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

Nuernberg, 2 May 1947

To the Military Governor

PETITION

of

Attorney-at-law Dr. Friedrich Bergold,

Nuernberg, Prinzregenten-Ufer 7/III,

Defense Counsel, Military Court II

Nuernberg

in Case II against the defendant

Erhard Milch, General Field Marshal,

at present in the Court Prison, Nuernberg,

to modify the sentence of the Military Court II

Nuernberg

on 16/17 April 1947.

A

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

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

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

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

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

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

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

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

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

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

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

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

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

B

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

This is in discrepancy with the recorded evidence.

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

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

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

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

C

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

D

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

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

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

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

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

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

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

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

(Signed) Dr. Bergold