B. Concurring Opinion by Judge Michael A. Musmanno (continued 2)

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

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

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

1.Were the prisoners actually condemned to death previously?

2.If so, for what reasons were they condemned to capital punishment?

3.Were the experiments painful to the subjects?

4.What scientific benefits resulted from the experiments?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Were the Experiments Painful to the Subjects

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

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

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

47,200ft.Lets the mask fall, severe altitude sickness, spasmodic (klonische) convulsions.

45,580ft.Opisthotonus.

44,950ft.Suspended in opisthotonus.

44,920ft.Arms stretched stiffly forward; sits up like a dog, legs spread stiffly apart.

43,310ft.Agonal convulsive breathing.

40,030ft.Dyspnea, hangs limp.

23,620ft.Uncoordinated movements with the extremities.

19,690ft.Clonic convulsions, groaning.

18,080ft.Yells aloud.

9,520ft.Still yells, convulses arms and legs, head sinks forward.

6,560ft.Yells spasmodically, grimaces, bites his tongue, does not respond to speech, gives the impression of someone who is completely out of his mind.

5 minutes(after reaching ground level) Reacts for the first time to vocal stimulation.

11 minutesHolds his head turned convulsively to the right; tries repeatedly to answer the first question concerning his birth date.

28 minutesSees nothing; runs against open window sash upon which the sun is shining, so that large lump is formed on his forehead; says “Excuse me, please.” No expression of pain.

37 minutesReacts to pain stimuli.

75 minutesStill disoriented in time; retrogressive amnesia over three days.

24 hoursNormal condition again attained; has no recollection of the experiment itself. (T-455-56.)

(c) Results Achieved

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

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

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

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

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

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

(d) Freezing Experiments

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

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

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

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

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

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

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

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

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

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

Here other amazing, fantastic discoveries were made.

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

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

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

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

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

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

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

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

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

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

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

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

On the character of the subjects Neff stated—

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

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

“A. No.” (T-429.)

V. DISCUSSION AND CONCLUSIONS

(a) Responsibility of Milch as to Count One of Indictment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Count Two

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

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

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

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

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

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

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

1.Milch had knowledge of the experiments.

2.That, having knowledge, he knew they were criminal in scope and execution.

3.That he had this knowledge in time to act to prevent the experiments.

4.That he had the power to prevent them.

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

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

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

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

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

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

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

(c) Count Three

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

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

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

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

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

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

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

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

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

[Signed] Michael A. Musmanno

Judge Military Tribunal II