B. Closing Statement of the Defense[152]

B. Closing Statement of the Defense^[152]

Dr. Friedrich Bergold: May it please the Tribunal. In my opening statement I drew a picture of the defendant Milch which differs considerably from the description given by the prosecution. It is my hope that in the long course of producing evidence I have given proof that my conception is the full truth.

According to the testimony of the witness Richter, the affidavit of the witness von Mueller and according to the defendant Milch’s own testimony, nobody can doubt that Milch has never been a good National Socialist. His love for peace and his longing for a final understanding between the nations of Europe, especially between Belgium, France, England, and Germany, became completely obvious. No one who believes in justice would refuse to believe him if he states that he regarded the war as a misfortune. He was also one of the few intelligent men to admit Germany’s defeat in the First World War. There was no proof supplied that in any way prior to 1933 he supported any armaments. His testimony and military affidavit from von Mueller have shown that under his management the Luftwaffe was always a peaceful instrument of communication among the nations. It is to be regretted that the examination of foreign politicians, such as Van Zeeland, Pierre Cot, and Delbos, were not permitted, because only then the personality of Milch would have been shown in its true light. He must have been a peaceful and just man; otherwise, all these statesmen would not have had confidence in him. Even the witness delegate Messersmith, whose affidavit, Document 1760-PS, was introduced in the International Military Tribunal proceedings, affirmed that Milch condemned the coercive methods of the Nazis. He was different from the other Party members, so that after 1937 he lost Goering’s confidence. At that time he asked to be allowed to retire but in spite of his threat of suicide, he did not obtain that permission.

Such a man of such a past must be believed when he testified that even in 1939 he had no knowledge of Hitler’s aggressive intentions. Milch had misgivings about Hitler because he regarded the measures taken against Czechoslovakia as a breach of peace, and he was sufficiently intelligent to see that Britain would no longer tolerate such violations. Hitler was dishonest with him and always put before him his intentions for peace, even forbidding him the manufacture of bombs. The defendant never requested the manufacture of bombs because he intended to lead a war of offense, but only because, understanding the international situation, he was convinced that England would fight against the Nazi regime.

Up to that time, your Honor, nobody can find any inconsistency in the defendant’s outlook. It was no offense if he requested a Wehrmacht for his country in view of the world situation, and therefore he favored a reasonable rearmament. As long as all nations were peace-minded and maintained armies, Germany had the right to maintain armed forces as well. I beg you to remember that the defendant demanded from his superiors that rearmament should be effected in a slow and reasonable manner and that he had differences with them on account of this.

It was not for nothing, your Honor, I repeat that. Only for one to keep all these things in mind will it be possible to judge whether or not the defendant’s statement regarding the conference of 23 May 1939 is correct. A man who loves peace and works for peace was present at that conference and states today, or testified that the speech in question did not contain any mention of aggressive war against Poland or any other country. He even testified in this courtroom that this speech did not have the contents as it is laid down in the Schmundt protocol.

I realize that the International Military Tribunal came to the conclusion that the Schmundt protocol is correct. All defendants and witnesses who were heard at that time declared that the contents of the speech were not of so aggressive a nature as it is laid down in the minutes. The defense counsel made a mistake at that time of not calling all the witnesses which I requested. Nobody went to the trouble of critically examining the text of the record. I can understand why the IMT reached a different conclusion, having heard only the defendants’ general objection, which remained unsubstantiated in detail. Nowhere is it yet permissible in law to maintain the verdict of a previous court when new and better evidence has been submitted.

The witnesses Warlimont, Schniewind, Engel, and Raeder stated that several passages of the Schmundt record contained a number of false assertions regarding Hitler’s words. Warlimont testified that he was not present, although he is listed as among those present. Milch’s testimony made it absolutely definite that Goering was not present. If there were only so few persons present and there were mistakes made concerning the presence of persons, the record must have been made up a long time after the event, otherwise no faults of that kind would have been possible. Schniewind testified that a number of points contained in the Schmundt record were never discussed at that time at all. He had the opinion that many ideas laid down in the record were borne out at a later period, that is to say, 1940. These ideas concerned, for example, the use which could be made of war production after the defeat of France, the importance of aircraft carriers for convoys, the collaboration of Italy, and the break-through of the Maginot Line by this force, about Japan, and last but not least, the so-called Fuehrer Decree. By the statement of Felmy it is proved forever that the so-called Fuehrer order was given only on 12 December 1940. Even Raeder stated that the principles of the Fuehrer order were laid down at another occasion and that they were accordingly carried out afterwards. This other occasion was given by the statement of Felmy. Also Raeder did not hear anything about Japan; he considered it impossible that Italy and the break-through of the Maginot Line were discussed and he also states that nobody mentioned a better production of cruisers. He also testified that in that meeting a two-front war was not mentioned because he, as an officer, would have noticed that. Furthermore, he testified that Belgium and Holland were not referred to and that after the speech Goering did not open a debate. Even though the witness was not present at all times, it is rather strange that he should not have heard mention of any of the very points not heard by the other witnesses. The defendant Milch gave you the precise details of those points of the speech which were not mentioned at the time, and he was even in a position to tell you when these various points were first conceived.

Who, assuming responsibility for justice, can still seriously maintain the findings of the IMT now that these precise statements have shown us the errors of the Schmundt record? A record containing so many grave mistakes is no longer of probative value and can never be made the basis for any judgment. I am convinced that after this trial the historians of the whole world will regard the Schmundt record as the product of a later period, i.e., between the fall of 1940 and the spring of 1941 and that they will regard it as the result of time, drawn up to make Hitler, then regarded as the victor, seem possessed of a prophetic gift which in reality he never had.

The conference did take place on 23 May 1939; that is true. Its real topics, however, can no longer be stated on the basis of the Schmundt record. Thus, the statements made in the first Nuernberg trial gain a different and greater significance. Never again, therefore, will it be possible for anyone to say that on that occasion Hitler preached war and the enslavement of Europeans.

There is yet another argument possible against this record, which, it is alleged, also contains the plan for slave labor. Document EC-194, Exhibit 8, and 016-PS, Exhibit 13, submitted by the prosecution, show in all clarity that the use of European peoples in German armament works was a measure forced by the emergencies of the war and that the idea was born and realized only by the military difficulties resulting from the war with Russia.

With clean hands and a pure heart, Milch entered the war in August 1939 having previously advised Goering to fly to Britain to prevent the war. He himself became the victim of Hitler’s deception, and he himself believed that the war had been forced upon Hitler. Who can disregard justice to such an extent as to reproach Milch with having held that belief? It is his misfortune, but not his guilt, to have been deflected from the truth by misleading propaganda. Who would so misinterpret patriotism, heretofore regarded as one of man’s noblest instincts, as to reproach Milch for having done in 1939 his duty as a soldier?

He never prepared any aggressive wars. In every case he was informed shortly before the event, and nothing is more typical of the opinion his superiors held of him than the fact that he chanced to hear about the preparations for the war against Russia through a subordinate, who had been told of Hitler’s plan before the field marshal was told. The first Nuernberg trial has already shown that Milch saw Goering at once in an effort to prevent that war. Goering himself admitted this. Milch’s good intentions were of no avail because Goering turned him down. As Milch’s superior officer, he even went so far as to forbid Milch to see Hitler and to tell him that he, Goering, would prevent Milch from being admitted to Hitler’s presence.

One of your Honors, in putting questions to the defendant, aimed to show that it might be regarded as incriminating to the defendant that he did not resign in 1941 or at least in 1943. Your Honors, only if one has lived in Germany these last years is it possible truly to judge that problem. As I said in my opening speech, one can judge the man only against his background, through his upbringing, from which usually nobody can escape no matter in what country he lives. Milch was brought up as a soldier. He absorbed ideas which for centuries were regarded as true and inviolate laws. It is no guilt for him not to have freed himself from them. I have said this once before.

At that time nobody in Germany was in a position to protest against certain events, against certain aims of the Party. All that one could do was to criticize things within one’s own immediate circle and tell one’s intimate collaborators how to improve matters. If in Germany anybody had attempted at any time to express criticism publicly, either by word or by publicly resigning, nobody would have been the wiser for it. This system was so ruthless and its stranglehold over public opinion so great that it would and could suppress anything.

You need only remember that during the first IMT trial it was shown that von Papen’s criticism in his Marburg speech was completely withheld from the German public. Had Milch done anything, nobody would have heard about it, and his action would have been useless, perhaps senseless, as nothing would have been changed for the better. Your Honors may not know that six to eight generals, including General von Falkenhausen, once Commander in Chief in Belgium, and Colonel General Halder, one of Germany’s highest and best leaders, were thrown into concentration camps because they had deviated from Hitler’s line. This is not connected with 20 July 1944. Nobody in Germany knew about this. Pictures of General Count Sponeck were sold as of a hero two years after this man had vanished into a concentration camp. Such were the lies and the deceptions of Goebbels’ propaganda. We have learned since the end of the war that prior to 20 July 1944, there were 50 to 60 generals in Moabit prison, without anyone in Germany knowing anything about that. You will understand the full falsehood of propaganda when you recall the base distortions by which the dismissals of Generals von Blomberg and von Fritsch were announced to the German public.

Believe me, your Honors, protests in Germany were not possible at that time. The only result would have been the futile death of the protesting person. If Milch had attempted to fly abroad, his whole family—such were the detestable methods of those in power—would have been put to death on the basis of what was known as family responsibility.

Milch cannot be reproached with not having refused service and allegiance. No soldier could do this. Should a member of the Anglo-American Air Forces suddenly have refused to go out on an operation which would bring death to innocent women and children, he would not have been regarded as a hero. He would have been put before a court martial.

That Milch did not participate in an attempt on Hitler’s life, who would accuse him of that? Although he was an energetic man, the defendant was, because of several concussions of the brain which he suffered, inclined to terrifying fits of rage, or ranting speeches, but the evidence has shown that in his heart of hearts he was kind and soft. He would ameliorate sentences already passed, and as the witness Richter testified, he compensated for a fine, which he inflicted himself, by secretly passing into the family of the punished man a very large sum of money, larger than the fine itself. The witness Vorwald expressly stated that basically Milch was a man soft of heart, who conducted himself *self soft, who only in a rage caused by disease and worry utters harsh words never followed by action, is not capable of murder. Thus, no just man will charge him with not liquidating Hitler, and Milch did what in his conscience he felt to be possible and necessary. He had the courage of telling the dictator to his face what he thought of the situation. He demanded that Hitler desist from his plans, dismiss the most important men, such as Goering, Ribbentrop, and Keitel, give up the supreme command, and establish a cabinet of equal powers, and he finally desired that peace should be brought about.

Your Honors, it would be easy to say that as a field marshal he did not thereby endanger himself. The statement of the next witness Krysiak, the fate of the generals which I mentioned to you, show what was done in Germany to men who did such things, but the defendant went one step further. He succeeded in inducing Goering also to demand the end of the dictatorship and the instituting of a Reich cabinet. Your Honors, this means that this defendant thereby risked his life. He could not foresee that nothing would happen to him. That nothing did happen to him was not due to his rank, but to Hitler’s opinion that this man was not yet dispensable. Everybody can only be sentenced according to his potentialities. Your Honors must not compare conditions in your free and noble country to those in Germany. Only the German world as it was should be the basis of your judgment here. It is not true to say that Milch gave his continued support to the objectionable aims of the Party. He continued to do his duty because, as he testified, he wished to prevent the worst from happening to his people, the total destruction of the cities and of Germany’s culture. It was his constant hope to organize the defense in such manner as to prevent bombing warfare from taking its full effect, that same bombing warfare which is the scourge of mankind, whatever one may think of its military value. Would it be for us to judge him on the fact that he did not obtain his aim because of the stupidity and failings of his superiors? Milch furthermore testified before you that by an improved defense he hoped to achieve better peace terms for his people. I can assure your Honors that since 1941 Goebbels’ propaganda told the German people time and again of the horrible terms the enemy would impose on them in the event of peace. That included an item to the effect that the whole of the German male population would be castrated should Germany lose the war so that the German people would perish. Who has the courage to say it is despicable for a man of battle to organize a defensive system under the news impact of such items in order to obtain better peace terms?

It would be a distortion to say that Milch thus believed Hitler’s aim of destroying Europe, for he knew that the war was lost. He was intelligent enough to see that with the lost war the end of Hitler’s ideology would come. It was not the Party he wanted to serve when he hoped for less severe peace terms with a better defense, but a lost war that would not mean the loss of the legal rights of a whole nation as is the case unhappily today. Only he who comprehends and understands all these things can appreciate Milch’s actions and judge them fairly. And later, when he saw that his objective of saving the German people from the worst would fail, Milch withdrew from the regime. He could not resign on his own. That, for a soldier in Germany, was an impossibility. He did not choose to act dishonorably, which no one can expect from a decent man. In Germany soldiers are removed from their offices only by their superiors. Thus, as he put it himself, Milch could only organize his own elimination from office by gradually transferring his tasks to Speer’s Ministry. As his superiors thereupon regarded him as superfluous and were glad to be rid of this man, Milch was finally free. Then began the scheme on the part of his superiors to liquidate him. Such was the position of Milch, the man, and such by and large were his motives. For him to have acted in this and no other way is not dishonorable, and only he can cast the first stone who never in his born days gave in to public opinion in defiance of his better judgment, who has never considered his superiors, and who proved himself to be above his upbringing, and had the courage of fighting for his convictions even with the most brutal methods.

Before dealing with the details of the indictment I should like to make these basic points. The prosecution created the impression that under the conspiracy count it would hold Milch responsible for everything in totality that was done in connection with labor assignments and experiments within the confines of the Luftwaffe, nay, within the confines of the German government departments. This is not admissible. The indictment may be referred to Control Council Law No. 10. Nothing is mentioned there that conspiracy to commit crimes against humanity or war crimes constitutes a punishable offense. Only conspiracy against peace is punishable. The way the law is formulated, particularly count 2 of Article 2, makes it clear beyond doubt that activities listed therein only concern participation but no independent types of crime. Where there is an independent crime then also in the case of war crimes and crimes against humanity there would have to be a provision similar in count 1-A, Article 2 of the Control Council law where a crime is defined as “participation in a common plan or conspiracy for the purpose of committing one of the crimes above set forth.” In this connection the verdict of the IMT must also be considered. At the end of the sixth part of the verdict it states:^[153] “Count one, however, charges not only the conspiracy to commit aggressive war, but also to commit war crimes and crimes against humanity,” but the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides: “Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in count 1, that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate, and wage aggressive war. And under figure 8, the IMT states further:^[154] “As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a) dealing with crimes against peace.” The verdict was so formulated because the Charter was unclear at this point. As above stated, the Control Council law contains no such provisions, so much the less because in this case conspiracy does not constitute a separate crime. The provision set forth in Article 2, paragraph 2, No. 6, “whoever was connected with this planning or execution”, is only a form of individual defense and cannot be put on a par with the concept of the common plan or conspiracy. Article 2 defines clearly the type of crime referred to in paragraph 1, namely (1) the individual crime of violation of peace; (2) conspiracy against peace; (3) individual war crimes; (4) individual crimes against humanity; and finally, the form of participation in paragraph 2. Therefore, it is rendered that a so-called conspiracy to commit war crimes and crimes against humanity is not a punishable offense.

It has to be examined therefore whether Milch made himself guilty of any individual type of participation. It would have to be shown that either as a principal or accessory he participated in a crime or that he especially ordered or initiated it. It would have to be proved that he gave his approval for a definite crime. That approval, however, cannot refer to a general approbation but can only be considered as participation in crime if, by his approval, he strengthened and stiffened the criminal will of the perpetrators. It must therefore be made clear that he knew of the individual crimes and that he intended to put them into action by means of his approval. Even in that case his subsequent approval would not suffice; since still nowhere in the world is anyone punished because of an inner or moral attitude. Finally, it must be examined whether Milch was connected with the planning or commission of such crimes. Here again it must be understood, of course, that this connection must be capable of causing the crime, and that Milch knew about the connection and therefore the crime. The question of membership in any organization or association which was connected with the execution of crimes requires special examination. It is clear that mere membership, as such, in any organization wherein any member may at one time have committed a punishable act cannot make every other member of that organization punishable. Otherwise a monstrous situation would arise where the commander in chief of a large army was punishable if any member of that army committed a war crime. Where in this world in all time has it happened that in such a huge organization as wartime armies’ soldiers did not at one time or another commit punishable acts? This is inevitable and it occurs in all armies. It can therefore only be a question here whether the organization or the association of which the defendant was a member had as its particular purpose the commission of war crimes or crimes against humanity.

Letter (f) of Article 2, paragraph 2, must be considered here. Since Milch is not charged with a crime against peace, it would also have to be especially proved that he participated in the common plan of conspiracy for the commission of crimes against the peace. That he held high office cannot of its own make him punishable. This is also evident from the Tribunal of the IMT who acquitted three persons who held equally high office in Germany.

Bearing in mind these points of view, one has to examine the individual counts of the indictment. In answer to the prosecution’s charge that Milch in February 1944 had ordered two Russian officers to be shot, Exhibits Milch 40 to 44, and the testimony of the witness Vorwald have proven that the said officers were shot on the basis of an expressed order by Hitler who received, through political channels, the report of the incident earlier than Milch. Exhibits Milch 40 to 44 and the testimony of Vorwald have made it clear that Milch, first of all, had no possibility of issuing such an order, and secondly, that he did not cause its being ordered, and thirdly, that he only gained knowledge of the incident after the officers had been shot.

The witness Vorwald was in a position to testify that Milch even angrily protested against such an order.

The passage in the record of the 53d meeting of the Central Planning Board of 16 February 1944 contained in Defense Exhibit 11, can therefore not be made the basis for a judgment. Whoever, knowing the German language, reads the text critically must realize that the utterances of Milch recorded therein are contradictory in themselves and, therefore, cannot possibly contain the real statements made by Milch. They are contradictory to the true course of events; they are contradictory to Milch’s real authority, and finally, they are contradictory to the inner attitude of the defendant who himself angrily described this act as a crime.

It is significant for the question of the probative value of all verbatim records submitted to consider that such recording of the true events is found here. Such records containing such mistakes cannot be made the basis for a judgment. If we assume, however, that Milch really made these utterances which are so wrong, then this passage would remove all doubt that Milch during moments of excitement was no longer master of his thoughts and words and, therefore, cannot be held responsible for them. It would be a serious offense against justice, however, if judgment was to be pronounced on the basis of such stenographic notes taken by an unknown person who may have been in error.

Milch is furthermore accused of having abetted, participated in, and been connected with cruel and inhuman experiments carried out on concentration camp inmates at Dachau. I believe that here, too, evidence has shown that Milch is innocent. It has been proved by the clear, although long-winded, deposition of the witness Hippke that the defendant had heard for the first time on 31 August 1942 that human experiments were being carried out on others than the volunteering members of the Luftwaffe; that is, at a moment when the high-altitude experiments were already completed and when the freezing experiments were about to be completed.

In this connection I recall that the final report on freezing experiments was available in print already on 10 October 1942, so that these experiments too must have been completed by a considerably earlier date. On 31 August 1942, the defendant learned merely from Hippke that human experiments had been carried out on criminals who had been sentenced to death and who had volunteered to obtain a pardon. He was told expressly that nothing had happened so far during these experiments. It is obvious that experiments as such do not in themselves constitute an offense against humanity, whether or not they are in use in some foreign countries. At any rate much evidence has already been submitted by the defense in the medical trial, proving that, also in democratic states of the world, experiments have been carried out and are being carried out on volunteering criminals, experiments which constitute a danger to the life and health of the experimental subject.

The prosecutor has submitted in evidence his last exhibit, Document 1971-PS, Prosecution Exhibit 161, showing irrefutably that Himmler too had ordered that only men sentenced to death are to be used for these experiments. Hippke did not even misinform Milch. That, besides the experiments which were of importance to the Luftwaffe, Himmler had also started secret experiments is shown from this very Exhibit 161 because therein Himmler directs Rascher to continue these special experiments on which he had reported to him and even to carry out revival experiments.

Both witnesses Ruff and Romberg have testified unanimously that nothing has happened during these experiments. Death casualties had occurred during Rascher’s own experiments which he carried out on Himmler’s behalf. Only the aim of these experiments remained unclear to the witness, which is now being clarified by Exhibit 161, but Milch had no knowledge of all this. He fully believed what Hippke told him, nor did he ever have any cause to distrust Hippke and he could not distrust him more as he knew that high-altitude experiments had already previously been carried out on Luftwaffe personnel of his own air force without any danger being involved. Not even Hippke has had any knowledge of cruelties and death casualties. How much the less can be proved that the defendant could have had any knowledge. It does not say anything against the defendant that he had signed already before 31 August 1942 some letters which had been submitted to him by his offices. Nobody has been able to state that Milch had dictated these letters at all. It could not even be proved that he had seen or read the letters from the SS to which these letters refer. It is impossible for a man who has such a burden of work and such a large sphere of tasks as the defendant to take care of every trifling matter in his office, that these letters—which to anybody who has no knowledge of the underlying facts appear harmless and unimportant—could also not arouse the defendant’s suspicion. Should he be charged with responsibility for them then, this would be a responsibility which could not be borne by anybody. This would mean to overestimate human working capacity. It is the very idea of any great organization to relieve the chiefs or the heads of attentions to details in order to make them free for the main tasks. If such a man were to be asked to take care of everything, then the organization would be unsuccessful and no man in the world could form a great work comprising many people, and no man in the world would be willing to head such an organization if the chief of the organization should be held responsible for everything that his subordinate agencies commit. Everybody has the right generally to trust his subordinates as long as he has no reason to distrust them.

Hippke’s descriptions were unimpeachable and gave no reason for misgivings. His tenure of office at that time was irreproachable so that Milch had not to distrust Hippke’s activities and all the less so because already at an earlier date human experiments had been carried out by the Luftwaffe in a manner above reproach. Milch has testified to the effect that he had not read the report on high-altitude experiments. Evidence has shown that he has not seen the film nor could he have cause for this film to be shown, only if he would have stayed in Berlin, but he was not even in Berlin on that day; therefore, he could not become suspicious from what occurred. Likewise Milch never received the report on freezing experiments nor did he ever get a final report on this matter.

Finally, Milch had no reason to distrust the fact that the SS participated in the experiments. He knew that Hippke was part of it and was therefore entitled to believe that everything was in order. Therefore, Milch was neither a principal in nor an accessory to, nor has he ordered or instigated these experiments. He has never given his consent to the crimes committed because he had no knowledge whatsoever of them nor was he connected with their planning or their execution, nor was he a member of any organization aiming at the commission of such crimes. It is not the aim of the Luftwaffe to carry out such criminal experiments, and with the DVL he had nothing to do at all. It is irrelevant that at that time Rascher was a member of the Luftwaffe. Exhibit 161 proves that Rascher received the orders to execute the crimes as a member of the SS from Himmler himself and also carried them out in that capacity. Finally, it must be said that the Wolff letter of November 1942 was only written after the crimes were committed. It has not been proved that Milch ever saw this letter. He was not in Berlin when the letter arrived. That he has testified. The letter was sent to the Medical Inspectorate which only answered it in 1943 as Hippke has testified. Also, the fact that Rascher was transferred to the SS had nothing to do with the defendant. That was a matter settled outside of his competency. The personnel chief of the Luftwaffe was at no time subordinated to him, and it must also be taken into consideration that, according to the evidence, Milch had no knowledge of Rascher’s having committed any crimes. One cannot charge Milch with the fact that Rascher referred to him. The testimony of Neff and Defense Exhibit 56, the affidavit of Punzengruber, have shown to this Tribunal that Rascher was a confirmed liar whose statements have no probative value and, therefore, I believe that Milch in this matter too has shown to this Tribunal his complete innocence.

Before I go into the charges against Milch for his participation in the so-called slave labor program, I must make a few fundamental statements. I shall begin by examining the question as to what extent the Hague Convention on land warfare and the Geneva Convention of 1929 were valid for the treatment of Russian prisoners of war. By the statements of witness von Neurath, it has been confirmed that the U.S.S.R. in 1919 specifically withdrew from the Hague Convention on land warfare as well as the former Geneva Convention. Jurists will not dispute the fact that a formal withdrawal from agreements is of greater importance in the relations between states than the act of joining such a convention. Even if one were of the opinion that the Hague Convention on land warfare and the Geneva Convention represented merely the codification of already existing international law, so that the state that did not join the conventions would also be bound to this already existing international law in all details, even in such a case the expressly stated withdrawal from such a convention must mean also a withdrawal from the natural international law. If this were not the case, the withdrawal from such conventions would be an act without meaning which such intelligent politicians as those found in the U.S.S.R. would never undertake. Nor is this conception of mine contradicted by the expert opinion offered in the first Nuernberg trial (Canaris Doc. No. EC-338)^[155] because this expert opinion is only concerned with the order of Hitler and Keitel regarding the killing and cruel treatment of prisoners. It is, of course, clear that inhumane acts do not become permissible because of withdrawal from conventions. What we must examine here, however, is purely the question whether or not, and for what activities, such prisoners of war may be used. Detailed regulations of international law, which in themselves do not contain atrocities, can in my opinion be nullified by expressly withdrawing from a convention codifying existing international law. Finally, we wish to draw attention to Article 82, paragraph 2, of the Geneva Convention of 1929 which contains the following regulation: “If in wartime one of the belligerents is not a member of the convention, the regulations of this convention remain valid, nevertheless, for the belligerents who have signed the convention.” This does not mean that the signatories are bound to the Geneva Convention also with regard to the treatment of soldiers of a nonsignatory power, but only with regard to soldiers of the signatories who are at war. Article 82, paragraph 2, of the Geneva Convention, therefore, states that with regard to the relations of nonsignatories the convention is not valid. The regulation was made so that it should not be thought that if a nonsignatory participated in the war the Geneva Convention would not apply to that war.

That my opinion was shared by the U.S.S.R. becomes clear beyond doubt from Defense Exhibit 49 presented by me, which contains the decision of the Council of the Peoples Commissioners of the U.S.S.R. of 1 July 1941. This decision does not mention any limitation with regard to the use of prisoners of war for labor except for the regulations under number 25. According to this, prisoners of war may not be used as workers in the battle zone nor for the personal needs of the administrations, or by other prisoners of war (orderly services). Defense Exhibit 51, concerning employment of German women prisoners of war in Russia, also reveals the same conception of the U.S.S.R.

The objections that not Russia’s conception but that of the United States of America matters here is not justified. Existing regulations between two states can only be judged on the legal relations valid for those two states. If both states regulate a given question in agreement with conclusive acts in the same way, that regulation becomes international law valid for the relations of those two states and must be taken into consideration by all other states. It is the right of sovereign states to regulate their relations as they wish. Other states have no right to interfere in the right of sovereignty and they must acquiesce in the legal conception existing between those two states regarding any issue concerning their citizens. Therefore, legal opinions of another state must not be taken as a basis for the judging of actions which occurred between the nationals of these two states.

As in Milch’s sphere of competency Russian prisoners of war were used neither at the front nor as orderlies, he cannot be found guilty so far as the treatment of Russian prisoners of war is concerned.

All this also applies to the treatment of the Russian civilian population whose rights could have been cared for by the Hague Convention for land warfare alone. Here, too, Russia’s express withdrawal from the convention is of great importance.

In my opinion it cannot be argued that Germany attacked Russia and that, for the reason, employment of the civilian population would be illegal even if this were not illegal in itself. That alone would mean that Germany would be bound to the regulations and that Russia was not. From the point of view of international law, this is an impossible situation. For two belligerent states, there cannot be a different international law.

Moreover, the validity of the regulations laid down in the Hague Convention for land warfare can be cancelled by a special factor which precludes lawlessness. In all codes of law of the civilized world, the law of so-called emergency situations exists. This conception of law must also be applied to international law. That Germany was in an emergency situation in the sense that the use of the civilian population for labor in the occupied territories was only caused by the emergency situation, I showed in detail a little while ago. Modern war means total war and as such has suspended, in several points, international law as it existed up to now. It is uncontested that according to the Hague Convention for land warfare actions of combat against the civilian population are forbidden. Modern air warfare, having as its aim total annihilation of armament and production of the enemy, brought with it to a great extent warfare against the civilian population without any of the belligerents regarding such combat actions as forbidden according to the Hague Convention on Land Warfare. This also applies to the total blockade of a country which aims at starving the population of that country. These comprehensive ways of waging war which hit all classes of the population permit, in my opinion, to a state which is at war, especially on account of the fact that its civilian population is brought into the strife, to use for its purposes labor from occupied countries so as to maintain its production and armament.

Concerning the relations of the other nations involved in the war, there is no doubt that for the above the Hague Convention on Land Warfare and the Geneva Convention of 1929 are valid. But it is just as clear that it is left to the nations to change and abolish these regulations by special agreements between one another. A good example here is the Armistice Treaty signed in 1944 between the Russian and Romanian governments according to which Romania had to pledge itself to put at the disposal of Russia a large number of people for reconstruction purposes. Complying with this agreement, in January 1945 many thousand members of the Romanian state were deported to Russia by compulsion and against their will. This case shows what, in such matters, may be legal and valid. Moreover, that agreement was made under some force of bayonets, as in all history is usually the case with every treaty between a conquered and conquering state. The Defense Exhibit 47 proves that in the case of Germany the Control Council (see sec. VI, number 19 of the Proclamation No. 2) imposed on the German authorities even without a treaty, but simply on unilateral orders, the same obligation, i.e., to put at disposal labor for personal services inside and outside Germany. That such orders could naturally only be fulfilled by the German authorities by means of a labor service law will not be contested by anybody.

These one-sided orders given by the victor to the vanquished, whether they be issued on the basis of an armistice brought about by force of arms or on the basis of command or law following the unconditional surrender of a state, are not contrary to law.

It should, therefore, be stated that the rules of the Hague Land Warfare regulations can be suspended between two states. I have given proof for the fact that there were between Germany and France agreements whereby the French population had to make themselves available for work in Germany, first, by volunteering, and later, on the basis of a law for compulsory labor issued by the French Government. No restrictions were laid down to what extent and for what purpose these people were to be employed.

The objection has been raised that the Vichy Government was a government of traitors, but it was that government which concluded the armistice with Germany, and throughout the war all Frenchmen, including those in de Gaulle’s camp, would raise passionate protests when they thought that one of its articles had been violated. Thus, they all acknowledged that an armistice could be concluded and was concluded. Once you acknowledge the existence of an armistice agreement, you cannot, logically or legally, deny the legality of the government which has concluded the armistice. You must eat your cake as it is and you must not pick out the plums alone.

As for the situation in Holland and Belgium, both those countries surrendered unconditionally. According to international law Germany was, therefore, in a position in its dealings with the authorities of these countries to regulate the labor commitments of the civilian population unilaterally in the same manner as this has now been handled in regard to the German population by the Control Council.

As far as Poland is concerned, that country, on the basis of the partitioning agreement between Russia and Germany, had lost its sovereignty. That such partitioning agreements can abrogate the existence of a state has already been historically proved by the former partitioning agreements of the bordering countries in regard to the Polish state. Moreover, the agreements concluded between the victorious nations after this war have abrogated the sovereignty of the German state over very large areas in the East and thus have created new sovereignty for the population of these territories. Germany released the Polish prisoners of war and could at any time issue legal labor directives as regards the Polish civilian population since the latter were under German sovereignty.

So far as the Italian prisoners of war are concerned, the evidence has shown that the Mussolini Government, which at the time was the covenant government in that part of Italy not occupied by the allied forces, made them available for work in the armament industry, especially after Germany had to manufacture armaments for Mussolini’s Italy. Here it should also be mentioned that Milch’s opinion that Italian prisoners of war who fled from a transport should be shot does not mean a cruelty. All countries of the world have prisoners shot who attempt to escape as proved by me in Defense Exhibit 26. So far as the civilian population of other southeastern states are concerned, they were only recruited and employed as free workers based on approval by the legally existing governments of these countries.

In addition, it is interesting to point out that the agreement between France and Germany, according to which France was supposed to allocate French civilians for the labor commitment in exchange for the release of prisoners of war, had a parallel in the discussion of the question regarding the fate of German prisoners of war still in allied countries. In France, in particular, the request has been made to make possible the release of German prisoners of war by making available German civilians as workers in place of the prisoners of war. This, too, is evidence to the effect that such an agreement is not contrary to international law.

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

In regard to the question of guilt, a special point has still to be considered. All legal theories consider that the defendant is not liable for punishment if after careful consideration and careful inquiries he has gained the conviction that his action was permissible. It has been shown that in Germany prisoners of war and foreign civilians were being employed within the war production even at the time when Milch had not yet taken over the office of the GL (Generalluftzeugmeister—Air Ordnance Master General). In other words, he was already confronted with the situation, the exploitation of which he is being reproached for today.

The testimony of the witness Vorwald and that of the defendant himself showed that Milch made inquiries from the competent authority as to whether the employment of prisoners of war and foreign civilians which he planned to use was admissible under the existing regulations. He has testified here that he received an affirmative answer. Furthermore, he testified that the admissibility of the utilization of foreign civilian workers was discussed soon after the First World War in a large staff committee of the German Reichstag. The chairman of that staff committee was Prof. Dr. Schuecking, a legal authority of repute, who had become known throughout the world as a passionate champion of pacifism and democracy. This committee, as the defendant gathered from the discussions held at the time, could not and did not find that employment of foreign civilian workers in armament industry was inadmissible.

Impressed by his earlier experience, the defendant had the right to believe the information given to him by his superior office that employment of foreign manpower and of prisoners of war was admissible. Moreover, this information was not issued without reason. The reasons given for it were rather in accordance with the reasons which I have described in detail above. How should Milch, who is not a legal expert, who as a layman did not understand anything about applicable international law, how could he form a different opinion? It is the right of every citizen to believe the legal information supplied by his superior and the concomitant authorities, for no one can impose upon a citizen the duty to undertake on his own independently an examination of the legal questions involved. In a modern state this would result in an untenable situation whereby every one of the citizens would acquire his own conception of law. Differing opinions abroad Milch was not in a position to hear since he was not allowed to read foreign newspapers nor listen to foreign broadcasts, nor did he do so.

He acted in good faith, and that has to be considered in his favor today, the more since he knew and may well have assumed that these measures were only temporary and were forced by the necessities of war.

[At this point the following discussion took place:]

Presiding Judge Toms: Is it a principle of the German law that ignorance of the law is an excuse for violating it?

Dr. Bergold: It is a principle inasmuch as if somebody has been misled by his superiors on the significance of the law. Everybody must inquire what the law is, but if his superior authorities give him certain information, he can rely on that.

Q. Suppose a person is advised by his own counsel as to the law, and counsel is wrong, does that excuse the client?

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

Q. Well, suppose a high government official, a man in high authority who was not a lawyer, advised his subordinate as to his legal rights and duties, and that advice was wrong?

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

Q. If, for example, Goering, who was a person in high authority, advised Milch that he had the legal right to go out and shoot a person, would that be justification for Milch’s doing so, legally?

A. No. Because as to the question of whether you can commit murder or not everybody knows about that; but the point as to whether the employment of foreigners was admissible under international law is a very tricky legal point, and there, of course, there is a difference.

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

A. Yes. Everybody knows that.

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

A, No. He is not obliged to know that. That is why Milch applied to receive this information about international law.

Q. You make a distinction between homicide and slavery?

A. Yes. I make a difference not, perhaps, as in this exact example, but I make a difference between the natural knowledge of law, which everybody has, and special questions and special knowledge not shared by everybody in the state. The point whether you can kill or steal is common knowledge, but the question whether international law permits the employment is not something which everybody knows. This question is one which only specialists and legal experts can decide, and if any man concerned tries to obtain information as to whether it is permissible, and obtains that information from a specialist of a governmental department who says, yes, then it does not become permissible in itself, but we have what is known as an excusable legal error.

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

A. Yes, on the whole question whether anyone can employ foreign workers or prisoners of war.

Q. I would like to get this straightened out.

A. There are a number of other difficult legal points which I need not go into here. This is certainly an example of what occupies us here.

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

A. Let’s take, for example, the question whether, in any foreign country which is occupied, the occupier may issue occupation money; let’s assume that this is punishable according to some international regulation which is difficult to interpret and which a layman is not in a position to know. Now, if the Reich Bank, as expert, told the governor of the occupied country that it was permissible, then the chief of this occupied country, the military authority, would have an erroneous opinion for which he could not be held guilty.

Q. Now, that theory of law becomes a very uncertain guide, does it not? It depends upon interpretation of not the lawyers, nor the professors, but of high government officials; they make the law.

A. No. My client inquired of the competent offices, not of Goering, but of the competent offices, namely the legal departments. In all the ministries there were legal departments, also in the Reich Air Ministry and in the Wehrmacht itself. They employed specially trained experts. I draw your attention to—

Q. Just a minute. Then the head legal experts make the law as far as the defendant is concerned?

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

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

A. Yes, for this special case, as long as he does not hear an opinion to the contrary, let’s assume.

Q. Oh, what happens after he does hear the opinion to the contrary, then which law does he abide by?

A. In that case he can act no longer at all. If he acts, he acts on what is known from the Roman law as “eventual dolus”, an evil intention, in case he comes up against the law. I assume that the term “eventual dolus” is known to your country, too.

Q. Supposing that he gets two conflicting opinions from the legal ministry, or one of the legal advisers in a high place tells him he may do a thing, and another in an equally high place says he may not, how does that solve the dilemma?

A. In that case he must not commit the act, because his attention has been drawn to the difference in the legal opinions, and that is where we have the “eventual dolus”. If he does not depend on it, and does it on his own risk, then in that risk he committed a wrong.

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

A. Yes. I understood.

Presiding Judge Toms: Well, we have your position.

[Dr. Bergold continues.]

His good faith, however, was reinforced by the fact that all the measures against English and American prisoners of war, which are being objected to, were not carried out. That the reasons expressly stated for this were that no agreement except a change in the regulations had been conveyed normally to the British and American prisoners of war. Whoever has the least psychological insight will understand that the observing of the Geneva Convention principles towards those two countries must have made the deviation from them in respect to other countries appear to the defendant as authorized, all the more as this deviation had been based on presence of other agreements, or the lack of other protective measures.

As far as the question of actual recruiting and using of manpower is concerned, a differentiation must be made between recruiting, bringing foreign laborers to the country, and their treatment on the whole on the one hand, and on the other hand their use within Germany in the labor assignment.

May it please the Tribunal, the case in chief, and the submitted documents of the prosecution, especially the Exhibits No. 13, 14, 14-A, 15, 15-A, and 17 eliminated any doubt as to the fact that Sauckel alone was competent for the recruiting of foreign laborers and their transport to Germany and for the treatment of the foreign workers, and that Hitler over and over again confirmed against the attacks of Speer that he was the only competent man. Not one single document has been submitted which would show that Milch participated in the recruiting, transfer to Germany, and treatment of the workers. The witnesses Speer, Koerner, Richter, Hertel, Eschenauer, Pendele, Vorwald, as well as Milch himself, have testified under oath that neither they nor the defendant knew anything about all the abuses which have become evident in the sphere of Sauckel’s work.

I call your attention to Document 407-II-PS, Defense Exhibit 3, which reveals how Sauckel always and everywhere emphasized that he took care of the foreign workers to the best of his ability. In this exhibit he makes the assertion that foreign workers have never in the history of the world been treated as well as they were treated by him in this most severe of all wars. The testimony of the witness Schmelter and of Milch has shown that Sauckel had made the same declarations and told the same lies to them also. There is no need for any further statement to the effect that the recruitment and even the forced transport of the workers into the Reich on the basis of an order could have been carried out in an absolutely humane manner and that all these atrocities, murders, and tortures which took place need not have occurred. Such actions are not of necessity connected with such events. The fact that in the East and in France, parts of the population were called up and drafted by classes by means of labor service decrees could not and did not have to make Milch suspicious. Forced drafting of people occurs in all countries which have a compulsory military service or labor service. Examples of the latter are Germany and Bulgaria. The latter state had ordered service according to each group before the Hitler regime existed, and how could Milch, after all, have found out about the inhuman acts in the recruitment and transport into the Reich and the treatment within the Reich? Obviously, only if he had observed such incidents himself or if complaints reached him through his subordinates or through these foreign workers themselves.

Milch testifies here in a creditable manner that during the entire course of the war he had never observed such conditions. During all these years he made his trips by plane and, in some exceptional cases, by special train; that in this way he could naturally not observe such facts is quite clear. The witnesses have confirmed that they never reported abuses to him. The only things he heard were isolated complaints that the food was inadequate at times or that there was a lack of clothing and shoes. In themselves, these were conditions which resulted at the time from the wartime emergency and applied also to the German civilian population. All of the above-mentioned witnesses and Milch have, however, confirmed that Milch on his own part immediately ordered that the conditions should be remedied.

These incidents, however, cannot be called inhuman acts or atrocities, cannot be called crimes. The witnesses Pendele, Hertel, and Vorwald, as well as the defendant himself, have testified that the foreign workers never brought any complaints to the defendant. They all expressed their happiness. It may be that they shied away from complaining to Milch. That, however, was not Milch’s fault. He had the right to believe the assurances of the persons he questioned, the more so because his conversations with them were carried out in the friendliest, even the most cheerful manner.

Now, how could Milch have found out about these incidents? I have already mentioned that he could not obtain knowledge about that from foreign reports, because he did not receive such reports. Thus, it should be established that Milch was not responsible, first, for the directive for the so-called slave labor; secondly, the recruitment of manpower; third, the inhuman acts perpetrated in connection with this, the transport to Germany, and the crimes connected therewith, and finally, fifth, the treatment of foreign workers in Germany and the atrocities committed in connection therewith.

He knew nothing at all about them. He did not commit these crimes; neither as a principal nor as an accomplice. He neither ordered such crimes nor instigated them. He did not take a consenting part in them either. On the contrary, he always eliminated minor abuses and constantly saw to it that the conditions of the foreign workers were ameliorated by special gifts. He was in no way connected in a causative manner with the planning or execution of these crimes, and here I refer you to my earlier legal statement, for he would have had to know about them, that such atrocities, murders, and other inhuman acts occurred in connection with the recruitment, transfer to Germany, and treatment within Germany if he is to be held responsible for them. Neither did he belong to the organization which was connected with the recruiting, transport, and treatment, namely, the Organization Sauckel. If at all, he could be charged only with the utilization of foreign workers.

No just man who values that name can, by virtue of knowledge subsequently acquired, condemn the actions which a defendant committed at an earlier time in ignorance of what later became known. Today the whole world is full of the horrors which have been brought to light. It is not true, however, that these horrors were desired by the supreme leadership. That Sauckel acted independently here and that he alone bears the guilt is shown by Defense Exhibit 3, in which Sauckel lied to Hitler, saying that workers had never been treated so well as by him.

I do not wish to defend Hitler. As a German, I myself have every reason to raise the most bitter and serious charges against the man whose account of guilt can never be paid up, but here it must be said that Hitler could hardly have included the commission of atrocities and murders in his plan for the foreign workers, for if that had been the case, Sauckel would not have had to lie as he did. Then he would not have had to pretend to his lord and master that he was treating the foreign workers so well. Such lies, such deceit, are practiced only by the subordinate who is aware that he has violated instructions and that he can be punished by his superior.

Document R-124, Defense Exhibit 32 shows clearly that in two cases Sauckel acted against Hitler’s instructions in committing his crimes. Therefore, even Sauckel’s labor organization was not created for the purpose of committing atrocities, murders, and other inhumane acts. Sauckel and a number of his subordinates made themselves guilty on their own accounts, and as guilty persons they strove to keep secret and to cover up their crimes. That the defendant cannot be responsible for these secret acts is hardly to be doubted.

I realize that in answer the prosecution will remind me of all the documents with severe statements by Milch which have been submitted to the Tribunal. This is a serious count of the indictment, but one can achieve clarity on the complex of questions thus brought up only if one considers whether Milch made these severe statements only against foreign workers and prisoners of war or whether they were simply a part of his nature.

The witnesses Richter, Foerster, Hertel, Eschenauer, Pendele, and Vorwald have confirmed that Milch in his tantrums threatened even his German subordinates, his best workers, with hanging and shooting, and here in this room several men have appeared on the witness stand whom the defendant shot or hanged in words. This clearly shows that the defendant was not one-sidedly filled with hatred of the members of foreign nations; besides, this was hardly to be expected in the character of a man who for years energetically worked for peaceful collaboration with other peoples and who despised the racial doctrine and the idea of the “master race”. Rather, it makes it clear that he threw out such wild expressions only when he was excited, so that his subordinates acquired the habit of laying bets on the number of people who would be shot, when they knew that exciting matters were up for discussion. I read a number of passages to you from the notorious speech before the quartermasters and fleet engineers, in which he raged against those present and against himself in the same terms as he used against the foreigners. And in other documents submitted by the prosecution, one can find such expressions used against Germans, against members of the leading class of the German people, and against German workers. All this proves that an unfortunate inclination of Milch is here expressed for which, like a sick person, he cannot be held responsible, especially since he never carried out the punishments which he threatened. All the witnesses whom I have called to the stand from Milch’s entourage have testified that he used such terms only in tantrums. These tantrums occurred frequently, and always when he had met with major difficulties in the way of his work to save Germany from complete destruction. He was a sick man. He suffered several very serious accidents, all with severe brain concussions. It is an old experience of medicine that such people are easily excitable, and you must not forget how much this man had on his mind. He was a clairvoyant. He knew that the war was lost for Germany. He realized what horrors Germany was doomed to through the increasingly violent air war. He knew what help was possible in the distress of his people, and he had to stand helplessly by while his short-sighted and perhaps malevolent superiors frustrated, hampered, and prohibited all his precautions. In such severe physical distress, even a healthy man would become so irritable that he would be subjected to violent outbursts of anger. How much more violent would these outbursts be in the case of the sick defendant. His distressed soul housed in a suffering body, helplessly exposed to its worries, reacted in this way to relieve the tension.

Many witnesses, in particular the witness Vorwald, have told you that when such excitement occurred the defendant even changed physically, that the back of his neck became red and swollen and that afterwards he no longer knew what he said while he was in such a state. That this testimony, especially that of the witness Vorwald is true, is shown with actual certainty by the incidents between the defendant and Goering on the occasion of the report on the crimes committed by Terboven in Norway on the civilian population, and Document R-134, Exhibit 159 of the prosecution. The prosecution without justification bitterly reproached the defendant for failure to protest against this monstrosity. The defendant in his defense was not able to answer that he had done so. Vorwald has testified that this process took place in connection with an outburst of anger about precisely that incident, and because the testimony of Vorwald that the defendant did not remember afterwards what had happened during his period of excitement is true, the defendant was not able to carry out a full answer in his own defense because of his excitement. He did not remember. Your Honors, it is clear you have achieved deep insight into the souls of men. Therefore, surely you are able to judge that this incident has revealed the truth of what the defendant and his witnesses have told you. Otherwise he would be able to cite his protest as a defense against the charge of the prosecution.

Now, I assume that the prosecution will object that these fits of rage occurred much too frequently and that they are therefore not a pathological symptom but a normal expression of his character. Your Honors, this can be disputed by a very simple consideration. The so-called GL (Generalluftzeugmeister—Air Ordnance Master General) meetings took place twice a week. That means that from the time when the defendant took office there were a total of about 160 meetings. In addition, there were 60 meetings of the Central Planning Board. Finally there were about 30 Jaegerstab meetings, altogether about 250 meetings in which the defendant participated. The meetings lasted many hours. According to my concept the average number of pages of verbatim transcript of the GL was about 200 for a single meeting, or about 30,000-32,000 pages for the GL alone. If one includes the transcripts of other meetings then one comes to figure approximately at least of about 35,000 pages for all the transcripts at a conservative estimate. This is an enormous figure from all these many meetings. From all these many, many pages of transcript, the prosecutor has been able to submit only a very few pages with only very occasional extravagant statements. Therefore, the question is asked whether this was the normal tone of the defendant. It is also significant that in the meetings of the GL, such outbursts occur much more frequently than in the transcripts of the Jaegerstab or the transcripts of the Central Planning Board. In the GL meetings the defendant was in his own realm among us “parson’s daughters”, as the witness Vorwald said. Such outbursts naturally occurred there more often because according to experience a human being can let himself go more easily among his most intimate friends than among his subordinates. Nevertheless the outbursts remained isolated.

How curious is it that the emotional disturbances of the defendant occurred repeatedly in connection with the same subjects of discussion, for example, in the question of the work done by the French industry, the French people, the question of so-called slackers, or the discussion of threatening and inciting remarks made by foreigners. Sometimes several outbursts occurred at brief intervals, one after the other. Why, your Honors? Because the matters that excited the defendant were not settled. But this leads us to the question of whether the defendant followed up these wild words with deeds. He never did. Just consider, for example, the question of slackers or the question of the work done by the French industry, the French people. These apparently so malevolent orders issued in anger were not carried out. These stones were repeatedly laid in the path of the defendant. Here, your Honors, I ask you to penetrate into the depth of the circumstances with the understanding that characterizes a legal person. The defendant repeatedly became excited, for example, over the so-called slackers, Germans unwilling to work whom he considered to be traitors. Each time he issued strict orders, expressed wild threats, but would it not have been the most natural thing for this excitable man on all these occasions, which followed one on the heels of the other, to shout at his subordinates and to reproach them, to ask them why the orders which he had given and supported before in anger and which he had advanced repeatedly had not long since been carried out? Would that not have been the most natural and the first thing that he would have done in his anger if he had really expected and wanted his wild orders carried out? Your Honors, look at it from the human point of view. Revive all the experiences of your long and no doubt rich lives and examine with me whether I am not right in what I say.

I challenge my learned opponent to show me in all these instances, which are really appalling, one single expression indicating that the defendant objected to the failure to carry out his earlier threatening orders. Not a single word can be found and here, your Honors, the truth becomes so obvious that no intelligent man can ignore it. It sounded incredible in the mouth of the witnesses when they said again and again that no such orders were carried out. It has been put to the defendant that it is improbable that a field marshal did not expect his orders to be carried out and that all his subordinates did not immediately rush to carry out his orders, but the man who is sitting before you told the truth in spite of all appearances to the contrary, for if he as a field marshal had expected his orders issued in anger to be carried out then he would surely at one time or another have expressed dissatisfaction because they had not been carried out. But he did nothing except to get angry from his sickness and his anxiety about his people. It is clear not only from the Terboven case that he actually knew nothing about what he had screamed out and that he never seriously pressed home his demands. The Court has questioned him repeatedly about these expressions. He always supplied that he did not remember them and he did not believe that he had said so. He has often had to tell you that what he shouted was wrong if he had actually said it. That too seemed incredible at first, but as this man afterwards no longer knew what he said in these attacks then he cannot testify about them. It is also clear that a man in such a fit speaks many untruths and one cannot assert that he lied deliberately. The man, as I say today, has told you the truth as far as he can know it to the best of his knowledge and belief. These transcripts cannot convict him of untrustworthiness. Moreover, in many cases the transcripts are no doubt full of mistakes, distortions, and errors. I have shown you a number of passages which must be wrong. I have shown you transcripts such as NOKW-359, Exhibit 75, which speak of Milch’s presence and statements although on that day he could not have been present in the Jaegerstab. This is also true of some records of ostensible GL meetings. I have also proved that other transcripts make no logical sense in German and that several statements must have been run together there. Today, of course, no one can say whether these various statements were all made by the defendant. Many witnesses which I have examined on this matter, for example, to name but a few, Richter, Pendele, Hertel, Speer, and Vorwald, have testified that the transcripts contained many errors and that they were never corrected, that they were sometimes even intentionally distorted when the defendant attacked his superiors. Such passages were either left out or changed in such a way that the attacks on the person in question were no longer recognizable. But who would seriously consider it permissible to use such faulty transcripts as evidence?

All the witnesses from the entourage of the defendant have told you finally that in these Central Planning Board, as well as in the Jaegerstab and GL meetings, that in addition to transcripts reproducing the individual speeches and opinions so-called records of results were drawn up which contained only the really important decisions, orders, and regulations. They alone were valid for the subordinates. Those concerned acted according to them alone. It is noteworthy that the prosecution has not submitted a single one of those records of results containing any inhuman orders issued by the defendant. I beg of you, your Honors, not only to give severe consideration to the weaknesses of the defense, I beg you to draw your severe conclusions from the weaknesses of the prosecution as well. The fact that no incriminating records of results have been submitted proves once more that these threats were never carried out.

Your Honors, in disturbed times other men, too, sometimes say things which cannot be taken seriously. Men can be charged only according to their deeds, not according to their chatter. If you have access to Churchill’s speech made in his first excitement after Dunkirk, you can see what violations of international law he recommended to the civilian population of England when he called upon them to prevent a German airborne landing. But he never actually issued any such orders, and so no one will try him for that. When the late General Patton said at one time that he intended to continue to collaborate with such of the German Nazis as were specialists, some excited American newspaper ran this headline: “Patton Should Be Shot.” Who would be so stupid as to call these newspapers inhuman? No one in the world; no one takes such excited words seriously. No one can say that these outbursts of anger meant that Milch approved the atrocities which occurred elsewhere in Germany.

The affidavits of Kruedener, Defense Exhibit 37, Lotte Mueller, Defense Exhibit 38, the testimony of witnesses Koenig, Vorwald, Pendele, have all shown that this man always and everywhere tried to help people in distress. He, who ostensibly wanted to force the foreign workers and concentration camp inmates to work by means of starving them, had the concentration camp inmates supplied with food from his estate near Rechlin in order to improve their diet. Thus, in his actions, he did the opposite of what he shouted in his anger. But one could raise a very serious charge to the effect that Milch by his thoughtless manner of speaking incited the elements throughout the country which committed such misdeeds. But this again, your Honors, is untrue. You have not heard one single example here of anyone having acted according to Milch’s words and having referred to having done so. These displays of fury only occurred among people who knew Milch and knew that he could not be taken seriously in such moments. All witnesses have stated for you that these fits only became known to the circle of intimates.

I lived in Germany throughout the war. Although the sins of the high-ranking leaders of the Reich were eagerly discussed among the people, I never heard one word about Milch’s fits of rage. In reply to my question the witness Vorwald stated convincingly that nobody spoke about these incidents to other persons because they did not wish to expose their superior to whom they were attached. His loyal followers surrounding him with a cordon of silence. Nothing could be more understandable, and every decent person who respects his superior will and must act in the same manner, for, in spite of his occasional fierceness, Milch was popular with his subordinates. The witnesses Richter, Hertel, Pendele and Vorwald, among others, testified before you that Milch was highly esteemed. Richter actually called him the best and fairest superior whom he had ever met in all his life. Here, your Honors, in this praise Milch’s true nature appears before our eyes.

I believe, therefore, to be justified in saying that one cannot and must not judge Milch by his wild talk. To infer guilt from that would mean to pass a judgment which could never be upheld before justice. Nobody may be judged by empty phrases. I would like to tell you a true story here which occurred in Germany during the discussions about a new, more stringent National Socialist penal code. At that time the Party took the point of view that criminal intent in itself was punishable, and thus, during a meeting of the Penal Law Commission in connection with the question of the meaning of murder, a long debate developed as to whether a person who intended to bring about the death of an enemy by prayer was to be punished by death for murder. The majority of Party members concurred with this mad opinion on the punishment of criminal intent. The sensible ones protested against it for a long time. When the debate was nearing its end, Dr. Guertner, the Reich Minister of Justice at the time, a clear-sighted man, rose and with one single sentence made reason prevail. These were his words: “Gentlemen, I do not understand you. All my life a corpse has been part of a murder.” The narrow-minded Party doctrinaires had to give in to the scornful laughter that followed these words. And in that way I should like here to think of Milch’s wild talk and exclaim, “Where is the corpse?”

In my opinion the only remaining question which needs serious discussion is merely that of the employment of foreign workers, of PW’s, and of concentration camp inmates. To begin with, it must be mentioned that the prosecution in its opening speech maintained that Milch more than anybody else in Germany was occupied with the employment of forced labor in Germany. That statement, however, is in no way correct. That, at least, has been clarified by the evidence beyond all doubt, it seems to me. There can be no doubt that Sauckel and Speer had considerably more to do with so-called forced labor than Milch, quite apart from Hitler and Goering themselves.

It is necessary to visualize clearly the scope of Milch’s sphere of activities and of his authority. Your Honors, even if you were only to check the three part Defense Exhibit 55 which I submitted, even to a superficial scrutiny only, you would realize immediately that Speer alone had a great deal more to do with this work than Milch. Speer was in charge of all armaments for the army and navy which, measured in human beings, by far exceeded the Luftwaffe, and alone exceeded the volume of the Luftwaffe armament many times, in particular as Milch only dealt with the construction of airplanes and as all equipment for the crews, in fact were part of the army equipment. Furthermore, Speer was in charge of all other productions in the German Reich. Finally, after the establishment of the Jaegerstab, Speer was also placed in charge of all armaments for the Luftwaffe. This Defense Exhibit 55, to which the defendant has sworn and which is based on the prosecution’s own Exhibit 58, reveals a much greater and more comprehensive scope of Speer’s organization. It was he, who as the central authority, not only controlled an apparatus with considerably more tasks, he alone also had at his disposal the executive authorities in the country, who dealt with all matters which had to be taken, whereas Milch had no executive organs at his disposal. He had, therefore, no executive powers whatsoever. Speer alone was in charge of the powerful main committees, the main industrial rings, in which the captains of industry exerted their influence and power.

He was also in charge of the armament commissions and armament officials of the armament inspectorates and armament detachments in the defense districts. And lastly, the Gau plenipotentiaries and provincial economic offices in the whole country listened to him. He was with Hitler almost every week, and therefore, he possessed much more influence to which Sauckel’s power—

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

Presiding Judge Toms: May I ask you what was Koerner’s special interest?

Dr. Bergold: I am not speaking about Central Planning Board here. I am only speaking about the GL.

Q. I know, but in the Central Planning Board what particular field was Koerner interested in—the navy?

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

Presiding Judge Toms: Very well.

[Dr. Bergold continues.]

Speer was with Hitler almost once a week and had therefore much more influence to which Sauckel’s power set the only limit. The man, Milch, never possessed such a machine. The GL was nothing but a technical agency in the Reich Air Ministry which generally, as the witnesses Vorwald and Hertel confirmed, was told by the General Staff of the Luftwaffe what was to be constructed. If Milch had really been the powerful man as the prosecution describes him, it would have been possible for him to carry out his plan for Germany’s air defense. But the achievement of this goal for which this man worked with unbelievable effort and with all energy was denied to him simply because he was only in charge of a technical office which could not make any decisions whatsoever. Hitler, Goering, and the General Staff of the Luftwaffe decided what this man had to construct and what plans he was to carry out. He carried them out within the framework of the task with which he was entrusted, always being suspended in the middle, without ground under his feet, without the direct authority to give orders to industry, without influence on the supply of manpower and materials; he could only get influence through the Central Planning Board, and there too the fundamental decisions were made by Hitler, by the latter himself, on the advice of Speer. It is not necessary for me to name all the witnesses. All his collaborators have testified to that effect.

May it please the Tribunal, if you examine the statements made by Hertel and Vorwald, you will gather from them beyond any doubt that the GL had nothing to do at all with the question of labor, with the recruiting, transportation, and assignment of workers. The GL, and this cannot possibly be doubted by anyone after hearing all these witnesses and especially after Milch’s testimony, had merely to make the blueprints for airplanes and the construction necessary for this purpose, and then to place the orders with the completely independent industry, following in all this the instructions of the General Staff and the orders given by Hitler and Goering. All witnesses from the GL have confirmed before you that the GL had nothing to do at all with the labor question; that he did not request one single worker or exert any influence on Sauckel. It is true that requests for labor passed, for statistical reasons as well as for control purposes, through the GL office. But it is important to remember and never to forget that industry submitted its real labor requests throughout the country to the labor exchange offices which were Sauckel’s agencies and to the armament inspectorates and armament detachments which were Speer’s agencies.

Vorwald and the defendant himself have shown you with unmistakable clearness that the only thing which the GL had to do with these requests was merely that he examined these requests of industry concerning the material point as well as the labor point, and that he then reported to the Speer Ministry whether and in how far the requests of industry were exaggerated and false and if the GL considered fewer material and less manpower to be adequate.

Now, what does such an activity actually mean? Surely not, as the prosecution submits, the enslavement of new workers, but exactly the contrary; namely their reduction. If the GL had not exercised this activity, Sauckel would have got much larger requests from industry and he would have procured this labor by means of more forceful methods than he actually did. That industry had to request workers in order to carry out its tasks assigned by Hitler, Goering, and the General Staff of the Luftwaffe, who were the authorities who decided on the extent of the construction program of air armaments, was however not caused by the GL. He was nothing else but an executive organ in the chain of command from Hitler, Goering, and the General Staff. He was merely the technical agency which had to make the blueprints and constructions, and then, after approval by higher authorities, had to submit them to industry for the undertaking of the orders.

This, your Honors, is the recital of the evidence produced on the activity of the GL, and the only thing which the GL did in the framework of this activity was to reduce to the lowest level the requests for labor made by industry, for the many reasons that he was sufficiently expert to look through the exaggerated requests of industry which could never get enough workers. It is significant that the GL minutes which have been submitted nowhere reveal a discussion of real manpower guidance, but, at the utmost, that once a few questions were discussed for information purposes. It is furthermore highly significant that among the entire organizations of the GL there were no offices for labor assignment and labor research as was the case in the Armament Ministry of Speer (see Defense Exhibit 55), but merely for statistics of the personnel. There is nothing to clarify the real situation better than this fact.

Has the fact that industry, which had to carry out Hitler’s construction program, employed foreign workers, prisoners of war, concentration camp inmates, been caused by the defendant? Industry had employed these people before the beginning of Milch’s tenure; it employed them because Hitler had ordered through Sauckel that industry had to employ these people—not in order to obtain slave labor for slave labor’s sake—but only for the reason to be able to throw still more Germans into the greedy jaws of the fiendish war and thus surely causing disaster for Germans as well as for other peoples.

As far as the GL is concerned—the least reproach can be cast upon Milch, of all the reproaches that can be cast upon him. It only consists in that he passed orders on to the air armament industry (and where did this not occur during the war?), and that he saw to it that no exaggerated requests for material and manpower were made.

The prosecution has proved nothing which could contradict these statements. But Milch has—and this, too, has been proved—not only curtailed exaggerated labor requests of industry by means of his statistics, thus preventing the increase of foreign labor, but in addition to that, as was stated by the witnesses Brauchitsch, Pendele, Hertel, Vorwald, and others, he always endeavored seriously and successfully to maintain the German workers in the factories; and in doing so he even saved German workers who should have been drafted, at least to the amount of 70,000 for the air armament factories, keeping thus on a lower level further requests for foreign workers and their assignment. A man who, as the prosecution means, is keen on slave labor does not act in that way.

Finally, there is another point to be mentioned in this connection. The International Military Tribunal—which, by the way, states expressly in its verdict against Sauckel that there is no doubt of Sauckel having had the over-all responsibility for the slave labor program—that Tribunal stated in its verdict against Speer that it has to be considered as a mitigating circumstance in his favor, that by setting up protected factories Speer had kept many workers in their homelands. Your Honors will remember the depositions of Hertel, Vorwald, and Milch, of which it results that as early as 1941 Milch, first together with Udet and later on alone, had factories working in France on the basis of a free agreement with the French plants in order to employ French workers in their home country. These agreements were, as has been testified to by Foerster, completely free, because in 1941 the industry of that part of France which at that time had not yet been occupied had concluded them. Therefore, Milch was the inventor of the idea to have labor employed on the spot in foreign countries. It was not only in France that he, being the first, carried that out. You have heard that this occurred also in Holland and in Hungary. Now, if the International Military Tribunal counted this circumstance as a mitigating one for Speer, it must all the more be credited to the defendant who acted that way not merely from 1943 onward, as did Speer according to his own statement in this trial, but already as early as 1941, and was the first to do so. In this instance again the defendant proved to be a man who endeavored to mitigate as much as possible the difficulties which had arisen from the prevailing emergency. That much as far as the defendant’s activity as GL is concerned.

When I come to consider in how far Milch’s activity on the Central Planning Board could be charged against him, I am aware that some of the minutes of the Central Planning Board could, in themselves, be interpreted as a charge against Milch. But if your Honors consider that out of sixty meetings of the Central Planning Board the prosecution could only list fifteen meetings in which labor questions were discussed—this being done in some instances in a perfunctory and casual way—it results from this fact already that the Central Planning Board, as to its aim, was not charged with the guiding of manpower, which at that time was the focal point of many schemes in all countries and, above all, in Germany.

In this trial there was much argument between the prosecution and the defense as to the significance and the essence of the Central Planning Board until, eventually, with the help of the key Document NOKW-245, Prosecution Exhibit 157, the argument was decided. There it says literally, “Speer and I (that is, Milch) are of the opinion that he (Sauckel) has to be incorporated somehow in the Central Planning Board in order to get the labor assignment, as well as the material, into our hands. At the present time we have no possibility to steer it.” These words were voiced on 23 February 1943 after the Central Planning Board had been in existence for already one year. These words were not voiced at that time for the purpose of ex post facto whitewashing, but they expressed the complete truth and have characterized the situation in quite simple and clear words for always and unmistakably. No decree has been submitted, nor order of Hitler has been proved, to show that this situation was changed. At no time, indeed at no time, was Sauckel a member of the Central Planning Board. If the prosecution wants to consider the wish Milch uttered at that occasion as incriminating, they are at liberty to do so. However, this is not a punishable deed, and nobody can tell what amount of good Milch could have done if he had factually been in charge of the labor assignment. His other deeds account for the assumption that he would certainly have stopped abuses and would have mitigated all that was necessary as far as possible. The members of this trial would not believe, at first, in the depositions of all the witnesses who have been heard here, including Koerner, stating that the Central Planning Board dealt with labor questions merely for reasons of information. The wording of the speeches seemed to contradict it. But, your Honors, the witnesses have also testified before you that the speeches could only be understood if they are read. Prosecution Exhibit 157 has put an end to all such doubts. Whoever wants to pronounce here the verdict with all the necessary seriousness cannot bypass this document. Nobody can contend any longer that the defendant has not told you the full truth. Therefore, his statement under oath is to be believed, which agrees with Speer’s statement in that the so-called labor assignment meetings were held with Sauckel always with the sole aim to obtain from Sauckel, who had reported so many false figures and was not scrupulous about telling the truth, eventually and for once, clear figures. Likewise, Document NOKW-195, Prosecution Exhibit 143, the report on the meeting of 28 October 1943, held at Goering’s place, shows a constant struggle with Sauckel in order to obtain true figures because Hitler would not believe that Sauckel’s figures were completely false. It has been proved that factually both Speer and Milch have been reproached because they did not fulfill the program made by Hitler, although many millions of workers had allegedly been at their disposal. Alone for air armament, according to Goering’s calculation based on Sauckel’s figures, five million workers should have been available—whereas the entire air armament employed a much lower total of people. As Hitler was a dangerous man and his reproaches could have disagreeable consequences, Speer and Milch cannot be blamed for wanting to get this subject clear; consequently, if they discussed this problem in detail—especially during the 53d and 54th meetings of the Central Planning Board—this has nothing to do at all with labor procurement. That these meetings have not been summoned by Milch—that they have been summoned by Speer and his ministry—has been proved. Milch presided over these meetings only because Speer was ill. But he only carried through the order of his friend Speer. But even these discussions do not alter the fact that the Central Planning Board as such had nothing to do with labor procurement. These very discussions were of a purely informative nature. By them the Central Planning Board did not obtain any influence on the carrying out of labor procurement nor on its distribution. How characteristic it is, however, for the personality of Milch that he used even this discussion about Sauckel’s figures in order to reduce the millions of new workers whom Hitler had ordered in January 1944 to quite a considerable extent.