Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume II (part 6 of 6)

Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume II (part 6 of 6)

The Tribunal has not been shown any statement wherein the defendant advocated that foreign workers be induced to come to Germany by offering them good wages, good working conditions, pensions, security, and the usual attractions held out to prospective employees. When he speaks on the importation of foreign workers it is invariably in an aggressive and domineering manner. At the 54th meeting of the Central Planning Board, held on 1 March 1944, he explained that force had to be exercised because there was nothing to attract the workers to Germany since they believed that Germany would soon be defeated, and furthermore they were attached to their families and their own countries. A very cogent observation indeed.

Speaking on the French situation, he said—

“Even if Bichelonne and Laval have the best intentions there will be resistance from the mayors, the gendarmes, and the prefects, just because these people are afraid that firstly, they will be called to account afterwards for this affair, and secondly, because of their national point of view, which makes them say, ‘We must not work for the enemy of our country.’ Therefore I would like to have an authority in our administration which would force these people to do it, because then the French could say, ‘If you force us, we will do it, but voluntarily we will not do it.’ The same applies to Italy.” (T-292-293.)

Once the transportation of workers got under way it was not always certain that they would all arrive. Aside from the unsanitary conditions under which they travelled, frequently without food and in the wintertime without heat, many in desperation escaped. To offset these defections en route, Milch recommended—

“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.” (T-294.)

The defense has asserted many times that the foreign workers were not all treated as badly as the prosecution’s evidence might indicate. It is unquestionably true that not all foreign workers were starved and tortured, because if this were so they could not have worked at all, and the German war machine would have ground to a stop long before the spring of 1945. Thus, there is no reason to disbelieve the statement made at one of the Central Planning Board meetings—

“The performance of the Soviet Russians so employed is to be raised by a premium system. For this purpose, the ban on pay restrictions is to be lifted and the manager be allowed to distribute among the workmen, according to his duty and discretion, RM 1 per head per day as premium for particular services rendered. Furthermore, care will be taken, that workmen can exchange these premiums, which will be paid out in camp money for goods. It is intended to put at their disposal various provisions—beer, tobacco, cigarettes and cigars, small items for daily use, etc.” (T-219.)

If the defendant has much to explain in this case it is principally because of declarations made by himself. On 16 February 1944 at a meeting of the Central Planning Board, he announced that the armament industry employed foreign workmen to the extent of 40 percent, and that in maximum production the foreign workers prevailed to the extent of 95 percent and higher. He said further that the Germans’ best new engine was made 88 percent by Russian prisoners of war and the other 12 percent by German men and women. “Only 6 to 8 German men are working on this machine. The rest are Ukrainian women who have beaten all the records of trained workers.” And yet, despite this apparently creditable performance on the part of foreign workers, he complains bitterly—

“The list of the shirkers should be entrusted to Himmler’s trustworthy hands who will make them work all right. This is very important for educating people and has also a deterrent effect on such others who would likewise feel inclined to shirk.” (T-223.)

When Milch recommends entrusting anyone to Himmler’s “trustworthy hands”, the world well knows how bloody and homicidal those hands were.

The charges of maltreatment of foreign workers leveled against Milch could be taken almost literally from his own words—

“It is, therefore, not possible to exploit fully all the foreigners unless we compel them by piece work or we have the possibility of taking measures against foreigners who are not doing their bit. But, if the foreman lays hands on a prisoner of war or smacks him there is at once a terrible row, the man is put into prison, etc. There are sufficient officials in Germany who think it their most important duty to stand up for human rights instead of war production. I am also for human rights. But if a Frenchman says, ‘You fellows will all be hanged and the chief of the factory will be beheaded first,’ and if then the chief says, ‘I am going to hit him’, then he is in a mess. He is not protected. I have told my engineers, ‘I am going to punish you if you don’t hit such a man; the more you do in this respect the more I shall praise you. I shall see to it that nothing happens to you.’ This is not yet sufficiently known. I cannot talk to all factory leaders. I should like to see the man who stays my arm because I can settle accounts with everybody who stays my arm. If the little factory leader does that he is put into a concentration camp and runs the risk of losing the prisoners of war. In one case two Russian officers took off with an airplane but crashed. I ordered that these two men be hanged at once. They were hanged or shot yesterday. I left that to the SS. I expressed the wish to leave them hanged in the factory for the others to see.” (T-223-224.)

On the stand Milch denied that he had anything to do with the fate of the two Russian prisoners of war mentioned above. He further claimed that his reference to this episode was made at another meeting (a GL meeting), and that possibly the two stenographers got their notes confused. The defense also introduced affidavits to the effect that Milch was in no way implicated in this happening and that if the two Russians were executed, the execution was performed by shooting and not by hanging. It is probably true that Milch did not order the hanging of these men, but did author the remarks attributed to him because they are in keeping with his many other admitted and proved statements.

Did Milch know that prisoners of war were being used in violation of international convention, and the laws and customs of war?

On 6 March 1944, Milch, Speer, General Bodenschatz, and Colonel von Below conferred with Hitler. Hitler was informed of the Reich Marshal’s wishes for the further utilization of the production power of prisoners of war, by giving the direction of the Stalags to the SS. The Fuehrer considered the proposal good, and asked Colonel von Below to arrange matters accordingly. (R-124, p. 168.)

At the 42d meeting of the Central Planning Board, held on 23 June 1943, the intensive discussion on labor needs seemed to settle on the use of Russian prisoners of war as the solution to the problem. It was recommended that the Fuehrer be advised that 200,000 Russian prisoners of war, fit for the heaviest work, should be made available from the Wehrmacht and Waffen SS through the intermediary of the Chiefs of the Army Groups (T-218.)

However, Milch’s participation in the illegal use of prisoners of war is not confined to his knowledge that it was being done. At the meeting on 30 October 1942, Sauckel suggested that as soon as the army took prisoners in operational territories they should be immediately turned over to him as Plenipotentiary for Labor. Instead of objecting to this procedure as contrary to international law, Milch added—

“The correct thing to do would be to have all Stalags transferred to you by order of the Fuehrer. The Wehrmacht takes prisoners and as soon as it relinquishes them, the first delivery goes to your organization. Then everything will be in order.” (T-176.)

Nothing can be more precise and definitive in international law than that prisoners of war may not be compelled to fight against their own country. But Milch treats this matter rather lightly at one of the meetings of the Central Planning Board—

“We have made a request for an order that a certain percentage of men in the antiaircraft artillery must be Russians. Fifty thousand will be taken altogether; 30,000 are already employed as gunners. This is an amusing thing that Russians must work the guns.” (T-192.)

On this statement the defendant has various explanations. One, that the German word which has been translated into “amusing”, should really have been rendered “mad”. Thus, it is a mad thing to make Russian prisoners work guns against their own allies. In support of this interpretation Milch argues that since he needed these prisoners in his armament program, he could not have approved their use as gunners. He then also denies that they were in fact used as gunners, and if they were, he was not responsible for the deed. But other witnesses called by the defense clearly established that the Russian prisoners were stationed at the guns, either for servicing the pieces, hauling ammunition to them, or actually firing them. It is clear that the Russian prisoners were utilized at the guns and that this type of use of prisoners of war represents an extreme violation of the laws and customs of war.

It has been argued by the defense that since Russia had denounced adherence to the Geneva Convention, Germany was not compelled to treat Russian prisoners with the limitations laid down in that convention. German Admiral Canaris on 15 September 1941, in a memorandum of counsel to the German High Command, declared that despite Russia’s attitude on the Geneva Convention her prisoners were yet entitled to immunities guaranteed under the rules and customs of war—

“The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore, only the principles of general international law on the treatment of prisoners of war apply. Since the 18th century these have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people * * *. The decrees for the treatment of Soviet prisoners of war enclosed are based on a fundamentally different viewpoint.” (IMT 222.)

Admiral Canaris’ position was entirely correct and in accordance with accepted international law. In the episode of the Russian gunners adverted to by Milch, he could not help but know the physical facts and could not escape being aware that such use of prisoners of war violated international law. His responsibility here is unequivocal.

On 25 March 1944, the defendant complained that prisoners of war were not being treated with sufficient severity—

“If a decent foreman would sock one of those unruly guys because the fellow won’t work, then the situation would soon change. International law cannot be observed here. I have asserted myself very strongly, and with the help of Saur I have represented the point of view very strongly that the prisoners, with the exception of the English and the Americans, should be taken away from the military authorities. The soldiers are not in a position, as experience has shown, to cope with these fellows who know all the answers. I shall take very strict measures here and shall put such a prisoner of war before my court martial. If he has committed sabotage or refused to work, I will have him hanged, right in his own factory. I am convinced that that will not be without effect.” (T-249.)

When a German field marshal, speaking to men subordinate in rank, declares that “international law cannot be observed here”, it can only mean to those under his command that in the execution of their duties, international law should go overboard and, thus being unlimited in their treatment of prisoners of war, the rights of the prisoners of war must sink also.

Defense counsel insists that Milch had, as a matter of fact, a mild and lenient disposition. Testimony was introduced to show that on several occasions when he sat on courts martial, his judgments were tempered with mercy. Note will be taken of this occasional yielding of an apparently implacable and unyielding spirit, but one must also remark the incongruity that one who, in his references to foreign workers and prisoners of war, had constant harshness on his lips, could have possessed in his make-up no harshness at all. In one of his speeches he complains because the workers collapsed, and that they receive a furlough of three or four days every eight weeks. This he calls “dirty business of the first order, and treason to the country!” (T-249.)

Then he adds—

“I further ask for support by the Luftwaffe physicians. With all the rabble that we have among the foreign workers, there is of course a lot of shirking. At the moment the Russians—that is, the Russian prisoners of war—are feigning a lot of fatigue and illness. The incidence of sickness of one and a half to two percent which we have had up to now has at least doubled and in some factories it has been increased to eight, nine, and ten percent. That is, of course, done by previous agreement. There the official physicians, who have to be very strict, find out that it is not true, and then we return the fellows to work by means of the whip. Then the whip serves as a cure.” (T-250.)

Recommending the employment of so merciless an instrument as a whip can hardly be regarded as evidence of a mild disposition. Then he says—

“Let everyone consider that if he does not do his duty, we do not ask whether there is a law; we ask only whether he is the responsible one and then we will seize him no matter who he is * * *. Please go wherever you are going and knock everybody down who blocks your way! We cover up everything here. We do not ask whether he is allowed to or whether he is not allowed to. For us, there is nothing but this one task. We are fanatics in this sphere. We do not even consider letting anything at all distract us from that task. No order exists which could prevent me from fulfilling this task.” (T-251.)

Then comes the outburst which is an out and out defiance of all law—

“Gentlemen, I know that not every subordinate can say, ‘For me, the law no longer exists,’ but he has to have someone who covers up for him, not out of cowardice. But if you act according to the spirit of the old field service regulation, ‘Abstaining from doing something hurts us more than erring in the choice of the means,’ and if, moreover, you keep in touch and immediately clarify difficult points, so that something can be done, then we are willing to accept the responsibility, whether this is the law or not. I see only two possibilities for me and for Germany. Either we succeed and thereby save Germany, or we continue these slipshod methods and then get the fate that we deserve. I prefer to fall while I am doing something that is against the rules but that is right and sensible, and be called to account for it, and if you like, hanged, rather than be hanged because Papa Stalin is here in Berlin, or the Englishmen. I have no desire for that. I would rather die in a different way. But I think we can accomplish this task, too. We are in the fifth year of war. I repeat, the decision will come during the next six weeks!” (T-251-252.)

(b) Jaegerstab

We now come to a consideration of the Jaegerstab, formed on 1 March 1944, for the purpose of increasing production of fighter aircraft to meet the incessant and ever increasingly effective bomber attacks of the Americans and British which had seriously damaged the entire airplane industry in Germany. Every airplane factory with the accessory workshops had been hit at least three times. The Jaegerstab became essentially a concentration of experts drawn from various ministries. Its programs envisaged a decentralization of plane factories by transferring them in part to above-surface localities and in part to subterranean localities. Milch and Speer were joint chiefs of the Jaegerstab, and Karl Adolph [Otto] Saur functioned as Chief of Staff. SS Obergruppenfuehrer Kammler had supervision of the construction program. So far as this trial is concerned, we are interested in the work of the Jaegerstab only to the extent that it involves employment of foreign labor and prisoners of war. Did the Jaegerstab employ labor prohibited under international law, and if so, can Milch be held responsible for such illegal use?

In order to resolve this question we must review the documents submitted in evidence.

On 6-7 April 1944, Milch and Saur reported to Hitler on the achievements, up to that time, of the Jaegerstab and discussed with him the plans for further construction on a second work project. Hitler declared that he desired this project be set up in the Protectorate and, at this point, the minutes read, “If it should prove impossible there too to get hold of the necessary workers, the Fuehrer, himself, will contact the Reichsfuehrer SS and will give an order that the required 100,000 men are to be made available by bringing in Jews from Hungary.” (T-318.) Here Milch is put directly on notice that forced labor is being contemplated.

Fritz Schmelter, director of the Central Department for Employment and Distribution of Labor, and because of that a member of the Jaegerstab, declared in an affidavit on 9 December 1946, that Kammler utilized concentration camp prisoners placed at his disposal by the SS in order to carry out his share of the Jaegerstab construction program. Also, that Xaver Dorsch of the Todt Organization used foreign workers, part of whom were Hungarian Jews, to accomplish his part of the Jaegerstab construction program. Then Schmelter states, “Milch, as one of the two responsible chiefs of the Jaegerstab, personally directed, ordered or approved decisions made in the interests of Jaegerstab undertakings.” (T-322.)

On 13 November 1946, Saur, Chief of Staff of the Jaegerstab, declared in an interrogation that in the decentralization program Kammler divided 30 factories into 700 individual workshops, and that the workers used in the project were concentration camp prisoners. (T-323.)

Speer, in an interrogation made shortly after his capture, declared that Hungarian Jews were used in the building program. (T-325.)

At one of the Jaegerstab meetings, presided over by Milch, Stobbe-Dethleffsen, in discussing the matter of labor needed for the Jaegerstab program, requests a few German key personnel to supervise the concentration camp inmates “with the other subjugated people.” (T-328.)

At a Jaegerstab meeting on 6 March 1944, a Sturmbannfuehrer of the SS declared he had 5,000 prisoners in readiness for work, but needed 750 guard personnel. To this statement Milch commented, “We must distribute our German people as key personnel. That is, out of three construction companies we can probably make ten complete ones by introducing 70 percent foreigners.” (T-331.)

At a meeting on 2 May 1944, Kammler, in Milch’s presence declares he had 30 men hanged—

“As usual it is because the people have noticed that they are no longer treated severely enough. I had 30 people hanged as a special measure. Since they were hanged, everything has been to some extent in order again. It is the same old story, whenever people notice that they are not being treated so severely as before, they take all sorts of liberties. It is not surprising that a normal soldier, standing guard on people who were previously always harmless, does not suspect anything of the kind. They are not, however, harmless people.” (T-333-34.)

The minutes of the meeting do not indicate that Milch in any way protested Kammler’s deeds and utterance, although at the trial he doubted that Kammler had actually hanged 30 people as he had stated.

Although Milch was not present at the meeting on 25 May 1944 of the Jaegerstab, he approved the minutes of that meeting which revealed a discussion among Schmelter (labor expert for Jaegerstab), Schlempp (deputy of Jaegerstab) and Lange, in charge of machinery for Jaegerstab.

Schmelter said—

“The Hungarian Jews are expected now, and they will require some kind of key personnel. Altogether I need about 250,000 construction workers for the large bunkers and for Schlett’s installations.” (T-334.)

To this Lange remarked—

“You can get them all in Hungary. There are still Jews running about Budapest.” (T-334.)

It is to be noted that Lange uses phraseology that one would employ in speaking of dogs or other animals. There are still dogs running around Budapest. There are still Jews running about Budapest.

At the meeting on 26 May 1944, Schmelter reported that two transports of Hungarian Jews had arrived at the SS in Auschwitz, but that they consisted primarily of children, women, and old men. Kammler then declared that he had conscripted his own men by taking 50,000 people into protective custody.

Schlempp, in outlining Dorsch’s needs for labor, states—

“Dorsch said yesterday that he wanted to bring 100,000 Jews from Hungary, 500,000 Italians,[162] 10,000 men from bomb damage repair, also 1,000 from Waldbrohl; then he wanted to get something from Greiser’s zone by negotiation, then 4,000 Italian officers, 10,000 men from south Russia, and 20,000 from north Russia. That would be 220,000 altogether.” (T-335-36.)

As early as 20 March 1944, we find Chief of Staff Saur asking Milch to inform Sauckel that the group mobilization in Hungary must be placed primarily at the disposal of the Jaegerstab. “Large, heavy labor companies must be formed. The people have to be treated like the prisoners. Otherwise it won’t work.” (T-342.)

In the face of all these uncontradicted documents and stenographic records of meetings, it would be fatuous for anyone to say that Milch was unaware that forced labor and prisoners of war were being used in the Jaegerstab construction program.

However, there is more than this passive evidence. Milch, himself, contributes the positive evidence of his full knowledge of and unrestrained participation in the Jaegerstab slave labor activities.

On 25 April 1944, he said—

“It will only work if we put these workers into barracks. We cannot exactly treat them as prisoners. It must appear otherwise, but it must be so in practice. * * * I am personally convinced after talking to the Fuehrer that he will agree as soon as it is made reasonable. The people should not be able to mingle with the population and to conspire. Nor should they be allowed to run around free, so that they can cross the frontier every day. Both practices must be stopped. * * * I am of the opinion that that must be done at once. It’s all the same to me if individual people do object. Protest does not interest me at all, whether from the Chief of Prisoners of War Affairs or from our side. Kleber, would you be so good as to take care of this?”

KLEBER: “As far as prisoners of war are concerned I can take care of it, but not where it concerns the air force. That must be handled separately.”

MILCH: “Naturally. This must be handled by us. There was, in fact, another proposal but we do not want it. Otherwise someone else will come complaining.”

KLEBER: “I should like to transfer the prisoners further off to Brunswick.”

MILCH: “I think it is an excellent idea for the prisoners to go there if Brunswick continues to be attacked.” (T-356-57.)

Article 9 of the Geneva Convention of 1929 provides—

“No prisoner of war may be sent to an area where he would be exposed to the fire of the fighting zone.”

At the 4 May 1944 meeting, Saur reported that the Jaegerstab itself, independent of Sauckel, had organized an expedition for the procuring of workers in Italy. On 5 May 1944, Schmelter reported that the Jaegerstab transport from Italy had been delayed because of the lack of guards, whereupon the defendant said—

“Is there someone at the escort detachment headquarters in Italy responsible for seeing that people do not get out and run away during the journey? That is what the escorting personnel is there for. Someone of standing? Dr. Wendt is responsible for the whole undertaking. I am of the opinion that, if anyone jumps out, he should be shot; otherwise a thousand will get on and only twenty will arrive there. The gendarmerie and all military posts must look out for those who abscond on the journey. They will be arrested at once and will appear before a court martial.” (T-349-50.)

At a conference held on 22 February 1944, one Rautenbach says—

“That refers to Wernigerode. In Solingen we had the best results with Frenchmen and the worst with Italians, meaning the Italian workers and not the prisoners of war. For that reason we do not employ any Italians here in Wernigerode. They are only 50 to 60 percent efficient.” (T-2180.)

And the defendant then remarks—

“Could not the following be done; give the Italians in principle only half of their food rations, letting them earn the other half when they do their work well?” (T-2181.)

It is obvious that, as one of the chiefs of the Jaegerstab, the defendant actively, willingly, and knowingly countenanced, ordered, and participated in slave labor practices and the use of prisoners of war in activities prohibited by international law. Aside from his other statements, the one made on 13 June 1944, where he advocates the exportation from France of machinery and men would, in itself, be enough to convict him of such participation.

“We must write off these areas in France completely, and above all the factories which are situated further into the country towards the south and west. For when the invasion begins, the guarding neither of a stretch of land, nor of a line will be possible, nor will anything function because of sabotage * * *. No Frenchman will work when the invasion begins. I am of the opinion that the French should be brought over again by force, as prisoners.”

SAUR: “I should prefer to do it sooner.”

LANGE: “We have machines there too, in particular the presses.”

MILCH: “Everything must come out; machines and men.” (T-358.)

The Jaegerstab functioned from 1 March 1944 to 1 August 1944 and then it expanded into the Ruestungsstab. When the Jaegerstab concluded its efforts a report was made to the Fuehrer, which declared that Jaegerstab had, in spite of air attacks, doubled its aircraft production. (T-360.)

(c) Generalluftzeugmeister

In his capacity as Generalluftzeugmeister, Milch held periodical meetings and conferences in connection with the Luftwaffe armament production. Labor, its procurement, disposition, and treatment, was inevitably a subject for frequent discussion, and in these discussions Milch portrayed himself an intransigent, implacable taskmaster, uninhibited neither by law nor custom, and unrestrained by moderation or regard for the helpless vanquished.

At one of these meetings on 5 May 1942, presided over by the defendant, one Fridag reported—

“The French become worse and worse. I threw out 80 of them who will be sent to concentration camps in Russia. They refused to work. The French say at 4 o’clock: ‘I won’t work another hour’, and you cannot make them work another hour. This happened four weeks ago all of a sudden when the first bombing attack on Paris took place, while before that the French were the best people.” (T-2106.)

The fact that the bombardment of the beloved Paris of these Frenchmen would naturally emotionally disturb them was not weighed or considered by the defendant in spite of the fact that Frydag had reported that prior to the bombardment they had been excellent workers. Implacable and unyielding as some story book pagan god, the defendant turns to von Gablenz, Chief of the Planning Office, and declares—

“I demand if the people refuse to work they immediately be placed against the wall and shot before all the other workers.” (T-2107.)

Further—

“I ask you to get in touch with the Reich Fuehrer SS [Himmler] and to ask him to discuss the matter with the Fuehrer. Now is the right time; unless we do something effective now, the others will become bothersome. I ask that their being sent to concentration camps be taken into consideration too. I will tell you afterwards how you should act in such a matter.” (T-2107.)

Later, on 7 July 1942, he indicated a willingness to try more peaceable methods, but if they did not succeed, then—

“I intend to fill the new Heinkel Plant in the East entirely with Frenchmen brought down there by force. If they don’t work in France, they may work as prisoners in Poland. After all, we have to remember that it is we and not the French who have won the war.” (T-2116.)

On 28 July 1942 we find him again complaining about French production—

“At the present time we receive six to nine planes from the French. I could well imagine that they would get out 45 for themselves. I shall close up the shop with a single stroke and have the workers and the machines come to Germany. If it does not work on a voluntary basis, then we do it by compulsory contracts. Perhaps I shall first give them a week to think it over. It is a fact that, on the whole, these people work in silent opposition. One cannot blame them for it either, it is true, but they should not have started the war.” (T-2117.)

In this outburst we discover two strange utterances. One, “compulsory contracts”, and the other the statement that the French started the war. Since the word “contract” means a willing agreement between two or more people, a “compulsory contract” is, of course, meaningless because one cannot be forced into a contract. If there is any compulsion, then the operation becomes a matter of outright coercion. With regard to the French starting the war, the defendant had the grace to state during the trial that he now knows that France did not initiate hostilities, although he believed to the contrary at the time.

The defendant has declared repeatedly that he had no connection with, or even knowledge of, concentration camps. He only visited one of them (Dachau) in 1935. At the end of the war he was aware of the existence of but two concentration camps, although 200 were flourishing in all their ghastliness at the time. Yet despite this blissful ignorance of concentration camps the phrase rippled easily from his tongue. At the same meeting above-mentioned he stated that if two certain individuals, Schneider and Bergen, “make difficulties” he would put them into a concentration camp for the duration of the war (T-2118.)

When one Petersen, on 30 November 1942, spoke of obtaining 500 men from a concentration camp, Milch said, “For this purpose we should come to an agreement with Himmler.” (T-2148.)

On 27 April 1943, when one Stahms indicated that concentration camp inmates are almost 3,000 strong, Milch declares that against a withdrawal of 3,000 foreign workers from the Luftwaffe industry, he attached importance to the assignment of these 3,000 concentration camp inmates to the Luftwaffe. (NOKW-413.)

At the GL meeting of 4 August 1942, someone reported that the French might strike in the event of a British attack. This provoked Milch into the thunderous outburst—

“In such a case I would ask to be appointed military commander myself. I would band the workers together and have fifty percent of them shot; I would then publish this fact and compel the other fifty percent to work by beating if necessary. If they don’t work, then they, too, will be shot. I would get the necessary replacement somehow. But I hope the military commander will do his duty. I’m not worried about it. The word ‘strike’ must never be used. For us there is only ‘living or dying’ but not ‘striking’. That goes for the educated man as well as for the worker, for the German as well as for the foreigner. The word ‘strike’ means death for the man who uses it.” (T-2121-2122.)

On this quotation in court the following colloquy occurred between a member of the Tribunal and the witness [Milch]:

JUDGE MUSMANNO: Curiosity consumes me as to what would happen if an officer inferior in rank to yourself took you at your word and actually executed a number of these workers or prisoners of war. Would that officer then be punished?

THE WITNESS: No one was there who would have been in a position to do so. Apart from that, all those who were under my orders knew me and my way of handling things. They knew exactly that I didn’t mean it the way I said it, and apart from that they always laughed about my remarks when I used such strong words.

JUDGE MUSMANNO: In other words, the comment of a field marshal in a matter of this seriousness was really of no value?

THE WITNESS: Because the people knew that I got excited very easily about certain things, and these incidents here have been selected and submitted of course. From every one of these meetings, which took place twice a month, there was a report—about this thick—and perhaps, at some time or another, sometimes once, sometimes twice, due to the many reports which I received, there was a certain outburst, and then I would lose my temper as we soldiers used to. However, I didn’t intend to do anything about it and I spoke to those under my orders once in a while. They pointed out to me that I used such strong words, and they knew exactly that this was not meant seriously. They knew exactly that no such order had been given and that I myself would never cause anybody to be punished, not even when it would have been justified, for the very simple reason that I did not have the power to give punishments. (T-2124-2125.)

Then Judge Phillips inquired—

JUDGE PHILLIPS: Well, now, whether you meant it or not, you would say these things, and by so doing you counselled and advised others under you at a meeting which you presided over to do such things. Whether you meant it or not, you did that, didn’t you?

THE WITNESS: No. I never gave the order by using these words, because my people spoke with me, and after all they knew from my words that I never meant it earnestly.

JUDGE PHILLIPS: Didn’t you say, ‘I would band the workers together and have fifty percent of them shot? I would then publish this fact and compel the other fifty percent to work by beating if necessary.’ Did you say that or not?

THE WITNESS: I do not remember to have said that. However, three days ago I believe I said that I never knew afterwards when I had such outbursts of rage because I had that rush of blood to my skull due to that injury I had, and I couldn’t remember what I said at that particular moment. I just burst out in rage. (T-2125-2126.)

The defendant has constantly denied that he was a moving factor in the foreign workers program. But at the GL meeting on 18 August 1942, we find him asking for a complete report on the labor question, how it has developed, what nationalities are involved, how great is the fluctuation—

“What real requests we now have to make in the different sectors in order to cover the needs for specialists and for skilled and unskilled labor, how many of them are foreigners, etc. What happens to those who leave the industry? Are they compelled to work elsewhere? Are they, as I proposed, under control in the camps supervised by the SS and considered as being in mild concentration camps or are these gentlemen allowed to remain outside and do as they please?” (T-2127.)

When questioned as to the significance of “mild” concentration camps, he explained that these were camps to which people were sent for a short time for “education”.

Complaining about “antisocial elements” who “moved from one factory to another,” Milch rejected the suggestion that the armed forces should take care of these people in camps. This could not be done because “they have not been condemned and in no way violated the existing laws.”

“That is why Himmler should get these people into his clutches because he can treat them outside the law.” (T-2134.)

At the GL meeting on 19 October 1943, the defendant spoke on the subject of a possible foreign workers’ uprising. He said that he had discussed this eventuality with Himmler, and that he, Milch, had already given orders to the Chief AW[163] and to the training stations to get military training in this field.

“If for instance in the locality X, an uprising is started, then a sergeant with a few men, or else a lieutenant with 30 men is to turn up in the plant, and first of all shoot into the crowd with a machine gun. What he should do after is to shoot down as many people as possible in cases of revolt. I have given orders to that effect even if our foreign workers are involved. But first of all he must succeed in getting them all laid out flat on the ground. And then every tenth man is to be singled out and shot, while the others are lined up and see it. If our machines are being wrecked, etc., then such measures have to be applied. I said to Himmler: ‘I’ll go along with you in your efforts.’” (T-2153.)

Milch denied at the trial that he had talked to Himmler about this matter and endeavored to argue incorrectness in the minutes. But the weakness of his attempted exculpation here lies in the fact that he could well have argued the necessity for drastic action in such an emergency, without excesses of course. In fact, he had explained, “If our planes are destroyed in the workshops, an energetic measure should be taken.” But in the desire to extricate himself completely from the situation, he challenges the record, he refutes the Himmler conference, and then adds the usual explanation that he was excited at the time.

At a GL conference on 2 March 1943, the defendant was commenting on the fact that foreign workers were becoming hostile.

“On principle I have to be informed of every case of swinishness. I do not understand at all why Germany should put up with it when Poles and Frenchmen explain to the people—today, indeed, you are still sitting in this work; but later we shall be the owners; and if you treat us properly we shall see to it then that you are shot dead immediately and not tortured first. In all these matters energetic interference must be made. I am of the opinion that there should be only two types of punishment in such cases; firstly, concentration camps for foreigners, and secondly, capital punishment. If a certain number of such hostile elements are removed and the others are informed, they will then work better. Their love for us certainly won’t become any greater; but neither will their hate, for it is already strong enough. In this respect, too, energetic interference must be made and in no case must the works put up with it. The best method is to give one blow with a sledge hammer to the person concerned; and I shall treat with distinction every man who does something like that whenever he hears such stupid nonsense. We are living in total war; and the workers must be told that they don’t have to put up with anything.” (T-2169.)

When the above was read to the defendant in court, he stated that he did not recall the utterance and explained, “that once again it is my well-known rage. I simply let go.” However, upon further cross-examination he seemed to recall what it was all about and said, “Yes, and I was enraged here through the report which had been submitted to me as to the fact that our people were being threatened with death. That enraged me considerably; and I blew up.” This is an interesting observation. This man, from whose lips death threats fell like acorns from an oak, asks that all his fulminations be ignored. Although he sat on the victors’ bench at the time, yet because a worker who had been dragged from his home hundreds, or perhaps thousands, of miles away, blurted from the depth of his misery, that if he got the opportunity he would kill his captor, the captor felt morally justified in recommending the use of a sledge hammer on the head of the defenseless captive. The sledge hammer blow was to be delivered not for a deed committed, but merely for the use of words. To fortify this point, defense introduced an affidavit which declared that the servant girl in the Milch household repeated certain statements as to what her people (she was a Ukrainian) would do in the event they became victorious. On this subject they were so sensitive that even the gossip and chatter of a maid servant threw fear into their hearts, but it is solemnly averred in court that the imprecations of a field marshal were always ignored.

At the same meeting above indicated the defendant said—

“But in the abstract, I see no difficulties in the way of getting 100,000 or 200,000 French workers to Germany, nor do I see any difficulties in the way of keeping them in order. If a case of sabotage occurs in one area, every tenth man in the area will be shot. Then such acts of sabotage would cease of themselves. The western peoples are very much afraid of death, while it is quite different matter with the Russians.” (T-2172.)

In explanation of this remark the defendant said that he did not recall making it. “That was still part of my madness.”

On 4 November 1943, Milch conferred with Goering at the Junkers Works at Dessau. Discussing the Italian workers, the defendant said—

“We have to let certain plants go on working in Italy, such as ball bearings, steel castings, and others, and we cannot take the people from there. The same applies to the technical sphere. The people there are working for us. All depends on our policy toward the Italians. I have ordered that they can be beaten up if they do not work. I have also given permission that Italians caught sabotaging be sentenced to death. If this measure is not desired by the higher authorities, which seems to be the case, we are powerless. Then the Italians in the Reich will not be of any use to us.” Further, “We could count on millions all together, if we let them starve if they do not work!” (T-2193-2194.)

The defendant denies that he ever gave the order specifically mentioned here, and since he was talking to Goering, he places himself in the position of having lied to his superior officer, something of which, considering his vehement professions of soldier’s loyalty to military hierarchy, it would never be expected he could be guilty.

On the subject of French prisoners of war, the defendant said—

“Don’t forget that not even 1,000,000 Frenchmen are here as PW’s while we have 7 to 8 million soldiers. Therefore, the French are still in a very favorable position. But they must realize that they will be brought to Germany all together if they don’t work hard enough at home.” (T-2198.)

As Vichy was working hand in glove with Berlin at the time, the defendant contends that coercion was not involved since it was the French Government who had issued the orders for this movement.

Addressing himself on another occasion to the subject of French workers, the defendant stated, “There is no good will in France, and you can really not expect it from these fellows. But we will force them to work by not feeding them.” Goering then said, “I can do this here much better.” And Milch replied, “That will get us nowhere. We shall then have to shut down the plants in France.” (NOKW-245.)

At the GL meeting of 27 May 1942, von Gablenz reported, “Yesterday, the first[164] has exploded in France, at the Arado plant, an explosive, a float, but no damage has been done.” Milch commented, “What measures have been taken in consequence? I want to have a report on what has been done—How many people have been shot and how many hanged. If that guy cannot be found today, fifty men should be selected and if I were you I would hang three or four of them whether they are guilty or not. It is the only way!” (NOKW-407.)

IV. MEDICAL EXPERIMENTS (a) High-Altitude Tests

On 15 May 1941, Dr. Rascher, medical officer in the Luftwaffe and member of the SS stationed at Munich, wrote Heinrich Himmler asking that Himmler furnish to him two or three professional criminals to be used as subjects in high-altitude experiments. He stated that tests had been made with monkeys, but since their reactions differed from those of human beings, he preferred to work with live men, it being understood that these individuals could, of course, die in the experiment. Himmler replied through his adjutant, Rudolf Brandt, that he would gladly make prisoners available for such high-altitude research, and authorized that the experiments be carried out by Dr. Rascher, a Dr. Kottenhoff, and Dr. G. A. Weltz, who was Chief of the Institute for Aviation Medicine in Munich.

In March 1942, with a low-pressure chamber furnished by the Luftwaffe, the experiments began at Dachau. The apparatus used for these tests was simply a wood and metal cabinet in which air pressure could be increased and decreased, the purpose of the tests being to ascertain the subject’s capacity and ability to take large amounts of pure oxygen, and to observe his reaction to a gradual decrease of oxygen approaching infinity. In this manner high-altitude atmospheric pressure would be simulated, and from the results the experimenters were to be able to determine methods and means of maintaining and saving lives among aviators compelled to rise to extreme altitudes, and at times because of war hazards obliged to parachute to the earth. The subjects for these experiments were to be individuals already sentenced to death.

Stated in strictly academic fashion, one could without too much difficulty be persuaded that these experiments were not entirely irrational or inhuman. The subjects were to die anyway, and if in dying they could furnish scientific data not obtainable otherwise, data which would save the lives of others, the project would not seem as criminally homicidal as it might appear when stated bluntly that experimenters would kill experimentees.

Whether the project was criminal and inhumane depends upon answers to the inevitable questions:

1. Were the prisoners actually condemned to death previously? 2. If so, for what reasons were they condemned to capital punishment? 3. Were the experiments painful to the subjects? 4. What scientific benefits resulted from the experiments?

If any prisoner used in the experiments was condemned to death merely for opposing the Nazi Regime without actually having committed any physical crime, it does not answer the criminal charge to say that the subject was already doomed to die, because by using that argument the experimenter or his SS superior could easily take any concentration camp inmate and, by merely pointing a finger at him, condemn him to death. Obviously in such a case the slayer could not, after the death, plead innocence on the grounds that the victim was to die anyway. Exculpation from the charge of criminal homicide can possibly be based only upon bona fide proof that the subject had committed murder or any other legally recognized capital offense; and, not even then, unless the sentencing Tribunal with authority granted by the State in the constitution of the Court, declared that the execution would be accomplished by means of a low-pressure chamber.

It has been asserted by the defense in this case that pardons were promised the subjects of these experiments in the event they survived. But the whole record reveals but one such shadowy case. It was also stated by one of the witnesses for the defense (General Wolff of the SS) that the subjects of these experiments were men who, because of their criminal records, had been denied the honor of fighting for the Fatherland, but that by submitting to these experiments they would be allowed, if they survived, to join combat forces at the front. General Wolff furnished no names or specific instances in this connection, nor does it appear that he, at any time, was in attendance upon the experiments at Dachau.

Dr. Romberg, under indictment for these same and kindred offenses, said on 1 November 1946, that he personally witnessed the death of three of Dr. Rascher’s subjects, and that he knows that other experimental subjects were killed while he was not present. He estimated that the fatalities totaled between five and ten. He was silent on the character of the victims.

Rudolf Brandt, who is currently on trial in Tribunal I, declared in an affidavit dated 30 August 1946, that Rascher wrote Himmler asking for concentration camp subjects for his high-altitude experiments. “Volunteers could not very well be expected, as the experiments could be fatal under the circumstances.” (T-475.) Also “many experiments ended with the death of the experimental subject.” (T-477.)

Brandt declared further that after Rascher submitted a report on his first experiments, Himmler ordered him to continue the experiments and authorized the commutation to life imprisonment of those subjects, previously condemned to death, who survived the experiments. However, Poles and Russians were excluded from this declared clemency. For Himmler, to be a Russian or a Pole or a Jew was an offense that could be expiated only with death. Both Romberg and Brandt are interested witnesses since they are defendants in another trial on similar charges. The testimony of one Anton Pacheleff, however, is not burdened with this possible defect as he is not answering to any charges. An Austrian patent lawyer, he was an inmate of Dachau, and while his testimony must still be carefully scrutinized, it does not need to be evaluated on the basis that the affiant has something to gain in exaggerating the nature, extent, and effect of the medical experiments. He declared under oath that Dr. Rascher chose the victims for his researches from the punishment company at Dachau, a group made up of political prisoners marked for extermination. “A few convicts were among the political prisoners, having been placed there merely to depress the morale of the political prisoners, and so a few convicts were killed along with the others.” (T-408.)

The most complete account of this entire operation was contributed by Walter Neff, an Austrian who had been committed to Dachau because, prior to the Anschluss, he had testified in an Austrian court against certain Nazi terrorists. Only by coincidence were the experiments enacted in a ward to which he had been assigned as an untrained nurse, and thus he became an unofficial observer. He testified that from 180 to 200 concentration camp inmates were subjected to the high-altitude experiments, and of these, 10 were volunteers. Of all these subjects only one man was ever released, and that was an individual called Zopota.

It was Neff’s conclusion that over a period of three months from 70 to 80 persons were killed in the high-altitude experiments. He declared further that approximately 40 of the persons killed were persons not previously condemned to death. One man, according to Neff, was deliberately killed in the low-pressure chamber by Dr. Rascher so that he could perform an autopsy on him after his death at the atmospheric pressure of 10,000 meters altitude. During one autopsy it was discovered after the breast had been opened that the heart was still beating. “This experiment,” Neff said, “caused many cases of death because many more experiments were made in order to see how long the heart of a man could beat thus autopsied.” (T-419.)

In this connection, reference must be made to one of the most cruel and fiendish decrees scratched by the claw of Himmler on the horror-filled parchment of his diabolic ingenuity. On 13 April 1942 he wrote Dr. Rascher, “these experiments should above all be evaluated for the purpose of seeing whether it is not possible, through this long functioning of the heart, to bring such people back to life. Should such an experiment of bringing back to life succeed, then it is understood that the person condemned to death will be commuted to lifelong imprisonment in a concentration camp.” (1971-B-PS.) Thus, if the lifeless and mutilated body of one of these tortured victims of cold-blooded homicide should be made to function again, its owner would receive from the benevolent Heinrich Himmler the assurance of the luxuries of a lifelong imprisonment in an SS concentration camp!

But this is not the end of the hilarious game of these two death-head players, as they toss human life back and forth. On 20 October 1942, Rascher queries Himmler’s adjutant on this subject. He desires to know if, amongst the mythical survivors of his lethal experiments, there should be any Poles or Russians, whether they were also to receive the boon of lifelong imprisonment in a concentration camp. Incidentally, Rascher adds, the only ones he has experimented with have been Poles and Russians. And the reply comes back from Himmler’s adjutant that Dr. Rascher, “please,” is to be informed that “the decree of the Reichsfuehrer SS Himmler concerning pardoning (they called it pardoning!) of experimental subjects does not apply to Poles and Russians.” (!!!)

The manner in which some of the victims were selected is material fit for an Edgar Allen Poe story or a horror magazine. One day after 16 Russian prisoners had been used as experiments, two Jews were scheduled to be killed. Curious as to the identity of the two scheduled for extermination, Neff watched the first victim being placed in the experimental chamber. Something in the man’s features forcibly brought to his mind the image of the prison tailor. Hurrying to the tailor shop he learned that indeed it was the tailor, and that he had not been condemned to death, but that an SS-man, one Endres, had placed him among the list of those scheduled to be killed because this tailor had refused to make a civilian suit for Endres!

Neff further testified that at one time the chamber became damaged, but after being repaired more deaths occurred, and on the last day Rascher killed five persons. (T-421.)

On 16 April 1942, Rascher wrote Himmler describing an experiment which he repeated four times “with the same results.”

“When Wagner, the last VP (experimental subject) had stopped breathing, I let him come back to life by increasing pressure. Since the VP was assigned for a terminal (‘Terminal’ meaning ‘death-resulting’ in this case) experiment, since a repeated experiment held no prospect for new results, and since I had not been in possession of your letter at that time, I subsequently started another experiment through which VP Wagner did not live. Also in this case the results obtained by electrocardiographic registration (Herzstromabschreibung) were extraordinary.” (T-431-32.)

Here Rascher, in a macabre demonstration worthy of his record, repeated an experiment four times knowing what the result would be, and then finally killed the subject because he had been marked for extermination anyway.

(b) Were the Experiments Painful to the Subjects

The defense contends that the experiments, even though often fatal, were not accompanied with actual pain to the subjects, and therefore the experiments could not be characterized cruel or inhuman. Anton Pacheleff often stood by the apparatus during the experiments and looked through the observation window of the chamber. He testified—

“I have personally seen through the observation window of the chamber when a prisoner inside would stand a vacuum until his lungs ruptured. Some experiments gave men such pressure in their heads that they would go mad, and pull out their hair in an effort to relieve the pressure. They would tear their heads and face with their fingers and fingernails in an attempt to maim themselves in their madness. They would beat the walls with their hands and head, and scream in an effort to relieve pressure on their eardrums. These cases of extreme vacuums generally ended in the death of the subject. An extreme experiment was so certain to result in death that in many instances the chamber was used for routine execution purposes rather than an experiment.” (T-409.)

One report made up by Doctors Ruff, Romberg, and Rascher graphically described the reactions of the subject as he fell from a height of 47,000 feet. Some of the more unusual reactions are noted:

47,200 ft. Lets the mask fall, severe altitude sickness, spasmodic (klonische) convulsions. 45,580 ft. Opisthotonus. 44,950 ft. Suspended in opisthotonus. 44,920 ft. Arms stretched stiffly forward; sits up like a dog, legs spread stiffly apart. 43,310 ft. Agonal convulsive breathing. 40,030 ft. Dyspnea, hangs limp. 23,620 ft. Uncoordinated movements with the extremities. 19,690 ft. Clonic convulsions, groaning. 18,080 ft. Yells aloud. 9,520 ft. Still yells, convulses arms and legs, head sinks forward. 6,560 ft. Yells spasmodically, grimaces, bites his tongue, does not respond to speech, gives the impression of someone who is completely out of his mind. 5 minutes (after reaching ground level) Reacts for the first time to vocal stimulation. 11 minutes Holds his head turned convulsively to the right; tries repeatedly to answer the first question concerning his birth date. 28 minutes Sees nothing; runs against open window sash upon which the sun is shining, so that large lump is formed on his forehead; says “Excuse me, please.” No expression of pain. 37 minutes Reacts to pain stimuli. 75 minutes Still disoriented in time; retrogressive amnesia over three days. 24 hours Normal condition again attained; has no recollection of the experiment itself. (T-455-56.)

(c) Results Achieved

On 11 May 1942, Rascher made his first report to Himmler on the high-altitude experiments—

“As practical result of the more than 200 experiments conducted at Dachau the following can be assumed. Flying in altitudes higher than 12 kilometers without pressure-cabin or pressure-suit is impossible even while breathing pure oxygen. If the airplane pressure machine is damaged at altitudes of 13 kilometers and higher the crew will not be able to bail out of the damaged plane themselves since at that height the bends appear rather suddenly. It must be requested that the crew should be removed automatically from the plane, for instance, by catapulting the seats by means of compressed air. Descending with opened parachute without oxygen would cause severe injuries due to the lack of oxygen besides causing severe freezing; consciousness would not be regained until the ground was reached. Therefore, the following is to be requested: (1) A parachute with barometrically controlled opening. (2) A portable oxygen apparatus for the jump. For the following experiments Jewish professional criminals who had committed ‘Rassenschande’ (race pollution) were used; the question of the formation of embolism was investigated in ten cases. Some of the VP’s died during a continued high-altitude experiment; for instance, after one-half hour at a height of 12 kilometers. * * * To find out whether the severe psychical and physical effects, as mentioned under No. 3, are due to the formation of embolism, the following was done: After relative recuperation from such a parachute descending test had taken place, however before regaining of consciousness, some VP’s were kept under water until they died. * * * One VP was made to breathe pure oxygen for two and one-half hours before the experiment started. After six minutes at a height of 20 kilometers he died and at dissection also showed ample air embolism as was the case in all other experiments.” (T-384-385.)

Dr. Romberg declared in an interrogation conducted on 29 October 1946, that he and other doctors had conducted experiments on themselves reaching altitudes of 17,000 meters (17 kilometers). Beyond that, he said, death was probable. This seems to contradict the report made by Rascher, above referred to, in which he speaks of the impossibility of flight at 12 kilometers (12,000 meters).

But the whole fallacy of the experiments and their sheer futility are revealed in a letter which Dr. Hippke, Chief of the Medical Section of the Luftwaffe, wrote to Himmler under date of 8 October 1942—

“It is true that no conclusions as to the practice of parachuting can be drawn for the time being, as a very important factor, viz., cold, has so far not yet been taken into consideration; it places an extraordinary excess burden on the entire body and its vital movements, so that the results in actual practice will very likely prove to be far more unfavorable than in the present experiments.” (T-404.)

If it was impossible perfectly to simulate flying conditions in the low-pressure chamber—and this, if they were scientists at all worthy of the name, they should have known and must have known—then the tests were only the wildest kind of experimenting. And if the experimenting was done with human lives, as it was, the recklessness and the wanton handling of these human lives, resulting from 60 to 70 times in death, can only be characterized by what it was,—murder.

(d) Freezing Experiments

On 20 May 1942, [Field] Marshal Milch wrote General Wolff recommending experiments “in regard to perils at high seas.” (T-393.) As German aviators from time to time were being forced to parachute into the North Seas, and consequently being subject to extreme cold for extended periods of time, the purpose of the freezing experiments was to ascertain the most effective way of rewarming such aviators and thereby saving their lives. (T-480.)

The cold water experiments were performed between August and October 1942; the dry-cold experiments from February to April 1943. Walter Neff, already identified, described the experimental basin as being made of wood, two meters long, two meters high, and 50 centimeters above the floor. He stated that 280 to 300 prisoners were used in the tests, many of them undergoing as high as three experiments, and that out of the number indicated 80 to 90 died. The selection of the subjects was left to the political department of the camp after Rascher had made requests for a certain number. The eventual victims were made up of political prisoners, foreigners, prisoners of war, and inmates condemned to death. According to Neff, none of the subjects were volunteers. (T-423.)

The experiment was conducted in the following manner. The basin was filled with water and then ice was added until the temperature measured 3° [centigrade]. Now the subject, either naked or dressed in a flying suit, was forced into the freezing liquid. When two certain doctors, Holzloehner and Finke, were performing the experiment, the subjects had narcotics administered to them, but when Rascher took over he refused narcotics because he maintained that “you cannot find the exact condition of the blood, and that you would exclude the willpower of the subject if he was under an anaesthetic.” When the subject was experimented on in a conscious state, a much longer time elapsed before the so-called freezing narcosis set in. (T-424.)

Neff, describing the operation, declared that the “sinking down of the temperature until 32° [centigrade] was a terrible plight for the experimental subject.” At 32° the subject lost consciousness, but these persons “were frozen down to 25° body temperature.” When Rascher was handling the experiments “a large number of the persons involved were kept in the water so long a time until they were dead.” (T-425.)

Many others died during the reviving or during the re-warming procedure. The utterly heartless and fiendish manner in which some of the experiments were conducted can be gathered from the graphic description by Neff of the episode of the two Russians—

“It was the worst experiment which was ever carried out. From the bunker two Russian officers were carried out. We were forbidden to speak to them. They arrived in the afternoon at approximately 4 o’clock. Rascher had them undressed and they had to go into the basin in a naked state. Hour after hour passed and when usually after a short time, 60 minutes, the freezing would have set in, these two Russians were still conscious even after two hours. All of our appeals to Rascher, asking him to give them an injection was without purpose. Approximately in the third hour one Russian said to the other: ‘Comrade, tell that officer that he may shoot us.’ Then the other one replied, ‘Don’t expect any mercy from this Fascist dog.’ And how can one imagine that we inmates also had to be witnesses of such a death and could do nothing against it, then you can really estimate how terrible it is to be condemned to work in such an experimental station. After these words, which were translated to the Germans by a young Pole in a somewhat different form, Rascher went back into his office. The young Pole immediately tried to give them an anaesthetic with chloroform, but Rascher returned immediately. He threatened us with a pistol, and he said, ‘Don’t dare interfere and approach these victims.’ The experiment lasted at least five hours until death set in. Both corpses were sent to Munich for autopsy in the Schwabisches Hospital there. Q. Witness, how long did it normally take to kill a person in these freezing experiments? A. The length of the experiment varied according to the individual case. It always varied according to whether the subject was clothed or unclothed. If his physical construction was weak and if in addition to that he was naked, death often set in already after 80 minutes. But there were a number of cases where the experimental subject lived up to three hours and remained that way in the water until finally death set in.” (T-426.)

On 20 September 1942, Rascher made an intermediary report on these experiments—

“The experimental subjects (VP’s) were placed in the water dressed in complete flying uniform, winter or summer combination, and with an aviator’s helmet. A life jacket made of rubber or kapok was to prevent submerging. The experiments were carried out at water temperatures varying from 2.5° to 12° [centigrade]. In one experimental series, the occiput, the brain stem, protruded above the water, while in another series, the brain stem and back of the head were submerged in water * * *. Fatalities occurred only when the brain stem and back of the head were also chilled. Autopsies of such fatal cases always revealed large amounts of free blood, up to one-half liter, in the cranial cavity. The heart invariably showed extreme dilation of the right chamber. As soon as the temperature in these experiments reached 28° the experimental subjects died invariably, despite all attempts at resuscitation. The above-discussed autopsy findings conclusively proved the importance of a warming protective device for the occiput when designing the planned protective clothing of foam type.” (T-398-399.)

The sheer monstrousness of this type of experiment reveals itself in the last sentence of the report which states with the flourish of a great scientific discovery that if the back of the head, the occiput is to be submerged in freezing water, there should be a warm, protective device to cover the occiput. If one is to have his feet in icy water, he should wear warm, waterproof boots. If he is to dip his head in the icy water, then his head should also be protected! This, then, is the weighty conclusion of so-called scientists sacrificing human lives for an observation that is obvious to a ten-year-old child.

“During attempts to save severely chilled persons (Unterkuehlte) it was shown that rapid re-warming was in all cases preferable to slow re-warming, because after removed from the cold water, the body temperature continued to sink rapidly. I think that for this reason, we can dispense with the attempt to save intensely chilled subjects by means of animal heat. Rewarming by animal warmth, animal bodies or women’s bodies, would be too slow. As auxiliary measures for the prevention of intense chilling, improvements in the clothing of aviators come alone into consideration. The foam suit with suitable neck protector which is being prepared by the German Institution for Textile Research (Deutsches Textilforschungsinstitut), Muenchen-Gladbach, deserves first priority in this connection. The experiments have shown that pharmaceutical measures are probably necessary if the flier is still alive at the time of rescue.” (T-399-400.)

Here other amazing, fantastic discoveries were made.

1. That something should be done at once to re-warm a body that has been floating about in icy water.

2. That aviator suits be made up with suitable neck protectors.

3. And that if the flier is still alive when rescued, medicine should be prescribed for him. If dead, no pharmaceutical measures are recommended!

In the year 1942, in the name of science, in the name of progress, men trained in medicine calmly and deliberately froze the blood in the arteries and veins of human beings to the point of death to proclaim warm clothing for low temperatures and re-warming and medicine for those who have succumbed to coldness.

Dr. Becker-Freyseng, who participated in some of the experiments, declared that as a result of the freezing experiments conducted at Dachau, they gave orders to flight surgeons that the warm bath method was to be used in reviving aviators who had been chilled. And thus another milestone was reached in science; namely, that warmth revived and comforted these who had been chilled. (T-470.)

On 22 September 1942, Himmler acknowledged Rascher’s report, but Himmler who was carrion and obscenity incarnate, ordered that further subjects be frozen, and that re-warming and revival be attempted by the use of naked women. For this purpose Rascher obtained four gypsy women, and the experiments began. The subjects were, in accordance with usual procedure, forced into water in which ice cakes floated and were retained in the freezing compound until unconscious. Then each frozen victim was put to bed with two naked women, and the three were covered with blankets. In still other experiments the unconscious subject was placed in bed with only one woman. From all this revolting and macabre performance, the scientific deduction was reached that the re-warming process was better achieved by one woman than two because with one single partner “personal inhibitions are removed and the woman nestles up to the chilled victim more intimately.” This was the great scientific revelation achieved from an obscene spectacle which could have seemed more like the superstitious drum-beating rites of barbarians on some forgotten savage, jungle-infested isle, than the work of educated doctors in the year 1942. Nor was this type of experiment without its fatalities. Of one subject, the report stated, “This person died with symptoms suggesting cerebral hemorrhage as was confirmed by the subsequent autopsy.” The Nazi scientists, after this experiment, did however, achieve greatness in stating that this type of re-warming was recommended only when women were available and other types of re-warming facilities were not available, except in the “case of small children who are best re-warmed by their mothers with the aid of hot-water bottles.” (!)

In a final report to Himmler on the super-cooling experiments at Dachau, the ghastly experimenters, after having killed scores of subjects, came to the conclusion that they did not know whether rescued persons should be re-warmed quickly or slowly—

“It was not clear, for example, whether those who had been rescued should be warmed quickly or slowly. According to the current instructions for treating frozen people, a slow warming-up seemed to be indicated. Certain theoretical considerations could be adduced for a slow warming. Well-founded suggestions were missing for a promising medicinal therapy.”

The uncertainty is blamed on the “absence of well-founded suggestions concerning the cause of death by cold in human beings.” (T-433.)

And now, in order to clarify this question, they decided to go back to animal experiments which would suggest that after all their experimenting and killing of human beings, they are no closer to any scientific discovery than when they started. (T-433.)

However, they still continued the experiments with human beings in another manner. This was the dry-cold process, an operation carried out during the period January-March 1943. The modus operandi of this experiment was to place the subject outdoors at night in a nude state, cover him with a linen sheet, and then pour cold water over him hourly. After several operations of this character, Rascher complained that it was a mistake to cover the subjects even with a linen sheet. He must be utterly naked, otherwise “the air cannot get at the person.” And from then on the subjects suffered their torture without covering of any kind. Even if it could be assumed that the test could have the slightest modicum of value, it is not understood why the subject had to be utterly naked. As the purpose of the experiment, it is presumed, was to ascertain the reaction of a soldier’s body to a frozen state, there is no reason why the subject could not wear some clothes, if only the merest undergarment, because it is scarcely conceivable that a soldier or aviator would be without some clothing on his back. On this subject, Neff testified—

“The next experiment was a mass experiment when the prisoners were also put outside naked at night. The temperature of one of them was measured with a galvanometer, the others with a thermometer. Rascher was present during approximately eighteen to twenty experiments of that type, but I can not remember exactly how many deaths occurred and if deaths occurred in connection with these experiments. I would like to say with certain reservations that approximately three deaths occurred during that period.” (T-429.)

On the character of the subjects Neff stated—

“Of the experimental subjects subjected to air-cooling experiments, none were people who were sentenced to death. They were prisoners of various nationalities. There were also German political prisoners and ‘green’ prisoners.

“Q. And these prisoners had not volunteered, had they?

“A. No.” (T-429.)

V. DISCUSSION AND CONCLUSIONS (a) Responsibility of Milch as to Count One of Indictment

Article II of Control Council Law No. 10, promulgated by the Allied Control Council, representing the nations of the United States, Great Britain, France, and Russia, proclaims the ill-treatment or deportation to slave labor of civilian populations of occupied territories, or the ill-treatment of prisoners of war, to be war crimes, punishable by death, imprisonment, or other penalties.

It is sufficient for this Tribunal to cite Control Council Law No. 10 as authority for its action in this case. Since, however, the Control Council came into being after the ending of the war, and since the laws which it published necessarily also followed the termination of hostilities, it has been argued by defense counsel that it does not comport with justice and reason that a defendant should be condemned for an act which, prior to its commission, was not accepted in international law as a crime. From the day of surrender Germany has been without a government of its own, and as the Allied powers are exercising quasi-sovereign jurisdiction in practically all phases of German relations, both internal and external, the very circumstances of Germany’s present political situation not only justifies but demands that the Control Council establish government in its three fundamental phases; namely, the judiciary, the executive, and the legislative. Otherwise chaos would fling Germany into even a more precipitous abyss than the one into which she has fallen, and the supreme and perhaps irreparable disaster, arrested by Allied intervention, would be upon her.

Yet it can be argued and it has been argued that despite the imperative need of an occupational force with its almost unlimited jurisdiction, such an occupying force simply represents the authority of victor over vanquished. In the discharge of its duties under the law which created it, this Tribunal is not called upon to answer the arguments just indicated, but a respect for the opinion of mankind invites a listing of the reasons which establish the justice of the procedure here invoked and the reasons which must invest its judgment with the solemnity and solidity of accepted international law.

In the first place, it is not Control Council Law No. 10 which makes abuse of civilian populations an international crime, nor even the decision of the International Military Tribunal, which in turn derived its power from the London Charter which had as its antecedent the Moscow Declaration of 1943. International law is not a body of codes and statutes, but the gradual expression, case by case, of the moral judgments of the civilized world, and no international law textbook of the last century ever sanctioned the deportation of a civilian population for labor. Although under Article 52 of the Hague Regulations, the inhabitants of occupied countries may be used for the needs of the occupying army, such civilians may be utilized only in proportion to the resources of the country, and they may not under any circumstances be required to take part in military operations against their own country. L. Oppenheim’s Treatise on International Law (Vol. II, Sixth Edition, page 345) states flatly that there is no right to deport inhabitants to the country of the occupant for the purpose of compelling them to work there.

It is submitted, however, that though this is the law and so recognized, total warfare, as it raged in World War II, suspended, if it did not outrightly abrogate, all these rules heretofore respected and esteemed as binding on civilized nations. In this respect defense counsel argues that “modern warfare, having as its aim total annihilation of the armed production of the enemy, brought with it to a great extent warfare against the civilian population,” and he cites total blockade as an illustration of his thesis. It is true that total blockade affects the entire blockaded population, as indeed air raids strike at the most helpless and harmless of the enemy’s civilians. The writer of this opinion was witness many times to the death and mutilation of inhabitants, including women, children, and old men, in Luftwaffe air raids aimed at legitimate war targets. German civilians also paid with their lives for living in their own country. And thus, it would seem in principle, that if civilians may legitimately be killed through military action, though noncombatant, they may certainly be made to work. But it does not follow that because military necessity unintentionally victimizes a civilian population, political domination may strip them of their civil rights and subject them to intentional torture and possible death. With all its horror modern war still “is not a condition of anarchy and lawlessness between the belligerents, but a contention in many respects regulated, restricted, and modified by law.” (Oppenheim, ibid., 421.)

Though the adversaries descend into the pit of bloody combat, there is always open to them the means of re-ascending to the level of nonhostile negotiations. The matter of temporary truces for recovering the dead and succoring the wounded, the making of arrangements through international relief organizations for the treatment of prisoners, the granting of safe passage through the lines of persons mutually agreed upon by the parties, all are instances which refute the logical development of defense counsel’s argument that total warfare justifies the abandonment of every restriction and authorizes the combatants to use all manners and means to win the conflict.

And no one was in a better position to understand this than the defendant. He had participated as a soldier in the First World War; he had, following the war, entered distinguished private enterprise; he had travelled extensively and was induced by none other than Hitler himself to enter the Air Ministry long before the outbreak of World War II because of his talents and abilities. It is idle for defense counsel to say that Milch “was never a good National Socialist.” If joining a political party, accepting its benefits and preferments, rising to supreme heights in grade and distinction, offering never-flagging loyalty to the Fuehrer, even in the face of a declared acknowledgment that the Fuehrer was leading Germany to disaster, if this does not make one a full-fledged National Socialist, then nothing does.

Milch did not simply passively ignore international law, he actively expressed a knowledgeable contempt for it. We have seen how he declared at one of the Central Planning Board meetings that “International law cannot be observed here.”

Defense counsel made much of the point that the German people did not want war, and the defendant himself described how when the first tanks moved through the streets of Berlin, the inhabitants of that city were silent and worried. But it is not clear how this observation advances the innocence of the defendant. If anything it adds to his moral guilt because the evidence reveals only too well that to the fullest extent of his energies he prosecuted a war which he states was against the will and interests of his people. The indictment has not charged him with waging aggressive war, but in view of his participation in the 23 May 1939 conference when Hitler outlined quite clearly his aggressive intentions, and in view of his (Milch’s) never tiring efforts in the war’s various phases—at the front, in the air, in production, in inspection—it cannot be said that to his trained mind the war had the aspects of a defensive and not an aggressive conflict. Although Milch has here repudiated belief in the master race theory, yet we know that he went through a formal procedure to establish the absence of Jewish blood in his veins. This procedure even took the embarrassing turn of statements concerning his parentage. In doing this, Milch could not help but know that the Jews were being persecuted by the political party to which he voluntarily belonged. Nor will the Tribunal believe his declaration that he knew of only two concentration camps in all of occupied Europe. For the Tribunal to acknowledge this statement would be to declare Milch weak-minded if not non compos mentis. Milch, was constantly threatening workers with the concentration camp. These threats he attributes to excessive anger as he does all his outbursts, to which we have already called attention.

Milch would have the Tribunal believe that his violent language was never intended to produce results. He explained that his declaration that Italian prisoners of war attempting to escape should be shot does not constitute cruelty because, in the words of his counsel, “all countries have prisoners shot who attempt to escape.” This contradicts another statement made in court wherein he lauded prisoners who sought to regain their freedom. When confronted with inconsistencies of this character, the defendant invariably sought refuge in the statement that he was never taken seriously in his threats to shoot, hang, or whip. He informs us that he never used a whip, that everybody knew he exaggerated, that nobody took him seriously, and that he did not have full control of himself. But Erhard Milch was not the village idiot. He carried a field marshal’s baton, and the lifting of that baton compelled obedience no matter how idiotic might be the demand. Further, Milch’s imprecations were not simple interjections; they frequently carried the appearance of orders already given or about to be issued. He may never have actually penned a death warrant or called out the SD with its murder squads, but is it so certain that underlings beyond his cognizance did not carry into effect his sometimes very clear directions on punishments to be inflicted?

Violent language is not as innocuous as Milch would have the present world believe. Even if it should be true that his immediate circle laughed at his fulminations, as was testified, there is no assurance that others laughed. A field marshal’s fraternizations are necessarily limited. There were not many who had the privilege to stand beside him, as did General Vorwald, and philosophically muse; “Now his neck is getting red again.” There were necessarily hundreds in the course of six years of war who, attending his various meetings, were not informed that his fire and brimstone were froth. Vorwald can laugh at a field marshal and a field marshal can laugh at a Hitler, but the comedy ceases there. Milch has ridiculed Hitler’s speeches and pointed out that certain portions of the Fuehrer’s orations were known as the “Adam and Eve” section. He indicated further that many of Hitler’s thunderings were mere bluff, but who can say today that he was bluffing?

Hitler’s most potent force for evil was language. With all that he has to answer for at the bar of history, it can be doubted that there exists proof that he with his own hands killed any man or even the proverbial fly. Hitler’s armory was language. It was Hitler’s language which mesmerized the German nation. Every one has said so. He had no other abilities. He was no soldier. All the generals were agreed on that. He could not ride a horse, he could not drive a car, he could not build a fence. He could hang paper and he could talk, and the German people regarded that talk as substance. And on the phosphorescent sea of his wildly undulating phrases they launched the ship of their well-being with the tragic result that fragments and splinters of that ship now piteously stare at one from every nook and corner of this once prosperous and happy land.

The greatest individual force of destruction in Germany for nearly 20 years was Mein Kampf. And yet Mein Kampf was simply language. To the knowledge of the writer of this opinion, Mein Kampf was never used as a missile or fired as a projectile, but is there a German sincerely interested in the welfare of his country today who doubts that its words were bullets, its phrases bombs, and its pages poison which, falling into the wells of the nation, corroded the thinking of the innocent and goaded into action the ambitions of the wicked?

As the record shows, Milch incessantly threatened the wildest excesses, he orally directed them, and he reported to his chief on one occasion that he had put certain ones into effect. In spite of his present disavowal, there is nothing in the transcript to indicate that he repudiated his threats at the time of utterance. The defense has repeatedly attacked the accuracy of the minutes of the Central Planning Board, the GL, and the Jaegerstab. All these documents were taken from the official files of the Reich Air Ministry. Furthermore, the defendant’s constant efforts on the stand to modify the far-reaching implications of his speeches concede the general correctness of the remarks attributed to him. Thus, making due allowance for stenographic errors, the defendant stands out through the pages of these reports as a resolute, persevering, determined worker, unyielding and loyal to his cause, which was the cause of the Fuehrer.

It can be believed that Erhard Milch was not seeking personal enrichment and a luxurious living, which was so obviously the nefarious and principal goal of his chief, the super-pilferer Hermann Goering. Milch was seeking victory for Germany, for which he held an understandable affection, but his intelligence, training, and experience in the affairs of the world told him inescapably that Germany was waging an aggressive and culpable war. Milch gave of his talents and energies to the winning of a war criminally begun and lawlessly prosecuted, which, had it ended in victory for the aggressors would have resulted in the heartless subjugation of countless millions of innocent and helpless people. The defendant has recounted his worries and anguish and has explained that this mental torment provoked many of his unbridled utterances, but what was the cause of this bitterness and mortification? Not that Europe had become a slaughterhouse, not that blood ran like water, not that the four Horsemen of the Apocalypse were galloping over the continent hurling famine, pestilence, and death into every city, village, and hamlet. Milch’s torment and soul-sickness were not that the human race and human dignity were being debased and degraded as they had never been before since man knew shame. It was not for all this that Milch’s heart was breaking. His consternation, his panic was that Germany was losing the war!

He said, “I had to walk into defeat with open eyes.” (T-1948.) Also, “I could see what was coming and I could not help my people.” And in his bitterness he increased the fury of his verbal lashes over the backs of the foreign workers, he redoubled his efforts for more importations and screamed for more production. He knew, as far back as November 1941, that the war was lost; this knowledge was confirmed after Stalingrad, and every vestige of doubt as to the eventual result was shattered by the clouds of bombers over Germany every day. He knew that Hitler was leading Germany over the brink to ruin, and yet he called for more and more production to make the disaster all the more noteworthy. He was having difficulties with Goering, Hitler did not want him any more, and yet he stoked the fires of his wrath to an even higher degree of vengeance against the workers because they would not turn out more production for the war, every continuing day of which brought only greater misery to his people. The argument does not ring true. Milch may have believed Germany might lose the war but he certainly made every effort to have it end victoriously. This in itself is honorable for a soldier, but he allowed himself to use means and methods which the code of a soldier does not authorize or countenance, and therein he fell.

He has related several accidents which may have affected his health. He cracked-up two or three times with his plane and he suffered an automobile mishap as well. It is suggested, although not vigorously pressed, that all this may explain his towering wraths and lightning fury. But the plea in this case is not “Not Guilty because of Insanity.” Nowhere is it advanced that the defendant is not now, nor that at any time throughout the war was not, in the fullest possession of his mental faculties. If a temporary aberration is being suggested, it is remarkable that these deviations from the norm occurred only when he was urging the maximum and severest employment of forced labor and menacing with the direst punishment those who did not fulfill to the extreme the commitments of this illegal enterprise. If Milch was at any time deprived of his reasoning faculties, his temporary unbalance had method in it.

The Tribunal finds Erhard Milch guilty on count one of the indictment.

(b) Count Two

In considering Milch’s responsibility under count two, we will need to enumerate and weigh each reference to him in the testimony in this connection. The high-altitude experiments began in March and lasted until June 1942. Cold-water experiments were conducted during the period from the middle of August until October 1942. The dry-cold experiments lasted from February through April 1943. During this time Milch was Inspector General of the Air Forces, State Secretary in the Air Ministry, and Generalluftzeugmeister. As Inspector General he was in charge of the office which authorized research and medical experiments conducted in behalf of the Air Forces. General Hippke, physician in charge of the Luftwaffe Medical Department, was directly subordinate to the defendant. As Generalluftzeugmeister, Milch was head of air ordnance. Milch had charge of the development of technical experiments for the Luftwaffe.

All medical institutes and Luftwaffe medical men were subordinate to the Medical Inspectorate Chief, Dr. Hippke. The DVL[165] was subordinate to Hippke’s office in technical matters. Dr. Rascher conducted his experiments at Dachau. He was temporarily assigned to the SS, but retained his status as a Luftwaffe physician, rising from a second lieutenant to a captain in the Luftwaffe. During the period of the experimentations, Rascher was under the command of the Luftwaffe.

On 20 May 1942, Milch wrote a letter to General Wolff, stating that his medical inspector had reported to him that the high-altitude experiments conducted by the SS and the Luftwaffe had been finished, and he did not recommend that they should be continued. He did, however, authorize experiments “of some other kind in regard to perils at high seas.” On 4 June 1942, Milch authorized Hippke the continued use of the low-pressure chamber. On 20 July 1942, Rascher sent Brandt a report on the high-altitude experiments and the accompanying letter stated that it is Himmler’s desire that the report should be sent to Milch. On 25 August 1942, Himmler sent Milch a copy of the report and asked that he receive Dr. Rascher and Dr. Romberg for a lecture and a showing of the film made of the experiment.

On 31 August 1942, Milch wrote Himmler acknowledging the report and promising to receive the two gentlemen for the lecture and showing of the film. On 23 August 1942, Sievers wrote Brandt discussing a revival of the high-altitude experiments and stating that a report was to have been made to Milch, but that the report was not made. On 3 October 1942, Rascher wrote Brandt that the report to Milch, planned for September, could not be made because Milch was not present. On 27 November 1942, Wolff wrote Milch a long letter pointing out the need and the great value of the experiments with human beings, stating that Himmler “has accepted the responsibility for supplying death-deserving, asocial persons, and criminals from the concentration camps for these experiments.” He asks Milch to assign Rascher to the SS so that he can continue with the experiments directly under Himmler’s orders. “In any case, these experiments must not be stopped. We owe that to our men.”

Dr. Romberg stated in an affidavit that Milch “was familiar with these experiments.” Neff testified that “Milch’s name was mentioned in connection with the high-altitude experiments.” Sievers, Director of the Research and Teaching Association, stated that “Milch must have known about the experiments of Dr. Rascher.” Dr. Ruff stated that to his knowledge Milch was informed of these tests either by Hippke or by the SS. Dr. Becker-Freyseng said that Dr. Kalk told him he had seen Rascher in Milch’s office.

When the film was shown in Milch’s office on 11 September 1942, Milch was not present. Wolfgang Lutz testified that Milch had negotiated directly with Himmler regarding the execution of such experiments without consulting the Medical Inspectorate. Rudolf Brandt stated that Milch was fully informed about the low-pressure experiments. As late as January 1943, Milch had not replied to the letter sent him by Wolff, asking for the assignment of Rascher to the SS.

This, in brief, constitutes the case against Erhard Milch in connection with the medical experiments. In order to find Milch guilty on this count of the indictment, it must be established that—

1. Milch had knowledge of the experiments. 2. That, having knowledge, he knew they were criminal in scope and execution. 3. That he had this knowledge in time to act to prevent the experiments. 4. That he had the power to prevent them.

In pressing this count against the defendant, the prosecution has the burden, as it has the burden in every count, to prove the guilt of the defendant beyond a reasonable doubt. We begin our deliberations with the cardinal rule that the defendant is presumed to be innocent. Glancing at the evidence as a whole, it is a facile matter to say that the defendant must have known of the experiments; that, with so much smoke, there must be fire. But in addition to smoke, there must be light.

The proof against Milch on this count is entirely circumstantial, and before we can find him guilty we must conclude that every hypothesis resulting from the circumstances is consistent with guilt and inconsistent with innocence. One can easily reach the hypothesis of guilt from the documents and testimony but that hypothesis in many of its phases is also consistent with innocence. Thus, applying the rule of evidence just cited, the test of guilt fails.

So far as chronology is concerned, Milch does not come into the picture of the experiments until 20 May 1942 with a letter in which he states that his medical inspector informed him that the high-altitude experiments had been completed. Obviously if they were completed there was nothing he could do to prevent them. Nor did the medical inspector or anyone else testify that Milch was informed of the precise nature of the experiments. Further, there is no evidence that Milch ever received any reports at all on the freezing experiments.

No one ever suggested that Milch attended the operations at Dachau or that he ever gave an order that human beings were to be used to the point of death.

If we can imagine the pieces of evidence on this count as irregularly shaped blocks of wood floating on water, we find these blocks occasionally coming together and dovetailing into a pattern of guilt, but then we find them separating and just as often forming the pattern of innocence. No man should be convicted on evidence that does not remain fixed and immovable in granitic solidity. Guilt cannot be founded on a set of facts from which arguments are equally convincing as to guilt and as to innocence. Remarks such as “the defendant must have known,” or “to the best of my knowledge he knew,” and other similar inconclusive conjectures frequently used in this part of the case are not the kind of links which are imperatively needed to make up a chain strong enough to sustain the weight of a conviction.

The defendant is found not guilty on the second count of the indictment.

Though Milch is acquitted of complicity and participation in the medical experiments, we have nonetheless commented on those experiments at length. We have done this because otherwise the reference to Milch’s acquittal standing alone might convey impression that the experiments themselves were not criminal. The Tribunal holds that the corpus delicti was established and a crime was committed, even though Milch is not guilty of it.

(c) Count Three

The third count of the indictment charges the defendant with crimes against humanity (slave labor and fatal medical experiments) committed on German nationals and nationals of other countries. As we have found him not guilty on count two, we necessarily also find him not guilty of the crime of fatal medical experiments in count three. We have, however, adjudicated him guilty on count one, and since the evidence establishes that nationals of other countries were also victims of slave labor under his control, we thus find Erhard Milch guilty on that part of the third count which covers the nationals of other countries. Sufficient proof was not submitted as to slave labor offenses against German nationals to justify an adjudication of guilt on that ground.

Thus, in recapitulation, we find the defendant guilty on count one, not guilty on count two, not guilty on count three insofar as it appertains to German nationals and guilty wherein it refers to “nationals of other countries.” In reaching these conclusions, we inescapably ascertain that Erhard Milch was a full-fledged member of the National Socialist Party of Germany. Further, that he adhered to the doctrines of this Party which, with the almost cataclysmic force of planetary violence, achieved more destruction than has been known since man stood upright on the shores of history. The conclusion is also unavoidable that it was individuals like Milch that made the Hitler plan of war and subjugation possible. Hitler was but one man and it was only because he had brilliant and able coadjutors that he could develop a war machine which achieved the incredible and fantastic record of smashing Poland in 18 days, striking France to her knees in 2 months, driving England from the continent in 6 weeks, overrunning Holland and Belgium in a few days, vanquishing Norway in several weeks, and Denmark overnight.

In those days of spectacular triumph, Milch had no complaint against Hitler. But it was precisely then that Hitler was working his greatest harm to Germany because it was inevitable that the people he had temporarily crushed would rise again and not rest until the evil power responsible for their suffering was destroyed. If Milch had entertained the loyalty to his people which he now professes, then was the time to withdraw from a program which was wreaking a devastation so universal that no country, including Germany, could escape.

The defendant stated from the witness stand he could not withdraw because he owed fealty to Hitler and to the German people. His loyalty to Hitler was loyalty to a man who he now states had marked him for liquidation, and so far as allegiance to the German people is concerned, they can feel no gratitude for an allegiance which increased their ruin, magnified their misery, and pushed them only deeper into the pit of despair. The Germans could do without a devotion of that kind.

The defendant apparently gained the impression in our questioning of him that some heroic sacrifice was expected on his part. We never intended, nor was it suggested, that he should take any action which could result in the forfeiture of his life. But he did himself volunteer from the witness stand that on two occasions he was ready to tell Hitler the truth even if it should mean his execution. If he was prepared to sacrifice his life on so futile a gesture, he could have taken some action which involved less hazard. He could thus, at least to that extent, have contributed to honesty and justice by refraining from threatening with death and whipping those who did not give of their last ounce of energy in the production of ordnance whose muzzles would eventually be turned on Germany itself.

In his last statement in court Milch declared that he was indifferent to his fate but he was interested in seeing Germany relieved of her suffering and re-admitted to the community of nations as an equal partner. We do not believe that any intelligent person can be indifferent to his fate, although one can summon sufficient spiritual fortitude to rise above an immediate regret. With regard to Milch’s wish for the German people, he has definitely performed one service in pulling aside the curtain to disclose to them the stupidities, the vanities, and the arrogances of their leaders which brought about their present state. The record of this case will particularly, of course, expose Milch’s own errors and his transgressions against international law, the laws and customs of war, the moral code of humanity and even commandments 4 and 7 of the 10 commandments of the German soldier.

The purpose of these postwar trials obviously is not vengeance. The object aimed at (as in the criminal jurisprudence of all civilized nations) is the ascertainment of truth. When guilt is established, the penalty imposed is to serve as a deterrent to all others who might be similarly minded. Albert Speer, convicted in the first trial, stated here in this courtroom that had trials such as these followed the First World War, the Second World War might have been averted. Erhard Milch may obtain some comfort from the realization that by the publication of the evidence of this trial he is definitely contributing to the education and well-being of Germany’s future, as indeed a precise contribution is being made to the cause of world justice itself.

Over 155,000 Americans made the supreme sacrifice in Germany in this war. These lads gave their lives for this ideal of world justice and world peace. America sought no territorial aggrandizement or material advantage. The American flag in this courtroom ensured to the defendant all the guarantees of the United States Constitution as to a fair trial. No person within the continental limits of the United States itself could have wished for a fuller opportunity to demonstrate his innocence of the charges brought against him.

America and her Allies bestowed upon Germany what no desire can achieve and what no money can buy. The Allied nations gave the blood of their youth to water the roots of the tree of liberty and tolerance which had withered in the twelve-year drought of National Socialism. It is to reveal who were responsible and what was responsible for the desiccation of that tree and to proclaim to the world the inevitable consequences to others who degrade the soil with the pollution and prussic acid of oppression that these trials have been established. The present trial is one chapter in the book which will forever condemn Mein Kampf and offer to the new German nation a volume of proved fact, whose every page will tell of the sorrow awaiting any people which permit any man or men to hoist deceit above truth, power above justice, oppression above tolerance, war above peace and man above God.

[Signed] MICHAEL A. MUSMANNO JUDGE MILITARY TRIBUNAL II

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[160] The reference “T” is to the page of the mimeographed transcript.

[161] “IMT” refers to Trial of the Major War Criminals before the International Military Tribunal, Vol. I, Nuremberg, Germany, 1947.

[162] Original German document read 50,000 but, due to clerical error, translation of document which was submitted in Court read 500,000. Incorrectness is obvious by total figure of 220,000 in last sentence.

[163] Chef Ansbildungawesen (Chief of Training).

[164] A word is missing here in the German original.

[165] Deutsche Versuchsanstalt fuer Luftfahrt (German Institute for Aviation Research). In this case, the reference is to the Medical Section of the Institute.

C. Concurring Opinion by Judge Fitzroy D. Phillips

This Tribunal has been duly organized and is now existing under the authority of Ordnance No. 7 pursuant to the powers of the Military Governor of the United States Zone of Occupation within Germany expressly conferred therein and further pursuant to the powers conferred upon the zone commander by Control Council Law No. 10 and Articles 10 and 11 of the Charter of the International Military Tribunal annexed to the London agreement of 8 August 1945, and by authority of Executive Order No. 9819 signed and issued by Harry S. Truman, President of the United States of America, the pertinent parts of said order as follows:

“By virtue of the authority vested in me by the Constitution and the statutes, and as President of the United States and Commander in Chief of the Army and Navy of the United States, it is ordered as follows:

“1. I hereby designate Fitzroy Donald Phillips, Judge of a Superior Court in the State of North Carolina; Robert Morrell Toms, Judge of the Third Judicial Circuit Court, Detroit, Michigan; and Captain Michael A. Musmanno (S), USNR, 086622, as the members, and John Joshua Speight as the alternate member of one of the several military tribunals established by the Military Governor for the United States Zone of Occupation within Germany pursuant to the quadripartite agreement of the Control Council for Germany, enacted December 20, 1945, as Control Council Law No. 10, and pursuant to Articles 10 and 11 of the Charter of the International Military Tribunal, which Tribunal was established by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, for the trial and punishment of major war criminals of the European Axis. Such members and alternate member may, at the direction of the Military Governor of the United States Zone of Occupation, serve on any of the several military tribunals above mentioned.”

and as such Tribunal, has jurisdiction to try and determine this case.

Subsequent to the organization of said Tribunal, Telford Taylor, Brigadier General, United States Army, Chief of Counsel for War Crimes, prepared and caused to be prepared a bill of indictment charging the defendant, Erhard Milch, with certain war crimes and crimes against humanity as will appear more specifically hereinafter in this judgment and on 14 November 1946 caused said bill of indictment to be duly served upon the defendant, Erhard Milch, by the Marshal for the United States Military Tribunals according to the provisions of law.

Thereafter said bill of indictment was made returnable and said cause set for trial before United States Military Tribunal No. II. Whereupon, Dr. I. Friedrich Bergold of the Nuernberg, Germany, bar was duly appointed as counsel for the defendant and accepted such appointment.

On 20 December 1946, at 9:30 a.m. in the Palace of Justice, Nuernberg, Germany, the defendant, Erhard Milch, being present in court and represented by his counsel, Dr. I. Friedrich Bergold, and the United States of America being represented by Telford Taylor, Brigadier General, United States Army, Chief of Counsel for War Crimes, and Honorable Clark Denney of counsel, the Tribunal duly arraigned the defendant upon the charges contained in the bill of indictment against him, and the defendant when called upon to plead to the bill of indictment entered a plea of Not Guilty. Whereupon the Tribunal set the date of 2 January 1947, for the trial of said case and adjourned until said time.

On 2 January 1947, United States Military Tribunal No. II met in the Palace of Justice, Nuernberg, Germany, and commenced the trial of this case.

The bill of indictment charging the defendant, Erhard Milch, with certain and specific war crimes and crimes against humanity is summarized as follows:

Count One: War crimes involving murder, slave labor, deportation of civilian populations 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.

The trial was conducted in two languages in the main, English and German, and in English, German, and French when French witnesses were testifying.

The hearing of evidence and the arguments of counsel concluded on 25 March 1947.

The prosecution offered three witnesses who gave evidence orally and 161 written exhibits, several exhibits containing many documents. The defense offered 27 witnesses who gave evidence orally and the defendant also testified in his own behalf, and in addition to oral evidence the defendant offered 51 written exhibits. The exhibits as offered by both the prosecution and defense contained documents, photographs, affidavits, interrogatories, letters, maps, charts, and other written evidence.

A complete stenographic record of everything said and done in court has been made as well as an electrical recording of all the proceedings.

Copies of all the documents and written evidence offered by the prosecution have been supplied to the defense in the German language. The applications made by the defendant for the production of witnesses and documents were passed upon by the Tribunal and orders made in pursuance thereof. The Tribunal, after examination, granted all of the defense applications which in their opinion were relevant to the defense of the defendant and denied a few that the Tribunal found not to be relevant. Facilities were provided for obtaining those witnesses and documents granted through the Office of the Secretary General of the Tribunal.

Much of the evidence presented to the Tribunal on behalf of the prosecution was documentary evidence captured by the Allied armies in German army headquarters, government buildings, and elsewhere, and some of said documents were captured in the private files of the defendant himself. The case therefore against the defendant rests in a large measure on the documents thus obtained. The documents offered against the defendant on the part of the prosecution were in a large measure of his own making or those that were made in the organizations of which he was a member and largely under his control, and the authenticity of which has not been challenged except in a few cases and in those he challenged them mainly on the correctness of the transcript and not upon the subject matter as a whole. The evidence, oral and written, together with exhibits and documents contain approximately 3,000 pages which constitutes the record in this case.

The trial was conducted generally along the lines as are usually followed in trial courts of the United States except as to the rules of evidence, and as to those the Tribunal was not bound by technical rules of evidence and admitted any and all evidence which it deemed to have probative value and in strict compliance with the provisions of Article VII of Ordnance No. 7.

The Tribunal has kept in mind throughout the entire trial that this was a Tribunal established for the purpose of trying major war criminals and in this particular case a fallen military field marshal of a conquered nation, and that he was entitled to the Anglo-Saxon and English common law presumption that he was innocent until his guilt was established beyond a reasonable doubt.

Article II of Control Council No. 10 is as follows:

“ARTICLE II

“1. Each of the following acts is recognized as a crime:

“(a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

“(b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

“(c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

“(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

“2. Any person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in paragraph 1 of this Article, if he (a) was a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.

“3. Any person found guilty of any of the crimes above-mentioned may upon conviction be punished as shall be determined by the Tribunal to be just. Such punishment may consist of one or more of the following:

“(a) Death.

“(b) Imprisonment for life or a term of years, with or without hard labor.

“(c) Fine, and imprisonment with or without hard labor, in lieu thereof.

“(d) Forfeiture of property.

“(e) Restitution of property wrongfully acquired.

“(f) Deprivation of some or all civil rights.

“Any property declared to be forfeited or the restitution of which is ordered by the Tribunal shall be delivered to the Control Council for Germany, which shall decide on its disposal.

“4. (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

“(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.

“5. In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in respect of the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon, or amnesty granted under the Nazi regime be admitted as a bar to trial or punishment.”

The defendant stands indicted for the violation particularly of the provisions of section b, which defines war crimes, and for the violation of the provisions of section c, which defines crimes against humanity, and for the violations of certain provisions of international conventions, particularly of Articles 4, 5, 6, 7, 46, and 52 of the Hague Regulations, 1907, and of Articles 2, 3, 4, 6, and 31 of the Prisoner-of-War Convention, Geneva, 1929, the laws and customs of war, the general provisions of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and further as particularly defined in Article II of the Control Council Law No. 10.

The first count in the bill of indictment has been designated by the prosecution as “Slave Labor,” the second count as “Medical Experiments” and the third count as “Slave Labor and Medical Experiments upon German Nationals.” The pertinent rules of law that are applicable in this case will now be considered, and we shall consider briefly some salient precepts and prohibitions of international law up to and including the provisions of Control Council Law No. 10.

The prosecution has offered evidence which tended to show that much of the labor which supplied Germany with the tools of absolute and total war was extracted from people who had been uprooted from their homes in occupied territories and imported to Germany against their will and often under the most trying and difficult circumstances. Displacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations. International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime. If the transfer is carried out without a legal title, as in the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field and is still resisting, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has temporarily prevented the rightful sovereign from exercising its power over its citizens. Articles 43, 46, 49, 52, 55, and 56, Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as crime the deportation of civilians from an occupied territory. Article 52 states the following provisions and conditions under which services may be demanded from the inhabitants of occupied countries:

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

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

3. They must be of such a nature as not to involve the inhabitants in the obligation to take part in military operations against their own country.

Insofar as this section limits the conscription of labor to that required for the needs of the army of occupation, it is manifestly clear that the use of labor from occupied territories outside of the area of occupation is forbidden by the Hague Regulations.

The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal, such as deportation for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country. The defense as contained in this case is that persons were deported from France into Germany legally and for a lawful purpose by contending that such deportations were authorized by agreements and contracts between Nazi and Vichy French authorities. The Tribunal holds that this defense is both technically and substantially deficient. The Tribunal takes judicial notice of the fact that after the capitulation of France and the subsequent occupation of French territory by the German army, a puppet government was established in France and located at Vichy. This government was established at the instance of the German Army and was controlled by its officials according to the dictates and demands of the occupying army and a contract made by the German Reich with such a government as was established in France amounted to in truth and in fact a contract that on its face was null and void. The Vichy Government, until the Allies regained control of the French Republic, amounted to no more than a tool of the German Reich. It will be borne in mind that at no time during the Vichy regime a peace treaty had been signed between the French Republic and the German Reich but merely a cessation of hostilities and an armistice prevailed, and that French resistance had at no time ceased and that France at all times still had an army in the field resisting the German Reich.

The third and final condition, under which deportation becomes illegal, occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner. A close study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal or whenever the deportation is characterized by inhumane or illegal methods.

Article II (1) (c) of Control Council Law No. 10 specifies certain crimes against humanity. Among those is listed the deportation of any civilian population. The general language of this sub-section as applied to deportation indicates that Control Council Law No. 10 has unconditionally contended as a crime against humanity every instance of the deportation of civilians. Article II (1) (b) names deportation to slave labor as a war crime. Article II (1) (c) states that the enslavement of any civilian population is a crime against humanity. Thus Law No. 10 treats as separate crimes and different types of crime “deportation to slave labor” and “enslavement.” The Tribunal holds that the deportation, the transportation, the retention, the unlawful use, and the inhumane treatment of civilian populations by an occupying power are crimes against humanity.

The Hague and Geneva Conventions codify the precepts of the law and usages of all civilized nations. Article 31 of the Geneva Convention provides that labor furnished by prisoners of war shall have no direct relation to war operations. Thus the convention forbids (1) the use of prisoners of war in manufacture or transportation of arms or ammunitions of any kind; and (2) the use for transporting of matériel intended for combat units. The Hague Regulations contain comparable provisions. The essence of the crime is the misuse of prisoners of war derived from the kind of work to which they are assigned, in other words, to work directly connected with the war effort. The Tribunal holds as a matter of law that it is illegal to use prisoners of war in armament factories and factories engaged in the manufacture of airplanes for use in the war effort.

Now, considering the basic charges and the law governing the charge against the defendant in which it alleges his responsibility for and participation in the medical experiment program, the fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the person, and other inhumane acts. The provisions of Control Council Law No. 10, which are applicable to this charge, to wit, Article II, are “b. War crimes” and “c. Crimes against humanity.” The bill of indictment charges:

“A. War crimes, namely violations of the laws and customs of war as to medical experiments performed involuntarily upon persons, some of whom were prisoners of war and citizens of countries who were at war with the German Reich, and other deported citizens from other countries who were at war with the German Reich involving the commission of murders, tortures, and other inhumane acts.

“B. Crimes against humanity, namely medical experiments performed upon involuntary German nationals and nationals of other countries in the course of which brutalities, murders, and other inhumane acts were committed.”

The prosecution contends that the defendant Milch did not personally participate in or personally direct, counsel, or initiate such medical experiments but that the same was done by members of his command and that he was personally responsible for their conduct by virtue of the authority that he held over his subordinates.

In this connection in the recent case before the United States Supreme Court in re Yamashita, the opinion of which was handed down by the Supreme Court of the United States at the October term, 1945, of said Court, some of the pertinent holdings in this case are as follows:

“It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.

“This is recognized by the annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land. Article I lays down the condition which an armed force must fulfill in order to be accorded the rights of lawful belligerents, that it must be commanded by a person responsible for his subordinates.

“These provisions plainly imposed on petitioner, who at the time specified, was Military Governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach is penalized by our own military tribunals.

“* * * It is plain that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the members of his command, by permitting them to commit the specified atrocities. This was enough to require the commission to hear evidence tending to establish the culpable failure of the petitioner to perform the duty imposed on him by the law of war and to pass upon its sufficiency to establish guilt.”

I am of the opinion and find as a fact from the evidence in this case that the defendant Milch between the years 1939 and 1945 was State Secretary in the Air Ministry, Inspector General of the Air Force, Deputy to the Commander in Chief of the Air Force, a member of the Nazi Party. The defendant Milch was also Field Marshal in the Luftwaffe, 1940 to 1945; Air Quartermaster General, 1941 to 1944; member of the Central Planning Board, 1942 to 1945; and Chief of the Jaegerstab, 1944 to 1945.

After hearing the evidence of both the prosecution and defense, and after having heard the arguments of counsel, and after having fully considered all of the evidence, the following facts are concluded:

COUNT NO. I SLAVE LABOR

That the defendant, Erhard Milch, was born in Germany on 30 March 1892, that he was a member of the Air Force of the German Army in World War I and was a contemporary in said air force with Goering, Udet, and others; that after the termination of World War I he returned to Germany, had a business and later was connected with the manufacture of civilian airplanes.

Prior to the outbreak of World War II he became a member of the Nazi Party and materially aided in the rebuilding of the air force of the German Reich. Shortly prior to the outbreak of World War II he visited various countries as a personal emissary of the Fuehrer, Hitler; to France, England, Holland, Italy and other countries in an effort to establish so-called permanent peace between the German Reich and these nations. That on 23 May 1939, the defendant attended a conference for the purpose of planning World War II with the following present: Hitler, Goering, Col. Gen. von Brauchitsch, Col. Gen. Keitel, Gen. Halder, Gen. Bodenschatz, Rear Admiral Schniewind, Col. (GSC.) Jeschonnek, Col. Warlimont, Lieut. Col. Schmundt, Captain Engel, Lieut. Commander Albrecht, and Captain v. Below. At the time of this meeting the defendant held a high position in the German Army, to wit, the rank of colonel general.[166]

At this meeting the Fuehrer, Hitler, gave his plan of aggressive war, and in this plan was included the attack of Poland at the first suitable opportunity; what the struggle would be like; the question of a short or long war; England’s weakness; the consequences of such a war; the unrestricted use of all resources available; the plan of attack; and the working principles of an entire and complete program. Aggressive war was planned and initiated at this meeting, and the defendant was one of the high-ranking officers who counseled and approved of the plan.

After the outbreak of the war and the subsequent attack on Poland, the defendant actively participated in the prosecution of aggressive war until after the capitulation and fall of France. From that time on he did not participate as a combat officer but was used in the general economy for the prosecution of war in Germany, and particularly as to the building and maintenance of the Luftwaffe. Later he was elevated to the rank of field marshal in the Luftwaffe and was second in command only to Goering.

The defendant was a member of the Central Planning Board which was established and organized in April 1942, and said organization served as a means of consolidating in a single agency all controls over German war production. The Central Planning Board held regular meetings, and the defendant presided over and was present at a majority of such meetings. The Central Planning Board at each meeting kept full minutes, and a great number of said minutes have been submitted to the Tribunal and reflect the fact that the defendant had a dominant role in the meetings of said board. The scope and authority of the Central Planning Board is contained in the minutes of a meeting held on 27 April 1942, and the duties and responsibilities of the board, according to said minutes, were announced as follows:

“The Central Planning in the Four Year Plan (Decree of the Reich Marshal of Greater Germany of 22 April 1942) is a task for leaders. It encompasses only principles and executive matters. It makes unequivocal decisions and supervises the execution of its directives. The Central Planning does not rely on anonymous institutions difficult to control but always on individuals and fully responsible persons who are free in the selection of their work methods and their collaboration as far as there are no directives issued by the Central Planning.”

On 20 October 1942, the statutes of the Central Planning Board were published and distributed, a portion of which are as follows:

“The Central Planning Board, created by the Fuehrer and the Reich Marshal in order to unify armament and war economy, deals only with the decision of basic questions. Professional questions remain the task of the competent departments, which in their field remain responsible within the framework of the decisions made by the Central Planning Board.”

The Central Planning Board was superior to “the highest Reich authority, the Reich protector, the Governor General, and the executive authorities in the occupied countries.”

The International Military Tribunal found that the Central Planning Board “had supreme authority for the scheduling of German production and the allocation and development of raw materials.” The International Tribunal found further in its opinion, in the case of United States vs. Goering and others, “that the Central Planning Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor and that the board determined the basic allocation of this labor within the German war economy.” The International Military Tribunal found further in its opinion the following:

“In the fall of 1943 Funk (who was then indicted before said Tribunal in regard to deportation and the use of foreign forced labor in the German Reich) was a member of the Central Planning Board which determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from occupied territories * * * but Funk was aware that the board of which he was a member was demanding the importation of slave laborers, and allocating them to the various industries under his control.”

The prosecution offered evidence which tended to show that Albert Speer was the Plenipotentiary for Armament and was the nominal head of the Central Planning Board and that the defendant was a member of said board and was, by the order of Hitler, assigned to assist Speer as the head of said board. During much of the time of the existence of said board Speer was ill and unable to attend the meetings and look after the duties of the board and during this time the defendant was the acting head of said board and presided over its meetings as chairman.

Fritz Sauckel was Plenipotentiary for Labor and was directly responsible for the procurement and allocation of labor to the various war industries. However, the Tribunal finds as a fact that although Sauckel had the primary duty of procuring and allocating labor, the Central Planning Board on many occasions, as the minutes of the meetings of said board show, called Milch into conference with the members of the Central Planning Board and in such conferences labor was assigned and allocated by the Central Planning Board and Sauckel. The minutes of the Central Planning Board, as introduced by the prosecution, show that the members of the Central Planning Board knew and discussed the fact that labor was being deported from occupied countries against their will and were being used in various factories manufacturing armaments, airplanes, and other articles essential and necessary to the war effort, that such foreign workers were being forcibly taken from their homes without knowledge of their destination, and by force and against their will, crowded into box cars without food or water or toilet facilities, transported great distances, and forced to work in factories manufacturing war materials and other necessary items for the prosecution of the war as slave laborers.

I find as a fact that the defendant Milch had knowledge of the way and manner in which such labor was procured and the work that they were forced to do, and that he aided, abetted, counseled, advised, and assisted in the deportation, allocation, and work of said slave laborers.

The documents and reports of the meetings as offered by the prosecution are too voluminous to incorporate herein, but said records clearly show that the defendant was one of the authorized agents who dealt with the procurement, deportation, and work of thousands and thousands of slave laborers from occupied countries.

JAEGERSTAB

I find as a fact that it was the defendant who conceived and instigated the formation of the Jaegerstab, and that the defendant directed its activities and acted as its chairman. The Jaegerstab assumed control over fighter production and exploited foreign forced labor in the armament industry and directed the use of the same. The Jaegerstab was assigned top priority for their projects, for the recruitment and commitment of manpower in the air armament industry. From the meetings of said board as offered in evidence by the prosecution, the question of manpower was time and time again referred to by the defendant. When other methods of obtaining its labor was not forthcoming, the Jaegerstab recruited its own labor either directly or by engineering snatching expeditions for the seizure of manpower arriving on transports from the East.

At one of the meetings of the Jaegerstab, Prosecution Exhibit 54, page 28, the defendant made this statement to his subordinates, that “international law cannot be observed here.” When the question of Italian civilian labor was being discussed at a meeting of the Jaegerstab, the defendant made the statement and advocated the shooting of those who attempted to escape in transit.

I find as a fact that the Jaegerstab was not a mere discussion group but was an agency with absolute authority over fighter production and acted by orders and directives, fixed hours of labor and conditions of work, and on one occasion fixed the established hours of work per week in the aircraft industry at seventy-two hours.

Much of the labor employed by the Jaegerstab in aircraft production and in the air armament industry was from concentration camp inmates and foreign forced labor. The defendant was well acquainted with the procurement and allocation of this labor.

I find as a fact, from the evidence offered in the case, that after the arrival of forced slave labor from occupied countries they were poorly fed, poorly clothed, were forced to work an excessive amount of hours each week, and that their general condition and treatment as a result of such forced labor resulted in the death of a great many and the permanent disability of others, both in body and in mind.

GENERALLUFTZEUGMEISTER

I find as a fact from the evidence offered in the case, that the defendant, as Generalluftzeugmeister, had complete control of aircraft production and that he requisitioned labor for the aircraft industry with knowledge of the brutal and inhuman techniques in recruiting these laborers; and that he gave directives for the criminal treatment of the same in the centers of production. Fritz Sauckel, Plenipotentiary for Labor, stated that it was “Milch who produced manpower figures for aviation.” Albert Speer testified as follows: “The requests of the air armament industry for laborers were presented by Milch, and he did not permit anyone to take this right away from him until March 1944.”

I find as a fact from the evidence offered on the part of the prosecution, that prisoners of war were included in the manpower that the defendant was requisitioning and distributing to the aircraft industry with full knowledge that they were prisoners of war. As chief of aircraft production, the defendant regulated the treatment of foreign forced labor in the German aircraft industry, fixed hours of labor and conditions of work, and by directives to his subordinates formulated the basic policy for the handling of such labor within the industry.

The evidence presented by the prosecution tended to show that the defendant advocated the most extreme measures in dealing with foreign forced labor, inhuman measures which violated every recognized principle of decency. When foreign forced laborers refused to work, the defendant ordered that they be shot. When they attempted to revolt the defendant directed that some of their numbers be killed, regardless of their personal guilt or innocence. In the case of prisoners of war who attempted to escape, the defendant ordered that these prisoners be shot and later hanged in the factory for all to see. On one occasion the defendant made the following statement, Prosecution Exhibit 145:

“The other day I talked to Himmler about it, and I told him that his main task should be to see to the production of German industry in case of internal uprisings of the foreign workers. I said that consequently a well established method should exist, and I have already given orders to the Chief A. W.[167] and to the training stations to get military training in this field. If, for instance, in the Locality X an uprising is started, then a sergeant with a few men, or else a lieutenant with thirty men has to turn up in the plant, and first of all shoot into the crowd with a machine gun. What he should do after is to shoot down as many people as possible in case of revolt. I have given orders to that effect, and even if our own foreign workers are involved—and then every tenth man is to be singled out and shot while the others are lined up and see him.”

On another occasion, Prosecution Exhibit 148, when the defendant was speaking of the treatment of foreign workers, he made the following statement.

“In all these matters energetic interference must be made. I am of the opinion that there should be only two types of punishment in such cases; firstly, a concentration camp for foreigners, and secondly, capital punishment.”

The prosecution offered a great number of documents containing statements made by the defendant in regard to orders and threats of violence, for mistreatment and punishment, tortures, killings, and hangings of foreign workers. Space is too short to quote in this judgment all of such pertinent documents.

Although the defendant denied making a number of these statements appearing in the documents, he admitted the authenticity and utterances of many, with the excuse that he was a man of very violent temper, who, when worried from overwork, was not wholly responsible for many utterances made by him. He protested further that he did not actually mean nor intend for orders given in such fits of temper to be carried out, but they were simply the result of uncontrolled anger, and understood by his associates and subordinates to have been uttered in such vein. In further extenuation he declared that head injuries resulting from two serious accidents were largely responsible for such uncontrollable temper.

I have given due consideration to the explanation given by the defendant and am compelled to reject it. If but only a few of such remarks could be attributed to the defendant, his protestations might be given some credence; but when statements such as appear in the documents have been persistently made over long periods of time, at many places and under such varying conditions, the only logical conclusion that can be reached is that they reflect the true and considered attitude of the defendant toward the Nazi foreign labor policy and its victims and are not mere aberrations brought on by fits of uncontrollable anger. I find as a fact, therefore, that the true attitude of the defendant toward foreign laborers and prisoners of war is that reflected in the documents of the prosecution and was not the result of uncontrollable fits of temper. I find, further, that the defendant ordered, advised, counselled, and procured inhumane and illegal treatment of foreign workers resulting in permanent injury and death to many.

COUNT NO. 2 MEDICAL EXPERIMENTS

The prosecution contends that in violation of the laws of war and of crimes against humanity, high-altitude and freezing experiments were carried out by the Luftwaffe physicians at Dachau, and that said physicians who conducted such experiments were under the command of and subordinate to the defendant Milch.

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

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

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

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

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

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

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

CONCLUSIONS

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

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

(2) The Tribunal found the defendant not guilty of the charges contained in count number two, and I concur in such finding.

Under the American concept of liberty, as brought to us by our Anglo-Saxon heritage and the English Common Law, every person accused of crime is presumed to be innocent until proof of his guilt is established by the evidence and beyond a reasonable doubt. This presumption follows him throughout the trial and until he is found guilty beyond a reasonable doubt. In applying this God-given principle of liberty, one eminent American jurist uttered the following words:

“After considering and weighing all of the evidence you then find that your minds are disturbed, your convictions tempest-tossed, and your judgment, like the dove of the deluge, finds no place to rest; the law says you must acquit.”

The defendant was given the full benefit of these great and lasting rules of law and has received at the hands of the Tribunal a fair and impartial trial in full accord with the American concepts of justice under the law.

(3) Count three of the indictment charges the defendant with crimes against “German nationals and nationals of other countries.” I am of the opinion that sufficient evidence was not produced by the prosecution to justify an adjudication by the Tribunal of guilt as to German nationals alone. However, as to such crimes against nationals of other countries, the Tribunal has heretofore considered such charges and has made an adjudication concerning the same in count number one of the indictment. The conclusion of the Tribunal 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. Therefore, the Tribunal found the defendant guilty of crimes against humanity under count three, with which finding I concur.

In weighing the evidence, the Tribunal simulated the ancient customs of using the seed of the oriental carob tree to balance the scales of justice. The defendant should not now complain.

Therefore, for the reasons stated, I am in full agreement with the judgment of the Tribunal and concur therein.

Respectfully submitted this the 15th day of April, 1947 [Signed] FITZROY D. PHILLIPS Fitzroy D. Phillips Judge, Military Tribunal No. II

-----

[166] See Table of Comparative Ranks, p. 331.

[167] Chef Ausbildungswesen (Chief of Training).

VIII. PETITIONS

A. Extract from Petition for Clemency to Military Governor of United States Zone of Occupation

Nuernberg, 2 May 1947

To the Military Governor

PETITION

of

Attorney-at-law Dr. Friedrich Bergold, Nuernberg, Prinzregenten-Ufer 7/III, Defense Counsel, Military Court II

Nuernberg

in Case II against the defendant Erhard Milch, General Field Marshal, at present in the Court Prison, Nuernberg, to modify the sentence of the Military Court II

Nuernberg

on 16/17 April 1947.

* * * * *

A

The sentence passed on counts I and III contains actual inaccuracies, which are inconsistent with the recorded evidence. Obviously, these errors have had an influence on the sentence as far as the award of punishment is concerned. A correction of these errors would necessarily lead to a less severe sentence.

1. The statements on page 3 of the judgment that Milch since 19 November 1941 was the second highest commander of the Luftwaffe is not in agreement with the evidence. The witnesses have testified that from 1938-1941 Milch held only one of the four highest commanding posts under Goering, and since 1941 two of the four highest Luftwaffe commanding posts. Only in regard to seniority he was the oldest officer of these four highest commands. This is important because evidence has been given for the fact that the general staff of the Luftwaffe had the responsibility for the armament program of the Luftwaffe.

2. It is not consistent with recorded evidence that the Central Planning Board had been created by a decree of the Fuehrer of 29 October 1943. It has been proved by the statement of Speer that the decree of 29 October 1943 was a decree issued by Speer a long time after the creation of the Central Planning Board and without authorization of the defendant Milch. Since this decree was issued by Speer for his sphere of administration only, no conclusion can be drawn therefrom against the defendant.

3. It is not consistent with recorded evidence that the Court finds that the Central Planning Board handled the labor problem as such. Exhibit 151 of the prosecution proved the opposite. The witnesses who have been heard have confirmed that the Central Planning Board handled the labor problem only for information purposes for the distribution and production of raw materials and in order to clarify the untrue statements of Sauckel. This Exhibit 151 constitutes essential new evidence which is of greatest importance in regard to the verdict of the International Military Tribunal.

4. It is not consistent with recorded evidence that the defendant had admitted having seen Russian prisoners of war at service at 8.8 and 10.5 cm. antiaircraft guns in aircraft factories in Luftgau 7. The witness Vorwald made this statement on the basis of his own observation.

It has been proved that Milch had nothing to do with the allocation of Russians to the antiaircraft artillery (flak), and that he declared himself against it.

5. It is not consistent with recorded evidence that Milch said that Russian prisoners of war had volunteered for work in war plants. What he did state—and this was in agreement with the witnesses Vorwald and Foerster—was that Russian prisoners of war had volunteered for service at the antiaircraft artillery (flak), with the reservation that they would not be used for combatting Russian airplanes. This condition was fulfilled. Thus, there is no question of an inadmissible use of prisoners of war for war service.

6. It is not consistent with recorded evidence that Sauckel, the Plenipotentiary for the Allocation of Labor, participated in at least 15 sessions of the Central Planning Board. Only 15 minutes concerning the sessions [minutes of 15 sessions] of the Central Planning Board have been submitted. These minutes prove that Sauckel was not present at most of these sessions.

7. It is not consistent with recorded evidence that the defendant was informed about the methods employed and the cruelties on the occasion of the recruiting and utilization of foreign workers. All witnesses who have been heard have stated the opposite. It is therefore not permissible to assume without the basis of exact proof that Milch was informed about these matters. The Court concludes from the fact that foreign workers and prisoners of war had been used that Milch must necessarily have recognized that the methods must have been cruel. Speer has stated explicitly that the cruel methods were not necessary and that, therefore, they were an error. But if they were not necessary then the conclusion drawn from them without any explicit proof was not permissible.

8. It is not consistent with recorded evidence that 100,000 Polish prisoners of war were deported to concentration camps. The opposite has been proved, viz., that Polish prisoners of war, in accordance with the agreement between Russia and Germany were released from captivity and employed as civilians.

9. It is not consistent with recorded evidence that Romanian nationals were subjected to deportation. Not one single piece of evidence for that has been submitted. Romania was mentioned by the defense only in connection with the armistice agreement between Russia and Romania.

10. It is not consistent with recorded evidence that Milch used Hungarian Jews. It is proved by the evidence that this did not happen before the summer of 1944 when Milch had resigned from his positions.

11. It is not consistent with recorded evidence that the Schmundt minutes must be correct, for the reason that if any allusion to a war had been omitted, Hitler would not have spoken at all. It has been proven that Hitler spoke merely theoretically about the world situation in case there should be a war at some time. He did not mention that he wanted to foment aggressive wars.

B

The judgment states that the defendant recommended more drastic and more cruel measures in regard to the recruiting and utilization of workers. (Page 18 of the judgment.)

This is in discrepancy with the recorded evidence.

Here the defense does not argue about the separate reasons given by Judge Michael A. Musmanno, since these reasons do not constitute the official judgment. These reasons also contain factual errors and even use material which has not been discussed during the trial.

These separate reasons, however, make it possible to draw a conclusion in regard to the sentence of the judgment which states that the defendant recommended more drastic and more cruel measures.

It has been proved through the evidence that utterances to that effect were made by the defendant only in smaller circles and while he was in a state of excitement. It has been proved that no action was ever taken in conformity with these utterances. It has been proved that the defendant never asked for action pursuant to such utterances. It has been proved that he did not have any executive power in regard to any measures whatsoever. It has finally been proved that the record concerning such utterances must in part be incorrect.

Therefore, it has not been proved that the defendant approved such cruelties or demanded them in earnest.

C

The objection must be raised that the Military Tribunal did not clarify at all the legal questions which were raised by the defense in connection with the fact that the Russian Government has explicitly renounced the Hague Convention concerning Land Warfare and the previous Geneva Conventions. Since the Decree Number 7 of the Military Government for Germany provides, in Article XV, that reasons have to be given for the sentence, the Tribunal would have had to state its position in regard to these questions. This also constitutes a defectiveness of the verdict and this defect may possibly have had an influence on the award of the punishment.

D

The Military Tribunal has extensively referred on page 14 and 15 to the verdict of the International Military Tribunal against Speer. The Tribunal has therefore made the reasons of the International Military Tribunal its own to a large extent.

But consequently the Military Tribunal would have had to examine the problem of extenuating circumstances. The defense has already pointed out that the fact that he organized protected factories constituted for Speer an extenuating circumstance. During the trial it has been clearly proved that Milch was the first who already in 1941 organized protected factories, and that he was, therefore, the inventor of this kind of employment.

The problem of extenuating circumstances involves further the examination of the question, whether Milch had more to do with the utilization of foreign workers and prisoners of war than Speer. This examination was omitted. Exhibit Milch 55 and also all the evidence proved that Speer’s participation in the utilization of foreign workers and prisoners of war was considerably more extensive.

If the Tribunal had examined the extenuating circumstances, then the result would undoubtedly have been that the defendant would have been allowed extenuating circumstances on a large scale. Due to the fact that the responsibility of Speer was greater than that of Milch, Milch should not have received a more severe sentence than Speer.

Consideration should also have been given to the fact that it was proved that Milch continually advocated restrictions in the employment of foreign workers and of prisoners of war, and that he did indeed succeed in achieving such restrictions.

Finally, consideration should also have been given to the fact that Milch withdrew from his positions as early as spring and summer 1944, and that he had nothing to do with the extraordinary aggravation of all conditions which took place toward the end of the war.

This weighs more than what Speer did—the nonexecution of some insane orders which Hitler issued at the end of the war in 1945.

This consideration too should have led the Tribunal to a much less severe sentence. The fact that this was not taken into consideration is therefore made a part of this petition.

(Signed) DR. BERGOLD

B. Petition to the Supreme Court of the United States for Writ of Habeas Corpus

Erhard Milch, Petitioner vs. United States of America

Nuernberg, 2 May 1947

IN THE SUPREME COURT OF THE UNITED STATES

Application for Leave to File Petition for Writ of Habeas Corpus

Petition for Writ of Habeas Corpus

I, the undersigned Erhard Milch, have been charged in Case No. II before the Military Court No. II Nuernberg of illegally, deliberately, and intentionally having committed war crimes and crimes against humanity, as defined in Control Council Law No. 10 Article II, viz. the following:

Count One of the Indictment. War crimes, including murder, slave labor, deportation of the civilian population for slave labor, cruel and inhuman treatment of foreign workers, and the employment of prisoners of war by force and duress in actions connected with warfare.

Count Two of the Indictment. War crimes, including murder, whereby involuntary victims were exposed to sub-pressure and cold, experiments resulting in torture and death.

Count Three of the Indictment. Crimes against humanity, including murder and the unlawful acts listed in counts one and two of the indictment, committed against Germans and foreigners.

(page 2 of original)

I have been acquitted on count II of the indictment and found guilty by the sentence passed by the Military Court II on 16/17 April 1947 in respect of counts I and III of the indictment, and am condemned therefore to lifelong imprisonment.

I hereby make application for the sentence of the Military Court II passed on 16/17 April 1947 to be completely quashed, as being inadmissible according to Articles 63 and 64 of the Geneva Convention of 1929.

Substantiation

Decree No. 7 of the Military Government of Germany concerning the constitution and competency of certain military courts, constitutes a violation of Article 63 of the Geneva Convention of 1929, insofar as Decree No. 7 is applied to prisoners of war as well, and in its Article II appoints special courts for passing sentences on prisoners of war. Article 63 of the Geneva Convention of 1929 lays down, “Sentence against a prisoner of war may only be passed by the same courts and according to the same procedure as a sentence against persons belonging to the fighting forces of the country where he is a prisoner”. A field marshal is equal to a five-star general of the United States of America. The present Court consisted of three judges, of which not one has the military rank which I have. It therefore does not correspond to the court which, according to the laws of the United States of America, could pass sentence on a five-star general. The authority of the present Court is, however, expressly recognized by me.

Furthermore, Decree No. 7 of the Military Government of Germany constitutes a violation in Article XV of Article 64 of the Geneva Convention of 1929, because Article XV declares the sentence of the court in finding the defendant guilty, to be final and incontestable. Article 64 of the Geneva Convention of 1929 stipulates that prisoners of war must be allowed to employ the same legal means against a verdict as are granted to members of the fighting forces

(page 3 of original)

of the country where they are detained.

The rules laid down by the Geneva Convention of 1929 represent compulsory international law of a universal character and cannot be altered either by a signatory power alone or by an agreement between several signatory powers, but only by the consent of all signatory powers. In no case may they be altered by a decree of Military Government, not even by a decree of the Control Council. The rights of a prisoner of war, which are based upon the regulations of the Geneva Convention of 1929, can neither be waived nor cancelled.

The violation of the regulations of the Geneva Convention has now come about with the passing of sentence and the now existing restrictions placed in the way of contesting the verdict, not already by the trial as such.

I am still a prisoner of war. I have not been released from captivity. I am therefore still under the protection of the Geneva Convention, the same as before.

The violation of the Geneva Convention is all the more serious, in that I am still a prisoner of war of the British. True, the defense counsel was told at the beginning of the trial in reply to an express question, that my transfer to the jurisdiction of the United States of America was already effected, but it was not proved until the conclusion of the passing of sentence. That should have been absolutely necessary.

After the serving of the indictment and the beginning of the actual trial, an attempt was made on 4 January 1947 to gain my veiled consent to my release without saying anything, whereby I was asked to accept release money. On the receipt, however, I expressly noted, “Without recognizing my release”. I declared that release by American officers was not

(page 4 of original)

permissible at that moment and moreover a German field marshal could not be released in any case under existing German law.

After this explanation on my part, the American major conducting the proceedings revealed to me that another separate release proceeding would have to be carried out against me then.

Thereby it is clear that I am still a prisoner of war today. At any rate, I was when the trial begun and therefore in accordance with Article 60 of the Geneva Convention the protecting power for German prisoners of war, viz., Switzerland, should have been informed of the proceedings. This too constitutes a violation of the Geneva Convention of 1929. If the public prosecution authorities, however, were to refer to the fact that I was released after the trial had begun, then they should be confronted with the assertion that such a release is invalid. It would represent nothing but an evasion of the regulations of the Geneva Convention of 1929. I was not set at large for a single day. But that is demanded by a release from captivity as a prisoner of war. A release from captivity as a prisoner of war while maintaining captivity would be a release in fraudem legis.

Therefore the sentence constitutes a violation of international law. At the same time this violation is also a violation of the Habeas Corpus Act. None, under whatever pretext, may be deprived of the rights of legal proceedings and of a legal judge.

I therefore request the Supreme Court in Washington to examine whether the Decree No. 7 of the Military Government of Germany may be applied in my case, and whether, with due regard to the regulations of Article 60-65 of the Geneva Convention, the present Military Court II

(page 5 of original)

Nuernberg was in a position to pass sentence on me.

Furthermore I enclose a copy of my petition to the Governor-General [Military Governor of U. S. Zone of Occupation].

[Signed] ERHARD MILCH

[Note: Another petition with the same text was submitted to the United States Supreme Court by Dr. Bergold, Defense Counsel.]

IX. AFFIRMATION OF SENTENCE BY THE MILITARY GOVERNOR OF THE UNITED STATES ZONE OF OCCUPATION

Military Tribunal II, Case No. 2

In the Case of

The United States of America

vs.

Erhard Milch, Defendant

Order with Respect to Sentence

In the case of the United States of America against Erhard Milch, tried by United States Military Tribunal II, Case 2, Nuernberg, Germany, the defendant on 17 April 1947 was sentenced by the Tribunal to be transported to the Rebdorf Prison and there confined for the remainder of his natural life. A petition to modify the sentence, filed on behalf of the defendant by Dr. Friedrich Bergold, his defense counsel, has been referred to me pursuant to delegation by the Military Governor under the provisions of Article XXIII of Military Government Ordinance No. 7 and paragraph 6_b_ of Regulation No. 1 under said Ordinance. I have duly considered the petition and the record of the trial, and in accordance with Article XVII of said Ordinance and paragraph 6_b_ of said Regulation it is hereby ordered that—

The sentence imposed by Military Tribunal II, upon Erhard Milch be, and hereby is, in all respects affirmed.

[Signed] FRANK A. KEATING FRANK A. KEATING Major General USA Deputy Military Governor 17 June 1947

X. ORDER OF THE UNITED STATES SUPREME COURT, 20 OCTOBER 1947, DENYING WRIT OF HABEAS CORPUS

Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Murphy, Mr. Justice Jackson, Mr. Justice Rutledge, and Mr. Justice Burton.

No. 50, Misc. Erhard Milch, petitioner, vs. The United States of America. The motion for leave to file petition for writ of habeas corpus is denied. Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that the petition should be set for hearing on the question of the jurisdiction of this Court. Mr. Justice Jackson took no part in the consideration or decision of this application.

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Appendix

List of Witnesses in Case 2

[NOTE.—With the exception of Constantin von Neurath, Erich Raeder, and Albert Speer, all witnesses in this case appeared before the Tribunal. Prosecution witnesses are designated by the letter “P,” defense witnesses by the letter “D”, Tribunal witness by the letter “T”. The name not preceded by any designation represents the defendant testifying in his own behalf. Extracts from testimony in this Case are listed in the index of documents and testimonies.]

Name │ Date of Testimony │ Pages │ │ (mimeographed │ │ transcript) D ALEXANDER, Dr. Leo │14 Feb 47 │1074-1092 D BECKER-FREYSENG, Hermann │14 Feb 47 │1061-1066 D BRANDT, Rudolf │24 Feb 47 │1330-1354 D BRAUCHITSCH, Berndt von │20 Feb 47 │1271-1289 D DORSCH, Xaver │24 Feb 47 │1361-1379 D ENGEL, Gerhard │24 Feb 47 │1355-1361 D ESCHENAUER, Artur │13 Feb 47 │980-996 D FELMY, Helmut │20 Feb 47 │1290-1296 P FERRIER, Roland │5, 6 Mar 47 │1481-1548 D FOERSTER, Helmut │12 Feb 47 │915-938 D HERTEL, Walter │12 Feb 47 │944-979 D HIPPKE, Erich │7, 11 Feb 47 │759-870 D KOENIG, Max │17 Feb 47 │1189-1204 D KOERNER, Paul │5 Feb 47 │652-710 P KRYSIAK, Joseph │21 Mar 47 │2362-2376 P LE FRIEC, Paul │6 Mar 47 │1550-1584 T LICHTENSTEIN, Walter │3 Mar 47 │1428-1432 MILCH, Erhard │11, 12, 13, 14, 17, 18,│1696-2276 │ 19, 20 Mar 47 │ D NEFF, Walter │12 Feb 47 │939-943 D NEURATH, Constantin von │19 Feb 47 │1440-1443 D PENDELE, Max │18 Feb 47 │1205-1227 D RAEDER, Erich │4 Mar 47 │1434-1439 D REINECKE, Hermann │20 Mar 47 │2277-2287 D RICHTER, Karl Eitel │11 Feb 47 │871-900 D ROEDER, Manfred │3 Mar 47 │1381-1403 D ROMBERG, Hans Wolfgang │14 Feb 47 │1021A-1050 D RUFF, Siegfried │14, 17 Feb 47 │1092-1122 D SCHMELTER, Fritz │6, 7 Feb 47 │717-759 D SCHNIEWIND, Otto │24 Feb 47 │1307-1329 D SCHROEDER, Oskar │ │(withdrawn) D SIEVERS, Wolfram │14 Feb 47 │1050-1057 D SPEER, Albert │17, 19 Feb 47 │1136-1186; 1445-1457 D VORWALD, Wolfgang │10, 11, 20, 21 Mar 47 │1586-1696; 2287-2340 D WARLIMONT, Walter │20 Feb 47 │1296-1299 D WELTZ, Georg August │14 Feb 47 │1066-1072 D WOLFF, Karl │18 Feb 47 │1228-1268

INDEX OF DOCUMENTS AND TESTIMONY

Document No. Exhibit No. Description Page EC-68 Pros. Ex. 6 Letter from the Ministry of Finance 389 and Economics of Baden, 6 March 1941, containing directives regarding the treatment of Polish farm workers. EC-194 Pros. Ex. 8 Memorandum of Keitel, 31 October 1941, 393 concerning the use of PW’s in the armament industry. F-824 Pros. Ex. 57 Order of Field Marshal von Kluge 542 regarding compulsory recruitment of labor in the West, 25 July 1944. L-61 Pros. Ex. 20 Letter from Sauckel to the presidents 413 of Labor Offices, 26 November 1942, concerning deportation and employment of Poles and Jews. L-79 Pros. Ex. 3 Extract from minutes of Fuehrer 387 conference, 23 May 1939. NI-1098 Pros. Ex. 63 Extracts from affidavit of Fritz 456 Sauckel, 22 September 1946, regarding the jurisdiction of the Central Planning Board. NO-219 Pros. Ex. 83 Letter from Dr. Rudolf Brandt to Dr. 626 Rascher, 27 April 1942, concerning medical experiment report for Himmler and Milch. NO-261 Pros. Ex. 89 Letter from Milch to Dr. Hippke, 4 626 June 1942, concerning availability of low pressure air chamber for experiments. NO-262 Pros. Ex. 119 Letter from Dr. Hippke to SS 631 Obergruppenfuehrer Wolff, 6 March 1943, concerning Rascher’s transfer to the Waffen SS. NOKW-017 Pros. Ex. 54 Extracts from the minutes of the 527 conference with Air Force Engineers and Chief Quartermasters under chairmanship of Milch, 25 March 1944. NOKW-041 Pros. Ex. 113 Sworn statement by Hermann Goering, 27 625 September 1946, concerning Milch’s position as Inspector General of the Luftwaffe. NOKW-180 Pros. Ex. 155 Extracts from stenographic notes on 613 the conference at the Reich Marshal’s on Thursday, 4 November 1943, 11 o’clock at the Junkers Plant in Dessau. NOKW-195 Pros. Ex. 143 Extracts from stenographic minutes of 608 conference with Goering, 28 October 1943. NOKW-245 Pros. Ex. 157 Extracts from stenographic minutes of 606 conference with Goering, 22 February 1943, regarding plans for airplane construction. NOKW-247 Pros. Ex. 61 Appointment of Field Marshal Milch as 540 Goering’s plenipotentiary for the intensification of air force armament in June 1944. NOKW-261 Pros. Ex. 70 Chart of the organization of the 535 Jaegerstab drawn by Saur with letter of transmittal to prosecution staff, 14 November 1946. NOKW-266 Pros. Ex. 76 Affidavit of Fritz Schmelter, 19 559 November 1946, concerning the organization of the Jaegerstab. NOKW-269 Pros. Ex. 59 A short curriculum vitae of Field 633 Marshal Erhard Milch. NOKW-286 Pros. Ex. 144 Extracts from stenographic minutes of 605 GL-Conference, 1 September 1942. NOKW-287 Pros. Ex. 49 Letter from Milch to Sauckel, 8 April 499 1943, concerning the protection of industry. NOKW-311 Pros. Ex. 62 Extract from interrogation of Hermann 597 Goering on 6 September 1946, regarding Milch’s position as Generalluftzeugmeister (GL). NOKW-320 Pros. Ex. 73 Extract from interrogation of Karl 558 Otto Saur on 13 November 1946, concerning the use of concentration camp prisoners in Jaegerstab construction. NOKW-334 Pros. Ex. 75 Extract from transcript of 550 stenographic minutes of the Jaegerstab Conference of 25 April 1944. NOKW-334 Def. Ex. 16 Extracts from stenographic minutes of 564 the Jaegerstab Conference, 25 April 1944. NOKW-336 Pros. Ex. 75 Extracts from transcript of 555 stenographic minutes of the Jaegerstab Conference on 26 May 1944. NOKW-336 Def. Ex. 23 Excerpts from the stenographic minutes 566 of the Jaegerstab Conference on Friday, 26 May 1944, at 10:00 o’clock. NOKW-337 Pros. Ex. 75 Extracts from transcript of 544 stenographic minutes of the Jaegerstab Conference of 6 March 1944. NOKW-337 Def. Ex. 12 Excerpts from the stenographic minutes 561 of the Jaegerstab Conference on 6 March 1944 in the Reich Air Ministry. NOKW-338 Pros. Ex. 75 Extracts from transcript of 545 stenographic minutes of the Jaegerstab Conference on Friday, 17 March 1944. NOKW-338 Def. Ex. 13 Excerpts from the stenographic minutes 562 of the Jaegerstab Conference presided over by Field Marshal Milch on Friday, 17 March 1944, 1100 hours, in the Reich Air Ministry. NOKW-346 Pros. Ex. 75 Extracts from transcript of 546 stenographic minutes of the Jaegerstab Conference under chairmanship of Field Marshal Milch on Monday, 20 March 1944. NOKW-359 Pros. Ex. 75 Extracts from transcript of 557 stenographic minutes of the Jaegerstab Conference on 27 June 1944. NOKW-361 Pros. Ex. 75 Extract from transcript of 554 stenographic minutes of the Jaegerstab Conference during the 6th journey of the “Hubertus Undertaking” from 8-10 May 1944. NOKW-362 Pros. Ex. 75 Extracts from transcript of 552 stenographic minutes of Jaegerstab Conference on the occasion of the 5th trip of the “Hubertus Undertaking”, 2 and 3 May 1944. NOKW-365 Def. Ex. 15 Extract from the stenographic minutes 563 of the Jaegerstab Conference, 12 April 1944. NOKW-388 Pros. Ex. 75 Extracts from transcript of 547 stenographic minutes of the Jaegerstab Conference of 28 March 1944. NOKW-390 Pros. Ex. 75 Extract from transcript of 553 stenographic minutes of the Jaegerstab Conference of 4 May 1944. NOKW-406 Pros. Ex. 138 Extracts from stenographic minutes of 599 the GL-Conference, 7 July 1942. NOKW-407 Pros. Ex. 137 Extracts from stenographic minutes of 599 GL-Conference, 27 May 1942. NOKW-408 Pros. Ex. 139 Extracts from stenographic minutes of 600 GL-Conference, 28 July 1942. NOKW-409 Pros. Ex. 140 Extracts from stenographic minutes of 601 GL-Conference, 4 August 1942. NOKW-412 Pros. Ex. 141 Extracts from stenographic minutes of 602 GL-Conference, 18 August 1942. NOKW-416 Pros. Ex. 142 Extracts from stenographic minutes of 602 GL-Conference, 26 August 1942. NOKW-418 Pros. Ex. 136 Extracts from stenographic minutes of 598 GL-Conference, 5 May 1942. NOKW-442 Pros. Ex. 75 Extract from transcript of 554 stenographic minutes of the Jaegerstab Conference on 5 May 1944. NOKW-442 Def. Ex. 21 Extract from the stenographic minutes 565 of the Jaegerstab Conference, 5 May 1944. NOKW-449 Pros. Ex. 148 Extracts from stenographic minutes of 607 GL-Conference, 2 March 1943. 016-PS Pros. Ex. 13 Letter from Sauckel to Rosenberg, 24 405 April 1942, and extracts from report on Sauckel’s labor mobilization program, 20 April 1942. 084-PS Pros. Ex. 16-A Extracts from interdepartmental report 408 of the Ministry for Occupied Eastern Territories, 30 September 1942, concerning the status of Eastern laborers. 204-PS Pros. Ex. 39 Extracts from memorandum of a 424 conference, 18 February 1944, concerning the release of indigenous labor for purposes of the Reich. 208-PS Pros. Ex. 55 Report by Sauckel, 7 July 1944, on the 428 accomplishments of labor mobilization in the first half of 1944. 265-PS Pros. Ex. 35 Extracts from report by Leyser to 423 Rosenberg, 30 June 1943, on conditions in the district Zhitomir. 294-PS Pros. Ex. 19-A Extracts from top secret memorandum, 411 signed by Braeutigam, 25 October 1942, concerning effects of slave labor program. 407-II-PS Def. Ex. 3 Report from Sauckel to Hitler, 10 439 March 1943, concerning difficulties originating from the draft of manpower in former Soviet territories. 407-V-PS Pros. Ex. 30 Extracts from letter from Sauckel to 418 Hitler, 14 April 1943, concerning labor questions. 407-IX-PS Pros. Ex. 33 Letter from Sauckel to Hitler, 3 June 420 1943, concerning foreign labor situation. 1063-D-PS Pros. Ex. 21 Extract from order of Mueller, 17 415 December 1942, concerning prisoners qualified for work to be sent to concentration camps. 1206-PS Pros. Ex. 9 Outlines of directives of Goering 395 regarding the employment of PW’s in the armament industry, 7 November 1941. 1510-PS Pros. Ex. 58 Extracts from decree of 16 September 450 1943, defining the duties of the Planning Office of the Central Planning Board. 1526-PS Pros. Ex. 25 Extracts from letter from 416 German-appointed Ukrainian main committee to Frank, February 1943. 1584-III-PS Pros. Ex. 71 Correspondence between Himmler and 537 Goering, 9 March 1944, concerning the use of concentration camp prisoners in the aircraft industry. 1607-A-PS Pros. Ex. 115 Letter from Himmler to Milch, 25 628 August 1942, concerning Dr. Rascher’s report on high-altitude experiments. 1607-B-PS Pros. Ex. 115 Letter from Dr. Rascher to Dr. Brandt, 627 20 July 1942, concerning report on high-altitude experiments. 1617-PS Pros. Ex. 111 Letter from Himmler to Milch, 13 629 November 1942, concerning Rascher’s transfer to the Waffen SS. 3000-PS Pros. Ex. 34 Extracts from report rendered to 422 Riecke, Ministerialdirektor in the Ministry of Agriculture, 28 June 1943, on experiences in political and economic problems in the East. 3005-PS Pros. Ex. 7 Extracts from letter from the Reich 392 Labor Ministry to presidents of Regional Labor Offices, 26 August 1941, concerning the use of French and Russian PW’s. 3040-PS Pros. Ex. 10 Extracts from secret order of Himmler, 399 20 February 1942, concerning the commitment and treatment of manpower from the East. 3721-PS Pros. Ex. 41-A Testimony of Fritz Sauckel, 22 452 September 1945, regarding the jurisdiction of the Central Planning Board. 3819-PS Pros. Ex. 56 Minutes of a conference on 11 July 430 1944 attended by Milch, concerning the labor problem. R-103 Pros. Ex. 40 Extracts from a letter from the 426 (German-appointed) Polish main committee to the General Government of Poland on the conditions of Polish workers in Germany, 17 May 1944. R-124 Pros. Ex. 48-B Stenographic record of the first 447 conference of the Central Planning Board on 27 April 1942. R-124 Pros. Ex. 48-A Extracts from report on the eleventh 457 conference of the Central Planning Board, 22 July 1942. R-124 Def. Ex. 5 Extract from the stenographic report 509 of the eleventh conference of the Central Planning Board, 22 July 1942. R-124 Pros. Ex. 48-A Extracts from report on the 459 seventeenth conference of the Central Planning Board, 28 October 1942. R-124 Pros. Ex. 48-A Extracts from stenographic minutes of 461 twenty-first conference of Central Planning Board, 30 October 1942. R-124 Def. Ex. 6 Extract from the stenographic minutes 510 of the twenty-second conference of the Central Planning Board, 2 November 1942. R-124 Pros. Ex. 48-B Extracts from stenographic minutes of 465 the twenty-third conference of the Central Planning Board, 3 November 1942. R-124 Def. Ex. 7 Extract from the stenographic minutes 510 of the thirty-second conference of the Central Planning Board, 12 February 1943. R-124 Pros. Ex. 48-A Extracts from stenographic minutes of 467 the thirty-third conference of the Central Planning Board, 16 February 1943. R-124 Def. Ex. 8 Extract from the stenographic minutes 511 of the thirty-third conference of the Central Planning Board, 16 February 1943. R-124 Pros. Ex. 48-A Extracts from stenographic minutes of 471 the thirty-sixth conference of the Central Planning Board, 22 April 1943. R-124 Def. Ex. 9 Extract from stenographic minutes of 516 the thirty-ninth conference of the Central Planning Board, 23 April 1943. R-124 Pros. Ex. 48-A Report of the forty-second conference 475 of the Central Planning Board, 23 June 1943. R-124 Pros. Ex. 48-A Extracts from stenographic minutes of 478 the fifty-third conference of the Central Planning Board, 16 February 1944. R-124 Pros. Ex. 48-B Report on the fifty-third conference 479 of the Central Planning Board, 16 February 1944. R-124 Pros. Ex. 48-A Extracts from the stenographic minutes 484 of the fifty-fourth conference of the Central Planning Board, 1 March 1944. R-124 Def. Ex. 31 Extracts from the stenographic minutes 517 of the fifty-fourth conference of the Central Planning Board, 1 March 1944. R-124 Pros. Ex. 48-D Extracts from the report on the 498 fifty-sixth conference of the Central Planning Board, 4 April 1944. R-124 Def. Ex. 1 Extract from report on Fuehrer 438 conference attended by Milch on 19 February 1942. R-124 Def. Ex. 32 Extract from the Fuehrer conference 438 minutes, 21 and 22 April 1942. R-124 Pros. Ex. 48-B Letter of 20 October 1942 transmitting 448 the statutes of the Central Planning Board. R-124 Def. Ex. 2 Extract from the Fuehrer conference 439 minutes of 3, 4, 5 January 1943. R-124 Def. Ex. 33 Extract from report on Fuehrer 441 conference of 30 May 1943. R-124 Pros. Ex. 124 Speer’s minutes of a conference with 501 Hitler on 8 July 1943. R-124 Def. Ex. 4 Extract from report of Fuehrer 442 conference of 11-12 September 1943. R-124 Def. Ex. 34 Extract from Fuehrer conference of 1-4 443 January 1944, concerning Speer’s report on the French labor situation. R-124 Pros. Ex. 48-A Extract from the report by Saur of the 502 conference with the Fuehrer, 5 March 1944. R-124 Pros. Ex. 48-E Extracts from the minutes of 539 discussions between Saur and the Fuehrer, 6 and 7 April 1944. Speer Ex. 34 Def. Ex. 17 Order of Hitler, 21 April 1944, 560 delegating to Dorsch authority for Jaegerstab constructions.

TESTIMONIES

Excerpts from the testimony of defendant Milch 635 Extracts of testimony of defense witness Fritz Schmelter 567 Extracts of testimony of defense witness Xaver Dorsch 583 Extracts from testimony of defense witness Max Koenig 615 Excerpts from the testimony given by defense witness Albert Speer 502 before Commission on 19 February 1947

TRANSCRIBER NOTES

Punctuation and spelling has been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. American spelling occurs throughout the document. Multiple occurrences of the following spellings which differ and are found throughout this volume are as follows:

border line borderline front line front-line Jewish Bolshevik Jewish-Bolshevik Fraeulein Frau

Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, Russian and French documents presented in the trial(s). This volume had no German, Polish, Russian or other eastern European diacritics, only French diacritics. As a result, Goering and Fuehrer are spelled without umlauts throughout.

An attempt has been made to produce this ebook in a format as close as possible to the original document's presentation and layout.

Some illustrations were moved to facilitate page layout.

[The end of _Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (Oct 1946-Apr 1949) (Vol. 2)_, by Anonymous.]

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