Finally, Milch had no reason to distrust the fact that the SS

participated in the experiments. He knew that Hippke was part of it and

was therefore entitled to believe that everything was in order.

Therefore, Milch was neither a principal in nor an accessory to, nor has

he ordered or instigated these experiments. He has never given his

consent to the crimes committed because he had no knowledge whatsoever

of them nor was he connected with their planning or their execution, nor

was he a member of any organization aiming at the commission of such

crimes. It is not the aim of the Luftwaffe to carry out such criminal

experiments, and with the DVL he had nothing to do at all. It is

irrelevant that at that time Rascher was a member of the Luftwaffe.

Exhibit 161 proves that Rascher received the orders to execute the

crimes as a member of the SS from Himmler himself and also carried them

out in that capacity. Finally, it must be said that the Wolff letter of

November 1942 was only written after the crimes were committed. It has

not been proved that Milch ever saw this letter. He was not in Berlin

when the letter arrived. That he has testified. The letter was sent to

the Medical Inspectorate which only answered it in 1943 as Hippke has

testified. Also, the fact that Rascher was transferred to the SS had

nothing to do with the defendant. That was a matter settled outside of

his competency. The personnel chief of the Luftwaffe was at no time

subordinated to him, and it must also be taken into consideration that,

according to the evidence, Milch had no knowledge of Rascher’s having

committed any crimes. One cannot charge Milch with the fact that Rascher

referred to him. The testimony of Neff and Defense Exhibit 56, the

affidavit of Punzengruber, have shown to this Tribunal that Rascher was

a confirmed liar whose statements have no probative value and,

therefore, I believe that Milch in this matter too has shown to this

Tribunal his complete innocence.

Before I go into the charges against Milch for his participation in the

so-called slave labor program, I must make a few fundamental statements.

I shall begin by examining the question as to what extent the Hague

Convention on land warfare and the Geneva Convention of 1929 were valid

for the treatment of Russian prisoners of war. By the statements of

witness von Neurath, it has been confirmed that the U.S.S.R. in 1919

specifically withdrew from the Hague Convention on land warfare as well

as the former Geneva Convention. Jurists will not dispute the fact that

a formal withdrawal from agreements is of greater importance in the

relations between states than the act of joining such a convention. Even

if one were of the opinion that the Hague Convention on land warfare and

the Geneva Convention represented merely the codification of already

existing international law, so that the state that did not join the

conventions would also be bound to this already existing international

law in all details, even in such a case the expressly stated withdrawal

from such a convention must mean also a withdrawal from the natural

international law. If this were not the case, the withdrawal from such

conventions would be an act without meaning which such intelligent

politicians as those found in the U.S.S.R. would never undertake. Nor is

this conception of mine contradicted by the expert opinion offered in

the first Nuernberg trial (_Canaris Doc. No. EC-338_)[155] because this

expert opinion is only concerned with the order of Hitler and Keitel

regarding the killing and cruel treatment of prisoners. It is, of

course, clear that inhumane acts do not become permissible because of

withdrawal from conventions. What we must examine here, however, is

purely the question whether or not, and for what activities, such

prisoners of war may be used. Detailed regulations of international law,

which in themselves do not contain atrocities, can in my opinion be

nullified by expressly withdrawing from a convention codifying existing

international law. Finally, we wish to draw attention to Article 82,

paragraph 2, of the Geneva Convention of 1929 which contains the

following regulation: “If in wartime one of the belligerents is not a

member of the convention, the regulations of this convention remain

valid, nevertheless, for the belligerents who have signed the

convention.” This does not mean that the signatories are bound to the

Geneva Convention also with regard to the treatment of soldiers of a

nonsignatory power, but only with regard to soldiers of the signatories

who are at war. Article 82, paragraph 2, of the Geneva Convention,

therefore, states that with regard to the relations of nonsignatories

the convention is not valid. The regulation was made so that it should

not be thought that if a nonsignatory participated in the war the Geneva

Convention would not apply to that war.

That my opinion was shared by the U.S.S.R. becomes clear beyond doubt

from Defense Exhibit 49 presented by me, which contains the decision of

the Council of the Peoples Commissioners of the U.S.S.R. of 1 July 1941.

This decision does not mention any limitation with regard to the use of

prisoners of war for labor except for the regulations under number 25.

According to this, prisoners of war may not be used as workers in the

battle zone nor for the personal needs of the administrations, or by

other prisoners of war (orderly services). Defense Exhibit 51,

concerning employment of German women prisoners of war in Russia, also

reveals the same conception of the U.S.S.R.

The objections that not Russia’s conception but that of the United

States of America matters here is not justified. Existing regulations

between two states can only be judged on the legal relations valid for

those two states. If both states regulate a given question in agreement

with conclusive acts in the same way, that regulation becomes

international law valid for the relations of those two states and must

be taken into consideration by all other states. It is the right of

sovereign states to regulate their relations as they wish. Other states

have no right to interfere in the right of sovereignty and they must

acquiesce in the legal conception existing between those two states

regarding any issue concerning their citizens. Therefore, legal opinions

of another state must not be taken as a basis for the judging of actions

which occurred between the nationals of these two states.

As in Milch’s sphere of competency Russian prisoners of war were used

neither at the front nor as orderlies, he cannot be found guilty so far

as the treatment of Russian prisoners of war is concerned.

All this also applies to the treatment of the Russian civilian

population whose rights could have been cared for by the Hague

Convention for land warfare alone. Here, too, Russia’s express

withdrawal from the convention is of great importance.

In my opinion it cannot be argued that Germany attacked Russia and that,

for the reason, employment of the civilian population would be illegal

even if this were not illegal in itself. That alone would mean that

Germany would be bound to the regulations and that Russia was not. From

the point of view of international law, this is an impossible situation.

For two belligerent states, there cannot be a different international

law.

Moreover, the validity of the regulations laid down in the Hague

Convention for land warfare can be cancelled by a special factor which

precludes lawlessness. In all codes of law of the civilized world, the

law of so-called emergency situations exists. This conception of law

must also be applied to international law. That Germany was in an

emergency situation in the sense that the use of the civilian population

for labor in the occupied territories was only caused by the emergency

situation, I showed in detail a little while ago. Modern war means total

war and as such has suspended, in several points, international law as

it existed up to now. It is uncontested that according to the Hague

Convention for land warfare actions of combat against the civilian

population are forbidden. Modern air warfare, having as its aim total

annihilation of armament and production of the enemy, brought with it to

a great extent warfare against the civilian population without any of

the belligerents regarding such combat actions as forbidden according to

the Hague Convention on Land Warfare. This also applies to the total

blockade of a country which aims at starving the population of that

country. These comprehensive ways of waging war which hit all classes of

the population permit, in my opinion, to a state which is at war,

especially on account of the fact that its civilian population is

brought into the strife, to use for its purposes labor from occupied

countries so as to maintain its production and armament.

Concerning the relations of the other nations involved in the war, there

is no doubt that for the above the Hague Convention on Land Warfare and

the Geneva Convention of 1929 are valid. But it is just as clear that it

is left to the nations to change and abolish these regulations by

special agreements between one another. A good example here is the

Armistice Treaty signed in 1944 between the Russian and Romanian

governments according to which Romania had to pledge itself to put at

the disposal of Russia a large number of people for reconstruction

purposes. Complying with this agreement, in January 1945 many thousand

members of the Romanian state were deported to Russia by compulsion and

against their will. This case shows what, in such matters, may be legal

and valid. Moreover, that agreement was made under some force of

bayonets, as in all history is usually the case with every treaty

between a conquered and conquering state. The Defense Exhibit 47 proves

that in the case of Germany the Control Council (_see sec. VI, number 19

of the Proclamation No._ _2_) imposed on the German authorities even

without a treaty, but simply on unilateral orders, the same obligation,

i.e., to put at disposal labor for personal services inside and outside

Germany. That such orders could naturally only be fulfilled by the

German authorities by means of a labor service law will not be contested

by anybody.

These one-sided orders given by the victor to the vanquished, whether

they be issued on the basis of an armistice brought about by force of

arms or on the basis of command or law following the unconditional

surrender of a state, are not contrary to law.

It should, therefore, be stated that the rules of the Hague Land Warfare

regulations can be suspended between two states. I have given proof for

the fact that there were between Germany and France agreements whereby

the French population had to make themselves available for work in

Germany, first, by volunteering, and later, on the basis of a law for

compulsory labor issued by the French Government. No restrictions were

laid down to what extent and for what purpose these people were to be

employed.

The objection has been raised that the Vichy Government was a government

of traitors, but it was that government which concluded the armistice

with Germany, and throughout the war all Frenchmen, including those in

de Gaulle’s camp, would raise passionate protests when they thought that

one of its articles had been violated. Thus, they all acknowledged that

an armistice could be concluded and was concluded. Once you acknowledge

the existence of an armistice agreement, you cannot, logically or

legally, deny the legality of the government which has concluded the

armistice. You must eat your cake as it is and you must not pick out the

plums alone.

As for the situation in Holland and Belgium, both those countries

surrendered unconditionally. According to international law Germany was,

therefore, in a position in its dealings with the authorities of these

countries to regulate the labor commitments of the civilian population

unilaterally in the same manner as this has now been handled in regard

to the German population by the Control Council.

As far as Poland is concerned, that country, on the basis of the

partitioning agreement between Russia and Germany, had lost its

sovereignty. That such partitioning agreements can abrogate the

existence of a state has already been historically proved by the former

partitioning agreements of the bordering countries in regard to the

Polish state. Moreover, the agreements concluded between the victorious

nations after this war have abrogated the sovereignty of the German

state over very large areas in the East and thus have created new

sovereignty for the population of these territories. Germany released

the Polish prisoners of war and could at any time issue legal labor

directives as regards the Polish civilian population since the latter

were under German sovereignty.

So far as the Italian prisoners of war are concerned, the evidence has

shown that the Mussolini Government, which at the time was the covenant

government in that part of Italy not occupied by the allied forces, made

them available for work in the armament industry, especially after

Germany had to manufacture armaments for Mussolini’s Italy. Here it

should also be mentioned that Milch’s opinion that Italian prisoners of

war who fled from a transport should be shot does not mean a cruelty.

All countries of the world have prisoners shot who attempt to escape as

proved by me in Defense Exhibit 26. So far as the civilian population of

other southeastern states are concerned, they were only recruited and

employed as free workers based on approval by the legally existing

governments of these countries.

In addition, it is interesting to point out that the agreement between

France and Germany, according to which France was supposed to allocate

French civilians for the labor commitment in exchange for the release of

prisoners of war, had a parallel in the discussion of the question

regarding the fate of German prisoners of war still in allied countries.

In France, in particular, the request has been made to make possible the

release of German prisoners of war by making available German civilians

as workers in place of the prisoners of war. This, too, is evidence to

the effect that such an agreement is not contrary to international law.

That, your Honors, is the legal position as I must present it.

In regard to the question of guilt, a special point has still to be

considered. All legal theories consider that the defendant is not liable

for punishment if after careful consideration and careful inquiries he

has gained the conviction that his action was permissible. It has been

shown that in Germany prisoners of war and foreign civilians were being

employed within the war production even at the time when Milch had not

yet taken over the office of the GL (Generalluftzeugmeister—Air

Ordnance Master General). In other words, he was already confronted with

the situation, the exploitation of which he is being reproached for

today.

The testimony of the witness Vorwald and that of the defendant himself

showed that Milch made inquiries from the competent authority as to

whether the employment of prisoners of war and foreign civilians which

he planned to use was admissible under the existing regulations. He has

testified here that he received an affirmative answer. Furthermore, he

testified that the admissibility of the utilization of foreign civilian

workers was discussed soon after the First World War in a large staff

committee of the German Reichstag. The chairman of that staff committee

was Prof. Dr. Schuecking, a legal authority of repute, who had become

known throughout the world as a passionate champion of pacifism and

democracy. This committee, as the defendant gathered from the

discussions held at the time, could not and did not find that employment

of foreign civilian workers in armament industry was inadmissible.

Impressed by his earlier experience, the defendant had the right to

believe the information given to him by his superior office that

employment of foreign manpower and of prisoners of war was admissible.

Moreover, this information was not issued without reason. The reasons

given for it were rather in accordance with the reasons which I have

described in detail above. How should Milch, who is not a legal expert,

who as a layman did not understand anything about applicable

international law, how could he form a different opinion? It is the

right of every citizen to believe the legal information supplied by his

superior and the concomitant authorities, for no one can impose upon a

citizen the duty to undertake on his own independently an examination of

the legal questions involved. In a modern state this would result in an

untenable situation whereby every one of the citizens would acquire his

own conception of law. Differing opinions abroad Milch was not in a

position to hear since he was not allowed to read foreign newspapers nor

listen to foreign broadcasts, nor did he do so.

He acted in good faith, and that has to be considered in his favor

today, the more since he knew and may well have assumed that these

measures were only temporary and were forced by the necessities of war.

[At this point the following discussion took place:]

PRESIDING JUDGE TOMS: Is it a principle of the German law that ignorance

of the law is an excuse for violating it?

DR. BERGOLD: It is a principle inasmuch as if somebody has been misled

by his superiors on the significance of the law. Everybody must inquire

what the law is, but if his superior authorities give him certain

information, he can rely on that.

Q. Suppose a person is advised by his own counsel as to the law, and

counsel is wrong, does that excuse the client?

A. The client’s lawyer is not sufficient. The authority must be a

government official.

Q. Well, suppose a high government official, a man in high authority who

was not a lawyer, advised his subordinate as to his legal rights and

duties, and that advice was wrong?

A. That would mean that there would be an excusable error, an excusable

legal error.

Q. If, for example, Goering, who was a person in high authority, advised

Milch that he had the legal right to go out and shoot a person, would

that be justification for Milch’s doing so, legally?

A. No. Because as to the question of whether you can commit murder or

not everybody knows about that; but the point as to whether the

employment of foreigners was admissible under international law is a

very tricky legal point, and there, of course, there is a difference.

Q. You mean that every one is supposed to know that he cannot shoot a

man.

A. Yes. Everybody knows that.

Q. But everyone is not supposed to know that he can force a man to

unwilling labor?

A, No. He is not obliged to know that. That is why Milch applied to

receive this information about international law.

Q. You make a distinction between homicide and slavery?

A. Yes. I make a difference not, perhaps, as in this exact example, but

I make a difference between the natural knowledge of law, which

everybody has, and special questions and special knowledge not shared by

everybody in the state. The point whether you can kill or steal is

common knowledge, but the question whether international law permits the

employment is not something which everybody knows. This question is one

which only specialists and legal experts can decide, and if any man

concerned tries to obtain information as to whether it is permissible,

and obtains that information from a specialist of a governmental

department who says, yes, then it does not become permissible in itself,

but we have what is known as an excusable legal error.

Q. Would you take the same position as to enforced civilian labor?

A. Yes, on the whole question whether anyone can employ foreign workers

or prisoners of war.

Q. I would like to get this straightened out.

A. There are a number of other difficult legal points which I need not

go into here. This is certainly an example of what occupies us here.

Q. That is true. I want to get your position perfectly clear. I think it

is—

A. Let’s take, for example, the question whether, in any foreign country

which is occupied, the occupier may issue occupation money; let’s assume

that this is punishable according to some international regulation which

is difficult to interpret and which a layman is not in a position to

know. Now, if the Reich Bank, as expert, told the governor of the

occupied country that it was permissible, then the chief of this

occupied country, the military authority, would have an erroneous

opinion for which he could not be held guilty.

Q. Now, that theory of law becomes a very uncertain guide, does it not?

It depends upon interpretation of not the lawyers, nor the professors,

but of high government officials; they make the law.

A. No. My client inquired of the competent offices, not of Goering, but

of the competent offices, namely the legal departments. In all the

ministries there were legal departments, also in the Reich Air Ministry

and in the Wehrmacht itself. They employed specially trained experts. I

draw your attention to—

Q. Just a minute. Then the head legal experts make the law as far as the

defendant is concerned?

A. No, no, he does not make the law but he tries to, and that is, of

course, the legal error that—

Q. He makes the law by which the defendant may govern himself?

A. Yes, for this special case, as long as he does not hear an opinion to

the contrary, let’s assume.

Q. Oh, what happens after he does hear the opinion to the contrary, then

which law does he abide by?

A. In that case he can act no longer at all. If he acts, he acts on what

is known from the Roman law as “eventual dolus”, an evil intention, in

case he comes up against the law. I assume that the term “eventual

dolus” is known to your country, too.

Q. Supposing that he gets two conflicting opinions from the legal

ministry, or one of the legal advisers in a high place tells him he may

do a thing, and another in an equally high place says he may not, how

does that solve the dilemma?

A. In that case he must not commit the act, because his attention has

been drawn to the difference in the legal opinions, and that is where we

have the “eventual dolus”. If he does not depend on it, and does it on

his own risk, then in that risk he committed a wrong.

Q. I am frank to say that this is a new and startling legal theory. Did

you understand that?

A. Yes. I understood.

PRESIDING JUDGE TOMS: Well, we have your position.

[Dr. Bergold continues.]

His good faith, however, was reinforced by the fact that all the

measures against English and American prisoners of war, which are being

objected to, were not carried out. That the reasons expressly stated for

this were that no agreement except a change in the regulations had been

conveyed normally to the British and American prisoners of war. Whoever

has the least psychological insight will understand that the observing

of the Geneva Convention principles towards those two countries must

have made the deviation from them in respect to other countries appear

to the defendant as authorized, all the more as this deviation had been

based on presence of other agreements, or the lack of other protective

measures.

As far as the question of actual recruiting and using of manpower is

concerned, a differentiation must be made between recruiting, bringing

foreign laborers to the country, and their treatment on the whole on the

one hand, and on the other hand their use within Germany in the labor

assignment.

May it please the Tribunal, the case in chief, and the submitted

documents of the prosecution, especially the Exhibits No. 13, 14, 14-A,

15, 15-A, and 17 eliminated any doubt as to the fact that Sauckel alone

was competent for the recruiting of foreign laborers and their transport

to Germany and for the treatment of the foreign workers, and that Hitler

over and over again confirmed against the attacks of Speer that he was

the only competent man. Not one single document has been submitted which

would show that Milch participated in the recruiting, transfer to

Germany, and treatment of the workers. The witnesses Speer, Koerner,

Richter, Hertel, Eschenauer, Pendele, Vorwald, as well as Milch himself,

have testified under oath that neither they nor the defendant knew

anything about all the abuses which have become evident in the sphere of

Sauckel’s work.

I call your attention to Document 407-II-PS, Defense Exhibit 3, which

reveals how Sauckel always and everywhere emphasized that he took care

of the foreign workers to the best of his ability. In this exhibit he

makes the assertion that foreign workers have never in the history of

the world been treated as well as they were treated by him in this most

severe of all wars. The testimony of the witness Schmelter and of Milch

has shown that Sauckel had made the same declarations and told the same

lies to them also. There is no need for any further statement to the

effect that the recruitment and even the forced transport of the workers

into the Reich on the basis of an order could have been carried out in

an absolutely humane manner and that all these atrocities, murders, and

tortures which took place need not have occurred. Such actions are not

of necessity connected with such events. The fact that in the East and

in France, parts of the population were called up and drafted by classes

by means of labor service decrees could not and did not have to make

Milch suspicious. Forced drafting of people occurs in all countries

which have a compulsory military service or labor service. Examples of

the latter are Germany and Bulgaria. The latter state had ordered

service according to each group before the Hitler regime existed, and

how could Milch, after all, have found out about the inhuman acts in the

recruitment and transport into the Reich and the treatment within the

Reich? Obviously, only if he had observed such incidents himself or if

complaints reached him through his subordinates or through these foreign

workers themselves.

Milch testifies here in a creditable manner that during the entire

course of the war he had never observed such conditions. During all

these years he made his trips by plane and, in some exceptional cases,

by special train; that in this way he could naturally not observe such

facts is quite clear. The witnesses have confirmed that they never

reported abuses to him. The only things he heard were isolated

complaints that the food was inadequate at times or that there was a

lack of clothing and shoes. In themselves, these were conditions which

resulted at the time from the wartime emergency and applied also to the

German civilian population. All of the above-mentioned witnesses and

Milch have, however, confirmed that Milch on his own part immediately

ordered that the conditions should be remedied.

These incidents, however, cannot be called inhuman acts or atrocities,

cannot be called crimes. The witnesses Pendele, Hertel, and Vorwald, as

well as the defendant himself, have testified that the foreign workers

never brought any complaints to the defendant. They all expressed their

happiness. It may be that they shied away from complaining to Milch.

That, however, was not Milch’s fault. He had the right to believe the

assurances of the persons he questioned, the more so because his

conversations with them were carried out in the friendliest, even the

most cheerful manner.

Now, how could Milch have found out about these incidents? I have

already mentioned that he could not obtain knowledge about that from

foreign reports, because he did not receive such reports. Thus, it

should be established that Milch was not responsible, first, for the

directive for the so-called slave labor; secondly, the recruitment of

manpower; third, the inhuman acts perpetrated in connection with this,

the transport to Germany, and the crimes connected therewith, and

finally, fifth, the treatment of foreign workers in Germany and the

atrocities committed in connection therewith.

He knew nothing at all about them. He did not commit these crimes;

neither as a principal nor as an accomplice. He neither ordered such

crimes nor instigated them. He did not take a consenting part in them

either. On the contrary, he always eliminated minor abuses and

constantly saw to it that the conditions of the foreign workers were

ameliorated by special gifts. He was in no way connected in a causative

manner with the planning or execution of these crimes, and here I refer

you to my earlier legal statement, for he would have had to know about

them, that such atrocities, murders, and other inhuman acts occurred in

connection with the recruitment, transfer to Germany, and treatment

within Germany if he is to be held responsible for them. Neither did he

belong to the organization which was connected with the recruiting,

transport, and treatment, namely, the Organization Sauckel. If at all,

he could be charged only with the utilization of foreign workers.

No just man who values that name can, by virtue of knowledge

subsequently acquired, condemn the actions which a defendant committed

at an earlier time in ignorance of what later became known. Today the

whole world is full of the horrors which have been brought to light. It

is not true, however, that these horrors were desired by the supreme

leadership. That Sauckel acted independently here and that he alone

bears the guilt is shown by Defense Exhibit 3, in which Sauckel lied to

Hitler, saying that workers had never been treated so well as by him.

I do not wish to defend Hitler. As a German, I myself have every reason

to raise the most bitter and serious charges against the man whose

account of guilt can never be paid up, but here it must be said that

Hitler could hardly have included the commission of atrocities and

murders in his plan for the foreign workers, for if that had been the

case, Sauckel would not have had to lie as he did. Then he would not

have had to pretend to his lord and master that he was treating the

foreign workers so well. Such lies, such deceit, are practiced only by

the subordinate who is aware that he has violated instructions and that

he can be punished by his superior.

Document R-124, Defense Exhibit 32 shows clearly that in two cases

Sauckel acted against Hitler’s instructions in committing his crimes.

Therefore, even Sauckel’s labor organization was not created for the

purpose of committing atrocities, murders, and other inhumane acts.

Sauckel and a number of his subordinates made themselves guilty on their

own accounts, and as guilty persons they strove to keep secret and to

cover up their crimes. That the defendant cannot be responsible for

these secret acts is hardly to be doubted.

I realize that in answer the prosecution will remind me of all the

documents with severe statements by Milch which have been submitted to

the Tribunal. This is a serious count of the indictment, but one can

achieve clarity on the complex of questions thus brought up only if one

considers whether Milch made these severe statements only against

foreign workers and prisoners of war or whether they were simply a part

of his nature.

The witnesses Richter, Foerster, Hertel, Eschenauer, Pendele, and

Vorwald have confirmed that Milch in his tantrums threatened even his

German subordinates, his best workers, with hanging and shooting, and

here in this room several men have appeared on the witness stand whom

the defendant shot or hanged in words. This clearly shows that the

defendant was not one-sidedly filled with hatred of the members of

foreign nations; besides, this was hardly to be expected in the

character of a man who for years energetically worked for peaceful

collaboration with other peoples and who despised the racial doctrine

and the idea of the “master race”. Rather, it makes it clear that he

threw out such wild expressions only when he was excited, so that his

subordinates acquired the habit of laying bets on the number of people

who would be shot, when they knew that exciting matters were up for

discussion. I read a number of passages to you from the notorious speech

before the quartermasters and fleet engineers, in which he raged against

those present and against himself in the same terms as he used against

the foreigners. And in other documents submitted by the prosecution, one

can find such expressions used against Germans, against members of the

leading class of the German people, and against German workers. All this

proves that an unfortunate inclination of Milch is here expressed for

which, like a sick person, he cannot be held responsible, especially

since he never carried out the punishments which he threatened. All the

witnesses whom I have called to the stand from Milch’s entourage have

testified that he used such terms only in tantrums. These tantrums

occurred frequently, and always when he had met with major difficulties

in the way of his work to save Germany from complete destruction. He was

a sick man. He suffered several very serious accidents, all with severe

brain concussions. It is an old experience of medicine that such people

are easily excitable, and you must not forget how much this man had on

his mind. He was a clairvoyant. He knew that the war was lost for

Germany. He realized what horrors Germany was doomed to through the

increasingly violent air war. He knew what help was possible in the

distress of his people, and he had to stand helplessly by while his

short-sighted and perhaps malevolent superiors frustrated, hampered, and

prohibited all his precautions. In such severe physical distress, even a

healthy man would become so irritable that he would be subjected to

violent outbursts of anger. How much more violent would these outbursts

be in the case of the sick defendant. His distressed soul housed in a

suffering body, helplessly exposed to its worries, reacted in this way

to relieve the tension.

Many witnesses, in particular the witness Vorwald, have told you that

when such excitement occurred the defendant even changed physically,

that the back of his neck became red and swollen and that afterwards he

no longer knew what he said while he was in such a state. That this

testimony, especially that of the witness Vorwald is true, is shown with

actual certainty by the incidents between the defendant and Goering on

the occasion of the report on the crimes committed by Terboven in Norway

on the civilian population, and Document R-134, Exhibit 159 of the

prosecution. The prosecution without justification bitterly reproached

the defendant for failure to protest against this monstrosity. The

defendant in his defense was not able to answer that he had done so.

Vorwald has testified that this process took place in connection with an

outburst of anger about precisely that incident, and because the

testimony of Vorwald that the defendant did not remember afterwards what

had happened during his period of excitement is true, the defendant was

not able to carry out a full answer in his own defense because of his

excitement. He did not remember. Your Honors, it is clear you have

achieved deep insight into the souls of men. Therefore, surely you are

able to judge that this incident has revealed the truth of what the

defendant and his witnesses have told you. Otherwise he would be able to

cite his protest as a defense against the charge of the prosecution.

Now, I assume that the prosecution will object that these fits of rage

occurred much too frequently and that they are therefore not a

pathological symptom but a normal expression of his character. Your

Honors, this can be disputed by a very simple consideration. The

so-called GL (Generalluftzeugmeister—Air Ordnance Master General)

meetings took place twice a week. That means that from the time when the

defendant took office there were a total of about 160 meetings. In

addition, there were 60 meetings of the Central Planning Board. Finally

there were about 30 Jaegerstab meetings, altogether about 250 meetings

in which the defendant participated. The meetings lasted many hours.

According to my concept the average number of pages of verbatim

transcript of the GL was about 200 for a single meeting, or about

30,000-32,000 pages for the GL alone. If one includes the transcripts of

other meetings then one comes to figure approximately at least of about

35,000 pages for all the transcripts at a conservative estimate. This is

an enormous figure from all these many meetings. From all these many,

many pages of transcript, the prosecutor has been able to submit only a

very few pages with only very occasional extravagant statements.

Therefore, the question is asked whether this was the normal tone of the

defendant. It is also significant that in the meetings of the GL, such

outbursts occur much more frequently than in the transcripts of the

Jaegerstab or the transcripts of the Central Planning Board. In the GL

meetings the defendant was in his own realm among us “parson’s

daughters”, as the witness Vorwald said. Such outbursts naturally

occurred there more often because according to experience a human being

can let himself go more easily among his most intimate friends than

among his subordinates. Nevertheless the outbursts remained isolated.

How curious is it that the emotional disturbances of the defendant

occurred repeatedly in connection with the same subjects of discussion,

for example, in the question of the work done by the French industry,

the French people, the question of so-called slackers, or the discussion

of threatening and inciting remarks made by foreigners. Sometimes

several outbursts occurred at brief intervals, one after the other. Why,

your Honors? Because the matters that excited the defendant were not

settled. But this leads us to the question of whether the defendant

followed up these wild words with deeds. He never did. Just consider,

for example, the question of slackers or the question of the work done

by the French industry, the French people. These apparently so

malevolent orders issued in anger were not carried out. These stones

were repeatedly laid in the path of the defendant. Here, your Honors, I

ask you to penetrate into the depth of the circumstances with the

understanding that characterizes a legal person. The defendant

repeatedly became excited, for example, over the so-called slackers,

Germans unwilling to work whom he considered to be traitors. Each time

he issued strict orders, expressed wild threats, but would it not have

been the most natural thing for this excitable man on all these

occasions, which followed one on the heels of the other, to shout at his

subordinates and to reproach them, to ask them why the orders which he

had given and supported before in anger and which he had advanced

repeatedly had not long since been carried out? Would that not have been

the most natural and the first thing that he would have done in his

anger if he had really expected and wanted his wild orders carried out?

Your Honors, look at it from the human point of view. Revive all the

experiences of your long and no doubt rich lives and examine with me

whether I am not right in what I say.

I challenge my learned opponent to show me in all these instances, which

are really appalling, one single expression indicating that the

defendant objected to the failure to carry out his earlier threatening

orders. Not a single word can be found and here, your Honors, the truth

becomes so obvious that no intelligent man can ignore it. It sounded

incredible in the mouth of the witnesses when they said again and again

that no such orders were carried out. It has been put to the defendant

that it is improbable that a field marshal did not expect his orders to

be carried out and that all his subordinates did not immediately rush to

carry out his orders, but the man who is sitting before you told the

truth in spite of all appearances to the contrary, for if he as a field

marshal had expected his orders issued in anger to be carried out then

he would surely at one time or another have expressed dissatisfaction

because they had not been carried out. But he did nothing except to get

angry from his sickness and his anxiety about his people. It is clear

not only from the Terboven case that he actually knew nothing about what

he had screamed out and that he never seriously pressed home his

demands. The Court has questioned him repeatedly about these

expressions. He always supplied that he did not remember them and he did

not believe that he had said so. He has often had to tell you that what

he shouted was wrong if he had actually said it. That too seemed

incredible at first, but as this man afterwards no longer knew what he

said in these attacks then he cannot testify about them. It is also

clear that a man in such a fit speaks many untruths and one cannot

assert that he lied deliberately. The man, as I say today, has told you

the truth as far as he can know it to the best of his knowledge and

belief. These transcripts cannot convict him of untrustworthiness.

Moreover, in many cases the transcripts are no doubt full of mistakes,

distortions, and errors. I have shown you a number of passages which

must be wrong. I have shown you transcripts such as NOKW-359, Exhibit

75, which speak of Milch’s presence and statements although on that day

he could not have been present in the Jaegerstab. This is also true of

some records of ostensible GL meetings. I have also proved that other

transcripts make no logical sense in German and that several statements

must have been run together there. Today, of course, no one can say

whether these various statements were all made by the defendant. Many

witnesses which I have examined on this matter, for example, to name but

a few, Richter, Pendele, Hertel, Speer, and Vorwald, have testified that

the transcripts contained many errors and that they were never

corrected, that they were sometimes even intentionally distorted when

the defendant attacked his superiors. Such passages were either left out

or changed in such a way that the attacks on the person in question were

no longer recognizable. But who would seriously consider it permissible

to use such faulty transcripts as evidence?

All the witnesses from the entourage of the defendant have told you

finally that in these Central Planning Board, as well as in the

Jaegerstab and GL meetings, that in addition to transcripts reproducing

the individual speeches and opinions so-called records of results were

drawn up which contained only the really important decisions, orders,

and regulations. They alone were valid for the subordinates. Those

concerned acted according to them alone. It is noteworthy that the

prosecution has not submitted a single one of those records of results

containing any inhuman orders issued by the defendant. I beg of you,

your Honors, not only to give severe consideration to the weaknesses of

the defense, I beg you to draw your severe conclusions from the

weaknesses of the prosecution as well. The fact that no incriminating

records of results have been submitted proves once more that these

threats were never carried out.

Your Honors, in disturbed times other men, too, sometimes say things

which cannot be taken seriously. Men can be charged only according to

their deeds, not according to their chatter. If you have access to

Churchill’s speech made in his first excitement after Dunkirk, you can

see what violations of international law he recommended to the civilian

population of England when he called upon them to prevent a German

airborne landing. But he never actually issued any such orders, and so

no one will try him for that. When the late General Patton said at one

time that he intended to continue to collaborate with such of the German

Nazis as were specialists, some excited American newspaper ran this

headline: “Patton Should Be Shot.” Who would be so stupid as to call

these newspapers inhuman? No one in the world; no one takes such excited

words seriously. No one can say that these outbursts of anger meant that

Milch approved the atrocities which occurred elsewhere in Germany.

The affidavits of Kruedener, Defense Exhibit 37, Lotte Mueller, Defense

Exhibit 38, the testimony of witnesses Koenig, Vorwald, Pendele, have

all shown that this man always and everywhere tried to help people in

distress. He, who ostensibly wanted to force the foreign workers and

concentration camp inmates to work by means of starving them, had the

concentration camp inmates supplied with food from his estate near

Rechlin in order to improve their diet. Thus, in his actions, he did the

opposite of what he shouted in his anger. But one could raise a very

serious charge to the effect that Milch by his thoughtless manner of

speaking incited the elements throughout the country which committed

such misdeeds. But this again, your Honors, is untrue. You have not

heard one single example here of anyone having acted according to

Milch’s words and having referred to having done so. These displays of

fury only occurred among people who knew Milch and knew that he could

not be taken seriously in such moments. All witnesses have stated for

you that these fits only became known to the circle of intimates.

I lived in Germany throughout the war. Although the sins of the

high-ranking leaders of the Reich were eagerly discussed among the

people, I never heard one word about Milch’s fits of rage. In reply to

my question the witness Vorwald stated convincingly that nobody spoke

about these incidents to other persons because they did not wish to

expose their superior to whom they were attached. His loyal followers

surrounding him with a cordon of silence. Nothing could be more

understandable, and every decent person who respects his superior will

and must act in the same manner, for, in spite of his occasional

fierceness, Milch was popular with his subordinates. The witnesses

Richter, Hertel, Pendele and Vorwald, among others, testified before you

that Milch was highly esteemed. Richter actually called him the best and

fairest superior whom he had ever met in all his life. Here, your

Honors, in this praise Milch’s true nature appears before our eyes.

I believe, therefore, to be justified in saying that one cannot and must

not judge Milch by his wild talk. To infer guilt from that would mean to

pass a judgment which could never be upheld before justice. Nobody may

be judged by empty phrases. I would like to tell you a true story here

which occurred in Germany during the discussions about a new, more

stringent National Socialist penal code. At that time the Party took the

point of view that criminal intent in itself was punishable, and thus,

during a meeting of the Penal Law Commission in connection with the

question of the meaning of murder, a long debate developed as to whether

a person who intended to bring about the death of an enemy by prayer was

to be punished by death for murder. The majority of Party members

concurred with this mad opinion on the punishment of criminal intent.

The sensible ones protested against it for a long time. When the debate

was nearing its end, Dr. Guertner, the Reich Minister of Justice at the

time, a clear-sighted man, rose and with one single sentence made reason

prevail. These were his words: “Gentlemen, I do not understand you. All

my life a corpse has been part of a murder.” The narrow-minded Party

doctrinaires had to give in to the scornful laughter that followed these

words. And in that way I should like here to think of Milch’s wild talk

and exclaim, “Where is the corpse?”

In my opinion the only remaining question which needs serious discussion

is merely that of the employment of foreign workers, of PW’s, and of

concentration camp inmates. To begin with, it must be mentioned that the

prosecution in its opening speech maintained that Milch more than

anybody else in Germany was occupied with the employment of forced labor

in Germany. That statement, however, is in no way correct. That, at

least, has been clarified by the evidence beyond all doubt, it seems to

me. There can be no doubt that Sauckel and Speer had considerably more

to do with so-called forced labor than Milch, quite apart from Hitler

and Goering themselves.

It is necessary to visualize clearly the scope of Milch’s sphere of

activities and of his authority. Your Honors, even if you were only to

check the three part Defense Exhibit 55 which I submitted, even to a

superficial scrutiny only, you would realize immediately that Speer

alone had a great deal more to do with this work than Milch. Speer was

in charge of all armaments for the army and navy which, measured in

human beings, by far exceeded the Luftwaffe, and alone exceeded the

volume of the Luftwaffe armament many times, in particular as Milch only

dealt with the construction of airplanes and as all equipment for the

crews, in fact were part of the army equipment. Furthermore, Speer was

in charge of all other productions in the German Reich. Finally, after

the establishment of the Jaegerstab, Speer was also placed in charge of

all armaments for the Luftwaffe. This Defense Exhibit 55, to which the

defendant has sworn and which is based on the prosecution’s own Exhibit

58, reveals a much greater and more comprehensive scope of Speer’s

organization. It was he, who as the central authority, not only

controlled an apparatus with considerably more tasks, he alone also had

at his disposal the executive authorities in the country, who dealt with

all matters which had to be taken, whereas Milch had no executive organs

at his disposal. He had, therefore, no executive powers whatsoever.

Speer alone was in charge of the powerful main committees, the main

industrial rings, in which the captains of industry exerted their

influence and power.

He was also in charge of the armament commissions and armament officials

of the armament inspectorates and armament detachments in the defense

districts. And lastly, the Gau plenipotentiaries and provincial economic

offices in the whole country listened to him. He was with Hitler almost

every week, and therefore, he possessed much more influence to which

Sauckel’s power—

[At this point, the following discussion took place:]

PRESIDING JUDGE TOMS: May I ask you what was Koerner’s special interest?

DR. BERGOLD: I am not speaking about Central Planning Board here. I am

only speaking about the GL.

Q. I know, but in the Central Planning Board what particular field was

Koerner interested in—the navy?

A. Koerner? No. He was mainly in charge of agriculture. He testified to

that effect.

PRESIDING JUDGE TOMS: Very well.

[Dr. Bergold continues.]

Speer was with Hitler almost once a week and had therefore much more

influence to which Sauckel’s power set the only limit. The man, Milch,

never possessed such a machine. The GL was nothing but a technical

agency in the Reich Air Ministry which generally, as the witnesses

Vorwald and Hertel confirmed, was told by the General Staff of the

Luftwaffe what was to be constructed. If Milch had really been the

powerful man as the prosecution describes him, it would have been

possible for him to carry out his plan for Germany’s air defense. But

the achievement of this goal for which this man worked with unbelievable

effort and with all energy was denied to him simply because he was only

in charge of a technical office which could not make any decisions

whatsoever. Hitler, Goering, and the General Staff of the Luftwaffe

decided what this man had to construct and what plans he was to carry

out. He carried them out within the framework of the task with which he

was entrusted, always being suspended in the middle, without ground

under his feet, without the direct authority to give orders to industry,

without influence on the supply of manpower and materials; he could only

get influence through the Central Planning Board, and there too the

fundamental decisions were made by Hitler, by the latter himself, on the

advice of Speer. It is not necessary for me to name all the witnesses.

All his collaborators have testified to that effect.

May it please the Tribunal, if you examine the statements made by Hertel

and Vorwald, you will gather from them beyond any doubt that the GL had

nothing to do at all with the question of labor, with the recruiting,

transportation, and assignment of workers. The GL, and this cannot

possibly be doubted by anyone after hearing all these witnesses and

especially after Milch’s testimony, had merely to make the blueprints

for airplanes and the construction necessary for this purpose, and then

to place the orders with the completely independent industry, following

in all this the instructions of the General Staff and the orders given

by Hitler and Goering. All witnesses from the GL have confirmed before

you that the GL had nothing to do at all with the labor question; that

he did not request one single worker or exert any influence on Sauckel.

It is true that requests for labor passed, for statistical reasons as

well as for control purposes, through the GL office. But it is important

to remember and never to forget that industry submitted its real labor

requests throughout the country to the labor exchange offices which were

Sauckel’s agencies and to the armament inspectorates and armament

detachments which were Speer’s agencies.

Vorwald and the defendant himself have shown you with unmistakable

clearness that the only thing which the GL had to do with these requests

was merely that he examined these requests of industry concerning the

material point as well as the labor point, and that he then reported to

the Speer Ministry whether and in how far the requests of industry were

exaggerated and false and if the GL considered fewer material and less

manpower to be adequate.

Now, what does such an activity actually mean? Surely not, as the

prosecution submits, the enslavement of new workers, but exactly the

contrary; namely their reduction. If the GL had not exercised this

activity, Sauckel would have got much larger requests from industry and

he would have procured this labor by means of more forceful methods than

he actually did. That industry had to request workers in order to carry

out its tasks assigned by Hitler, Goering, and the General Staff of the

Luftwaffe, who were the authorities who decided on the extent of the

construction program of air armaments, was however not caused by the GL.

He was nothing else but an executive organ in the chain of command from

Hitler, Goering, and the General Staff. He was merely the technical

agency which had to make the blueprints and constructions, and then,

after approval by higher authorities, had to submit them to industry for

the undertaking of the orders.

This, your Honors, is the recital of the evidence produced on the

activity of the GL, and the only thing which the GL did in the framework

of this activity was to reduce to the lowest level the requests for

labor made by industry, for the many reasons that he was sufficiently

expert to look through the exaggerated requests of industry which could

never get enough workers. It is significant that the GL minutes which

have been submitted nowhere reveal a discussion of real manpower

guidance, but, at the utmost, that once a few questions were discussed

for information purposes. It is furthermore highly significant that

among the entire organizations of the GL there were no offices for labor

assignment and labor research as was the case in the Armament Ministry

of Speer (_see Defense Exhibit 55_), but merely for statistics of the

personnel. There is nothing to clarify the real situation better than

this fact.

Has the fact that industry, which had to carry out Hitler’s construction

program, employed foreign workers, prisoners of war, concentration camp

inmates, been caused by the defendant? Industry had employed these

people before the beginning of Milch’s tenure; it employed them because

Hitler had ordered through Sauckel that industry had to employ these

people—not in order to obtain slave labor for slave labor’s sake—but

only for the reason to be able to throw still more Germans into the

greedy jaws of the fiendish war and thus surely causing disaster for

Germans as well as for other peoples.

As far as the GL is concerned—the least reproach can be cast upon

Milch, of all the reproaches that can be cast upon him. It only consists

in that he passed orders on to the air armament industry (and where did

this not occur during the war?), and that he saw to it that no

exaggerated requests for material and manpower were made.

The prosecution has proved nothing which could contradict these

statements. But Milch has—and this, too, has been proved—not only

curtailed exaggerated labor requests of industry by means of his

statistics, thus preventing the increase of foreign labor, but in

addition to that, as was stated by the witnesses Brauchitsch, Pendele,

Hertel, Vorwald, and others, he always endeavored seriously and

successfully to maintain the German workers in the factories; and in

doing so he even saved German workers who should have been drafted, at

least to the amount of 70,000 for the air armament factories, keeping

thus on a lower level further requests for foreign workers and their

assignment. A man who, as the prosecution means, is keen on slave labor

does not act in that way.

Finally, there is another point to be mentioned in this connection. The

International Military Tribunal—which, by the way, states expressly in

its verdict against Sauckel that there is no doubt of Sauckel having had

the over-all responsibility for the slave labor program—that Tribunal

stated in its verdict against Speer that it has to be considered as a

mitigating circumstance in his favor, that by setting up protected

factories Speer had kept many workers in their homelands. Your Honors

will remember the depositions of Hertel, Vorwald, and Milch, of which it

results that as early as 1941 Milch, first together with Udet and later

on alone, had factories working in France on the basis of a free

agreement with the French plants in order to employ French workers in

their home country. These agreements were, as has been testified to by

Foerster, completely free, because in 1941 the industry of that part of

France which at that time had not yet been occupied had concluded them.

Therefore, Milch was the inventor of the idea to have labor employed on

the spot in foreign countries. It was not only in France that he, being

the first, carried that out. You have heard that this occurred also in

Holland and in Hungary. Now, if the International Military Tribunal

counted this circumstance as a mitigating one for Speer, it must all the

more be credited to the defendant who acted that way not merely from

1943 onward, as did Speer according to his own statement in this trial,

but already as early as 1941, and was the first to do so. In this

instance again the defendant proved to be a man who endeavored to

mitigate as much as possible the difficulties which had arisen from the

prevailing emergency. That much as far as the defendant’s activity as GL

is concerned.

When I come to consider in how far Milch’s activity on the Central

Planning Board could be charged against him, I am aware that some of the

minutes of the Central Planning Board could, in themselves, be

interpreted as a charge against Milch. But if your Honors consider that

out of sixty meetings of the Central Planning Board the prosecution

could only list fifteen meetings in which labor questions were

discussed—this being done in some instances in a perfunctory and casual

way—it results from this fact already that the Central Planning Board,

as to its aim, was not charged with the guiding of manpower, which at

that time was the focal point of many schemes in all countries and,

above all, in Germany.

In this trial there was much argument between the prosecution and the

defense as to the significance and the essence of the Central Planning

Board until, eventually, with the help of the key Document NOKW-245,

Prosecution Exhibit 157, the argument was decided. There it says

literally, “Speer and I (that is, Milch) are of the opinion that he

(Sauckel) has to be incorporated somehow in the Central Planning Board

in order to get the labor assignment, as well as the material, into our

hands. At the present time we have no possibility to steer it.” These

words were voiced on 23 February 1943 after the Central Planning Board

had been in existence for already one year. These words were not voiced

at that time for the purpose of _ex post facto_ whitewashing, but they

expressed the complete truth and have characterized the situation in

quite simple and clear words for always and unmistakably. No decree has

been submitted, nor order of Hitler has been proved, to show that this

situation was changed. At no time, indeed at no time, was Sauckel a

member of the Central Planning Board. If the prosecution wants to

consider the wish Milch uttered at that occasion as incriminating, they

are at liberty to do so. However, this is not a punishable deed, and

nobody can tell what amount of good Milch could have done if he had

factually been in charge of the labor assignment. His other deeds

account for the assumption that he would certainly have stopped abuses

and would have mitigated all that was necessary as far as possible. The

members of this trial would not believe, at first, in the depositions of

all the witnesses who have been heard here, including Koerner, stating

that the Central Planning Board dealt with labor questions merely for

reasons of information. The wording of the speeches seemed to contradict

it. But, your Honors, the witnesses have also testified before you that

the speeches could only be understood if they are read. Prosecution

Exhibit 157 has put an end to all such doubts. Whoever wants to

pronounce here the verdict with all the necessary seriousness cannot

bypass this document. Nobody can contend any longer that the defendant

has not told you the full truth. Therefore, his statement under oath is

to be believed, which agrees with Speer’s statement in that the

so-called labor assignment meetings were held with Sauckel always with

the sole aim to obtain from Sauckel, who had reported so many false

figures and was not scrupulous about telling the truth, eventually and

for once, clear figures. Likewise, Document NOKW-195, Prosecution

Exhibit 143, the report on the meeting of 28 October 1943, held at

Goering’s place, shows a constant struggle with Sauckel in order to

obtain true figures because Hitler would not believe that Sauckel’s

figures were completely false. It has been proved that factually both

Speer and Milch have been reproached because they did not fulfill the

program made by Hitler, although many millions of workers had allegedly

been at their disposal. Alone for air armament, according to Goering’s

calculation based on Sauckel’s figures, five million workers should have

been available—whereas the entire air armament employed a much lower

total of people. As Hitler was a dangerous man and his reproaches could

have disagreeable consequences, Speer and Milch cannot be blamed for

wanting to get this subject clear; consequently, if they discussed this

problem in detail—especially during the 53d and 54th meetings of the

Central Planning Board—this has nothing to do at all with labor

procurement. That these meetings have not been summoned by Milch—that

they have been summoned by Speer and his ministry—has been proved.

Milch presided over these meetings only because Speer was ill. But he

only carried through the order of his friend Speer. But even these

discussions do not alter the fact that the Central Planning Board as

such had nothing to do with labor procurement. These very discussions

were of a purely informative nature. By them the Central Planning Board

did not obtain any influence on the carrying out of labor procurement

nor on its distribution. How characteristic it is, however, for the

personality of Milch that he used even this discussion about Sauckel’s

figures in order to reduce the millions of new workers whom Hitler had

ordered in January 1944 to quite a considerable extent.

In all the discussions submitted there is nowhere a word to be found,

either to the effect that Milch had requested workers for his air

armament. If the need for workers was under discussion, then always

only, as the defendant himself confirmed, in regard to the basic

industries—that is, mining and the iron industry and in regard to

agriculture. It was always a question, as the records show, of the

commitment of prisoners of war. But even according to the Geneva

Convention prisoners of war may be employed in mining, in the production

of iron, and in agriculture. These places of work are not actual

armament industries.

That Milch did not have anything to do with the commitment of Russians

in antiaircraft defense, which was not under him at all; that, on the

contrary, he even opposed it, and that that part of the minutes of the

33d meeting of the Central Planning Board must be incorrect here, too,

has been stated by the witnesses Hertel, Koenig, as well as others

equally incontestably. It has now been proved that this order was issued

by the OKW directly via Goering.

Thus Milch, in his capacity as member of the Central Planning Board, was

neither perpetrator of, nor accomplice in, crimes; nor did the Central

Planning Board have as its purpose the commission of such crimes. Its

sole purpose was the distribution of raw materials—an activity which is

not prohibited under any conditions.

The third activity of Milch which could bring him in connection with the

so-called slave labor was the activity on the Jaegerstab. Were one to

view this membership in the Jaegerstab from the point of view of the

prosecution, one could perhaps maintain the previously formed opinion

that this activity was limited to the increased use of slave labor. The

testimony of Speer, Vorwald, and Milch, however, have shown that the

Jaegerstab had two main aims, namely, first, to raise the production of

fighter planes and, secondly, to facilitate Milch’s resignation from his

office by transferring the entire air armament industry to the ministry

of Speer.

Formerly, to be sure, Milch was one of the chairmen of this Jaegerstab,

but the witnesses—among them Schmelter, Hertel, Eschenauer and

Vorwald—have testified that the actual chairman of this Jaegerstab was

Saur. Milch very soon withdrew from the Jaegerstab; in March 1944 he

still participated in fifteen meetings, in April only eight, in May only

five, and in June only two. Nothing proves the veracity of the testimony

of the defendant more than the quite obvious decrease in his

participation. If one considers the fact that the Jaegerstab held its

meetings daily one realizes how rapidly the decrease in the activity of

the defendant was. If one considers furthermore that he was not always

present at the meetings at all, that he did not hear most of the details

of the discussions at these meetings, one can say with certainty that he

was really not the man who had the biggest influence in the Jaegerstab,

and who performed the practical work there. The expression “breakfast

director”, which the witness Dorsch applied to the defendant,

characterizes the situation excellently. The Jaegerstab was concerned

with labor questions only insofar as it guided the so-called transfer of

workers who were already working in industry, in the event changes in

production occurred, especially effecting, as far as possible, their

transfer from closed down bomber factories to fighter plane factories.

However, in this connection it is almost exclusively a question of

so-called skilled workers, as the witness Schmelter, a specialist in

this field, has confirmed. In this process no new workers of any kind

were introduced into industry. The witness Schmelter, however, finally

expressly confirmed that no real influence was exerted on Sauckel and

his offices. Wishes regarding the transfer were merely referred to the

Organization Sauckel. This fact in particular was emphasized in the

statement of Schmelter with all the clarity desirable.

Thus, it has been proved in regard to this committee, too, that it had

nothing to do with the bringing of workers into Germany from abroad, nor

dealt with their redistribution. Thus, it was also not the purpose of

the Jaegerstab to decide labor questions. Finally, it has thus been

clarified that the ministry of Speer was the office which handled labor

questions, insofar as it was necessary in the framework of the

transfers. On the basis of the submitted documents, it seems at first as

though the Jaegerstab had initiated and carried out the building of

underground factories or of concrete protected factories above ground.

The witnesses Speer, Hertel, Eschenauer, Koenig, Pendele, as well as

Milch, himself, however, all clearly and decisively confirmed that these

constructions were ordered directly by Hitler and Goering, and that the

defendant had opposed these orders because he considered them senseless.

It has furthermore been declared that Hitler himself, handled the needs

of workers for these undesirable constructions. The Jaegerstab was

connected with these constructions, according to all the testimony, only

to the extent that it had to examine which ones of the fighter plane

factories had to be installed in them. In this connection it must be

remembered that a number of these constructions were also allocated for

armament factories of the Wehrmacht. Thus, Milch also cannot be charged

with any responsibility in this count. He was neither formally nor

actually in a position to prevent Hitler’s and Goering’s orders.

Nor had Milch anything to do with the allocation of Hungarian Jews to

these factories, quite apart from the fact that it has been made clear

that these Jews were allocated only in the summer of 1944, which was

stated by the last prosecution witness, Krysiak, that is, at a time when

Milch had withdrawn from his office for some time. It has been proved

that Hitler issued relevant orders here and that the Jaegerstab trip to

Hungary was entirely unconnected with this matter because it was

undertaken solely for the purpose of a conference with the legal

Hungarian government. These consultations were merely concerned with

agreements regarding aircraft production by the Hungarian industry in

the large caves near the Danube. Not one single document has shown that

Milch either agreed to or welcomed the employment of Hungarian Jews.

To sum up, I may say then that even within the Jaegerstab Milch was

neither a principal nor an abetter in the crimes listed in the

indictment. I might add that it was not the purpose of the Jaegerstab to

carry out such crimes. In any case he was by no means the leading man on

that board. It has been found with certainty beyond all doubt that the

Jaegerstab served the purpose of helping the defendant to withdraw from

office.

Mention must also be made of the question of concentration camp inmates

working. Before going into details, I should like to make a few basic

remarks. From all the trials in which I acted as counsel, from the

questions asked in this courtroom, from various discussions I have had

with citizens of your country, I have, your Honors, attained the

certainty that in your circles no one believes in the truthfulness of

the defendants’ and all other witnesses’ statements, namely that the

average German knew nothing about the happenings in the concentration

camps and that the defendant did not know of the existence of such

camps, with the exception of Dachau and Oranienburg. As most Germans

certify to this and as all witnesses swear to this under oath, it is

first of all difficult to understand why such statements are not

believed. It can only be explained by the fact that the citizens of your

country have been so much influenced by press propaganda and the newly

discovered facts that they put more trust in the reports of their

newspapers than in the assurances of the citizens of a country which is

now known throughout the world as the place of origin of many

atrocities.

But should such prejudice which does not originate from [one’s] own and

actual experience influence the judgment? I believe and always have

believed that it is one of the essential laws of justice to base one’s

judgment strictly on facts which have become evident during a trial. It

is a proven fact that in Germany no one was allowed to write about

concentration camps; that the rules of secrecy which had been imposed by

the dictatorial regime had to be kept very strictly; and that even the

German authorities in case of their violating these rules of secrecy,

were threatened with death, as I have proved by the submission of

Defense Exhibit 36.

From the statement of the witness Roeder, who, incidentally, explained

that the defendant had neither the power of passing a death sentence nor

of sending people to concentration camps, you have learned that the

concentration camp inmates spoke to nobody about their condition. Even

the prosecution witness Krysiak has told you that the prisoners did not

dare to lodge complaints to anybody. How could the Germans generally

learn about conditions in concentration camps? Milch, too, could not and

did not learn about them, as he has told you, for the secrecy was kept

even among the highest authorities. May the propaganda of your country

insist on the contrary as much as it likes, what I have stated here

still remains true, and I can certify it myself.

I myself who during the time of the so-called Third Reich often enough

defended men who were accused because of their political views, I, who

was watched by the Gestapo, who was attacked in the public newspapers of

Nuernberg and especially was mentioned with name in the notorious

“Stuermer” on account of my defense of unhappy Jews, I, too, didn’t

learn anything about these camps, although clients came to me after

their release from the concentration camp Dachau. I always asked them

and I always received the answer that they had nothing special to

report. It was, of course, no pleasant life, but they reported that it

was not so bad.

I would ask you, your Honors, to consider how we could have learned of

these conditions.

May I remind you in this connection that deeds have been committed in

the east of the former German territory, in the Sudeten-German border

territories of Czechoslovakia, and other countries, deeds which, even if

one imagines them at their worst, remain far behind the truth. About

these atrocities the international press has kept silent although one

day history will speak and one will learn about them with horror. I have

refused to give proof of the events which were brought about by your

armies after the collapse. I could have mentioned many deeds which can

be called nothing but grave infringements against the Geneva Convention.

I could have given you a picture of how in the prisoners’ camps in the

early days hundreds of German prisoners died of starvation. I am not

accusing anyone. Shortcomings of organization and of human nature but

not express orders and rules account for it.

I only mention this, your Honors, in order to point out that you did not

learn about this and that it is only our unhappy and wretched people who

know about it. But we who have had the bitter experience of the power of

propaganda and of the force of secrecy know that ignorance of such

matters can be excused and believed. Therefore, no one may say from the

outset that all the unanimous statements by witnesses and the

declarations of Milch are to be disbelieved. They have been sworn to;

and the verdict must take them into consideration.

According to these it is certain that Milch only knew of the employment

of concentration camp inmates in the Heinkel plant in Oranienburg and

that he was of the opinion that these were German criminals and German

political prisoners, of whose mistreatment, however, he had no

knowledge. The use of prisoners and convicts is not a crime against

humanity. This, however, should not have to be mentioned. In all

countries in the world it is customary for prisoners to be obliged to

work. In Germany this was even regulated by law to such an extent that

the prisoners who were condemned to prison, that is, not to the

penitentiary, also had to work. For a prisoner to have to work is not an

atrocity. An atrocity can be seen only if the prisoner has to do this

work under conditions which injure his health or which are inhuman.

But Milch did not know that the food, the housing, and the treatment of

the prisoners were inhuman. One would have to prove such knowledge

before one could punish him for it. You have heard, on the contrary,

that he always did everything possible when he heard of individual cases

of abuse. He even tried to help, as the Kruedener affidavit, Defense

Exhibit 37, proves, in a case where he was not competent. As the

testimony of Kruedener revealed this was a case of inadequate

accommodations. Moreover, as the witness Koenig has testified, he

instituted an improvement in the food given the prisoners at Rechlin on

his own initiative, and he generally saw to it that workers got better

rations.

But that does not mean that he knew that those prisoners were starving.

It was unfortunately so that because of the total blockade of Germany by

the Allied forces the food available to the civilian population of

Germany was very poor. I myself had only had the minimum ration card;

and I could tell you a long story about how difficult it was to work on

such rations. Milch, however, obtained better food for everyone working

under him for armament. It was he who was the first to obtain extra

rations for his air armament industry because the workers worked

overtime. As a number of records of the Central Planning Board and the

Jaegerstab show, he obtained additional rations for the prisoners of war

and, for example, sent the Russians into agriculture so that they might

get better food there and be padded a little. He had an office set up in

the Jaegerstab in order to obtain additional food and clothing for the

workers, as the witness Schmelter has testified.

The improvement in the food of the inmates of Rechlin concentration camp

was part of these measures. If he did this through his estate, it was

because he had no influence with the administration of the concentration

camps in respect of the issue of additional ration cards.

It would not correspond with justice if he was pronounced punishable for

the employment of concentration camp inmates under these conditions. The

compulsory labor of prisoners has always been lawful in Germany even

before the Third Reich. He knew nothing of cruelties and atrocities or

inhuman treatment. Therefore, his consent to these cannot be proved.

If I may summarize then, I believe that my opening statement for the

defense had correctly revealed that Milch was not a slave holder,

moreover that he never aspired to be one, that he was of the opinion

that the employment of such workers was permitted, and finally that he

had done everything to keep down the employment of foreign workers as

much as possible and to make it as humane as possible. At any rate the

prosecution’s description of him is in no way accurate, and could only

originate from a misunderstanding of the man, his speeches, and of his

background. Sauckel and Speer had far greater responsibility in this

connection. It was they who had real influence, and not Milch, but even

in the case of Speer who was higher than Milch in his position, the

International Military Tribunal has granted extenuating circumstances in

connection with the manpower issue. I am convinced that Milch thought

employing such labor was permissible, and that he did everything in his

power to keep such employment to the lowest level and as human as

possible.

I am conscious of the fact that the verdict of the International

Military Tribunal is a great obstacle for me, and nevertheless the

Tribunal was merely composed of human beings, and it had passed judgment

under particularly difficult circumstances, and in composition it opened

the door to politics into the courtroom. I do not need to remind you

that in the English speaking countries, several verdicts of the Tribunal

were subjected to very serious criticism. I myself here attacked one

point of this verdict with better witnesses and better evidence, that

with regard to slave labor, for example, the International Military

Tribunal based itself upon a wrong assumption. Nobody stated there that

the U.S.S.R. had called off the Hague Convention of Land Warfare. I

checked up on those features of defense, and I found that all the time

it was only talk that the U.S.S.R. had not become a partner of the

convention. The statement of von Neurath revealed that notice of

withdrawal was expressly given.

Here we not only pronounce penalty verdicts or judgment, but also

political judgments, whether we want to or not. Especially in politics

there is always some fluctuation. Every day new facts turn up, which

throw different light upon things. The distance of time which always

grows greater and greater and separates us from the irritating events of

the past allows an ever clearer judgment. The man who returns from

battle is always confused. The more he becomes calm the more he admits

justice towards his enemy.

Honorable Judges of this Tribunal, when you judge please don’t forget

the whole personality of Milch. He always concerned himself as a good

and noble man, and I am not only convinced of that as his counsel but

also as a human being. The world would have a different outlook if his

superiors had listened to his advice, which was intended to serve the

people of this world, and the common will of the people, and peace. In

his heart he always took the side of the fighter who fought for united

Europe, which now has been joined also by his former enemy number one,

Churchill. May this statement of Milch which has thrown new light upon

things serve this aim. Poor and tortured Europe needs an enduring peace.

May his statements also open the eyes of those among the German people

who still cannot give up their misconceptions of many years, and show

them what crime has been committed against them.

But you, Honorable Judges, must recognize from the attitude of the

defendant Milch that he never became unfaithful to himself, and even if

he had been perhaps under the spell of erroneous conception, he has

always wanted the best for his and other people.

I have profound confidence in you, Honorable Judges, that you, equally

detached from your own people, will find an independent, true and

righteous judgment that corresponds to the truth. I shall consider it as

an honor for my person if I have contributed to this through my

painstaking labor.

-----

[152] Defense Counsel Dr. Friedrich Bergold delivered the closing

statement before the Tribunal on 25 March 1947, Tr. pp. 2377-2435.

[153] Trial of the Major War Criminals, vol. I, p. 226.

[154] Ibid., p. 253.

[155] Memorandum of 15 September 1941 from Canaris to Keitel concerning

an OKW order regulating the treatment of Soviet prisoners of war,

contained in _Nazi Conspiracy and Aggression_, vol. VII, p. 411, U.S.

Government Printing Office, Washington, 1946.

VI. FINAL STATEMENT OF THE DEFENDANT,

25 MARCH 1947[156]

DEFENDANT ERHARD MILCH: Since I became a soldier in 1910 my work has

been devoted to my German people. In the First World War I was at the

front from the first to the last day. Then with others I built up the

German air lines, and when in 1933 the government asked me to enter the

Air Ministry, despite many misgivings, I could not refuse to take up

that task because it was pointed out to me that I could not turn a deaf

ear to this call of the German people.

I have remained faithful to the idea which I conceived at the time of

the air lines, that all nations must collaborate, particularly the

European nations. Pressed together in a small area, and whenever

possible, mostly outside my actual sphere of work, I dedicated myself to

that task. I was opposed to war because my experiences from the First

World War showed me that the living standard of any people would not be

improved by war, and on the contrary everybody would be grievously

harmed.

It was for me a matter of course, even in the late great war, the

planning of which was unknown to me, to do my duty in my post. My full

effort was dedicated to the air defense of the German homeland. This I

conceived to be the only possibility to obtain bearable peace terms.

Even though I had nothing to do with the employment of workers,

including foreign workers, I considered it to be my duty to make precise

investigations into the admissibility of work by foreigners,

investigations which were answered in the affirmative; I also made

efforts to keep the numbers as low as possible and to see to it they

would work in protected factories in foreign countries.

I always made efforts to improve the living conditions of all types of

workers.

My statements made to the best of my knowledge and conscience to this

Tribunal were directed to the world at large, and above all to the

German people, in order to show that only by peaceful understanding of

the nations among each other could life and civilization be secured in

future and that understanding was not only necessary but also possible

if good will prevails. But I also wanted to show my fellow Germans quite

clearly that an autocratic government which is not controlled must end

in disaster.

My personal fate is of no consequence in this connection. I am

interested only in one thing—that the German people should, as soon as

possible, be relieved of their untold suffering and should join the

community of nations as an equal partner.

-----

[156] Tr. pp. 2489-90.

VII. JUDGMENT

A. Opinion and Judgment of the United States

Military Tribunal II[157]

The indictment in this case contains three counts, which may be

summarized as follows:

_Count One_: War crimes, involving murder, slave labor,

deportation of civilian population for slave labor, cruel and

inhuman treatment of foreign laborers, and the use of prisoners

of war in war operations by force and compulsion.

_Count Two_: War crimes, involving murder, subjecting

involuntary victims to low-pressure and freezing experiments

resulting in torture and death.

_Count Three_: Crimes against humanity, involving murder and the

same unlawful acts specified in counts one and two against

German nationals and nationals of other countries.

For reasons of its own, the Tribunal will first consider counts two and

one, in that order, followed by consideration of count three.

COUNT TWO

More in detail, this count alleges that the defendant was a principal

in, accessory to, ordered, abetted, took a consenting part in and was

connected with, plans and enterprises involving medical experiments

without the subjects’ consent, in the course of which experiments, the

defendant, with others, perpetrated murders, brutalities, cruelties,

tortures, and other inhuman acts. The so-called medical experiments

consisted of placing the subject in an airtight chamber in which the air

pressure is mechanically reduced so that it is comparable with the

pressure to which an aviator is subjected at high altitudes, and in

experimenting upon the effect of extreme dry and wet cold upon the human

body. For these experiments inmates of the concentration camp at Dachau

were selected. These inmates presented a motley group of prisoners of

war, dissenters from the philosophy of the National Socialist Party,

Jews, both from Germany and the eastern countries, rebellious or

indifferent factory workers, displaced civilians from eastern occupied

countries, and an undefined group known as “asocial or undesirable

persons.”

In approaching a judicial solution of the questions involved in this

phase of the case, it may be well to set down seriatim the controlling

legal questions to be answered by an analysis of the proof.

(1) Were low-pressure and freezing experiments carried on at

Dachau?

(2) Were they of a character to inflict torture and death on the

subjects? (The answer to these two questions may be said to

involve the establishment of the _corpus delicti_.)

(3) Did the defendant personally participate in them?

(4) Were they conducted under his direction or command?

(5) Were they conducted with prior knowledge on his part that

they might be excessive or inhuman?

(6) Did he have the power of opportunity to prevent or stop

them?

(7) If so, did he fail to act, thereby becoming _particeps

criminis_ and accessory to them?

The periods during which these experiments were conducted become

extremely significant in determining the responsibility of the

defendant. The evidence is uncontradicted that the low-pressure

experiments were inaugurated in March 1942, and were concluded by the

end of June 1942. The cold water experiments extended from August to

October 1942, and the freezing experiments from February to April 1943.

During all of these periods the defendant was Under State Secretary of

the Reich Air Ministry, Inspector General and Second in Command under

Goering of the Luftwaffe, to which post he was appointed 19 November

1941. In these various capacities, certain military duties devolved upon

him, especially as Inspector General. For example, he was ordered by

Hitler to take an air squadron to Norway on a purely military

expedition, and during the siege of Stalingrad, early in 1943, he was

ordered by Hitler to attempt to transport into Stalingrad by air food

and supplies for the beleaguered German Army. His high military standing

is indicated by the fact that he was one of the twelve field marshals of

the German armed forces. The major part of his duties, however, revolved

around the production of aircraft for the Luftwaffe. He was primarily a

production man, charged with the duty of keeping military airplanes

supplied in sufficient quantity to the air arm of Germany’s military

machine. This naturally involved the procurement in large quantities of

the two essential ingredients of production—labor and raw material—and

an over-all supervision of any efforts having to do with that arm. One

of the defendant’s immediate subordinates was Professor Hippke, who held

the post of Inspector of the Medical Services of the Luftwaffe. Hippke

was a physician, and had supervision of all matters involving the health

and physical welfare of the personnel of the Luftwaffe.

The low-pressure experiments at Dachau were conducted by three

physicians, Dr. Romberg, Dr. Ruff, and Dr. Rascher. It is quite apparent

from the evidence that Dr. Rascher, who was attached to the Luftwaffe

but made frantic efforts to have himself transferred to the SS, was

principally responsible for the nature of the experiments. Dr. Ruff and

Dr. Romberg were also attached to the Luftwaffe and were, therefore,

remotely under the command and control of the defendant, but the

evidence is persuasive that, although they were interested in and helped

conduct the experiments up to a certain point, the excesses which

resulted in torture and death are attributable to Dr. Rascher. It is

quite apparent that the actual activities of these three physicians were

far removed from the immediate scrutiny of the defendant even though

their activities were conducted within the orbit of the Luftwaffe, over

which the defendant had command.

Approaching now the determinative questions listed above, some progress

can quickly be made in arriving at judicially satisfactory answers.

(1) As to the first question, the evidence is overwhelming and

not contradicted that experiments involving the effect of low

air pressure and freezing on live human beings were conducted at

Dachau from March through June 1942.

(2) Approaching the second question, it is claimed by the

defendant that only legitimate scientific experiments were

conducted which did not involve pain or torture and could not

ordinarily be expected to result in death. It is remotely

possible that so long as the experiments were under the guidance

of Dr. Ruff and Dr. Romberg some consideration was given to the

possible effect upon the subjects of the experiments. But it is

indisputable that the experiments conducted by Dr. Rascher

involved torture and suffering in the extreme and in many cases

resulted in death. Under the specific guidance of Dr. Rascher,

the air pressure was reduced to a point which no flier would

ever be required to undergo (14,000 meters). The photographs of

the subjects undergoing these experiments indicate extreme agony

and leave no doubt that any victim who was fortunate enough to

survive had undergone a harrowing experience. The Tribunal does

not hesitate to find that these experiments, performed under the

specious guise of science, were barbarous and inhuman. It has

been urged by the defendant that the only persons used as

subjects of these experiments were habitual criminals who had

been sentenced to death and who were given the dubious option of

offering themselves for the experiments and receiving as a

reward, if they survived, a commutation of the death sentence to

life imprisonment. This claim scarcely merits serious

consideration. A number of witnesses stated that they had a

vague understanding that this was the case, but the record is

entirely barren of any credible testimony which could possibly

justify such a finding of fact.

(3) The prosecution does not claim (and there is no evidence)

that the defendant personally participated in the conduct of

these experiments.

(4) There is no evidence that the defendant instituted the

experiments or that they were conducted or continued under his

specific direction or command. It may perhaps be claimed that

the low-pressure chamber, which was the property of the

Luftwaffe, was sent to Dachau at the direction of the defendant,

but even if this were true it could not be inferred from that

fact alone that he thereby promulgated the inhuman and criminal

experiments which followed. The low-pressure chamber was

susceptible of legitimate use and, perhaps, had Dr. Rascher not

injected himself into the proceedings, it would have been

confined to that use.

(5) Assuming that the defendant was aware that experiments of

some character were to be launched, it cannot be said that the

evidence shows any knowledge on his part that unwilling subjects

would be forced to submit to them or that the experiments would

be painful and dangerous to human life. It is quite apparent

from an over-all survey of the proof that the defendant

concerned himself very little with the details of these

experiments. It was quite natural that this should be so. His

most pressing problems involved the procurement of labor and

materials for the manufacture of airplanes. His position

involved vast responsibilities covering a wide industrial field,

and there were certainly countless subordinate fields within the

Luftwaffe of which he had only cursory knowledge. The Tribunal

is convinced that these experiments, which fell naturally and

almost exclusively within one of his subordinate departments,

engaged the attention of the defendant only perfunctorily, if at

all.

(6) Did the defendant have the power or opportunity to prevent

or stop the experiments? It cannot be gainsaid that he had the

authority to either prevent or stop them insofar as they were

being conducted under the auspices of the Luftwaffe. It seems

extremely probable, however, that, in spite of him, they would

have continued under Himmler and the SS. But certainly he had no

opportunity to prevent or stop them, unless it can be found that

he had guilty knowledge of them, a fact which has already been

determined in the negative. As early as 20 May 1942, the

defendant wrote to Wolff, Himmler’s Adjutant, stating:

“* * * our medical inspector [Dr. Hippke] reports to me that the

altitude experiments carried out by the SS and Luftwaffe at

Dachau have been finished. Any continuation of these experiments

seems essentially unreasonable * * *

“The low-pressure chamber would not be needed for these

low-temperature experiments. It is urgently needed at another

place and therefore can no longer remain in Dachau.”

Certainly the defendant did not have the opportunity to prevent

or stop the experiments if he had been told and was convinced

that they had terminated on 20 May 1942, and there is no reason

to believe that he did not rely upon Dr. Hippke’s report as to

their termination. Considerable emphasis is laid upon the

testimony that a motion picture of the experiments was brought

to Berlin and exhibited in the Air Ministry Building, where the

defendant had his office. It may even be said that the picture

was brought to Berlin for the defendant’s edification. But it

appears that he was not present when it was shown and that, in

any event, the showing was long after the experiments were

concluded, at which time the defendant certainly could do

nothing toward preventing them or stopping them.

(7) In view of the above findings, it is obvious that the

defendant never became _particeps criminis_ and accessory in the

low-pressure experiments set forth in the second count of the

indictment.

As to the other experiments, involving subjecting human beings

to extreme low temperatures both in the open air and in water,

the responsibility of the defendant is even less apparent than

in the case of the low-pressure experiments. The same letter of

20 May 1942 to Wolff does indicate that the defendant was aware

of the proposed sea-water experiments. In it he says—

“* * * the carrying out of experiments of some other kind, in

regard to perils at high seas, would be important. These have

been prepared in immediate agreement with the proper offices;

Oberstabsarzt Weltz will be charged with the execution and

Stabsarzt Rascher will be made available until further order in

addition to his duties within the medical corps of the

Luftwaffe. A change of these measures does not appear necessary,

and an enlargement of the task is not considered pressing at

this time.”

It is true that Rascher wrote interminable reports as to the results of

these experiments, but there is no proof that they ever reached the

defendant. On the contrary, they were addressed to Himmler and to Rudolf

Brandt, his adjutant. At the Nuernberg conference in November 1943,

which was held after all experiments had been finished, reports were

made which even to a mildly curious lay person might have indicated that

the experiments had been tinged with excesses and fatalities. But two

facts are striking. First, the defendant was not present at the

conference and only received a report of it later; and, second, the

experiments were at that time all over.

It must be constantly borne in mind that this is an American court of

justice, applying the ancient and fundamental concepts of Anglo-Saxon

jurisprudence which have sunk their roots into the English common law

and have been stoutly defended in the United States since its birth. One

of the principal purposes of these trials is to inculcate into the

thinking of the German people an appreciation of, and respect for, the

principles of law which have become the backbone of the democratic

process. We must bend every effort toward suggesting to the people of

every nation that laws must be used for the protection of people and

that every citizen shall forever have the right to a fair hearing before

an impartial tribunal, before which all men stand equal. We must never

falter in maintaining, by practice as well as by preachment, the

sanctity of what we have come to know as due process of law, civil and

criminal, municipal and international. If the level of civilization is

to be raised throughout the world, this must be the first step. Any

other road leads but to tyranny and chaos. This Tribunal, before all

others, must act in recognition of these self-evident principles. If it

fails, its whole purpose is frustrated and this trial becomes a mockery.

At the very foundation of these juridical concepts lie two important

postulates (1) every person accused of crime is presumed to be innocent,

and (2) that presumption abides with him until guilt has been

established by proof beyond a reasonable doubt.

Unless the court which hears the proof is convinced of guilt to the

point of moral certainty, the presumption of innocence must continue to

protect the accused. If the facts as drawn from the evidence are equally

consistent with guilt and innocence, they must be resolved on the side

of innocence. Under American law neither life nor liberty is to be

lightly taken away, and, unless at the conclusion of the proof there is

an abiding conviction of guilt in the mind of the court which sits in

judgment, the accused may not be damnified.

Paying reverent attention to these sacred principles, it is the judgment

of the Tribunal that the defendant is not guilty of the charges embraced

in count two of the indictment.

COUNT ONE

Count one of the indictment charges the defendant with the commission of

specified war crimes, as defined by Article II of Control Council Law

No. 10, in that he was a principal in, accessory to, ordered, abetted,

took a consenting part in and was connected with, plans and enterprises

involving slave labor and deportation to slave labor, resulting in the

enslavement, torture and murder of civilians of foreign countries. The

indictment further charges that he similarly participated in the use of

prisoners of war in war operations and work having a direct relation to

war operations, resulting in inhuman treatment and death to captured

members of the armed forces opposed to Germany. The indictment alleges

that these acts were in violation of international law and the

recognized principles of civilized warfare and in specific violation of

numerous treaties and conventions to which Germany was a party.

It is claimed by the prosecution that the defendant’s responsibility for

these alleged crimes arises from his activities in three capacities (1)

as Aircraft Master General (Generalluftzeugmeister); (2) member of the

Central Planning Board; and (3) chief of the Jaegerstab. The Central

Planning Board was established by a decree of the Fuehrer, dated 29

October 1943. That decree fitted the task of production of material

goods of every kind into the framework of the Four Year Plan and charged

the Central Planning Board with the procurement and distribution of

material of every description. The Board consisted of Reich Minister

Speer, Under Secretary Koerner, and the defendant. On 1 March 1944, the

Jaegerstab was established, consisting of Speer, Saur (a subordinate of

Speer), and the defendant. The Jaegerstab concerned itself exclusively

with the material needs of the Luftwaffe, and was headed, naturally, by

the defendant. It became apparent that neither of these two bodies could

adequately deal with the problems of production without constantly

dealing with the question of labor supply. Meetings of the Central

Planning Board were held at least weekly and the minutes of those

meetings which were offered in evidence show a constant and unremitting

concern with the problem of labor. Fritz Sauckel was in supreme command

of the procurement of labor for the entire war effort, and his conduct

in carrying out his task has been vividly portrayed in the judgment of

the International Military Tribunal:[158]

“* * * As local supplies of raw materials and local industrial

capacity became inadequate to meet the German requirements, the

system of deporting laborers to Germany was put into force. By

the middle of April 1940 compulsory deportation of laborers to

Germany had been ordered in the General Government; and a

similar procedure was followed in other eastern territories as

they were occupied. A description of this compulsory deportation

from Poland was given by Himmler. In an address to SS officers

he recalled how in weather 40 degrees below zero they had to

‘haul away thousands, tens of thousands, hundreds of thousands.’

On a later occasion Himmler stated:

“‘Whether ten thousand Russian females fall down from exhaustion

while digging an antitank ditch interests me only insofar as the

antitank ditch for Germany is finished * * *. We must realize

that we have 6-7 million foreigners in Germany * * *. They are

none of them dangerous so long as we take severe measures at the

merest trifles.’

“During the first two years of the German occupation of France,

Belgium, Holland, and Norway, however, an attempt was made to

obtain the necessary workers on a voluntary basis. How

unsuccessful this was may be seen from the report of the meeting

of the Central Planning Board on 1 March 1944. The

representative of the defendant Speer, one Koehrl [Kehrl],

speaking of the situation in France said: ‘During all this time

a great number of Frenchmen were recruited, and voluntarily went

to Germany.’

“He was interrupted by the defendant Sauckel: ‘Not only

voluntary, some were recruited forcibly.’

“To which Koehrl [Kehrl] replied: ‘The calling up started after

the recruitment no longer yielded enough results.’

“To which the defendant Sauckel replied: ‘Out of the five

million workers who arrived in Germany, not even 200,000 came

voluntarily.’ And Koehrl [Kehrl] rejoined: ‘Let us forget for

the moment whether or not some slight pressure was used.

Formally, at least, they were volunteers.’

“Committees were set up to encourage recruiting, and a vigorous

propaganda campaign was begun to induce workers to volunteer for

service in Germany. This propaganda campaign included, for

example, the promise that a prisoner of war would be returned

for every laborer who volunteered to go to Germany. In some

cases it was supplemented by withdrawing the ration cards of

laborers who refused to go to Germany, or by discharging them

from their jobs and denying them unemployment benefit or an

opportunity to work elsewhere. In some cases workers and their

families were threatened with reprisals by the police if they

refused to go to Germany. It was on 21 March 1942 that the

defendant Sauckel was appointed Plenipotentiary-General for the

Utilization of Labor, with authority over ‘all available

manpower, including that of workers recruited abroad, and of

prisoners of war’.

“The defendant Sauckel was directly under the defendant Goering

as Commissioner of the Four Year Plan, and a Goering decree of

27 March 1942 transferred all his authority over manpower to

Sauckel. Sauckel’s instructions, too, were that foreign labor

should be recruited on a voluntary basis, but also provided that

‘where, however, in the occupied territories, the appeal for

volunteers does not suffice, obligatory service and drafting

must under all circumstances be resorted to.’ Rules requiring

labor service in Germany were published in all the occupied

territories. The number of laborers to be supplied was fixed by

Sauckel, and the local authorities were instructed to meet these

requirements by conscription if necessary * * *.

“* * * the evidence before the Tribunal establishes the fact

that the conscription of labor was accomplished in many cases by

drastic and violent methods. The ‘mistakes and blunders’ were on

a very great scale. Manhunts took place in the streets, at

motion picture houses, even at churches and at night in private

houses. Houses were sometimes burnt down, and the families taken

as hostages, practices which were described by the defendant

Rosenberg as having their origin ‘in the blackest periods of the

slave trade.’ The methods used in obtaining forced labor from

the Ukraine appear from an order issued to SD officers which

stated:

“‘It will not be possible always to refrain from using force * *

*. When searching villages, especially when it has been

necessary to burn down a village, the whole population will be

put at the disposal of the commissioner by force * * *. As a

rule no more children will be shot * * *. If we limit harsh

measures through the above orders for the time being it is only

done for the following reason * * *. The most important thing is

the recruitment of workers.’

“The resources and needs of the occupied countries were

completely disregarded in carrying out this policy. The

treatment of the laborers was governed by Sauckel’s instructions

of 20 April 1942 to the effect that—

‘All the men must be fed, sheltered and treated in such a way as

to exploit them to the highest possible extent, at the lowest

conceivable degree of expenditure.’

“The evidence showed that workers destined for the Reich were

sent under guard to Germany, often packed in trains without

adequate heat, food, clothing, or sanitary facilities. The

evidence further showed that the treatment of the laborers in

Germany in many cases was brutal and degrading * * *. They were

subject to constant supervision by the Gestapo and the SS, and

if they attempted to leave their jobs they were sent to

correction camps or concentration camps. The concentration camps

were also used to increase the supply of labor. Concentration

camp commanders were ordered to work their prisoners to the

limits of their physical power. During the latter stages of the

war the concentration camps were so productive in certain types

of work that the Gestapo was actually instructed to arrest

certain classes of laborers so that they could be used in this

way. Allied prisoners of war were also regarded as a possible

source of labor. Pressure was exercised on noncommissioned

officers to force them to consent to work, by transferring to

disciplinary camps those who did not consent. 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 munition 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 the Soviet prisoners of war. On 16

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

which the defendants Sauckel and Speer were present, 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, 30,000 are already employed as gunners. This

is an amusing thing, that Russians must work the guns.’”

And on 4 October 1943, at Poznan, Himmler, speaking of the Russian

prisoners, captured in the early days of the war, said:

“‘At that time we did not value the mass of humanity as we value

it today, as raw material, as labor. What, after all, thinking

in terms of generations, is not to be regretted, but is now

deplorable by reason of the loss of labor, is that the prisoners

died in tens and hundreds of thousands of exhaustion and

hunger.’

“The general policy underlying the mobilization of slave labor

was stated by Sauckel on 20 April 1942. He said:

“‘The aim of this new gigantic labor mobilization is to use all

the rich and tremendous sources conquered and secured for us by

our fighting armed forces, under the leadership of Adolf Hitler,

for the armament of the armed forces, and also for the nutrition

of the homeland. The raw materials, as well as the fertility of

the conquered territories and their human labor power, are to be

used completely and conscientiously to the profit of Germany and

her allies * * *. All prisoners of war from the territories of

the West, as well as the East, actually in Germany, must be

completely incorporated into the German armament and nutrition

industries * * *. Consequently it is an immediate necessity to

use the human reserves of the conquered Soviet territory to the

fullest extent. Should we not succeed in obtaining the necessary

amount of labor on a voluntary basis, we must immediately

institute conscription or forced labor * * *. The complete

employment of all prisoners of war, as well as the use of a

gigantic number of new foreign civilian workers, men and women,

has become an indisputable necessity for the solution of the

mobilization of the labor program in this war.’”

Continuing with the quotation from the IMT decision:[159]

“* * * As the dominant member of the Central Planning Board,

which had supreme authority for the scheduling of German

production and the allocation and development of raw materials,

Speer took the position that the Board had authority to instruct

Sauckel to provide laborers for industries under its control and

succeeded in sustaining this position over the objection of

Sauckel. The practice was developed under which Speer

transmitted to Sauckel an estimate of the total number of

workers needed. Sauckel obtained the labor and allocated it to

the various industries in accordance with instructions supplied

by Speer.

“Speer knew when he made his demands on Sauckel that they would

be supplied by foreign laborers serving under compulsion. He

participated in conferences involving the extension of the slave

labor program for the purpose of satisfying his demands. He was

present at a conference held during 10-12 August 1942 with

Hitler and Sauckel at which it was agreed that Sauckel should

bring laborers by force from occupied territories where this was

necessary to satisfy the labor needs of the industries under

Speer’s control. Speer also attended a conference in Hitler’s

headquarters on 4 January 1944, at which the decision was made

that Sauckel should obtain ‘at least 4 million new workers from

occupied territories’ in order to satisfy the demands for labor

made by Speer, although Sauckel indicated that he could do this

only with help from Himmler.

“Sauckel continually informed Speer and his representatives that

foreign laborers were being obtained by force. At a meeting of 1

March 1944, Speer’s deputy questioned Sauckel very closely about

his failure to live up to the obligation to supply four million

workers from occupied territories. In some cases Speer demanded

laborers from specific foreign countries. Thus, at the

conference 10-12 August 1942, Sauckel was instructed to supply

Speer with ‘a further million Russian laborers for the German

armament industry up to and including October 1942.’ At a

meeting of the Central Planning Board on 22 April 1943, Speer

discussed plans to obtain Russian laborers for use in the coal

mines, and flatly vetoed the suggestion that this labor deficit

should be made up by German labor.

“Speer has argued that he advocated the reorganization of the

labor program to place a greater emphasis on utilization of

German labor in war production in Germany and on the use of

labor in occupied countries in local production of consumer

goods formerly produced in Germany. Speer took steps in this

direction by establishing the so-called ‘blocked industries’ in

the occupied territories which were used to produce goods to be

shipped to Germany. Employees of these industries were immune

from deportation to Germany as slave laborers and any worker who

had been ordered to go to Germany could avoid deportation if he

went to work for a blocked industry. This system, although,

somewhat less inhumane than deportation to Germany, was still

illegal. The system of blocked industries played only a small

part in the over-all slave labor program, although Speer urged

its cooperation with the slave labor program, knowing the way in

which it was actually being administered. In an official sense,

he was its principal beneficiary and he constantly urged its

extension.

“Speer was also directly involved in the utilization of forced

labor as Chief of the Organization Todt. The Organization Todt

functioned principally in the occupied areas on such projects as

the Atlantic Wall and the construction of military highways, and

Speer has admitted that he relied on compulsory service to keep

it adequately staffed. He also used concentration camp labor in

the industries under his control. He originally arranged to tap

this source of labor for use in small out-of-the-way factories;

and later, fearful of Himmler’s jurisdictional ambitions,

attempted to use as few concentration camp workers as possible.

“Speer was also involved in the use of prisoners of war in

armament industries but contends that he utilized Soviet

prisoners of war only in industries covered by the Geneva

Convention.

“Speer’s position was such that he was not directly concerned

with the cruelty in the administration of the slave labor

program, although he was aware of its existence. For example, at

meetings of the Central Planning Board he was informed that his

demands for labor were so large as to necessitate violent

methods in recruiting. At a meeting of the Central Planning

Board on 30 October 1942, Speer voiced his opinion that many

slave laborers who claimed to be sick were malingerers and

stated: ‘There is nothing to be said against SS and police

taking drastic steps and putting those known as slackers into

concentration camps.’”

Under the provisions of Article X of Ordinance No. 7, these

determinations of fact by the International Military Tribunal are

binding upon this Tribunal “in the absence of substantial new evidence

to the contrary.” Any new evidence which was presented was in no way

contradictory of the findings of the International Military Tribunal,

but, on the contrary, ratified and affirmed them.

The next question to be answered is whether or not the defendant Milch

in this case knew that foreign slave labor and prisoners of war were

being procured by Sauckel and used in the aircraft industry, which the

defendant controlled. The defendant’s own words, as gleaned from the

minutes of the Central Planning Board and from his own testimony,

conclusively answer this question in the affirmative. He testified that

he knew that prisoners of war were employed in the airplane factory at

Regensburg and that some twenty thousand Russian prisoners of war were

used to man antiaircraft guns protecting the various plants. He stated

further that he saw this type of war prisoners manning 8.8 and 10.5

[centimeter] antiaircraft guns at airplane factories in Luftgau 7 near

Munich. Sauckel, the Plenipotentiary for Labor, sat in on at least

fifteen meetings of the Central Planning Board, over which the defendant

presided, and discussed at great length and in elaborate detail the

problems involved in procuring sufficient foreign laborers for the

German war effort. He frankly disclosed the cruel and barbarous methods

used in forcing civilians of the eastern countries into the Reich for

war work. He related the difficulties and resistance which confronted

him and the methods which he used and proposed to use in forcibly

rounding up and transporting foreign workers. The advisability of using

prisoners of war and inmates of concentration camps in the Luftwaffe was

frankly discussed, with the defendant offering advice and suggestions as

to the most effective methods to be used. In the face of this

overwhelming evidence, disclosing page after page of discussion between

Speer, Sauckel, and the defendant in which the defendant urged more

severe and coercive methods of procuring foreign labor from the East, it

would violate all reason to conclude that he had no knowledge of the

source of this labor or of the methods used in procuring it. His voice

is constantly heard, pleading for more laborers from this source and

clamoring for a larger share in Sauckel’s labor pool. Hildebrand and

Sagemeier for the coal mines, Rohland for the foundries, Kehrl for the

coal and iron industries, Bruch and Becht for the rubber industry, Speer

for the armament industry, and Milch for the aircraft industry—all

these and others joined in a pagan chorus, in which the harmony was

frequently strained, but all singing the same song, “We need laborers,

men and women. We don’t care where you get them, but give us more.”

At the 54th meeting of the Central Planning Board, Sauckel stated in the

defendant’s presence:

“* * * Thereupon I even proceeded to employ and train a whole

batch of French male and female agents who for good pay, just as

was done in olden times for ‘shanghaiing’, went hunting for men

and made them drunk by using liquor as well as words, in order

to dispatch them to Germany. Moreover I charged some able men

with founding a special labor supply executive of our own, and

this they did by training and arming, with the help of the

Higher SS and Police Fuehrer, a number of natives, but I still

have to ask the Munitions Ministry for arms for the use of these

men. * * *.

“* * * I and my assistants in fact have sometimes seen things

happen in France that I was forced to ask, is there no respect

any more in France for the German lieutenant with his 10 men? *

* * We Germans must make an example of one case, and, by reason

of this law, if necessary put Prefect or Burgomaster against the

wall, if he does not comply with the rules; otherwise no

Frenchman at all will be dispatched to Germany.”

The defendant contributed to the discussion by saying:

“* * * As soon as you arrive the men run away to protect

themselves from being sent to Germany * * *. The men even then

will be whisked away unless quite another authority and power is

on the watch, and this can only be the army itself. * * * I can

find no remedy but that the army should assert itself

ruthlessly.”

As indicating that the defendant was not indifferent to the problem, at

the same meeting, in referring to procuring labor from Italy, he offered

the following suggestion:

“We could take under German administration the entire food

supply for the Italians and tell them: only he gets any food who

either works in a protected factory (that is, a factory in Italy

manufacturing German war material) or goes to Germany.”

Later in the same conference, the defendant made another contribution to

the solution of the problem of foreign labor, saying:

“Now during the transfer it is necessary to see that the people

really do arrive and do not run away before or during the

transfer. If a transport has left a town and has not arrived,

500 to 600 persons from this place must be arrested and sent to

Germany as prisoners of war. Such a thing is then talked about

everywhere. If actions like this and other similar ones are

carried out often, they would exert a certain pressure. The

whole thing would be made easier, if we had control of food.”

At the 53d meeting of the Central Planning Board (16 February 1944), the

defendant stated:

“Our best new engine is made 88 percent by Russian prisoners of

war and the other 12 percent by German men and women.”

Instances could be multiplied in which the defendant not only listened

to stories of enforced labor from eastern civilians and other prisoners

of war and thereby became aware of the methods used in procuring such

labor, but in which he himself urged more stringent and coercive means

to supplement the dwindling supply of labor in the Luftwaffe. As

Germany’s plight became more desperate, her loss of military personnel

presented an alarming dilemma, resulting in the defection of thousands

of workmen to the armed forces. This resulted in a shifting of the

dilemma to industry, and spurs were put to the labor procurement

officers to fill the widening gap in the industrial labor ranks. Every

branch of war industry constantly clamored for replacements and each

vied with the others for a greater quota from the labor pool. Confronted

by the desperate situation, the labor procurement officers, headed by

the implacable Sauckel, cast aside all restraint and set out

systematically to herd into the Reich any human being who could

contribute to Germany’s war effort. Under Sauckel’s whip, no means

however harsh were overlooked, and no person however exempt was spared.

The defense on this count is ingenious but unconvincing. As to the use

of prisoners of war, the defendant testified that he had been advised by

some unidentified person high in the National Socialist Councils that it

was not unlawful to employ prisoners of war in war industries. The

defendant was an old and experienced soldier, and his testimony revealed

that he was well acquainted with the provisions of the Geneva and Hague

Treaties on this subject, which are plain and unequivocal. In the face

of this knowledge, the advice which he claims to have received should

have raised grave suspicions in his mind. Presenting an entirely

different aspect to his defense, he testifies that many of the Russian

prisoners of war volunteered to serve in the war industries and

apparently enjoyed the opportunity of manufacturing munitions to be used

against their fellow countrymen and their allies. Other Russian

prisoners of war, he states, were discharged as such and immediately

enrolled as civilian workers. The photographs introduced in evidence,

however, show that they still retained their Russian army uniforms,

which makes their status as civilians suspect. Be that as it may, it

does not adequately answer the charge that hundreds of thousands of

Polish prisoners of war were cast into concentration camps and parceled

out to the various war factories, nor the further fact that thousands of

French prisoners of war were compelled to labor under the most harrowing

conditions for the Luftwaffe.

As to the French civilian workers who were employed at war work in

Germany after the conquest of France, it is the contention of the

defendant that these workers were supplied by the French Government

under a solemn agreement with the Reich. It is claimed with a straight

face that the Vichy Government, headed by Laval, entered into an

international compact with the German Government to supply French

laborers for work in Germany. This contention entirely overlooks the

fact that the Vichy Government was a mere puppet set up under German

domination, which, in full collaboration with Germany, took its orders

from Berlin. The position of the defendant seems to be that, if any

force or coercion was used on French citizens, it was exerted by their

own government, but this position entirely overlooks the fact that the

transports which brought Frenchmen to Germany were manned by German

armed guards and that upon their arrival they were kept under military

guard provided by the Wehrmacht or the SS.

It was sought to disguise the harsh realities of the German foreign

labor policy by the use of specious legal and economic terms, and to

make such policy appear as the exercise of conventional labor relations

and labor law. The fiction of a “labor contract” was frequently resorted

to, especially in the operations of the Todt Organization, which implied

that foreign workers were given a free choice to work or not to work for

Germany military industry. This, of course, was purely fictitious, as is

shown by the fact that thousands of these “contract workers” jumped from

the trains transporting them to Germany and fled into the woods. Does

anyone believe that the vast hordes of Slavic Jews who labored in

Germany’s war industries were accorded the rights of contracting

parties? They were slaves, nothing less—kidnapped, regimented, herded

under armed guards, and worked until they died from disease, hunger, and

exhaustion. The idea of any Jew being a party to a contract with Germans

was unthinkable to the National Socialists. Jews were considered as

outcasts and were completely at the mercy of their oppressors.

Exploitation was merely a convenient and profitable means of

extermination, to the end that, “when this war ends, there will be no

more Jews in Europe”. As to non-Jewish foreign labor, with few

exceptions they were deprived of the basic civil rights of free men;

they were deprived of the right to move freely or to choose their place

of residence; to live in a household with their families; to rear and

educate their children; to marry; to visit public places of their own

choosing; to negotiate, either individually or through representatives

of their own choice, the conditions of their own employment; to organize

in trade unions; to exercise free speech or other free expression of

opinion; to gather in peaceful assembly; and they were frequently

deprived of the right to worship according to their own conscience. All

these are the sign-marks of slavery, not free employment under contract.

The German nation, before the ascendancy of the NSDAP, had repeatedly

recognized the rights of civilians in occupied countries. At the Hague

Peace Conference of 1907, an amendment was submitted by the German

delegate, Major General von Guendell, which read:

“A belligerent is likewise forbidden to compel the nationals of

the adverse party to take part in the operations of war directed

against their country, even when they have been in his service

before the commencement of the war.”

The German manual for war on land (Kriegsbrauch im Landkriege, Edition

1902) stated:

“The inhabitants of an invaded territory are persons endowed

with rights * * * subject to certain restrictions * * * but who

otherwise may live free from vexations and, as in time of peace,

under the protection of the laws.”

During the First World War, an order of the German Supreme Command (3

October 1916) provided for the deportation of Belgian vagrants and

idlers to Germany for work, but specified that such labor was not to be

used in connection with operations of war. The order resulted in such a

storm of protest that it was at once abandoned by the German

authorities.

It cannot be contended, of course, that foreign workers were entitled to

comforts or luxuries which were not accorded German workers. It is also

recognized that, especially during the latter part of the war there was

a universal shortage of food and fuel throughout the Reich and in the

discomforts arising therefrom foreign workers were bound to share. But

it is an undoubted fact that the foreign workers were subjected to

cruelties and torture and the deprivation of decent human rights merely

because they were aliens. This was not true in isolated instances, but

was universal and was the working out of the German attitude toward

those whom it considered inferior peoples. If any decent human

consideration was shown these workers, it was merely to maintain their

productivity and did not stem from any humanitarian considerations.

The Tribunal therefore finds the defendant guilty of the war crimes

charged in count one of the indictment, to wit, that he was a principal

in, accessory to, ordered, abetted, took a consenting part in and was

connected with, plans and enterprises involving slave labor and

deportation to slave labor of the civilian populations of countries and

territories occupied by the German armed forces, and in the enslavement,

deportation, ill-treatment and terrorization of such persons; and

further that the defendant was a principal in, accessory to, ordered,

abetted, took a consenting part in, and was connected with, plans and

enterprises involving the use of prisoners of war in war operations and

work having a direct relation to war operations.

COUNT THREE

Count three of the indictment charges the defendant with crimes against

humanity committed against “German nationals and nationals of other

countries.” Sufficient proof was not adduced as to such offenses against

German nationals to justify an adjudication of guilt on that ground. As

to such crimes against nationals of other countries, the evidence shows

that a large number of Hungarian Jews and other nationals of Hungary and

Romania, which countries were occupied by Germany but were not

belligerents, were subjected to the same tortures and deportations as

were the nationals of Poland and Russia. In count one of the indictment

these acts are charged as war crimes and have heretofore been considered

by the Tribunal under that count in this judgment. In the judgment of

the International Military Tribunal (_Vol. I, Trial of the Major War

Criminals, p. 254_), the court stated—

“From the beginning of the war in 1939, war crimes were

committed on a vast scale which were also crimes against

humanity.”

This is a finding of law and an interpretation of Control Council Law

No. 10, with which this Tribunal is in full accord.

Our conclusion is that the same unlawful acts of violence which

constituted war crimes under count one of the indictment also constitute

crimes against humanity as alleged in count three of the indictment.

Having determined the defendant to be guilty of war crimes under count

one, it follows, of necessity, that he is also guilty of the separate

offense of crime against humanity, as alleged in count three, and this

Tribunal so determines.

In exculpation, the defendant states that he was a German soldier and

that whatever was done by him or with his knowledge or consent was done

in pursuance of a national military policy promulgated by Hitler and in

obedience to military orders. He protests that, no matter how violently

he disagreed with the methods used by the German Reich in the furthering

of its policy of aggressive war, he was helpless to extricate himself

and had no alternative except to stay with the venture to the bitter

end. It is true that withdrawal may involve risks and dangers, but these

are incidental to the original affiliation with the unlawful scheme. He

who elects to participate in a venture which may result in failure must

make his election to abandon the enterprise if it is not to his liking

or to stay as a participant, and win or lose according to the outcome.

Much significance must be attached to the meeting of 23 May 1939, at

which the defendant was admittedly present and in which Hitler spoke at

great length as to his plans for the subjugation of friendly minor

nations and the ultimate conquest of Europe. A purported record of the

events at this meeting has been introduced in evidence and has been

found to be reliable and accurate by the International Military

Tribunal. The defendant has throughout insisted that this record is

spurious and was made by Schmundt long after the occasion which it

records. Of course, it was never anticipated that this record, which was

marked “Top Secret, To be Transmitted by Officer Only,” would ever be

captured and its contents become known. It is not surprising that those

who sat and listened to the astounding program of the Fuehrer now wish

that they had been absent. It cannot be denied that there was a meeting

of some kind which the defendant attended and at which the Fuehrer

spoke, and further that it was held a few short months before the actual

invasion of Poland, as forecast in the report of the meeting. The

Schmundt paper does not pretend to be a verbatim report of Hitler’s

exact words, but certainly all of the diabolical plans which it reveals

were not manufactured by Schmundt out of thin air, attributed to Hitler,

and then marked “Top Secret”. Even if Hitler said only a small part of

what is attributed to him by Schmundt, there was enough said to advise

and warn a man of the defendant’s intelligence and experience that

mischief was afoot. Every sentence shrieks of war. The record hints at

nothing else, and, if all references to conquest and war and world

domination are eliminated, Hitler did not speak at all. At this early

date, the defendant must be charged with knowledge that a war of

aggression, to be ruthlessly pursued, was planned. This, then, was the

time for him to have made his decision—the decision which confronts

every man daily—to be honorable or dishonorable. Life consists quite

generally in making such decisions. As an old soldier, schooled in the

code of war and well aware of the principles to which an honorable

soldier must adhere, he sat complacently and listened to a proposed

program which violated national honor, personal integrity and the moral

code of an honest soldier. He made his choice and elected to ride with

the tyrant.

When the defendant joined the National Socialist Party in 1933, Germany

was in the throes of dire economic and political distress and was

burdened by a myriad of political parties, each with its separate

program and all functioning at cross-purposes. The defendant elected to

affiliate with the NSDAP because, he testified, he believed it offered

the most likely agency for bringing order out of chaos. But very soon he

must have realized that he had joined a band of villains whose program

contemplated every crime in the calendar. The Nazi code was not a

secret. It was published and proclaimed by the Party leaders in long

harangues to the people; decrees and directives were broadcast; the

infamous Streicher was spreading anti-Jewish obscenities throughout the

Reich in “Der Stuermer”; Roehm and a large number of the SA were

murdered by Hitler’s orders; hundreds of German citizens were cast into

concentration camps for “political re-education,” without hearing or

opportunity for defense; the iniquitous Gestapo stormed through the

land, with power over life and liberty which could not be questioned; in

public view Jews were beaten and killed, their synagogues burned and

their stores destroyed. The Party proclaimed its objectives from the

house-tops and verified them by open public conduct throughout the

Reich. The significant fact which must not be overlooked is that all

these things happened _before_ the war was launched, at a time when

there was no claim upon the loyalty of the defendant as a soldier to

protect his homeland at war. He protests that he never subscribed to the

master race philosophy, but 18 years before he joined the Party in 1933,

its precepts and demands had been proclaimed, among which was Point 4—

“Only a member of the race can be a citizen. A member of the

race can only be one who is of German blood, without

consideration of creed. Consequently no Jew can be a member of

the race.”

The humblest citizens of Germany knew that the iniquitous doctrines of

the Party were being implemented by ruthless acts of persecution and

terrorism which occurred in public view. Thousands of obscure German

citizens were only too well aware that they were living under the

scrutiny of an army of spies and saw their friends and relatives

summarily dispatched to concentration camps for the slightest suspicion

of dissidence. The defendant did not live in a vacuum. He was not blind

nor deaf. Long before 1939, long before his military loyalty was called

into play, long before the door of withdrawal was closed, he could have

seen the bloody handwriting on the wall, for murder and enslavement of

his own countrymen was there written in blazing symbols. But he had

taken on the crimson mantle of the Party, with all its ghastly

implication, and he wore it with glory and profit to himself to the end.

Others with more courage and higher principles and with more loyalty to

the ancient German ideals rebelled and withdrew from the brutal

crew—von Clausewitz, Yorck von Wartenburg, Schlegelberger, Schmitt,

Eltz von Ruebenach, Tesmer. These men in high positions had the

character to repudiate great evil, and if in so doing they took risks

and made sacrifices, nevertheless, they made their choice to stand with

decency and justice and honor. The defendant had his opportunity to join

those who refused to do the evil bidding of an evil master, but he cast

it aside and his professed repentance now comes too late.

What a sordid picture of a civilized nation—the nation of Goethe and

Heine, of Beethoven and Schubert, even of Bismarck and von

Hindenburg—fawning and cringing at the feet of a small man with

delusions of grandeur. Even when madness crept in to intensify his

frenzy and fear of defeat put spurs to his ferocity, they still said,

“We are his people. He is our immaculate leader.” Men of large

capacities, even of genius, prostituted their talents before a puny

renegade who used them impiously and paid off his puppets with medals

and pelf. But the strutting menials stayed with him. So long as success

was on the horizon, they bowed and scraped and sought to outdo each

other in supine adulation. They tell us now, “Hitler was wrong.” But

they never told him that. Right or wrong, their only concern was, “Can

he win the war? And what will it mean for me?” They heard him proclaim

as early as November 1937, “The question for Germany is where the

greatest possible conquest could be made at the lowest possible cost,”

and they nodded and shouted, “Heil Hitler,” and maneuvered to get closer

to him. Before the invasion of Poland, they heard this bloodthirsty

tyrant say, “In starting and making a war, not the right is what

matters, but victory.” And this defendant, as part of the unholy array,

rolled up his sleeves and said, “Let me help. Give me men and more men,

no matter where you get them.”

In a civilized state which recognizes the sanctity of human lives and

human rights, no man—no group of men—should be endowed with

omnipotence. The history of human relations, from Herod to Hitler, has

repeatedly demonstrated this to be true. Omnipotence is only for God. Be

a man ever so wise, ever so benevolent, ever so trustworthy, there still

exists in him the frailty, the fallibility, the susceptibility to

temptation that is inherent in every man. If the only protection against

the tyranny of an autocrat is his own self-restraint, that is not

enough, for power feeds on power, and the temptation to stretch

authority to its limit is irresistible.