A. Closing Statement of the Prosecution[143]

A. Closing Statement of the Prosecution^[143]

Mr. Clark Denny: We close today the trial of a major war criminal—a leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen. The evidence set forth before the Tribunal has shown that Erhard Milch was primarily implicated as a leader in a program to bring laborers into Germany by force, of allocating them to the various segments of the German war economy, and of munitions.

We deal here with a top military and economic planner who at all times was fully informed as to the aims and objectives of the Nazi plan. Unlike his colleagues Speer and Sauckel, Milch entered the conspiracy early. The defendant was one of a small group of men who constituted the leadership of the Reich.

Before dealing directly with the responsibility of the defendant for the crimes charged in the indictment, as shown by the evidence, we should like to review, briefly, the law applicable to these crimes.

THE LAW

The indictment charges and the evidence has connected the defendant with a wide variety of crimes incident to the enforced labor program of the Nazi regime. In themselves, these crimes are not new except in their enormity. In domestic law they have, from ancient times, borne such familiar titles as assault, battery, murder, kidnapping and pillage. In international law the principles which protect the individual from undue interference with his person and his personal freedom have given rise to a series of kindred precepts governing the conduct of a nation which has gained factual control over the citizens of another state. We shall consider briefly some salient precepts and prohibitions of international law up to, and including the provisions of Control Council Law No. 10.

Much of the labor which supplied Germany with the tools of total war was exacted from people who had been uprooted from their homes in occupied territories and imported to Germany. Displacement of groups of persons from one country to another is the proper concern of international law insofar as it affects the community of nations.

The law has recognized that some conditions may justify the transfer of people from one country to another. Correspondingly, and with much more relevance to the present case, international law has enunciated certain conditions under which the fact of deportation becomes a crime.

If the transfer is carried out without a legal title, as is the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has prevented temporarily the rightful sovereign from exercising power over its citizens.

Articles 43, 46, 49, 52, 55, and 56 of the Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as a crime the deportation of civilians from an occupied territory. However, Article 52 states the following conditions under which services may be demanded from the inhabitants of occupied countries:

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

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

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

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

The illegality of the deportation of civilians in territories under belligerent occupation was demonstrated in the First World War when the Germans attempted a deportation program of Belgian workers into Germany. This measure met with world-wide protest and was abandoned after about four months.

Among the voices raised in protest against the deportation of Belgians by Germany in 1916-1917 was that of Lansing, Secretary of State. He wrote:

“The Government of the United States has learned with the greatest concern and regret of the policy of the German Government to deport from Belgium a portion of the civilian population for the purposes of forcing them to labor in Germany, and is constrained to protest in a friendly spirit but most solemnly against this policy which is in contravention of all precedent and all principles of international practice which have long been accepted and followed by civilized nations in their treatment of noncombatants in conquered territory.”

Other protests were lodged with the German Government by Spain, Switzerland, Netherlands, and Brazil, all neutral countries. International lawyers all over the world condemned Germany’s action in the strongest terms.

The opposition in the German Reichstag accused the government of violating the Hague Convention and refused to vote for the war budget.

It is worthy of note, in passing, that the defendant has testified at this trial that he knew of this effort at deportation of labor on the part of Germany in the First War and that he was much interested in the investigation conducted by a Reichstag Committee concerning this matter. He could not have followed this investigation, as he admits he did, without learning that the deportation in question was a violation of international law.

The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal. A conspicuous example of illegality of purpose is found when the deportation is for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country.

An attempt has been made by the defense in this trial to show that persons were deported from France into Germany legally and for a legal purpose, by pointing out that such deportations were authorized by agreements between Nazi and Vichy French authorities. This defense is both technically and substantially deficient. Many of the Vichy Government’s highest officials, who held office by reason of and under the protection of Nazi power, have been punished for treason by the present legitimate government. And, too, the agreements themselves were illegal—because they were exacted under duress, and because they were void ab initio because of their immoral content. It is common knowledge that even the puppets of Vichy did not of their own accord agree to the Nazi deportation measures. It is equally clear that these agreements were contra bonos mores. Then, too, it was illegal for any French Government to conclude agreements which provided for the compulsory mass deportation of French workers to aid the enemy’s war effort. At the time of the agreement between Germany and Vichy there was merely a state of suspension of hostilities. French resistance had not ceased, and the outcome of the war continued to be uncertain. Lastly, the deportation agreements were invalid because their manifest purpose was to aid Germany in the commission of the crime of aggressive war. That an agreement in furtherance of an act which is illegal in international law is invalid has been stated by various authorities. For example, Professor Charles Cheney Hyde, of Columbia University, defines as internationally illegal “agreements which are concluded for the purpose of, and with a view to, causing the performance of acts which it (international law) proscribes.”

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

“The requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of international law and their undisputed applications * * *.”

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

“It is a unanimously recognized customary rule of international law that obligations which are at variance with universally recognized principles of international law cannot be the object of a treaty.”

The final condition under which deportation becomes illegal occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner.

A study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements, that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal, or whenever the deportation is characterized by inhumane or illegal methods.

Article II (1) (b) lists under war crimes “ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory.” It is clear that Law No. 10 establishes the following separate and distinct crimes: ill-treatment of civilians from occupied territories; deportation to slave labor of such civilians; and deportation for any other purposes of such civilians.

The prohibition of deportation of civilians from occupied territories irrespective of the purpose, as stated in Control Council Law No. 10, is a recognition of the principle of international law that a power in belligerent occupation has no right or authority (title) to deport the citizens of the occupied territories. The separate specification as a war crime in Law No. 10 of ill-treatment of civilians from occupied territories is a recognition of the rule of international law, as heretofore discussed, that even an otherwise lawful deportation (by an authority having title and for a legitimate purpose) is rendered illegal where the deportees are ill-treated.

Without entering into a detailed discussion of the evidence, it should be pointed out at this point, that all these conditions for criminal deportation were abundantly present in the enforced labor program of Germany during the 2d World War, and that the knowing connection of the defendant with all phases of illegal deportation has been established.

Article II (1) (c) of Control Council Law No. 10 specifies certain crimes against humanity. Among these is listed the “deportation * * * (of) any civilian population * * *”. The general language of this sub-section, as applied to deportation, indicates that Control Council Law No. 10 has indeed unconditionally condemned, as a crime against humanity, every instance of the deportation of civilians. Under this sub-section, there would seem to be no room for argument as to the legality of any agreement on the part of any government, legitimate or illegitimate, which allows deportation of its subjects in time of war.

We come now to a consideration of the crime of enslavement. Whereas Article II (b) names deportation to slave labor as a war crime, Article II (1) (c) states that the “enslavement * * * (of) any civilian population” is a crime against humanity. Thus, Law No. 10 treats as separate crimes, and different types of crime, “deportation to slave labor” and “enslavement.”

Article II (b) does not specify as a crime the detention (as distinguished from the deportation) of civilians for use as slave labor or for any other purpose. However, the section does stipulate that any atrocities or offenses against persons which constitute violations of the laws or customs of war, including but not limited to deportation to slave labor, are war crimes. Use or detention of persons from occupied territories for slave labor or for any other purpose, in and of themselves, do constitute violations of the laws and customs of war. Ergo, such use or detention is a war crime within II (1) (b) of Law No. 10.

The crime against humanity which is termed “enslavement” in Article II (1) (c) of Law No. 10 is susceptible of two meanings. It can be understood to embrace the initial act of deprivation of the freedom of another, and an act whereby such deprivation is continued, or either of them, or it may be interpreted as referring only to the initial measures whereby a person is deprived of his freedom.

It is the contention of the prosecution in this case that all phases of the slave labor program, the taking, the transportation, the detention, the use and the inhuman treatment of foreign workers as practiced by the Nazi state and participated in by the defendant, constitute enslavement within the meaning of Article II (1) (c). No sufficient reason appears for the limitation of the crime to the mere initial act. In every true and complete sense a person is enslaved from the moment when his liberty is taken from him until the time when it is restored to him. It is more than probable that if Law No. 10 is intended to limit the crime of enslavement to the initial measures under which a person was deprived of his liberty, there would have been some definite indication, either in the language or in the context of the statute.

Even if we were to concede the narrowest possible meaning for the term “enslavement” in Article II (1) (c), so as to understand by it only the first acts of deprivation of liberty, all acts under which such people were kept in an enslaved status would be crimes against humanity, because the same section defines as such any atrocities and offenses committed against the civilian population. By express proviso “enslavement” and “deportation” are only illustratively mentioned, and “other inhuman acts committed against any civilian population” constitute crimes against humanity.

The result is that whether we adopt the broad interpretation of the term “enslavement” or the narrower one, the deportation, the transportation, the retention, the use and the inhuman treatment of civilian populations are crimes against humanity. The prosecution charges that the defendant was criminally connected with all the phases of the slave labor program, whether these divisions be comprehended within the technical term “enslavement” or be divided between the crime of “enslavement” and that of “other inhuman acts.”

We shall now make brief comment on the subject of the treatment and use of prisoners of war. The Hague and Geneva Conventions merely codify the precepts of the laws and usages of all civilized nations. Article 31 of the Geneva Convention provides that “labor furnished by prisoners of war shall have no direct relation to war operations.” Thus the Convention forbids:

1. The use of prisoners of war in manufacture or transportation of arms or munitions of any kind, and

2. The use of prisoners of war for transporting material intended for combat units.

The Hague Regulations contain comparable provisions.

The essence of the crime of the misuse of prisoners of war derives from the kind of work to which they are assigned—in other words, to work directly connected with the war effort. The prosecution would like to recall to the court the evidence which connects the defendant with both the illegal employment of prisoners of war and with their abusive treatment. The Tribunal will recall that the defendant ordered the murder of prisoners of war who attempted to escape. We will discuss this crime more fully later. It will be remembered that there never has been a substantial denial of the fact that prisoners of war were used to man German antiaircraft batteries. Nor is it subject to doubt that prisoners were used in air armament industries over which the defendant exercised supervisory control.

We now come to the consideration of the basic charges and the law governing the defendant’s complicity in, and responsibility for, the Medical Experiments Program. The fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the person, and other inhuman acts.

The applicable provisions of Control Council Law No. 10, Article II, are (b) war crimes, (c) crimes against humanity. In connection with the criminal Medical Experiments Program, the prosecution submits that the defendant is guilty of—

(a) War crimes, namely violations of the laws and customs of war, as the medical experiments performed upon involuntary persons, some of them nationals of countries at war with the German Reich, involved the commission of murders, tortures, and other inhuman acts.

(b) Crimes against humanity, namely medical experiments performed upon involuntary German nationals and nationals of other countries, in the course of which, brutalities, murders, and other inhuman acts were committed.

Before we pass from the law involved in this case to a consideration of the evidence, we wish to mention the legal basis for the prosecution’s contention that the defendant must share the guilt which attaches to the slave labor program and the conduct of medical experiments upon unconsenting human beings. Control Council Law No. 10 defines for us the theory upon which this trial proceeds in Article II, paragraph 2, when it says:

“Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) an accessory to the commission of any such crime, or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime. * * *” [Emphasis added.]

Without wishing to limit the scope of the testimony in this case, the Tribunal’s attention is directed to the evidence which has established that the defendant, as a member of the Central Planning Board, and the Jaegerstab, and as Generalluftzeugmeister, and in every one of his capacities, was connected with “plans and enterprises” for the commission of war crimes and crimes against humanity, and was a “member of organizations and groups”, within the meaning of subdivisions (d) and (e) of paragraph 2, “connected with the commission of such crimes”.

Count One, paragraph 6, of the indictment charges the defendant Milch with guilt in the murder of prisoners of war who had attempted to escape from enforced labor in German war industry. The gist of this crime is murder, which is, and always has been, prohibited by every country which laid any claim to civilization. It was specified as a war crime under the Hague and Geneva Conventions and under the provisions of Article II of Control Council Law No. 10. The evidence which connects the defendant with this crime will be discussed in another part of this summation.

Law Number 10, Article II, paragraph 3 provides that the death penalty or lesser sentences may be prescribed for the commission of war crimes and crimes against humanity as defined in the statute.

We turn now from the law to the evidence. In the presentation of its case in chief, the prosecution first offered evidence to describe the slave labor program in Germany in all its stark terror. It then turned to a presentation of the proof which connected the defendant with the slave labor program in two of his principal capacities, as member of the Central Planning Board and as member of the Jaegerstab. Next there was put in evidence the documents which established the defendant’s connection with the medical experiments, and finally, after the defense had put in its case, the defendant was confronted with the evidence of additional documents which connected him with the detention and mistreatment of slave labor in his capacity as Generalluftzeugmeister. In summing up the evidence the prosecution wants to keep roughly the same order. It will deal in turn with the evidence of the defendant’s activities as member of the Central Planning Board and as member of the Jaegerstab. The documents relating to the defendant as Generalluftzeugmeister will then be dealt with and, in conclusion, the defendant’s implication in the criminal medical experiments will be discussed.

When, in the course of presenting the evidence, we first turned our attention from the general documents which established the body of the crime of slave labor to the documents which were to prove the defendant’s connection with that crime, we asked the Court’s attention to certain key words which we said would run like small threads through our proof. These words were cited to be “procurement, allocation and use”. It was stated that we would often use them. We offered many documents to prove Milch’s connection with each of the functions described by these key words. Once again, we ask the Tribunal to keep these words in mind.

The Central Planning Board, which was established in April 1942, served as a means of consolidating in a single agency all controls over German war production. The minutes of the Central Planning Board which have been submitted to the Tribunal reflect the dominant role played by the defendant at meetings of the Board.

The best evidence of the scope and authority of the Central Planning Board is contained in the Board’s own minutes. The first conference of the Central Planning Board was held on 27 April 1942. The duties and responsibilities of the Board were announced in these words:

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

Then, six months later, on 20 October 1942, the statutes of the Central Planning Board were published and distributed. A portion of these states:

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

It is addressed to: “The highest Reich authorities, the Reich Protector, the Governor General and the executive authorities in the occupied countries.” The letter of transmittal stated in part:

“Enclosed I send you for your information the statutes of the Central Planning Board with the request to support the office of the Central Planning Board in every possible way in its work, and to direct, more particularly, your section chiefs and reporters to forward all information requested orally, or by writing, in the shortest possible time. By this collaboration by your section chiefs and reporters, the building up of larger machinery in the framework of the Central Planning Board is to be avoided.”

The International Military Tribunal found that the Central Planning Board “had supreme authority for the scheduling of German production and the allocation and development of raw material”.

It needs no emphasis that the effective performance of these functions necessarily involved the Board in the requisitioning and distribution of labor, and the records of the Board, which have been submitted, leave no doubt that the Board exercised the authority conferred upon it in the field of labor. The International Military Tribunal in its opinion found that the Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor, and that the Board determined the basic allocation of this labor within the German war economy.

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

“In the fall of 1943, Funk was a member of the Central Planning Board which determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from occupied territories. Funk did not appear to be particularly interested in this aspect of the forced labor program, and usually sent a deputy to attend the meetings, often SS General Ohlendorf, the former Chief of the SD inside of Germany and the former Commander of Einsatzgruppe D. But Funk was aware that the Board of which he was a member was demanding the importation of slave laborers, and allocating them to the various industries under its control.”

Bearing in mind the fact that Funk was a minor member of the Board, how much greater is the responsibility of the defendant who was a dominant figure on the Board throughout its existence.

There is no need to review in historical detail the defendant’s personal participation in the criminal activities of the Board. A few references to the pattern for 1944 will suffice. The Tribunal will recall that Albert Speer, the other dominant member of the Board, was ill during most of this period.

On 4 January 1944, demands were made at a Hitler conference that Sauckel produce four million new workers from the occupied countries. The defendant was present at the conference, and at this meeting, Sauckel, in pledging himself to perform his recruitment tasks, indicated that the demands could be met only by Himmler, and the promise of assistance was forthcoming from the Reich Leader SS.

The allocation of this labor to the various sectors of the German economy was determined by the Board at its 53d meeting. The defendant was the presiding officer at this meeting. The chart compiled by Milch and found in his files shows his personal knowledge of the sources of the labor being allocated.

Sauckel was, however, unable to satisfy completely these demands. He reported this inability at its 54th meeting. This meeting of the Board was presided over by the defendant, and the minutes which we have submitted show the subordinate position occupied by Sauckel with respect to the Board. The Tribunal will recall Sauckel’s opening statement:

“Field Marshal, gentlemen, it goes without saying that we shall satisfy as far as possible the demands agreed upon by the Central Planning Board.”

And then later on in the meeting:

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

We shall not review in detail the minutes of this meeting, but the Tribunal’s attention is again directed to the fact that Sauckel was questioned closely by the defendant who suggested that the Wehrmacht be assigned to the task of assisting in the recruitment drive. The defendant suggested that French workers be coerced by a system of premeditated starvation. In dealing with the problem of Italian laborers, the defendant suggested that only those who went to Germany or worked in protected factories be given food.

As a further means of meeting the manpower shortage, consideration was given to possible measures for increasing the productive power of prisoners of war. Accordingly, on 5 March 1944, a conference was held at the Fuehrer Headquarters. It is evident from the minutes which have been submitted to the Tribunal that the defendant was in attendance. The Tribunal will recall that the decision was made to give the direction of the Stalags to the SS, in order to increase the production power of the prisoners. This was not to apply to the Americans or the English. The Tribunal will take judicial notice of the methods of the SS.

On 7 July 1944, Sauckel issued a report showing new manpower placed at the disposal of German war industry during the first half of 1944. We shall not review in detail this report, but merely state that it is proof of the Board’s directive to Sauckel.

This report, however, showed a deficit, and on 11 July 1944 a further conference was held to solve the question of how greater compulsion could be exerted on persons to work in Germany. The defendant has testified that he was in virtual retirement from production matters since late June 1944. Yet the record of this conference shows that he was present. The result of this conference was the greater utilization of the Wehrmacht in the recruitment of forced labor. The directive of Field Marshal von Kluge, which has been submitted in evidence, makes specific reference to the results of this conference.

Here, in brief, we have the picture. The defendant and the Board, of which he was a dominant member, requisitioning forced labor from Sauckel, allocating this labor to the various sectors of the German war economy, and later improvising new and more brutal techniques of force and terror for the recruitment of new labor.

The defense, besides denying the power and authority of the Central Planning Board, has challenged the authenticity and accuracy of its transcripts. The prosecution has been compelled to rely upon these minutes for much of its proof.

In this connection, it might be said that these same transcripts constituted the basis for findings of fact by the International Military Tribunal. They are quoted in the decision of that Court.

The statutes of the Central Planning Board, mentioned a few minutes ago, show the extreme care taken to insure the accuracy of reporting these meetings, as well as action taken or ordered to be taken. The statutes of the Board provide in part:

“In order to have the conferences properly prepared and to have the execution of the decisions supervised, the Central Planning Board appoints an office. This office consists of the deputies appointed by each of three members of the Central Planning Board; one of these three deputies shall be appointed chief of the office.”

Then follows a handwritten marginal note which I shall omit.

“In accordance with the attached distribution of work the office appoints reporters. These reporters are at the disposal of all members of the Central Planning Board. The office appoints one reporter to keep the record.”

And then, tasks of the office:

“The office prepares the meetings of the Central Planning Board in such a manner that the members of the Central Planning Board have the agenda and the material of discussion 24 hours in advance. For this purpose the office conducts preliminary talks with the competent departments, etc.

“On the strength of the record made by the reporter, the office sees to the execution of the decisions of the Central Planning Board by the competent agencies, and sees to it that the deadlines fixed are complied with.

“The members of the office keep the members of the Central Planning Board informed between the sessions.”

The minutes of these meetings which have been submitted to this Tribunal show that these proceedings were recorded and transcribed with characteristic German detail and accuracy. We need only refer to the charts and tables, and the remarks quoted in the transcripts. Of the 59 meetings fully covered by these official reports, 41 were prepared and signed by Ministerialrat Steffler, who was personally responsible for the accuracy and completeness of these reports.

Without the Central Planning Board the slave labor program could not have functioned.

THE JAEGERSTAB.

Here we have the defendant in immediate contact with the slave labor program at its peak. By the testimony of the defendant, it was he who conceived and instigated the formation of the Jaegerstab. Speer and the defendant constituted its leadership. Speer’s participation was nominal and it was the defendant who directed its activities and acted as its chairman. Speer was ill during part of the Jaegerstab’s existence and has stated to the Court that he did not preside at a meeting.

The Jaegerstab assumed control over fighter production when the exploitation of foreign forced labor in air armament had already reached unparalleled heights. On 16 February 1944, the defendant had told his colleagues in the Central Planning Board that “our best new engine is made 88 percent by Russian prisoners of war.” On 25 March, he told his engineers that soon the percentage of foreign personnel in the aircraft industry would reach 90 percent. Reich Leader SS Himmler, reporting to Goering on 9 March 1944 on the employment of concentration camp personnel in the aircraft industry, stated that nearly 36,000 prisoners were employed and that an increase to 90,000 was expected. The formation of the Jaegerstab is partly explainable in terms of the battle to increase the manpower resources available for fighter production.

The Jaegerstab was assigned top priority. Projects for the recruitment and commitment of manpower were discussed by the Jaegerstab. The evidence presented before the Tribunal has shown that questions of manpower were time and time again referred to the defendant. We have seen him agreeing to use his prestige and influence upon Sauckel in efforts to obtain new workers for aircraft production. When manpower in sufficient numbers was not forthcoming through normal channels, the Jaegerstab did not shrink from other methods of obtaining its labor. When necessary the Jaegerstab recruited its own labor, either directly or by engineering “snatching” expeditions for the seizure of manpower arriving on transports from the East.

The defendant’s frank admission to his subordinates that “international law cannot be observed here” characterizes best his own participation in the activities of the Jaegerstab. Where, as was the case with France, transfers of production facilities were concerned, the defendant advocated the stripping of the country and the deportation of its people as prisoners of war. When the discussion turned to PW’s, the defendant was quick to suggest their transfer to places under air attack. When the transportation of Italian civilian conscripts directly recruited by the Jaegerstab for service in Germany was in question, it was the defendant who advocated the shooting of those who attempted to escape.

The Jaegerstab was no mere discussion group. As an agency with absolute authority over fighter production, the Jaegerstab acted by orders and directives. The Jaegerstab fixed hours of labor and conditions of work. It was the Jaegerstab, for example, which established the 72-hour work week in the aircraft industry.

In addition to its jurisdiction over fighter production, the Jaegerstab was charged with the program for the decentralization of the German aircraft industry, both to above ground bombproof installations and to subterranean locations. Much of the labor employed in both phases of the project was concentration camp labor. The defendant must have known this fact.

One phase, the transfer to new installations underground, was under the immediate supervision of SS Gruppenfuehrer Heinz Kammler. Kammler was a member of the Jaegerstab. Where, as was the case in some instances, labor was not forthcoming in sufficient quantity, Kammler informed the Jaegerstab of his intention to take large numbers of persons into protective custody for use on his projects. Members of the Jaegerstab knew that manpower shortages on the construction projects were at least in part due to the high death rate. The conditions of employment on the projects have not been substantially disputed. The Jaegerstab was well informed of these conditions. While on trips with the Jaegerstab, Kammler visited these projects and his fellow members of the Jaegerstab were well advised as to the manner in which workers employed on them were treated. Where it was necessary to hang thirty people merely as an example to others, Kammler reported this fact to the Jaegerstab.

A second phase of the program, the transfer of fighter production to bombproof factories above ground, was carried out for the Jaegerstab by Stobbe-Dethleffsen and later Xaver Dorsch. While Stobbe-Dethleffsen and Dorsch were immediately in charge, it was the Jaegerstab which received the funds and raw materials necessary for the carrying out of this project. When sufficient progress had not been made under Stobbe-Dethleffsen, the Jaegerstab demanded that Dorsch carry out this program. The defendant was a leader in the planning which preceded Dorsch’s appointment.

By the testimony of Dorsch, Milch was one of a small group which worked out with Goering the details of the project, including the question of manpower. Dorsch was represented on the Jaegerstab by Schlempp, and later Knipping, deputies designated for this particular purpose. Schlempp informed the Jaegerstab on the progress of the work, both orally and in writing. Dorsch received manpower from the Jaegerstab. This was the immediate concern of Schmelter.

Early in April 1944 the defendant represented the Jaegerstab at conferences with Hitler where the decision was first taken to carry out deportations. Shortly thereafter, the defendant received written confirmation of the results of this conference, as did Himmler, who was to procure the workers. Progress reports were made and delivery dates agreed upon. Then came the disappointing news that the first transports arriving at Auschwitz consisted primarily of old men, women, and children. Later on there were reports as to the successful allocation of this personnel. The testimony of Dorsch shows that these Jews were used on the construction projects, that the conditions under which they lived were intolerable, and that the death rate on the project was excessive.

In closing this phase of the case, it is submitted that the defendant never resigned from the Jaegerstab. While it is true that the defendant at Goering’s behest was removed from certain offices in the Air Ministry in the summer of 1944, he retained his membership in the Jaegerstab until its dissolution, the prosecution contends.

As Generalluftzeugmeister the defendant had complete control over aircraft production. In this field his authority was unlimited. In particular it has been shown that the defendant requisitioned labor for the aircraft industry with knowledge of the brutal and inhumane techniques employed in recruiting these laborers, and that he gave directives for the criminal treatment of these laborers at the centers of production.

There is evidence that the defendant presented the labor demands of the aircraft industry to Sauckel. The Tribunal will recall that in his affidavit Sauckel stated that it was the defendant who produced the manpower figures for aviation. In view of the position occupied by Sauckel in the slave labor program, this statement is of special importance.

The statement of Sauckel is in agreement with the statements of Hermann Goering, the defendant’s superior in the Luftwaffe. In his interrogation the former Reich Marshal stated that the defendant was in charge of the division for labor employment in the Air Ministry and that the industry demands for labor in air armament were made by the defendant.

Even the defendant’s collaborator Albert Speer testified to the same effect when he stated:

“The requests of the air armament industry for laborers were presented by Milch and he did not permit anyone to take this right away from him until March 1944.”

The defendant as Generalluftzeugmeister was acquainted with the methods employed in recruiting this manpower. In fact, many of the practices indulged in by Sauckel were formulated at conferences at which the defendant was in attendance. The Tribunal will recall that the defendant was present at a conference in which Goering announced his plan to use the Luftwaffe in the recruitment drive to capture laborers in Holland. The Tribunal’s attention is also drawn to the Generalluftzeugmeister meeting of 25 January 1944 in which methods for the more expeditious deportation of young Czechs for work in the Luftwaffe were discussed.

The defendant also knew that prisoners of war and concentration camp personnel were included in the manpower he was requisitioning and distributing to the aircraft industry. We have seen him trying to increase their numbers in the industry under his control, and we have seen him ordering and abetting the inhumane treatment of this labor.

As chief of aircraft production, the defendant regulated the treatment of foreign forced labor in the German aircraft industry. The defendant fixed hours of labor and conditions of work and by directives to his subordinates set basic policies for the handling of this labor within the industry.

Where foreign workers refused to work, the defendant ordered that they be shot. When these wretched slaves attempted to revolt, the defendant directed that some of their numbers be killed, regardless of personal guilt or innocence. In the case of prisoners of war who attempted to escape, the defendant ordered that they be shot.

When the “contracts” of workers under his control expired, the defendant ordered their compulsory extension, and when workers attempted to change jobs, he advocated that they be put in concentration camps.

In the case of Italians who refused to work, the defendant ordered that they be beaten and so informed his chief, Goering. And where Frenchmen refused to work in French factories under his control, the defendant stated that he would deport them by force and bring them to Germany or to the East. Similar policies were applied by the defendant in the case of Polish workers.

No more need be said about the Generalluftzeugmeister. The Tribunal has seen the documents containing the minutes of the meetings. The documents dealing with this phase of the case are particularly revealing in showing the fanaticism of the defendant and the enthusiasm with which he recommended ruthless treatment of the hapless victims of German occupation policies.

We will now restate the pattern originally presented in terms of the proof brought forward at the trial in order to ascertain to what extent the defendant’s culpability has been established with reference to the medical phase.

First, the body of the crime. The prosecution contends that in violation of the laws of war and all the laws of humanity criminal high-altitude and freezing experiments were carried on by Luftwaffe physicians.

The testimony of Dr. Erich Hippke, the Medical Inspector of the Luftwaffe, is of interest on this subject. Hippke stated that Dr. Rascher, a Luftwaffe physician at the time, came to Hippke with a proposal to use prisoners as high-altitude experimental subjects in May 1941.

Hippke was in a receptive frame of mind, for it was essential that the scope of these experiments be widened and new human subjects were needed. The researchers working on the tests had developed a certain immunity so that results of self-experimentation did not give a true picture of the reactions.

With the aid of Himmler and the SS, the Luftwaffe was able to proceed with the experiments which were allegedly necessary in the interests of German military aviation medical knowledge. But lest one be inclined to believe that these pressure experiments were considered as minor nuisances to the subjects concerned, with no real dangers, note the words of Dr. Hippke:

“I asked him,” speaking of Rascher, “how he would be able to obtain such persons for experimentation, and he justified himself by saying that he had connections with the SS who had charge of such penal prisoners. There were such penal prisoners in Dachau and he would be in a position to obtain them for these purposes. I myself, because of my inner personal feelings on the matter, was very much against these experiments and could not make up my mind whether I should approve such experimentation.”

From the very beginning of the plan to conduct these experiments, Dr. Hippke had strong mental reservations concerning the moral principles involved in the task which the Luftwaffe doctors were about to undertake. During the coming year Hippke weighed the problem, and it was with some misgiving that he finally allowed his doctors to begin the experiments, saying to them: “Please, children, go carefully.”

But, tragically enough, his “children” did not go carefully. Instead, they ran amuck with their scientific apparatus and tests. The pressure experiments which were supposed to have been helpful to fliers of the Luftwaffe degenerated into so-called “X-experiments”, which meant “execution” experiments.

Seventy to eighty persons were murdered during the spring and summer of 1942 when the pressure experiments were carried on at Dachau.

During the subsequent freezing experiments a comparable number of concentration camp inmates forfeited their lives to the sadistic Dr. Rascher and his Luftwaffe associates.

Dr. Romberg himself admits having seen three persons die in the low-pressure chamber and concedes that at least nine other deaths may well have occurred when he was absent from his post at Dachau.

Wolfram Sievers,^[145] the manager of the Ahnenerbe, the SS Research Institute, witnessed the death of an experimental subject in the freezing tank.

There is adequate evidence that the low-pressure and freezing experiments were carried out by Luftwaffe physicians for the benefit of the Luftwaffe. There has been no valid denial of the fact that the defendant was the Luftwaffe official responsible for the deaths and cruelties suffered in these twin torture chambers, the pressure chamber and the freezing tank.

Now, let us examine in more detail the second basic charge of the prosecution, namely, that the defendant was officially connected with these experiments which violated the laws of war and humanity.

We have the “Wolffy” letter of 20 May 1942 in which the defendant tells Obergruppenfuehrer Wolff of the SS that “the altitude experiments carried out by the SS and the Luftwaffe at Dachau have been finished.” In this same letter Milch announces that experiments in connection with perils on the high seas would be important; that the necessary arrangements have been made and, since the low-pressure chamber is no longer needed, it must be moved from Dachau. Thus the defendant has entered the picture and established his official connection with the high-altitude experiments and the low-temperature experiments, which proved to be considerably more than mere harmless chilling tests.

If, as the defendant contends, he was not officially responsible for these Luftwaffe medical experiments, then it should follow that other persons connected with them would not take cognizance of the defendant in this matter. The contention is ridiculous.

The witness Wolff had the following to say regarding a meeting he had with Milch in August or September 1942:

“Thereafter, we had discussed our official questions. I inquired about how he was, and if everything between the Luftwaffe and the SS was all right. During that occasion we also spoke about these experiments very shortly, if at all, and we spoke of the invaluable help which the SS was giving us by providing these voluntary inmates, which was helping us with our medical material which could be used at the front.”

It is to be noted that they talked about the experiments and Wolff asked how the Luftwaffe SS relations were. It is submitted that this demonstrates that Wolff regarded the defendant as the top man in the Luftwaffe Medical Experiments Program, as indeed he was.

Then there are the two letters addressed to Milch by Himmler and Wolff, substantially alike in content; Himmler’s, dated November 1942, in which he cites the opposition that exists among “Christian medical circles” to conducting experiments on helpless, involuntary concentration camp inmates. He refers to the narrow-mindedness of such medical men, which “will take at least another ten years” to remove. But this narrow-mindedness did not trouble the consciences of Himmler or the defendant Milch. Decidedly not. In the words of the Reich Leader SS: “We two should not get angry about these difficulties.”

The prosecution submits that Himmler would not have written a letter in this tenor unless he was certain that his good friend Milch would be in complete agreement with his views.

And how did Himmler regard Milch in connection with the experiments? As a casual onlooker, with a purely academic interest in the results obtained? No, Himmler knew that Milch possessed the over-all command, the ultimate authority in the Luftwaffe; that the Inspector General of the Luftwaffe was the man to refer to whenever a question arose as to the disposition of the pressure chamber or the status of Dr. Rascher. Witness Himmler’s request in his letter:

“I beg you to release Dr. Rascher, Stabsarzt in the reserve, from the air force and to transfer him to me to the Waffen SS. I would then assume the sole responsibility for having these experiments made in this field and would put the results, which we in the SS need only for the frost injuries in the East, entirely at the disposal of the air force.”

The logical corollary to this statement is inescapable. If Rascher was not transferred to the SS and remained with the air force, the responsibility would not be Himmler’s alone. And we must remember that Rascher did not leave his Luftwaffe post until the year 1943 after the experimental atrocities had been largely completed. Then where did this responsibility rest? Himmler had no doubts; it was on the shoulders of the defendant.

Nor did Karl Wolff, Himmler’s right-hand man, have any doubts as to the responsible person in the Luftwaffe, with reference to the medical experiments. He, too, wrote to Milch requesting that Rascher be released from the Luftwaffe and transferred to the SS. Here was a man, who, by his own testimony, “had a good comradely relationship” with the defendant. On the direct examination, Wolff testified regarding his connection with Milch:

“Q. In your position during the war did you have any official dealings with Milch?

“A. Yes.

“Q. In what connection?

“A. During peacetime—that is, from 1933 on, until 1939—there was a personal cooperation between Milch and me. All difficulties between the Luftwaffe and the SS were handled at personal conferences in a very comradely way. This usage also took place during the war.”

It is because of the situation above described, that the prosecution has called Wolff the liaison man between Himmler and the SS on the one hand, and the defendant and the Luftwaffe, on the other.

The testimony and affidavit of Walter Neff, the Dachau prisoner who later became a block leader in Dachau, is of interest. This man saw Rascher often. Was Milch’s name mentioned by Rascher in connection with the medical experiments? It was. In his affidavit, which he did not repudiate when testifying before this Court, Neff said:

“The name of Field Marshal Milch was frequently mentioned in Dachau. Every time I asked Dr. Romberg how long the cars and the low-pressure chambers would remain in Dachau, he assured me that Milch would attend to everything. Dr. Rascher said to me that he had communicated with Milch personally and that the cars would remain in Dachau as long as he specified.”

Dr. Siegfried Ruff,^[146] an important figure in the medical experiments program, head of the research section of the DVL, recognized the defendant Milch as the supreme authority in the experimental program. In his affidavit Ruff said:

“The entire medical research for aviation was under General Dr. Erich Hippke, in his capacity as Chief of the Medical Service, until 1944, and subsequently under Professor Dr. Schroeder. As Chief of the Medical Service, General Hippke was immediately subordinate to Field Marshal Milch * * *. The chain of command for these experiments was Milch—Hippke—Ruff—Romberg.”

Again there is the chart drawn up by Dr. Oskar Schroeder,^[147] outlining the official Luftwaffe channels through which orders flowed from Milch to Hippke, and from Hippke to the various doctors engaged in the actual process of experimentation. Schroeder thus knew definitely that Milch was the Luftwaffe Chief in the medical experiments program. He later succeeded Hippke as Medical Inspector. Consequently, his chart is entitled to material weight in the proof offered by the prosecution.

Rudolf Brandt,^[148] adjutant to Himmler, often had occasion to deal with correspondence between the Luftwaffe and the SS, regarding the experiments. In referring to Himmler’s request that Milch order Dr. Rascher to be transferred to the SS, Brandt wrote a letter to Wolfram Sievers, of the Ahnenerbe Society, stating—

“I assume that the Field Marshal will of himself give the necessary orders, and then confine himself to sending a brief answer to the Reich Leader SS.”

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

“The putting at our disposal of the low-pressure chamber, however, will be possible then only if the Reich Leader SS writes in person to Field Marshal Milch concerning this.”

These two men, Sievers and Brandt, were not uninformed of the course of the medical experiments nor of the competent personnel in the Luftwaffe and SS in this matter. On the contrary, Sievers admitted witnessing the death of an experimental subject in the freezing tank, and the subsequent autopsy, while Rudolf Brandt stated in his affidavit—

“Field Marshal E. Milch and Professor Hippke, Inspector of the Medical Service of the Luftwaffe, were fully informed about the low-pressure experiments. Actually these experiments could not have been conducted without the knowledge and approval of these men, as they were conducted for the benefit of the Luftwaffe and the experimenting persons were mostly Luftwaffe physicians.”

In the eyes of other persons, the defendant was the dominant force behind the Luftwaffe participation in the Medical Experiments Program. The defense has brought forward no adequate proof to show that they were mistaken. It is the conviction of the prosecution that no such proof exists.

The Commander in Chief of the Luftwaffe, Reich Marshal Hermann Goering, was thoroughly familiar with the organization which was his brain child, the Luftwaffe, and the way it functioned. What importance did Milch’s position have in Goering’s mind?

His affidavit reads—

“Included among the responsibilities of the Office of the Inspector General was the conduct of all research and experiments and of all matters pertaining to health and sanitation inspection * * *.

“That Generaloberstabsarzt Erich Hippke was the Sanitation Inspector of the Luftwaffe during the period from 1941 through 1944; that the Office of the Sanitation Inspector was directly responsible for the conduct of all research and medical experiments; that the Office of the Sanitation Inspector, of which Generaloberstabsarzt Erich Hippke was the head, was directly subordinate to the Inspector General, former Field Marshal Milch, and that former Field Marshal Milch was responsible for all action taken by Generaloberstabsarzt Hippke, or by the Office of the Sanitation Inspector or its subordinates.”

It has been established that criminal experiments, high-altitude and freezing, were carried on at Dachau by Luftwaffe physicians, working under the orders and supervision of competent Luftwaffe authorities.

We have shown that all Luftwaffe personnel connected with, or knowing about these experiments, from those closest to the place where the experiments were conducted—Dr. Rascher, and Walter Neff—to those high up in the positions of command—Goering and Schroeder—looked to Milch as the ultimate authority in the Medical Experiments Program. An investigation of the attitudes and convictions of the SS officials concerned in this program discloses the same picture.

Could all these men have been mistaken? Were they writing to and referring to the wrong man when they contacted the defendant? To put forward such a proposition is to deny the facts. There was no error, the facts are indisputable.

The defendant was and is officially responsible for the Medical Experiments Program of the Luftwaffe.

Lastly, we come to the question of the defendant’s knowledge of the experiments which were being carried out at Dachau for the Luftwaffe.

Throughout direct examination by his defense counsel, the defendant has consistently denied receiving reports authored by Rascher or in any other way being informed of the criminal nature of those experiments, until the time of this trial.

However, he was very much interested in altitude experiments as such. The following excerpt is from his testimony under questioning by Dr. Bergold:

“Q. Witness, how far were you interested in these high-altitude experiments in question as GL?

“A. We were interested in the real altitude tests as I know it exactly, because I want to state this figure as 13,500 meters, and we added 500 meters in order to get a square figure. However, we knew that this last 500 meters, which I have mentioned, we were not too interested in that. We were only interested in the first place in cabin planes, too, after a certain test had been carried out on 388-cabin suits, whether it did not succeed or fail, because a person could not move properly the way those suits were, due to low pressure up there in the air is felt much more than here on the ground.”

The Tribunal’s attention is directed to this figure of 14,000 meters, which is approximately ten miles. Milch wanted that altitude simulated in the pressure chamber and the human reactions studied.

It was on 20 May 1942 that Milch wrote his letter to Wolff. Here he said that Hippke had reported to him that the altitude experiments carried out by the SS and Luftwaffe at Dachau were finished. Mention was made of Rascher’s availability for the forthcoming experiments dealing with sea perils. And Milch stated that the low-pressure chamber could no longer remain at Dachau. In this one letter, the defendant demonstrates his knowledge that the SS and the Luftwaffe were conducting, and had completed, altitude experiments at Dachau and that Dr. Rascher was involved.

There is the letter of 4 June 1942 to Hippke, wherein the defendant exhibits his authority in regard to the low-pressure chamber and the tasks of Dr. Rascher.

On 25 August 1942, Himmler wrote to the defendant enclosing the report on the high-altitude experiments. Moreover, he asked Milch to receive Drs. Rascher and Romberg for a lecture and presentation of the film on the experiments. Himmler suggested that Milch refer the matter to the Reich Marshal “because of its importance”.

This last statement should dispel any possible doubts as to the attention accorded these experiments by official German military circles. In fact, the defendant himself admitted discussing the experiments with Goering on 13 September 1942. The defendant spoke of Himmler’s interest in the program, and the apprehension felt by the Medical Inspector Hippke, although “he did tell me that everything was all right.” The disposal of the pressure chamber was settled in this talk with Goering.

The defendant has said that the experiments, reports, and other aspects of the matter were not known to him, partly because he had no time for this, and partly because he had no technical knowledge of the subject. He would have this Court believe that the experimental program was a minor matter—one that the Inspector General of the Luftwaffe would not pay close attention to. Yet we have seen that it was important enough so that Himmler was frequently corresponding with the defendant or others on the subject. It was important enough for the defendant to bring the matter to Goering’s attention, even to the details of the disposition of the low-pressure chamber.

On 31 August 1942, the defendant wrote to Himmler, acknowledging receipt of the report on altitude experiments, and telling Himmler that he was “informed about the current experiments”.

While on the stand the defendant attempted to explain this letter by referring to the usage of German Ministries, where the form “I” means the Ministry as such. But he admitted that he had written the closing sentences of this letter “I remain yours, as ever, etc.” Here he did not deny that “I” was used in its ordinary sense. It is neither logical nor capable of belief that in the same letter to Himmler, defendant would use the word “I” in two different senses.

It was also on 31 August 1942 that Hippke discussed the experiments with the defendant, expressing doubts and misgivings. In reply to Milch’s question, Hippke told him that these doubts had not been substantiated.

Thus it can be seen, from Milch’s testimony itself, that a cloud of suspicion and evil hovered over the entire Medical Experiments Program.

It is useless, indeed futile, to punish the perpetrators of criminal acts on the one hand, and to ignore those in high positions who have made possible the commission of the crimes. The defendant has belabored the term “duty” in the course of his testimony. He has spoken of his solemn oath to Hitler and to the German people. It would seem that it was incumbent upon the defendant to acquaint himself with the activities of his subordinates, at least to the extent that he should have known that people were being murdered in experiments, which from the evidence, were useless as far as the advancement of the knowledge of aviation medicine is concerned.

The present case is not without judicial precedent. A close analogy can be drawn between it and a recent case decided by the Supreme Court of the United States, in re Yamashita [U. S. Reports, Vol. 327, October term 1945, Nos. 61 and 672]. The procedural and jurisdictional questions therein decided are of no moment to us now, but the facts of the Yamashita case are similar to those of the Milch case, and the opinion rendered by the Court is particularly in point in the matter of responsibility for senior officers.

General Yamashita was the Commanding General of the 14th Army Group of the Imperial Japanese Army in the Philippines.

Upon surrendering to United States Forces, he was indicted and tried as a war criminal before a Military Tribunal on the following charge—“while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines, and he * * * thereby violated the laws of war.”

The Court summed up the issue as follows:

“The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”

The Court cited Articles 1 and 43 of the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention, and Article 26 of the Geneva Red Cross Convention of 1929. It then stated—

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

The Court thereupon denied the petition for certiorari and leave to file petitions, for writs of habeas corpus, and prohibition.

In the case of the medical experiments, we have a much less complex situation. There is no question of a senior officer in an occupied country, rather we are faced with a simple direct chain of command problem: Milch—Foerster—Hippke. Had Milch given the order, the experiments would have been terminated, but no order of termination was given—people were murdered and Rascher remained in the Luftwaffe until he was transferred to the SS in March 1943. The defendant had an affirmative duty to know what was going on, and an affirmative duty to act so as to stop the experiments. That he was ignorant of the true state of affairs is unbelievable in view of the letters and the testimony of those who were below him. Field marshals are not made as are noncommissioned officers. The road is a long one in any army from the position of private to the lofty peak of a field marshal. The defendant would have you believe that his powers were similar to those of a private first class. Yet we have seen him, high in the councils, a confidant of Hitler, one who could disagree with Goering, whose deputy he was on occasion, a man who was so thoroughly skilled a soldier that he seriously requested an assignment as a division commander, although his service had been in the air force for a decade prior to the request. If the defendant was not the responsible officer in connection with the medical experiments, then the scourge of the Wehrmacht has not touched the continent of Europe. There is no one who knows better than the defendant the principle of responsibility in any army. By holding the office which he held, he had the duty to control the activities of those who were his subordinates, to insure that they conducted themselves as soldiers and not as murderers. He has failed woefully in the task.

We have concluded now our remarks regarding the criminal activities of the defendant in his various capacities with respect to the slave labor program and the medical experiments. It remains only for us to deal briefly with the defendant’s participation in the murder of two Russian escapees, to discuss his defense of irresponsibility because of a bad temper, to discuss the use of PW’s, and to touch upon the testimony of some of the witnesses who appeared in his behalf, and the record of the meeting of 23 May 1939.

The defendant has maintained that he knew nothing about the shooting of the two Russian officers who attempted to escape in February 1944. We have his own statement, made at a time when the general situation, from the Wehrmacht’s point of view, was acute but not forlorn. The International Military Tribunal has stated in its judgment concerning Fritz Sauckel,^[149] speaking of a statement made by Sauckel at a Central Planning Board meeting, “Although he now claims that the statement is not true, the circumstances under which it was made, as well as the evidence presented before the Tribunal, leave no doubt that it was substantially accurate.” The word “circumstances” as there used refers to a meeting of the Central Planning Board on 1 March 1944. Milch made his statement at the prior meeting held on 16 February 1944 (53d). The letters submitted by the defense in connection with this episode are interesting. The first and second from Schmidtke on 10 January, and from Gangolf on 13 January, refer to a similar incident other than that with which we are here concerned. The third letter from Winterstein on 12 January says nothing about the deaths. The affidavit of Prell, other than stating that the deaths occurred on a Saturday, is of no value. The witness Barthelmess, who made an affidavit though a resident of Nuernberg, was not called. The affidavits of Klein and Popp were offered; each is in a prison camp in the American Zone, yet neither was called. The letter of Janko recites the facts in a context suggestive of the words used by the defendant when he described the incident in the 53d meeting of the Central Planning Board on 16 February 1944. Here, too, it is submitted that the circumstances under which the statement was made leave no doubt that it was substantially accurate. The defendant boasted of his prowess as a commander who ordered executions when he would impress those who curried his favor at the Central Planning Board meetings, but now he says he had no authority to give orders and if he had given them, they would not have been obeyed.

The defendant has offered, as a plausible reason for the employment of Russian, French, and Italian prisoners of war, the fact that various historical events made it unnecessary to abide by the terms of the convention concerning prisoners of war. The witness von Neurath testified that Russia had renounced the conventions in question, and hence Germany could renounce them as to Russia. As for France, it is contended that the alleged government headed by Pierre Laval had concluded an arrangement with the Reich which made it legal to employ prisoners of war in tasks forbidden by the Conventions. A similar reason is advanced for the use of Italian prisoners, the concluding of an arrangement between the Reich and Mussolini. The International Military Tribunal made a finding with respect to this matter.^[150]

“The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the U.S.S.R. was not a party to the Geneva Convention, is quite without foundation. On 15 September 1941 Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on 8 September 1941.”

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

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

“This protest, which correctly stated the legal position, was ignored”.

The defendant was a soldier of some experience, he knew it was improper, even criminal, to have the Russian prisoners work in the Luftwaffe factories, but he paid no attention to the breach of this duty of the soldier. The manner in which the Reich bludgeoned a treaty from the French is too well known to warrant discussion. It cannot be contended with any seriousness that the French prisoners of war, who were negotiated into slavery by a puppet government, were voluntary employees of the Germans. Indeed the witness Le Friec has testified that when he was taken to work in the airplane factory, he was told that he would “work on baby carriages”. The position of the defendant with reference to Italian prisoners of war and their illegal employment is still more absurd, if that is possible. The Wehrmacht had moved into Italy early in the war, and in 1943, when the Badoglio government concluded an armistice with the Allies, the Wehrmacht continued to occupy the northern part of Italy as an occupying power. They allegedly made a treaty with the by then tottering shadow of the former sawdust Cæsar and proceeded to bring the Italian prisoners of war to the Reich to work. Here again the soldiery had been sold into bondage by their former chief. The record shows that the Russian, French, and Italian prisoners of war were used to work in airplane factories. Whether they made the fighter plane, Me 109, or the jet fighter, Me 262, or the transport plane, Ju 52, is of little moment. In the total warfare in which the Reich was engaged, there is one certainty, that nothing was being constructed which was not part of the war armament program.

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

“Many of the prisoners of war were assigned to work directly related to military operations, in violation of Article 31 of the Geneva Convention. They were put to work in munitions factories and even made to load bombers, to carry ammunition and to dig trenches, often under the most hazardous conditions. This condition applied particularly to Soviet prisoners of war. On 16 February 1943, at a meeting of the Central Planning Board, * * * Milch said: ‘We have made a request for an order that a certain percentage of men in the Ack-Ack artillery must be Russians; 50,000 will be taken altogether. Thirty thousand are already employed as gunners. This is an amusing thing, that the Russians must work the guns’ ”.

That every aircraft factory in the Reich had antiaircraft batteries to protect it goes without saying. Who would know better than the defendant that such use was made of the Soviet prisoners of war? Further, this type of artillery was a part of the Luftwaffe and not a separate branch in the ground forces, as it is in the U.S. Army. The witness Foerster has testified that Soviet prisoners of war worked at the gun positions. If the number two man in the German air force could not have done anything toward arranging that the prisoners of war did not work in the factories, or work the guns, then no one in the Wehrmacht could have done anything about the situation.

We have heard much of the defendant’s violent temper and the resulting statements which, witnesses assert, were never taken seriously by those who heard them. The explanations offered by the defense are as frivolous as the alleged outbursts were frequent. It would have been difficult, if not impossible, for one who occupied the positions held by the defendant, to accomplish anything if his subordinates had to sift all of the strong statements he made, in an effort to determine which of them were seriously said. Further, his strong statements about the procurement and treatment of laborers are closely aligned with the grim reality as we have seen it. We submit that this man of violent temper believed in, and consciously advocated, the ruthless measures he recommended, and that his subordinates, to the best of their ability, complied with his recommendations. It is not reasonable to assume that one with his power could have made statements, of the kind of which we have heard here, and that he would then rely on the good offices of those who were around him to insure that nothing was done as a result of these statements. The Reich was not a country of innocent victims of one tyrant, but rather it was composed of a series of tyrants, each like the master tyrant, each with his own group of subordinates, who carried out the wishes and whims of their respective chiefs. If all men who held positions of authority in the Reich are to be believed when they say that they were personally opposed to criminal excesses, then we have the fantastic conclusion that these crimes were committed in the face of influential and unanimous opposition.

The witnesses produced by the defense left a little to be desired. Without indulging in exhaustive detail, a few statements made by some are worth comment.

The witness Koenig said that he didn’t know Himmler was head of the SS until 1945.

The witness von Brauchitsch did not know families were broken up and sent to concentration camps. It was this man, the aid to Goering, who passed on the Terboven letter of May 1942 to the defendant. The Court will recall that the letter told of the attempted escape and the resulting concentration camp detention of the Norwegians. It was the defendant who said that an attempt to escape by a prisoner of war is an honorable thing. Would not a similar effort on the part of some Norwegians merit something less than a concentration camp? Brauchitsch had said a little earlier that he did not know that foreigners were in concentration camps.

The witness Felmy has stated that some Yugoslav partisans were sent to Germany as laborers.

The witness Schniewind, who was present at the conference of 23 May 1939, did not under any circumstances gain the impression that aggression was announced.

The witness Vorwald, a subordinate of the defendant and hence his concern for these proceedings, may be assumed as being something short of disinterested, was thoroughly glib and exceptionally agreeable. He even agreed with the statement, on cross-examination, that the forces of the Reich were no longer in Africa in 1943. It is a matter of historical record that the invasion of that Continent began in November 1942 and that the campaign was concluded in the spring of the following year.

The witness Koerner, still laboring under the spell of the former leaders, stated that he believed Goering to be the last great man of the Renaissance.

The last witness of whom we shall speak is Karl Wolff. In his affidavit he spoke of meetings between Himmler and Milch over coffee and cigars. He spoke of the great cultural works of the SS. Was he speaking of Dachau and Mauthausen? With some vehemence, he insisted that he had deported only 1,050 Jews from all of Italy. He knew nothing of Dachau that led him to believe that anything unusual was happening there; although he did say that, in his visit there in 1942, the place was so clean that one could have eaten from the floor.

These represent a fair cross section of the witnesses, all of whom had roles of varying importance in the tragedy with which we are here concerned. Even as the defendant contends that he knew nothing of what went on, so do they echo the same refrain.

Much time has been spent in attempting to discredit the Schmundt record of the 23 May 1939 meeting. The Court is familiar with the findings which have been made by the International Military Tribunal on this subject. There has been no additional light thrown on the matter by the evidence here presented to indicate that the Schmundt record is anything other than a correct record of the events which transpired at the meeting.

We wish to discuss now in conclusion one document offered by the prosecution. This we have saved until the last because we believe that of all the evidence presented by the prosecution it is most typical of the defendant as a man and as a Nazi. We refer to the minutes of the conference of air force engineers and others which was presided over and was addressed by the defendant on 25 March 1944. This document, like so many others in this case, was initialed by the defendant.

The defendant stated that, as of the date of the conference, “We have in our employ today approximately 60 percent foreigners * * *.”

He continued, “The ratio is gradually approaching 90 percent foreigners, with 10 percent German managers.”

These are statements by a man who said he did not know about the extent to which foreign labor was used in his own industry, let alone in Germany. He stated that—

“The Fuehrer order provides clearly that the fighter plane program, which the Jaegerstab is starting, has priority over all other fields of armament * * *.”

He showed knowledge of the production of tanks and infantry munitions. He spoke of having the air force production “to an extent safely underground” in four months’ time. It is here that he stated that he was head of the Jaegerstab and that Saur was his deputy and Chief of Staff. Touching on his conferences with the various plant officials, he stated—

“On the spot the individual gentlemen are then told—supported by the combined authority of the State, the Wehrmacht, and the Party, that is Saur and me, Speer is unfortunately still on sick leave, otherwise he would also be present—what it is all about.”

He commented on labor—

“Thus, all pertinent questions are dealt with in the conferences about the commitment of labor and all competent men, who have anything to do with the commitment of labor, meet, especially the president of the competent provincial labor office. Thus it is determined on the spot, in the individual spheres, what the factory lacks.”

This is the man who has constantly maintained that he had nothing to do with labor. One can readily imagine a session between the Luftwaffe field marshal and a labor office chief.

We have heard the defendant deny and re-deny any knowledge of the slave labor program as such, let alone the extent to which it went. It is our contention that anybody who walked the streets of Germany could not have failed to have become aware of the activities which were being carried on by Sauckel and his henchmen.

He makes an interesting reference to bureaucracy:

“It is an error to believe that civilian offices are more bureaucratic than military offices. On the basis of my continuous and extensive experience, I can assure you exactly the opposite is true.”

This from one who would have the Tribunal believe that his staff and officers were one big happy family who ran things in a rather casual catch-as-catch-can fashion.

Speaking of the arrival of laborers, he said—

“In brief, the people arrive there and are put to work there. If any doubts exist as to whether a request is justified—for the people are not requested by numbers, but as electricians, blacksmiths, fitters, turners, as unskilled laborers, as foreigners—then this is settled. If the result shows that the request for people is not justified, then the matter is referred to a commission and this commission examines the facts within 48 hours. If it becomes apparent that dirty dealings are going on, my special court martial is called into play, and it hands down a quick decision.”

This from a man who has stated that he had no power to give orders. He stated further, “the normal work week in our industry is 72 hours.” The witness Krysiak testified that they worked 84 hours at the factory where the Mauthausen inmates were employed.

Speaking of the difficulties that resulted from the hoarding of spare parts by the various foremen, he said—

“Now it is your task to teach these people some sense and to put the entire system of hoarding on a sensible basis. I therefore ask you, as the senior authorities in the field: teach that to these people by force. There is no sense in writing letters. Such letters are not read. They would not understand them anyhow.”

The wish of a field marshal is as an order, and he advocated the use of force on his own people. The extent to which he urged that they go was expressed a few lines further on when he stated—

“Whoever hoards supplies must be punished immediately. By punishment I also mean shooting. For if these people are told what is at issue here, and they still try to hide parts of their supplies or to cover them up, that is dirty dealing and a crime against Germany. I want to say that very clearly and I want to say it in very sincere words, so that you yourselves will realize that we are dealing here with a question which is of decisive importance for Germany’s well-being, that we are not dealing with an ordinary point of discussion but with a question which decides about the life and death of Germany.”

He advocated killing Germans, not slackers but hoarders. He consciously used strong language, yet he would have it believed that he never spoke harshly except in a rage and that nothing ever came from his outbursts. He indicated knowledge of the overall figures on the breakdown of working hours.

“In considering the figures one has to know that 52 percent of the total man-hours are spent in equipping a plane and only 48 percent in building the aircraft frame and engine.”

He has said that he was powerless to do anything about requests from industry, yet he stated—

“If I want something from industry, then industry comes and says, ‘Yes, I have those and those requests.’ Only then can I do what you want.”

He again speaks of the death penalty when he says—

“Gentlemen, in this connection I may call your attention to another important point. If I visit an office and find out that something is being hidden there, then I ask for the death penalty for such a crime today. That is fraud. That is sabotage of the German armament industry.”

Can it be seriously contended that these words were regarded by the listeners as mere outbursts?

Next we have another illuminating passage on his attitude toward prisoners of war.

“Then there is still the human factor. We often had considerable difficulty with the human factor. The fluctuation there is very considerable. The quota of the Luftwaffe in the distribution of manpower was considerably lowered. The foreigners run away. They do not keep any contract. There are difficulties with Frenchmen, Italians, Dutch. The prisoners of war are partly unruly and fresh. The people are also supposed to be carrying on sabotage. These elements cannot be made more efficient by small means. They are just not handled strictly enough. If a decent foreman would sock one of those unruly guys because the fellow won’t work, the situation would soon change. International law cannot be observed here. I have asserted myself very strongly and, with the help of Saur, I have represented the point of view very strongly that the prisoners, with the exception of the English and the Americans, should be taken away from the military authorities. The soldiers are not in a position, as experience has shown, to cope with these fellows who know all the answers. I shall take very strict measures here and shall put such a prisoner of war before my court martial. If he has committed sabotage or refused to work, I will have him hanged right in his own factory. I am convinced that that will not be without effect.”

These words are strangely reminiscent of his speech at the 53d meeting of the Central Planning Board. He knew he had advocated and participated in flagrant violations of international law and here he went on record on this subject.

We see the defendant making a “big request” of the Quartermaster General and calling for “energetic action” by the chief of supply. This was a meeting of considerable moment and these statements did not go unheeded.

He spoke of the laborers.

“* * * We in the Luftwaffe armament industry have Russians, French prisoners of war, Dutch, and members of 32 other nations. The obtaining of interpreters alone presents a big difficulty there.”

Then he adds—

“We, the Quartermaster General and Generalluftzeugmeister, have already agreed that we are to balance the personnel also. Above all it is necessary that the member of the troops be treated in exactly the same way as the industrial worker.”

We have a strong statement concerning the feelings of the German worker. He said—

“By unjust treatment the German worker means that the treatment is not the same for all. That is what makes the German worker indignant. He wants everyone to be treated the same way. He wants justice and does not want to be ill-treated in words or any other way. He cannot stand it and he is right in not being able to stand it.”

The defendant advocated that the German worker be carefully handled. The Tribunal has heard from the witnesses Ferrier, Le Friec, and Krysiak how the foreign workers were handled.

He outlined the working program for the Easter week end—

“Finally I ask that the troops receive the fundamental order to work on Good Friday, the Saturday before Easter, and on Easter Monday in the same way as the people in the factories. The soldiers just do not have to go on furlough either. They must be told why.”

Are these the words of a man who is without authority to issue orders concerning the troops?

He acknowledged his employment of Russian prisoners of war and advocated that shirkers among the factory laborers be whipped back to their jobs. He said—

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

He again spoke of orders that have been given.

“If the factory knows: Now we are going to be attacked, and it has a few trench shelters but does not have a bombproof shelter or the like, then the people simply ran away from the factory automatically at each raid after the first one, and they could usually not be caught the next day either. That applies particularly to the foreigners. We have therefore now issued the following order, and have equipped the superiors accordingly with weapons and pistols: As soon as a factory which has already been attacked a few times can count on the raid’s being aimed at that particular factory again, then the personnel leave the factory, but in closed groups by shops, under the leadership of the man in charge of the shop, and, to the extent that they are German personnel, they leave singing military songs.”

Are superiors armed with weapons and pistols to lead contented German workers away from a factory in case of an air-raid? Little wonder that the foreigners who had been brought in like chattels ran away when the opportunity presented itself. Were these workers who were fleeing, voluntary workers?

Commenting on the gravity of the task of fighter production, and the importance of the months of April and May 1944, he said—

“That will be decided in six to eight weeks. If we succeed in this, then we will once again have time to carry out all the other tasks and jobs of this war and can also achieve greater successes in other fields.”

Were the “other fields” tasks to be accomplished in the sowing of seeds of the Reich’s culture?

The defendant has said that he knew nothing about the living conditions of the foreigners. It is obvious that he knew something, for he said—

“I also ask you to be of considerable assistance in the question of lodging in connection with the question of the relationship between our military personnel at the airfields and the workers. If we bring the people over to work, we also have to provide them with places to live. As far as foreigners are concerned, this has to be done in some suitable way. They cannot be put together with our people, just like that. But they should not be so far away from the airfield that one cannot get them to work at all.”

No, don’t let them live with the native workers, but be sure that they live close enough to the factory so that they can put in their 72 hours a week!

The importance of the fighter program is emphasized when he said—

“There are no laws of bureaucracy, there are no regulations, there is nothing at all as important as the task of winning the war.”

The defendant could not agree with anything that Hitler stood for after March 1943. He was trying to get out, but here he speaks of Hitler and his henchmen—men who, he said, were leading Germany to certain catastrophe:

“It is quite surprising how the population has endured this thing so far and how it always gets on its feet again when it is led in the proper way by true leaders who, thank God, are present among the people through the Party and the rest of the leadership. But you must not forget, gentlemen, war nerves have reached a point which cause us in the leadership group worry.”

He has said that he was not a wholehearted Nazi, but here he referred to himself as one of the true leaders and this at a time when the hands on the clock tolling the hours of the Reich were approaching twelve. Yet he would have you believe that he was a minor man.

He did not confine his speaking efforts solely to the Luftwaffe; he was one of the leaders, and as such it was natural that he should address the armament feeder industry. On that subject he said—

“What I am telling you today was told the other day to the entire armament feeder industry—that includes the blacksmiths, foundries, crankshaft workers of the iron producing industry, etc. They were likewise exhorted to produce the maximum. In the same way the Gauleitungen, all of the provincial offices, wherever we were, were addressed by us to that effect. But everyone considers that if he does not do his duty, we do not ask whether there is a law, we ask only that he is the responsible one, and that we will seize him no matter who he is.”

His first peroration is indicative of his attitude.

“Please go wherever you are going and knock everybody down who blocks your way! We cover up everything here. We do not ask whether he is allowed to or whether he is not allowed to. For us, there is nothing but this one task. We are fanatics in this sphere. We do not even consider letting anything at all distract us from that task. No order exists which could prevent me from fulfilling this task. Nor shall I ever be given such an order.”

Yes, the defendant was a fanatic. Too, he was one who could cover up. It was a willful man who could say that.

There is an interesting statement concerning the number of employees of the Luftwaffe. The defendant set it at 1.8 million. This is somewhat in excess of the .5 million figure that one witness mentioned.

It has been insisted that he had nothing to do with labor, it has been insisted that he could give no orders, yet in his second peroration to the same speech, he said—

“We have given orders that will make you laugh. Some labor control office or other suddenly declared that the Jaegerstab was not entitled, according to paragraph so-and-so, to establish a 72-hour workweek; it was not valid. I said: The gentleman is herewith informed, if he should say such a thing once more, he will be picked up; I have excellent cellars in this house. Then the opposition disappears immediately. But you have to count on such things, and the difficulty for you is that, in order to get through all the junk, one should clean out, first of all, a whole lot of little pigsties. Something will come out of this whole affair with us, yet. Whoever of my technical people from the Ministry does not earn his keep with the Jaegerstab now, and does not cooperate, I guarantee that he will never appear again in this Ministry, in the machine where I give the orders.”

Is this the man who said he could not have people sent to concentration camps? The witness Krysiak was “picked up” for having said in 1940 that Germany would lose the war. He was arrested by the Gestapo as the result of a private conversation. It is unbelievable that a field marshal could not, and did not, exercise the same power.

Today is the third anniversary of the speech of 25 March 1944 made by the defendant. His closing remarks on that day detail decisively the philosophy of the then field marshal of the Luftwaffe. Those assembled had been listening to their chief since midmorning. The hour was late. The hands of the clock were past twelve. Germany was in the fifth year of war. The defendant was concluding his speech. He said—

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