subordinates, at least to the extent that he should have known

that people were being murdered in experiments, which from the evidence,

were useless as far as the advancement of the knowledge of aviation

medicine is concerned.

The present case is not without judicial precedent. A close analogy can

be drawn between it and a recent case decided by the Supreme Court of

the United States, _in re Yamashita_ [U. S. Reports, Vol. 327, October

term 1945, Nos. 61 and 672]. The procedural and jurisdictional questions

therein decided are of no moment to us now, but the facts of the

Yamashita case are similar to those of the Milch case, and the opinion

rendered by the Court is particularly in point in the matter of

responsibility for senior officers.

General Yamashita was the Commanding General of the 14th Army Group of

the Imperial Japanese Army in the Philippines.

Upon surrendering to United States Forces, he was indicted and tried as

a war criminal before a Military Tribunal on the following

charge—“while commander of armed forces of Japan at war with the United

States of America and its Allies, unlawfully disregarded and failed to

discharge his duty as commander to control the operations of the members

of his command, permitting them to commit brutal atrocities and other

high crimes against people of the United States and of its Allies and

dependencies, particularly the Philippines, and he * * * thereby

violated the laws of war.”

The Court summed up the issue as follows:

“The question then is whether the law of war imposes on an army

commander a duty to take such appropriate measures as are within

his power to control the troops under his command for the

prevention of the specified acts which are violations of the law

of war and which are likely to attend the occupation of hostile

territory by an uncontrolled soldiery, and whether he may be

charged with personal responsibility for his failure to take

such measures when violations result.”

The Court cited Articles 1 and 43 of the Fourth Hague Convention of

1907, Article 19 of the Tenth Hague Convention, and Article 26 of the

Geneva Red Cross Convention of 1929. It then stated—

“These provisions plainly imposed on petitioner, who at the time

specified was Military Governor of the Philippines, as well as

commander of the Japanese forces, an affirmative duty to take

such measures as were within his power, and appropriate in the

circumstances, to protect prisoners of war and the civilian

population. This duty of a commanding officer has heretofore

been recognized and its breach penalized by our own military

tribunals.”

The Court thereupon denied the petition for certiorari and leave to file

petitions, for writs of habeas corpus, and prohibition.

In the case of the medical experiments, we have a much less complex

situation. There is no question of a senior officer in an occupied

country, rather we are faced with a simple direct chain of command

problem: Milch—Foerster—Hippke. Had Milch given the order, the

experiments would have been terminated, but no order of termination was

given—people were murdered and Rascher remained in the Luftwaffe until

he was transferred to the SS in March 1943. The defendant had an

affirmative duty to know what was going on, and an affirmative duty to

act so as to stop the experiments. That he was ignorant of the true

state of affairs is unbelievable in view of the letters and the

testimony of those who were below him. Field marshals are not made as

are noncommissioned officers. The road is a long one in any army from

the position of private to the lofty peak of a field marshal. The

defendant would have you believe that his powers were similar to those

of a private first class. Yet we have seen him, high in the councils, a

confidant of Hitler, one who could disagree with Goering, whose deputy

he was on occasion, a man who was so thoroughly skilled a soldier that

he seriously requested an assignment as a division commander, although

his service had been in the air force for a decade prior to the request.

If the defendant was not the responsible officer in connection with the

medical experiments, then the scourge of the Wehrmacht has not touched

the continent of Europe. There is no one who knows better than the

defendant the principle of responsibility in any army. By holding the

office which he held, he had the duty to control the activities of those

who were his subordinates, to insure that they conducted themselves as

soldiers and not as murderers. He has failed woefully in the task.

We have concluded now our remarks regarding the criminal activities of

the defendant in his various capacities with respect to the slave labor

program and the medical experiments. It remains only for us to deal

briefly with the defendant’s participation in the murder of two Russian

escapees, to discuss his defense of irresponsibility because of a bad

temper, to discuss the use of PW’s, and to touch upon the testimony of

some of the witnesses who appeared in his behalf, and the record of the

meeting of 23 May 1939.

The defendant has maintained that he knew nothing about the shooting of

the two Russian officers who attempted to escape in February 1944. We

have his own statement, made at a time when the general situation, from

the Wehrmacht’s point of view, was acute but not forlorn. The

International Military Tribunal has stated in its judgment concerning

Fritz Sauckel,[149] speaking of a statement made by Sauckel at a Central

Planning Board meeting, “Although he now claims that the statement is

not true, the circumstances under which it was made, as well as the

evidence presented before the Tribunal, leave no doubt that it was

substantially accurate.” The word “circumstances” as there used refers

to a meeting of the Central Planning Board on 1 March 1944. Milch made

his statement at the prior meeting held on 16 February 1944 (53d). The

letters submitted by the defense in connection with this episode are

interesting. The first and second from Schmidtke on 10 January, and from

Gangolf on 13 January, refer to a similar incident other than that with

which we are here concerned. The third letter from Winterstein on 12

January says nothing about the deaths. The affidavit of Prell, other

than stating that the deaths occurred on a Saturday, is of no value. The

witness Barthelmess, who made an affidavit though a resident of

Nuernberg, was not called. The affidavits of Klein and Popp were

offered; each is in a prison camp in the American Zone, yet neither was

called. The letter of Janko recites the facts in a context suggestive of

the words used by the defendant when he described the incident in the

53d meeting of the Central Planning Board on 16 February 1944. Here,

too, it is submitted that the circumstances under which the statement

was made leave no doubt that it was substantially accurate. The

defendant boasted of his prowess as a commander who ordered executions

when he would impress those who curried his favor at the Central

Planning Board meetings, but now he says he had no authority to give

orders and if he had given them, they would not have been obeyed.

The defendant has offered, as a plausible reason for the employment of

Russian, French, and Italian prisoners of war, the fact that various

historical events made it unnecessary to abide by the terms of the

convention concerning prisoners of war. The witness von Neurath

testified that Russia had renounced the conventions in question, and

hence Germany could renounce them as to Russia. As for France, it is

contended that the alleged government headed by Pierre Laval had

concluded an arrangement with the Reich which made it legal to employ

prisoners of war in tasks forbidden by the Conventions. A similar reason

is advanced for the use of Italian prisoners, the concluding of an

arrangement between the Reich and Mussolini. The International Military

Tribunal made a finding with respect to this matter.[150]

“The argument in defense of the charge with regard to the murder

and ill-treatment of Soviet prisoners of war, that the U.S.S.R.

was not a party to the Geneva Convention, is quite without

foundation. On 15 September 1941 Admiral Canaris protested

against the regulations for the treatment of Soviet prisoners of

war, signed by General Reinecke on 8 September 1941.”

I might add that Admiral Canaris was a member of the German Navy.

Resuming the quotation—

“He”—Canaris—“then stated, ‘The Geneva Convention for the

treatment of prisoners of war is not binding in the relationship

between Germany and the U.S.S.R. Therefore only the principles

of general international law on the treatment of prisoners of

war apply. Since the 18th century these have gradually been

established along the lines that war captivity is neither

revenge nor punishment, but solely protective custody, the only

purpose of which is to prevent the prisoners of war from further

participation in the war. This principle was developed in

accordance with the view held by all armies that it is contrary

to military tradition to kill or injure helpless people * * *.

The decrees for the treatment of Soviet prisoners of war

enclosed are based on a fundamentally different viewpoint.’

“This protest, which correctly stated the legal position, was

ignored”.

The defendant was a soldier of some experience, he knew it was improper,

even criminal, to have the Russian prisoners work in the Luftwaffe

factories, but he paid no attention to the breach of this duty of the

soldier. The manner in which the Reich bludgeoned a treaty from the

French is too well known to warrant discussion. It cannot be contended

with any seriousness that the French prisoners of war, who were

negotiated into slavery by a puppet government, were voluntary employees

of the Germans. Indeed the witness Le Friec has testified that when he

was taken to work in the airplane factory, he was told that he would

“work on baby carriages”. The position of the defendant with reference

to Italian prisoners of war and their illegal employment is still more

absurd, if that is possible. The Wehrmacht had moved into Italy early in

the war, and in 1943, when the Badoglio government concluded an

armistice with the Allies, the Wehrmacht continued to occupy the

northern part of Italy as an occupying power. They allegedly made a

treaty with the by then tottering shadow of the former sawdust Cæsar and

proceeded to bring the Italian prisoners of war to the Reich to work.

Here again the soldiery had been sold into bondage by their former

chief. The record shows that the Russian, French, and Italian prisoners

of war were used to work in airplane factories. Whether they made the

fighter plane, Me 109, or the jet fighter, Me 262, or the transport

plane, Ju 52, is of little moment. In the total warfare in which the

Reich was engaged, there is one certainty, that nothing was being

constructed which was not part of the war armament program.

The International Military Tribunal stated in this connection—[151]

“Many of the prisoners of war were assigned to work directly

related to military operations, in violation of Article 31 of

the Geneva Convention. They were put to work in munitions

factories and even made to load bombers, to carry ammunition and

to dig trenches, often under the most hazardous conditions. This

condition applied particularly to Soviet prisoners of war. On 16

February 1943, at a meeting of the Central Planning Board, * * *

Milch said: ‘We have made a request for an order that a certain

percentage of men in the Ack-Ack artillery must be Russians;

50,000 will be taken altogether. Thirty thousand are already

employed as gunners. This is an amusing thing, that the Russians

must work the guns’”.

That every aircraft factory in the Reich had antiaircraft batteries to

protect it goes without saying. Who would know better than the defendant

that such use was made of the Soviet prisoners of war? Further, this

type of artillery was a part of the Luftwaffe and not a separate branch

in the ground forces, as it is in the U.S. Army. The witness Foerster

has testified that Soviet prisoners of war worked at the gun positions.

If the number two man in the German air force could not have done

anything toward arranging that the prisoners of war did not work in the

factories, or work the guns, then no one in the Wehrmacht could have

done anything about the situation.

We have heard much of the defendant’s violent temper and the resulting

statements which, witnesses assert, were never taken seriously by those

who heard them. The explanations offered by the defense are as frivolous

as the alleged outbursts were frequent. It would have been difficult, if

not impossible, for one who occupied the positions held by the

defendant, to accomplish anything if his subordinates had to sift all of

the strong statements he made, in an effort to determine which of them

were seriously said. Further, his strong statements about the

procurement and treatment of laborers are closely aligned with the grim

reality as we have seen it. We submit that this man of violent temper

believed in, and consciously advocated, the ruthless measures he

recommended, and that his subordinates, to the best of their ability,

complied with his recommendations. It is not reasonable to assume that

one with his power could have made statements, of the kind of which we

have heard here, and that he would then rely on the good offices of

those who were around him to insure that nothing was done as a result of

these statements. The Reich was not a country of innocent victims of one

tyrant, but rather it was composed of a series of tyrants, each like the

master tyrant, each with his own group of subordinates, who carried out

the wishes and whims of their respective chiefs. If all men who held

positions of authority in the Reich are to be believed when they say

that they were personally opposed to criminal excesses, then we have the

fantastic conclusion that these crimes were committed in the face of

influential and unanimous opposition.

The witnesses produced by the defense left a little to be desired.

Without indulging in exhaustive detail, a few statements made by some

are worth comment.

The witness Koenig said that he didn’t know Himmler was head of the SS

until 1945.

The witness von Brauchitsch did not know families were broken up and

sent to concentration camps. It was this man, the aid to Goering, who

passed on the Terboven letter of May 1942 to the defendant. The Court

will recall that the letter told of the attempted escape and the

resulting concentration camp detention of the Norwegians. It was the

defendant who said that an attempt to escape by a prisoner of war is an

honorable thing. Would not a similar effort on the part of some

Norwegians merit something less than a concentration camp? Brauchitsch

had said a little earlier that he did not know that foreigners were in

concentration camps.

The witness Felmy has stated that some Yugoslav partisans were sent to

Germany as laborers.

The witness Schniewind, who was present at the conference of 23 May

1939, did not under any circumstances gain the impression that

aggression was announced.

The witness Vorwald, a subordinate of the defendant and hence his

concern for these proceedings, may be assumed as being something short

of disinterested, was thoroughly glib and exceptionally agreeable. He

even agreed with the statement, on cross-examination, that the forces of

the Reich were no longer in Africa in 1943. It is a matter of historical

record that the invasion of that Continent began in November 1942 and

that the campaign was concluded in the spring of the following year.

The witness Koerner, still laboring under the spell of the former

leaders, stated that he believed Goering to be the last great man of the

Renaissance.

The last witness of whom we shall speak is Karl Wolff. In his affidavit

he spoke of meetings between Himmler and Milch over coffee and cigars.

He spoke of the great cultural works of the SS. Was he speaking of

Dachau and Mauthausen? With some vehemence, he insisted that he had

deported only 1,050 Jews from all of Italy. He knew nothing of Dachau

that led him to believe that anything unusual was happening there;

although he did say that, in his visit there in 1942, the place was so

clean that one could have eaten from the floor.

These represent a fair cross section of the witnesses, all of whom had

roles of varying importance in the tragedy with which we are here

concerned. Even as the defendant contends that he knew nothing of what

went on, so do they echo the same refrain.

Much time has been spent in attempting to discredit the Schmundt record

of the 23 May 1939 meeting. The Court is familiar with the findings

which have been made by the International Military Tribunal on this

subject. There has been no additional light thrown on the matter by the

evidence here presented to indicate that the Schmundt record is anything

other than a correct record of the events which transpired at the

meeting.

We wish to discuss now in conclusion one document offered by the

prosecution. This we have saved until the last because we believe that

of all the evidence presented by the prosecution it is most typical of

the defendant as a man and as a Nazi. We refer to the minutes of the

conference of air force engineers and others which was presided over and

was addressed by the defendant on 25 March 1944. This document, like so

many others in this case, was initialed by the defendant.

The defendant stated that, as of the date of the conference, “We have in

our employ today approximately 60 percent foreigners * * *.”

He continued, “The ratio is gradually approaching 90 percent foreigners,

with 10 percent German managers.”

These are statements by a man who said he did not know about the extent

to which foreign labor was used in his own industry, let alone in

Germany. He stated that—

“The Fuehrer order provides clearly that the fighter plane

program, which the Jaegerstab is starting, has priority over all

other fields of armament * * *.”

He showed knowledge of the production of tanks and infantry munitions.

He spoke of having the air force production “to an extent safely

underground” in four months’ time. It is here that he stated that he was

head of the Jaegerstab and that Saur was his deputy and Chief of Staff.

Touching on his conferences with the various plant officials, he

stated—

“On the spot the individual gentlemen are then told—supported

by the combined authority of the State, the Wehrmacht, and the

Party, that is Saur and me, Speer is unfortunately still on sick

leave, otherwise he would also be present—what it is all

about.”

He commented on labor—

“Thus, all pertinent questions are dealt with in the conferences

about the commitment of labor and all competent men, who have

anything to do with the commitment of labor, meet, especially

the president of the competent provincial labor office. Thus it

is determined on the spot, in the individual spheres, what the

factory lacks.”

This is the man who has constantly maintained that he had nothing to do

with labor. One can readily imagine a session between the Luftwaffe

field marshal and a labor office chief.

We have heard the defendant deny and re-deny any knowledge of the slave

labor program as such, let alone the extent to which it went. It is our

contention that anybody who walked the streets of Germany could not have

failed to have become aware of the activities which were being carried

on by Sauckel and his henchmen.

He makes an interesting reference to bureaucracy:

“It is an error to believe that civilian offices are more

bureaucratic than military offices. On the basis of my

continuous and extensive experience, I can assure you exactly

the opposite is true.”

This from one who would have the Tribunal believe that his staff and

officers were one big happy family who ran things in a rather casual

catch-as-catch-can fashion.

Speaking of the arrival of laborers, he said—

“In brief, the people arrive there and are put to work there. If

any doubts exist as to whether a request is justified—for the

people are not requested by numbers, but as electricians,

blacksmiths, fitters, turners, as unskilled laborers, as

foreigners—then this is settled. If the result shows that the

request for people is not justified, then the matter is referred

to a commission and this commission examines the facts within 48

hours. If it becomes apparent that dirty dealings are going on,

my special court martial is called into play, and it hands down

a quick decision.”

This from a man who has stated that he had no power to give orders. He

stated further, “the normal work week in our industry is 72 hours.” The

witness Krysiak testified that they worked 84 hours at the factory where

the Mauthausen inmates were employed.

Speaking of the difficulties that resulted from the hoarding of spare

parts by the various foremen, he said—

“Now it is your task to teach these people some sense and to put

the entire system of hoarding on a sensible basis. I therefore

ask you, as the senior authorities in the field: teach that to

these people by force. There is no sense in writing letters.

Such letters are not read. They would not understand them

anyhow.”

The wish of a field marshal is as an order, and he advocated the use of

force on his own people. The extent to which he urged that they go was

expressed a few lines further on when he stated—

“Whoever hoards supplies must be punished immediately. By

punishment I also mean shooting. For if these people are told

what is at issue here, and they still try to hide parts of their

supplies or to cover them up, that is dirty dealing and a crime

against Germany. I want to say that very clearly and I want to

say it in very sincere words, so that you yourselves will

realize that we are dealing here with a question which is of

decisive importance for Germany’s well-being, that we are not

dealing with an ordinary point of discussion but with a question

which decides about the life and death of Germany.”

He advocated killing Germans, not slackers but hoarders. He consciously

used strong language, yet he would have it believed that he never spoke

harshly except in a rage and that nothing ever came from his outbursts.

He indicated knowledge of the overall figures on the breakdown of

working hours.

“In considering the figures one has to know that 52 percent of

the total man-hours are spent in equipping a plane and only 48

percent in building the aircraft frame and engine.”

He has said that he was powerless to do anything about requests from

industry, yet he stated—

“If I want something from industry, then industry comes and

says, ‘Yes, I have those and those requests.’ Only then can I do

what you want.”

He again speaks of the death penalty when he says—

“Gentlemen, in this connection I may call your attention to

another important point. If I visit an office and find out that

something is being hidden there, then I ask for the death

penalty for such a crime today. That is fraud. That is sabotage

of the German armament industry.”

Can it be seriously contended that these words were regarded by the

listeners as mere outbursts?

Next we have another illuminating passage on his attitude toward

prisoners of war.

“Then there is still the human factor. We often had considerable

difficulty with the human factor. The fluctuation there is very

considerable. The quota of the Luftwaffe in the distribution of

manpower was considerably lowered. The foreigners run away. They

do not keep any contract. There are difficulties with Frenchmen,

Italians, Dutch. The prisoners of war are partly unruly and

fresh. The people are also supposed to be carrying on sabotage.

These elements cannot be made more efficient by small means.

They are just not handled strictly enough. If a decent foreman

would sock one of those unruly guys because the fellow won’t

work, the situation would soon change. International law cannot

be observed here. I have asserted myself very strongly and, with

the help of Saur, I have represented the point of view very

strongly that the prisoners, with the exception of the English

and the Americans, should be taken away from the military

authorities. The soldiers are not in a position, as experience

has shown, to cope with these fellows who know all the answers.

I shall take very strict measures here and shall put such a

prisoner of war before my court martial. If he has committed

sabotage or refused to work, I will have him hanged right in his

own factory. I am convinced that that will not be without

effect.”

These words are strangely reminiscent of his speech at the 53d meeting

of the Central Planning Board. He knew he had advocated and participated

in flagrant violations of international law and here he went on record

on this subject.

We see the defendant making a “big request” of the Quartermaster General

and calling for “energetic action” by the chief of supply. This was a

meeting of considerable moment and these statements did not go unheeded.

He spoke of the laborers.

“* * * We in the Luftwaffe armament industry have Russians,

French prisoners of war, Dutch, and members of 32 other nations.

The obtaining of interpreters alone presents a big difficulty

there.”

Then he adds—

“We, the Quartermaster General and Generalluftzeugmeister, have

already agreed that we are to balance the personnel also. Above

all it is necessary that the member of the troops be treated in

exactly the same way as the industrial worker.”

We have a strong statement concerning the feelings of the German worker.

He said—

“By unjust treatment the German worker means that the treatment

is not the same for all. That is what makes the German worker

indignant. He wants everyone to be treated the same way. He

wants justice and does not want to be ill-treated in words or

any other way. He cannot stand it and he is right in not being

able to stand it.”

The defendant advocated that the German worker be carefully handled. The

Tribunal has heard from the witnesses Ferrier, Le Friec, and Krysiak how

the foreign workers were handled.

He outlined the working program for the Easter week end—

“Finally I ask that the troops receive the fundamental order to

work on Good Friday, the Saturday before Easter, and on Easter

Monday in the same way as the people in the factories. The

soldiers just do not have to go on furlough either. They must be

told why.”

Are these the words of a man who is without authority to issue orders

concerning the troops?

He acknowledged his employment of Russian prisoners of war and advocated

that shirkers among the factory laborers be whipped back to their jobs.

He said—

“I further ask for support by the Luftwaffe physicians. With all

the rabble that we have among the foreign workers there is of

course a lot of shirking. At the moment the Russians—that is,

the Russian prisoners of war—are feigning a lot of fatigue and

illness. The incidence of sickness of one and a half to two

percent which we have had up to now has at least doubled, and in

some factories it has been increased to eight, nine, and ten

percent. That is, of course, done by previous agreement. There

the official physicians must undertake an examination and if the

physicians, who have to be very strict, find out that it is not

true, then we return the fellows to work by means of the whip.

Then the whip serves as cure.”

He again spoke of orders that have been given.

“If the factory knows: Now we are going to be attacked, and it

has a few trench shelters but does not have a bombproof shelter

or the like, then the people simply ran away from the factory

automatically at each raid after the first one, and they could

usually not be caught the next day either. That applies

particularly to the foreigners. We have therefore now issued the

following order, and have equipped the superiors accordingly

with weapons and pistols: As soon as a factory which has already

been attacked a few times can count on the raid’s being aimed at

that particular factory again, then the personnel leave the

factory, but in closed groups by shops, under the leadership of

the man in charge of the shop, and, to the extent that they are

German personnel, they leave singing military songs.”

Are superiors armed with weapons and pistols to lead contented German

workers away from a factory in case of an air-raid? Little wonder that

the foreigners who had been brought in like chattels ran away when the

opportunity presented itself. Were these workers who were fleeing,

voluntary workers?

Commenting on the gravity of the task of fighter production, and the

importance of the months of April and May 1944, he said—

“That will be decided in six to eight weeks. If we succeed in

this, then we will once again have time to carry out all the

other tasks and jobs of this war and can also achieve greater

successes in other fields.”

Were the “other fields” tasks to be accomplished in the sowing of seeds

of the Reich’s culture?

The defendant has said that he knew nothing about the living conditions

of the foreigners. It is obvious that he knew something, for he said—

“I also ask you to be of considerable assistance in the question

of lodging in connection with the question of the relationship

between our military personnel at the airfields and the workers.

If we bring the people over to work, we also have to provide

them with places to live. As far as foreigners are concerned,

this has to be done in some suitable way. They cannot be put

together with our people, just like that. But they should not be

so far away from the airfield that one cannot get them to work

at all.”

No, don’t let them live with the native workers, but be sure that they

live close enough to the factory so that they can put in their 72 hours

a week!

The importance of the fighter program is emphasized when he said—

“There are no laws of bureaucracy, there are no regulations,

there is nothing at all as important as the task of winning the

war.”

The defendant could not agree with anything that Hitler stood for after

March 1943. He was trying to get out, but here he speaks of Hitler and

his henchmen—men who, he said, were leading Germany to certain

catastrophe:

“It is quite surprising how the population has endured this

thing so far and how it always gets on its feet again when it is

led in the proper way by true leaders who, thank God, are

present among the people through the Party and the rest of the

leadership. But you must not forget, gentlemen, war nerves have

reached a point which cause us in the leadership group worry.”

He has said that he was not a wholehearted Nazi, but here he referred to

himself as one of the true leaders and this at a time when the hands on

the clock tolling the hours of the Reich were approaching twelve. Yet he

would have you believe that he was a minor man.

He did not confine his speaking efforts solely to the Luftwaffe; he was

one of the leaders, and as such it was natural that he should address

the armament feeder industry. On that subject he said—

“What I am telling you today was told the other day to the

entire armament feeder industry—that includes the blacksmiths,

foundries, crankshaft workers of the iron producing industry,

etc. They were likewise exhorted to produce the maximum. In the

same way the Gauleitungen, all of the provincial offices,

wherever we were, were addressed by us to that effect. But

everyone considers that if he does not do his duty, we do not

ask whether there is a law, we ask only that he is the

responsible one, and that we will seize him no matter who he

is.”

His first peroration is indicative of his attitude.

“Please go wherever you are going and knock everybody down who

blocks your way! We cover up everything here. We do not ask

whether he is allowed to or whether he is not allowed to. For

us, there is nothing but this one task. We are fanatics in this

sphere. We do not even consider letting anything at all distract

us from that task. No order exists which could prevent me from

fulfilling this task. Nor shall I ever be given such an order.”

Yes, the defendant was a fanatic. Too, he was one who could cover up. It

was a willful man who could say that.

There is an interesting statement concerning the number of employees of

the Luftwaffe. The defendant set it at 1.8 million. This is somewhat in

excess of the .5 million figure that one witness mentioned.

It has been insisted that he had nothing to do with labor, it has been

insisted that he could give no orders, yet in his second peroration to

the same speech, he said—

“We have given orders that will make you laugh. Some labor

control office or other suddenly declared that the Jaegerstab

was not entitled, according to paragraph so-and-so, to establish

a 72-hour workweek; it was not valid. I said: The gentleman is

herewith informed, if he should say such a thing once more, he

will be picked up; I have excellent cellars in this house. Then

the opposition disappears immediately. But you have to count on

such things, and the difficulty for you is that, in order to get

through all the junk, one should clean out, first of all, a

whole lot of little pigsties. Something will come out of this

whole affair with us, yet. Whoever of my technical people from

the Ministry does not earn his keep with the Jaegerstab now, and

does not cooperate, I guarantee that he will never appear again

in this Ministry, in the machine where I give the orders.”

Is this the man who said he could not have people sent to concentration

camps? The witness Krysiak was “picked up” for having said in 1940 that

Germany would lose the war. He was arrested by the Gestapo as the result

of a private conversation. It is unbelievable that a field marshal could

not, and did not, exercise the same power.

Today is the third anniversary of the speech of 25 March 1944 made by

the defendant. His closing remarks on that day detail decisively the

philosophy of the then field marshal of the Luftwaffe. Those assembled

had been listening to their chief since midmorning. The hour was late.

The hands of the clock were past twelve. Germany was in the fifth year

of war. The defendant was concluding his speech. He said—

“Gentlemen, I know, not every subordinate can say: for me the

law no longer exists, but he has to have someone who covers up

for him. Not out of cowardice, but if you act according to the

spirit of the old field service regulation, ‘Abstaining from

doing something hurts us more than erring in the choice of the

means’, and if, moreover, you keep in touch and immediately

clarify difficult points so that something can be done, then we

are willing to accept the responsibility, whether this is the

law or not. I see only two possibilities for me and for Germany;

either we succeed and thereby save Germany, or we continue these

slipshod methods and then get the fate that we deserve. I prefer

to fall, while I am doing something that is against the rules

but that is right and sensible, and be called to account for it,

and, if you like, hanged, rather than be hanged because Papa

Stalin is here in Berlin or the Englishmen. I have no desire for

that. I would rather die in a different way. But I think we can

accomplish this task, too. We are in the fifth year of war—I

repeat: The decision will come during the next six weeks. Heil

Hitler!”

The time is at hand for another decision, a decision which will follow

the dictates of sound reason. The record which will be made by this

Tribunal and its judgment will be one that shall give courage to

peaceful free men everywhere. Indeed, the defendant is fortunate that

the decision in the present case is in the hands of those who do believe

that the law exists and will continue to exist. There is no place for

passion or for prejudice in the ceaseless tasks, the seeking of truth

and the establishing of justice.

-----

[143] Mr. Clark Denney delivered the closing statement before the

Tribunal on 25 March 1947, Tr. pp. 2436-2488.

[144] Trial of the Major War Criminals, vol. I, p. 306, Nuremberg, 1947.

[145] Defendant in case of United States _vs._ Karl Brandt, et al. See

Vol. I.

[146] Defendant in case of United States _vs._ Karl Brandt, et al. See

Vol. I.

[147] Same as preceeding footnote.

[148] Same as preceeding footnote.

[149] Trial of the Major War Criminals, vol. I, p. 321, Nuremberg, 1947.

[150] Ibid., p. 232.

[151] Ibid., p. 246.

B. Closing Statement of the Defense[152]

DR. FRIEDRICH BERGOLD: May it please the Tribunal. In my opening

statement I drew a picture of the defendant Milch which differs

considerably from the description given by the prosecution. It is my

hope that in the long course of producing evidence I have given proof

that my conception is the full truth.

According to the testimony of the witness Richter, the affidavit of the

witness von Mueller and according to the defendant Milch’s own

testimony, nobody can doubt that Milch has never been a good National

Socialist. His love for peace and his longing for a final understanding

between the nations of Europe, especially between Belgium, France,

England, and Germany, became completely obvious. No one who believes in

justice would refuse to believe him if he states that he regarded the

war as a misfortune. He was also one of the few intelligent men to admit

Germany’s defeat in the First World War. There was no proof supplied

that in any way prior to 1933 he supported any armaments. His testimony

and military affidavit from von Mueller have shown that under his

management the Luftwaffe was always a peaceful instrument of

communication among the nations. It is to be regretted that the

examination of foreign politicians, such as Van Zeeland, Pierre Cot, and

Delbos, were not permitted, because only then the personality of Milch

would have been shown in its true light. He must have been a peaceful

and just man; otherwise, all these statesmen would not have had

confidence in him. Even the witness delegate Messersmith, whose

affidavit, Document 1760-PS, was introduced in the International

Military Tribunal proceedings, affirmed that Milch condemned the

coercive methods of the Nazis. He was different from the other Party

members, so that after 1937 he lost Goering’s confidence. At that time

he asked to be allowed to retire but in spite of his threat of suicide,

he did not obtain that permission.

Such a man of such a past must be believed when he testified that even

in 1939 he had no knowledge of Hitler’s aggressive intentions. Milch had

misgivings about Hitler because he regarded the measures taken against

Czechoslovakia as a breach of peace, and he was sufficiently intelligent

to see that Britain would no longer tolerate such violations. Hitler was

dishonest with him and always put before him his intentions for peace,

even forbidding him the manufacture of bombs. The defendant never

requested the manufacture of bombs because he intended to lead a war of

offense, but only because, understanding the international situation, he

was convinced that England would fight against the Nazi regime.

Up to that time, your Honor, nobody can find any inconsistency in the

defendant’s outlook. It was no offense if he requested a Wehrmacht for

his country in view of the world situation, and therefore he favored a

reasonable rearmament. As long as all nations were peace-minded and

maintained armies, Germany had the right to maintain armed forces as

well. I beg you to remember that the defendant demanded from his

superiors that rearmament should be effected in a slow and reasonable

manner and that he had differences with them on account of this.

It was not for nothing, your Honor, I repeat that. Only for one to keep

all these things in mind will it be possible to judge whether or not the

defendant’s statement regarding the conference of 23 May 1939 is

correct. A man who loves peace and works for peace was present at that

conference and states today, or testified that the speech in question

did not contain any mention of aggressive war against Poland or any

other country. He even testified in this courtroom that this speech did

not have the contents as it is laid down in the Schmundt protocol.

I realize that the International Military Tribunal came to the

conclusion that the Schmundt protocol is correct. All defendants and

witnesses who were heard at that time declared that the contents of the

speech were not of so aggressive a nature as it is laid down in the

minutes. The defense counsel made a mistake at that time of not calling

all the witnesses which I requested. Nobody went to the trouble of

critically examining the text of the record. I can understand why the

IMT reached a different conclusion, having heard only the defendants’

general objection, which remained unsubstantiated in detail. Nowhere is

it yet permissible in law to maintain the verdict of a previous court

when new and better evidence has been submitted.

The witnesses Warlimont, Schniewind, Engel, and Raeder stated that

several passages of the Schmundt record contained a number of false

assertions regarding Hitler’s words. Warlimont testified that he was not

present, although he is listed as among those present. Milch’s testimony

made it absolutely definite that Goering was not present. If there were

only so few persons present and there were mistakes made concerning the

presence of persons, the record must have been made up a long time after

the event, otherwise no faults of that kind would have been possible.

Schniewind testified that a number of points contained in the Schmundt

record were never discussed at that time at all. He had the opinion that

many ideas laid down in the record were borne out at a later period,

that is to say, 1940. These ideas concerned, for example, the use which

could be made of war production after the defeat of France, the

importance of aircraft carriers for convoys, the collaboration of Italy,

and the break-through of the Maginot Line by this force, about Japan,

and last but not least, the so-called Fuehrer Decree. By the statement

of Felmy it is proved forever that the so-called Fuehrer order was given

only on 12 December 1940. Even Raeder stated that the principles of the

Fuehrer order were laid down at another occasion and that they were

accordingly carried out afterwards. This other occasion was given by the

statement of Felmy. Also Raeder did not hear anything about Japan; he

considered it impossible that Italy and the break-through of the Maginot

Line were discussed and he also states that nobody mentioned a better

production of cruisers. He also testified that in that meeting a

two-front war was not mentioned because he, as an officer, would have

noticed that. Furthermore, he testified that Belgium and Holland were

not referred to and that after the speech Goering did not open a debate.

Even though the witness was not present at all times, it is rather

strange that he should not have heard mention of any of the very points

not heard by the other witnesses. The defendant Milch gave you the

precise details of those points of the speech which were not mentioned

at the time, and he was even in a position to tell you when these

various points were first conceived.

Who, assuming responsibility for justice, can still seriously maintain

the findings of the IMT now that these precise statements have shown us

the errors of the Schmundt record? A record containing so many grave

mistakes is no longer of probative value and can never be made the basis

for any judgment. I am convinced that after this trial the historians of

the whole world will regard the Schmundt record as the product of a

later period, i.e., between the fall of 1940 and the spring of 1941 and

that they will regard it as the result of time, drawn up to make Hitler,

then regarded as the victor, seem possessed of a prophetic gift which in

reality he never had.

The conference did take place on 23 May 1939; that is true. Its real

topics, however, can no longer be stated on the basis of the Schmundt

record. Thus, the statements made in the first Nuernberg trial gain a

different and greater significance. Never again, therefore, will it be

possible for anyone to say that on that occasion Hitler preached war and

the enslavement of Europeans.

There is yet another argument possible against this record, which, it is

alleged, also contains the plan for slave labor. Document EC-194,

Exhibit 8, and 016-PS, Exhibit 13, submitted by the prosecution, show in

all clarity that the use of European peoples in German armament works

was a measure forced by the emergencies of the war and that the idea was

born and realized only by the military difficulties resulting from the

war with Russia.

With clean hands and a pure heart, Milch entered the war in August 1939

having previously advised Goering to fly to Britain to prevent the war.

He himself became the victim of Hitler’s deception, and he himself

believed that the war had been forced upon Hitler. Who can disregard

justice to such an extent as to reproach Milch with having held that

belief? It is his misfortune, but not his guilt, to have been deflected

from the truth by misleading propaganda. Who would so misinterpret

patriotism, heretofore regarded as one of man’s noblest instincts, as to

reproach Milch for having done in 1939 his duty as a soldier?

He never prepared any aggressive wars. In every case he was informed

shortly before the event, and nothing is more typical of the opinion his

superiors held of him than the fact that he chanced to hear about the

preparations for the war against Russia through a subordinate, who had

been told of Hitler’s plan before the field marshal was told. The first

Nuernberg trial has already shown that Milch saw Goering at once in an

effort to prevent that war. Goering himself admitted this. Milch’s good

intentions were of no avail because Goering turned him down. As Milch’s

superior officer, he even went so far as to forbid Milch to see Hitler

and to tell him that he, Goering, would prevent Milch from being

admitted to Hitler’s presence.

One of your Honors, in putting questions to the defendant, aimed to show

that it might be regarded as incriminating to the defendant that he did

not resign in 1941 or at least in 1943. Your Honors, only if one has

lived in Germany these last years is it possible truly to judge that

problem. As I said in my opening speech, one can judge the man only

against his background, through his upbringing, from which usually

nobody can escape no matter in what country he lives. Milch was brought

up as a soldier. He absorbed ideas which for centuries were regarded as

true and inviolate laws. It is no guilt for him not to have freed

himself from them. I have said this once before.

At that time nobody in Germany was in a position to protest against

certain events, against certain aims of the Party. All that one could do

was to criticize things within one’s own immediate circle and tell one’s

intimate collaborators how to improve matters. If in Germany anybody had

attempted at any time to express criticism publicly, either by word or

by publicly resigning, nobody would have been the wiser for it. This

system was so ruthless and its stranglehold over public opinion so great

that it would and could suppress anything.

You need only remember that during the first IMT trial it was shown that

von Papen’s criticism in his Marburg speech was completely withheld from

the German public. Had Milch done anything, nobody would have heard

about it, and his action would have been useless, perhaps senseless, as

nothing would have been changed for the better. Your Honors may not know

that six to eight generals, including General von Falkenhausen, once

Commander in Chief in Belgium, and Colonel General Halder, one of

Germany’s highest and best leaders, were thrown into concentration camps

because they had deviated from Hitler’s line. This is not connected with

20 July 1944. Nobody in Germany knew about this. Pictures of General

Count Sponeck were sold as of a hero two years after this man had

vanished into a concentration camp. Such were the lies and the

deceptions of Goebbels’ propaganda. We have learned since the end of the

war that prior to 20 July 1944, there were 50 to 60 generals in Moabit

prison, without anyone in Germany knowing anything about that. You will

understand the full falsehood of propaganda when you recall the base

distortions by which the dismissals of Generals von Blomberg and von

Fritsch were announced to the German public.

Believe me, your Honors, protests in Germany were not possible at that

time. The only result would have been the futile death of the protesting

person. If Milch had attempted to fly abroad, his whole family—such

were the detestable methods of those in power—would have been put to

death on the basis of what was known as family responsibility.

Milch cannot be reproached with not having refused service and

allegiance. No soldier could do this. Should a member of the

Anglo-American Air Forces suddenly have refused to go out on an

operation which would bring death to innocent women and children, he

would not have been regarded as a hero. He would have been put before a

court martial.

That Milch did not participate in an attempt on Hitler’s life, who would

accuse him of that? Although he was an energetic man, the defendant was,

because of several concussions of the brain which he suffered, inclined

to terrifying fits of rage, or ranting speeches, but the evidence has

shown that in his heart of hearts he was kind and soft. He would

ameliorate sentences already passed, and as the witness Richter

testified, he compensated for a fine, which he inflicted himself, by

secretly passing into the family of the punished man a very large sum of

money, larger than the fine itself. The witness Vorwald expressly stated

that basically Milch was a man soft of heart, who conducted himself

*self soft, who only in a rage caused by disease and worry utters harsh

words never followed by action, is not capable of murder. Thus, no just

man will charge him with not liquidating Hitler, and Milch did what in

his conscience he felt to be possible and necessary. He had the courage

of telling the dictator to his face what he thought of the situation. He

demanded that Hitler desist from his plans, dismiss the most important

men, such as Goering, Ribbentrop, and Keitel, give up the supreme

command, and establish a cabinet of equal powers, and he finally desired

that peace should be brought about.

Your Honors, it would be easy to say that as a field marshal he did not

thereby endanger himself. The statement of the next witness Krysiak, the

fate of the generals which I mentioned to you, show what was done in

Germany to men who did such things, but the defendant went one step

further. He succeeded in inducing Goering also to demand the end of the

dictatorship and the instituting of a Reich cabinet. Your Honors, this

means that this defendant thereby risked his life. He could not foresee

that nothing would happen to him. That nothing did happen to him was not

due to his rank, but to Hitler’s opinion that this man was not yet

dispensable. Everybody can only be sentenced according to his

potentialities. Your Honors must not compare conditions in your free and

noble country to those in Germany. Only the German world as it was

should be the basis of your judgment here. It is not true to say that

Milch gave his continued support to the objectionable aims of the Party.

He continued to do his duty because, as he testified, he wished to

prevent the worst from happening to his people, the total destruction of

the cities and of Germany’s culture. It was his constant hope to

organize the defense in such manner as to prevent bombing warfare from

taking its full effect, that same bombing warfare which is the scourge

of mankind, whatever one may think of its military value. Would it be

for us to judge him on the fact that he did not obtain his aim because

of the stupidity and failings of his superiors? Milch furthermore

testified before you that by an improved defense he hoped to achieve

better peace terms for his people. I can assure your Honors that since

1941 Goebbels’ propaganda told the German people time and again of the

horrible terms the enemy would impose on them in the event of peace.

That included an item to the effect that the whole of the German male

population would be castrated should Germany lose the war so that the

German people would perish. Who has the courage to say it is despicable

for a man of battle to organize a defensive system under the news impact

of such items in order to obtain better peace terms?

It would be a distortion to say that Milch thus believed Hitler’s aim of

destroying Europe, for he knew that the war was lost. He was intelligent

enough to see that with the lost war the end of Hitler’s ideology would

come. It was not the Party he wanted to serve when he hoped for less

severe peace terms with a better defense, but a lost war that would not

mean the loss of the legal rights of a whole nation as is the case

unhappily today. Only he who comprehends and understands all these

things can appreciate Milch’s actions and judge them fairly. And later,

when he saw that his objective of saving the German people from the

worst would fail, Milch withdrew from the regime. He could not resign on

his own. That, for a soldier in Germany, was an impossibility. He did

not choose to act dishonorably, which no one can expect from a decent

man. In Germany soldiers are removed from their offices only by their

superiors. Thus, as he put it himself, Milch could only organize his own

elimination from office by gradually transferring his tasks to Speer’s

Ministry. As his superiors thereupon regarded him as superfluous and

were glad to be rid of this man, Milch was finally free. Then began the

scheme on the part of his superiors to liquidate him. Such was the

position of Milch, the man, and such by and large were his motives. For

him to have acted in this and no other way is not dishonorable, and only

he can cast the first stone who never in his born days gave in to public

opinion in defiance of his better judgment, who has never considered his

superiors, and who proved himself to be above his upbringing, and had

the courage of fighting for his convictions even with the most brutal

methods.

Before dealing with the details of the indictment I should like to make

these basic points. The prosecution created the impression that under

the conspiracy count it would hold Milch responsible for everything in

totality that was done in connection with labor assignments and

experiments within the confines of the Luftwaffe, nay, within the

confines of the German government departments. This is not admissible.

The indictment may be referred to Control Council Law No. 10. Nothing is

mentioned there that conspiracy to commit crimes against humanity or war

crimes constitutes a punishable offense. Only conspiracy against peace

is punishable. The way the law is formulated, particularly count 2 of

Article 2, makes it clear beyond doubt that activities listed therein

only concern participation but no independent types of crime. Where

there is an independent crime then also in the case of war crimes and

crimes against humanity there would have to be a provision similar in

count 1-A, Article 2 of the Control Council law where a crime is defined

as “participation in a common plan or conspiracy for the purpose of

committing one of the crimes above set forth.” In this connection the

verdict of the IMT must also be considered. At the end of the sixth part

of the verdict it states:[153] “Count one, however, charges not only the

conspiracy to commit aggressive war, but also to commit war crimes and

crimes against humanity,” but the Charter does not define as a separate

crime any conspiracy except the one to commit acts of aggressive war.

Article 6 of the Charter provides: “Leaders, organizers, instigators,

and accomplices participating in the formulation or execution of a

common plan or conspiracy to commit any of the foregoing crimes are

responsible for all acts performed by any persons in execution of such

plan.” In the opinion of the Tribunal these words do not add a new and

separate crime to those already listed. The words are designed to

establish the responsibility of persons participating in a common plan.

The Tribunal will therefore disregard the charges in count 1, that the

defendants conspired to commit war crimes and crimes against humanity,

and will consider only the common plan to prepare, initiate, and wage

aggressive war. And under figure 8, the IMT states further:[154] “As

heretofore stated, the Charter does not define as a separate crime any

conspiracy except the one set out in Article 6(a) dealing with crimes

against peace.” The verdict was so formulated because the Charter was

unclear at this point. As above stated, the Control Council law contains

no such provisions, so much the less because in this case conspiracy

does not constitute a separate crime. The provision set forth in Article

2, paragraph 2, No. 6, “whoever was connected with this planning or

execution”, is only a form of individual defense and cannot be put on a

par with the concept of the common plan or conspiracy. Article 2 defines

clearly the type of crime referred to in paragraph 1, namely (1) the

individual crime of violation of peace; (2) conspiracy against peace;

(3) individual war crimes; (4) individual crimes against humanity; and

finally, the form of participation in paragraph 2. Therefore, it is

rendered that a so-called conspiracy to commit war crimes and crimes

against humanity is not a punishable offense.

It has to be examined therefore whether Milch made himself guilty of any

individual type of participation. It would have to be shown that either

as a principal or accessory he participated in a crime or that he

especially ordered or initiated it. It would have to be proved that he

gave his approval for a definite crime. That approval, however, cannot

refer to a general approbation but can only be considered as

participation in crime if, by his approval, he strengthened and

stiffened the criminal will of the perpetrators. It must therefore be

made clear that he knew of the individual crimes and that he intended to

put them into action by means of his approval. Even in that case his

subsequent approval would not suffice; since still nowhere in the world

is anyone punished because of an inner or moral attitude. Finally, it

must be examined whether Milch was connected with the planning or

commission of such crimes. Here again it must be understood, of course,

that this connection must be capable of causing the crime, and that

Milch knew about the connection and therefore the crime. The question of

membership in any organization or association which was connected with

the execution of crimes requires special examination. It is clear that

mere membership, as such, in any organization wherein any member may at

one time have committed a punishable act cannot make every other member

of that organization punishable. Otherwise a monstrous situation would

arise where the commander in chief of a large army was punishable if any

member of that army committed a war crime. Where in this world in all

time has it happened that in such a huge organization as wartime armies’

soldiers did not at one time or another commit punishable acts? This is

inevitable and it occurs in all armies. It can therefore only be a

question here whether the organization or the association of which the

defendant was a member had as its particular purpose the commission of

war crimes or crimes against humanity.

Letter (_f_) of Article 2, paragraph 2, must be considered here. Since

Milch is not charged with a crime against peace, it would also have to

be especially proved that he participated in the common plan of

conspiracy for the commission of crimes against the peace. That he held

high office cannot of its own make him punishable. This is also evident

from the Tribunal of the IMT who acquitted three persons who held

equally high office in Germany.

Bearing in mind these points of view, one has to examine the individual

counts of the indictment. In answer to the prosecution’s charge that

Milch in February 1944 had ordered two Russian officers to be shot,

Exhibits Milch 40 to 44, and the testimony of the witness Vorwald have

proven that the said officers were shot on the basis of an expressed

order by Hitler who received, through political channels, the report of

the incident earlier than Milch. Exhibits Milch 40 to 44 and the

testimony of Vorwald have made it clear that Milch, first of all, had no

possibility of issuing such an order, and secondly, that he did not

cause its being ordered, and thirdly, that he only gained knowledge of

the incident after the officers had been shot.

The witness Vorwald was in a position to testify that Milch even angrily

protested against such an order.

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.

Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume II · 第 15 / 18 章