Your Honors will remember the depositions of Hertel, Vorwald, and Milch, from which it can be seen that as early as 1941 Milch, firstly together with Udot 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.
International Military Tribunal -- which, by the way, states expressly in its verdict against Sauckel that there is no doubt of Sauckel having had the overall 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, from which it can be seen that as early as 1941 Milch, firstly together with Udot 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 by Foerster, completely free, because in 1941 the industry of that part of France although not yet occupied at that time had adhered to 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 our. 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 in 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 being the first to do so at that. 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 exigencies of the times. That much as far as the defendant's activity as GL is concerned.
When I come to consider in how far Milch's activity in 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 2423-A defense as to the significance and the essence of the Central Planning Board until, eventually, with the help of the key document Prosecution Exhibit 157, NOKW 245, the argument has been decided upon.
There it says on page 5407 of the German text, 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 into our hands also the labor assignment, besides the material. 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, unmistakeably characterized the situation in quite simple and clear words for ever and always. No decree has been submitted, nor has there been proved any order of Hitler to the effect that this situation has been changed at any time. 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 actually 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 really believe, at first, the depositions of all the witnesses who have been heard here, including Koerner's 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 by an initiated. This, at first, does not sound very intelligible, as no one of us is among the initiated. 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 socalled labor assignment meetings were held with Sauckel always with the sole aim to obtain from *******, 2424-A Sauckel, who had reported so many false figures and was not scrupulous about telling the truth, eventually and for once, clear figures.
Likewise, Prosecution Exhibit 134, NOKW 195, 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 proven that actually 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 53rd and 54th meetings of the Central Planning Board this had nothing to do at all with labor procurement. That these meetings have not been called by Milch - that they have been called by Speer and his ministry, has been proven. Milch presided over these meetings only because Speer was ill. But he only carried through the orders of his friend Speer. But even these discussions do not alter the fact that the Central Planning Board did not obtain any influence on the carrying out of the labor procurement nor on its distribution. How characteristic it is, however, for 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.
In all the discussions submitted there is nowhere a word to be found, either, to the effect that Milch had requested workers for his air armament.
THE PRESIDENT: Dr. Bergold, will you select a convenient stopping place for the recess?
DR. BERGOLD: Yes, yes, I thought of that.
THE PRESIDENT: I take it you are not going to finish before the recess.
DR. BERGOLD: I thought that. All right. I shall be there very quickly (Continuing). If the need for workers was under discussion, then always only, as the defendant himself confirmed, in regard to the basic industries-that is, mining and the iron industry and in regard to agriculture. It was always a question, as the records show, of the commitment of prisoners of war But even according to the Geneva Convention prisoners of war may be employed in mining, in the production of iron, and in agriculture. These places of work are not actual armament industries.
That Milch did not have anything to do with the commitment of Russians in anti-aircraft defense (flak), which was not under him at all; that, on the contrary, he even opposed it, and that that part of the minutes of the 33rd meeting of the Central Planning Board must be incorrect here, too, has been stated by the witnesses Hertel, Koening, an well as others in an equally unobjectionable manner. It has not been proven that this order was issued by the OKW directly via Goering.
Thus Milch, in his capacity as member of the Central Planning Board, was neither perpetrator of, nor accomplice in, crimes; nor did the Central Planning Board have as its purpose the commission of such crimes. Its sole purpose was the distribution of raw materials -- an activity which is not prohibited under any conditions.
DR. BERGOLD: I interrupt here.
THE PRESIDENT: We will recess for lunch now.
(A recess was taken until 1330 hours)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 25 March 1947)
THE MARSHAL: Persons in the Courtroom will please take their seats.
The Tribunal Number Two is again in session.
DR. BERGOLD: The third activity of Milch which could bring him in connection with the so-called slave labor was the activity on the Jaegerstab. Were one to view this membership in the Jaegerstab from the point of view of the prosecution, one could perhaps maintain the previously formed opinion that this activity was limited to the increased use of slave labor. The testimony of Speer, Vorwald and Milch, however, have shown that the Jaegerstab had two main aims, namely; first, to raise the production of fighter planes and, secondly, to facilitate Milch's resignation from his office by transferring the entire air armament industry to the ministry of Speer.
Formerly, to be sure, Milch was one of the chairmen of this Jaegerstab, but the witnesses--among them Schmelter, Hertel, Eschenauer and Vorwald--have testified that the actual chairman of this Jaegerstab was Saur. Milch very soon withdrew from the Jaegerstab; in March 1944 still participated in fifteen meetings, in April only eight, in may only five, and in June only two. Nothing concerns the veracity of the testimony of the defendant more than the quite obvious decrease in his participation. If one considers the fact that the Jaegerstab held its meetings daily one realizes how rapidly the decrease in the activity of the defendant was... If one considers furthermore that he was not always present at the meetings at all; that he did not hear most of the details of the discussions at these meetings--one can say with certainty that he was really not the man who had the biggest influence in the Jaegerstab, and who performed the practical work there. The expression "Breakfast director" which the witness Dorsch applied to the defendant characterizes the situation excellently.
The Jaegerstab was concerned with labor questions only insofar as it guided the so-called transfer of workers who were already working in industry. In the event changes in production occurred, especially effecting, as far as possible, their transfer from closed down bomber factories to fighter plane factories. However, in this connection it is almost exclusively a question of socalled skilled workers, as the witness Schmelter, a specialist in this field, has confirmed. In this process no new workers of any kind were introduced into the industry. The witness Schmelter, however, finally expressly confirmed that no real influence was exerted on Sauckel and his offices. Wishes regarding the transfer were merely referred to the Organization Sauckel. This fact in particular was emphasized in the statement of Schmelter with all the clarity desirable.
Thus, it has been proved in regard to this committee, too, that it had nothing to do with the bringing of workers into Germany from abroad, or dealt with their re-distribution. Thus, it was also not the purpose of the Jaegerstab to decide labor questions. Finally, it has thus been clarified that the ministry of Speer was the office which handled labor questions, insofar as it was necessary in the framework of the transfers. On the basis of the submitted documents, it seems at first as though the Jaegerstab had initiated and carried out the building of underground factories or of concrete protected factories above ground. The witnesses Speer, Hertel, Eschenauer, Koenig, Spendele, as well as Milch, himself, however, all clearly and decisively confirmed that these constructions were ordered directly by Hitler and Goering, and that the defendant had opposed these orders because he considered them senseless. It has furthermore been declared that Hitler, himself, handled the needs of workers for these undesirable constructions.
The Jaegerstab was connected with these constructions, according to all the testimony, only to the extent that it had to examine which ones of the fighter plane factories had to be installed in them. In this connection it must be remembered that a number of these constructions were also allocated for armament factories of the Wehrmacht. Thus, Milch cannot also be charged with any responsibility in this count. He was neither formally nor actually in a position to prevent Hitler's and Goering's orders. Nor had Milch anything to do with the allocation of Hungarian Jews to these factories, quite apart from the fact that it has been made clear that these Jews were allocated only in the summer of 1944, which was stated by the last prosecution witness, Krysiak. That is at a time when Milch had withdrawn from his office for some time.
It has been proved that Hitler issued relevant orders here and that the Jaegerstab trip to Hungary was entirely unconnected with this matter because it was undertaken solely for the purpose of a conference with the legal Hungarian government. These consultations were merely concerned with agreements regarding aircraft production by the Hungarian industry in the large caves near the Danube. Not one single document has shown that Milch either agreed to or welcomed the employment of Hungarian Jews.
To sum up, I may say then that even within the Jaegerstab Milch was neither a principal nor an abetter in the crimes listed in the indictment. I might add that it was not the purpose of the Jaegerstab to carry out such crimes. In any case he was on that board by no means the leading man. It has been found with certainty beyond all doubt from the defendant's point of view the Jaegerstab served the purpose of helping him to withdraw from office.
Mention will also be made of the question of concentration camp inmates doing work. Before going into details, I should like to make a few basic remarks. From all the trials in which I acted as counsel, from the questions asked in this courtroom, from various discussions I have had with citizens of your country, I have, your Honors, attained the certainty that in your circles no one believes in the truthfulness of the defendants and all other witnesses' statements, namely that the average German knew nothing about the happenings in the concentration camps and that the defendant did not know of the existence of such camps, with the exception of Dachau and Oranienburg. As most Germans certify to this and as all witnesses swear to this under oath, it is first of all difficult to understand why such statements are not believed. It can only be explained by the fact that the citizens of your country have been so much influenced by press propaganda and the newly discovered facts that they put more trust in the reports of their newspapers than in the assurances of the citizens of a country which is now known throughout the world as the place of origin of many atrocities.
But should such prejudice which does not originate from own and actual experience influence the judgment? I believe and always have believed that it is one of the essential laws of justice to base one's judgment strictly on facts which have become evident during a trial. It is a proven fact that in Germany no one was allowed to write about concentration camps; that the rules of secrecy which had been imposed by the dictatorial regime had to be kept very strictly; and that even the German authorities in case of their violating these rules of secrecy, were threatened with death, as I have proved by the submission of Exhibit MI-36.
From the statement of the witness Roeder, who, incidentally, explained that the defendant had neither the power of passing a death sentence nor of sending people to concentration camps, you have learned that the concentration camp inmates spoke to nobody about their condition. Even the prosecution witness Krysiak has told you that the prisoners did not dare to lodge complaints to anybody. How could the Germans generally learn about conditions in concentration camps? Milch, too, could not and did not learn about them, as he has told you, for the secrecy was kept even among the highest authorities. May the propaganda of your country insist on the contrary as much as it likes, what I have stated here still remains true, and I can certify it myself.
I myself who during the time of the so-called Third Reich often enough defended men who were accused because of their political views, I, who was watched by the Gestapo, who was attacked in the public newspapers of Nurnberg and especially was mentioned with name in the notorious "Stuermer" on account of my defense of unhappy Jews, I, too, didn't learn anything about these camps, although clients came to me after their release from the concentration camp Dachau. I always asked them and I always received the answer that they had nothing special to report. It was, of course, no pleasant life, but they reported that it was not so bad.
I would as you, your Honors, to consider how, we could have learned of these conditions.
May I remind you in this connection that deeds have been committed in the East of the former German territory, in the Sudenten-German border territories of Czechoslovakia, and other countries, deed which, even if one imagines them at their worst, remain far behind the truth. About these atrocities the international press has kept silent although one day history will speak and one will learn about them with horror. I have refused to give proof of the events which were brought about by your armies after the collapse. I could have mentioned many deeds which can be called nothing but grave infringements against the Geneva Convention. I could have given you a picture of how in the prisoners' camps in the early days hundreds of German prisoners died of starvation. I am never accusing any one. Shortcomings of organization and of human nature but not express orders and rules account for it.
I only mention this, your Honors, in order to point out that you did not learn about this and that it is only our unhappy and wretched people who know about it. But we who have had the bitter experience of the power of propaganda and of the force of secrecy know that ignorance of such matters can be excused and believed. Therefore, no one may say from the outset that all the unanimous statements by witnesses and the declarations of Milch are to be disbelieved. They have been sworn to; and the verdict must take them into consideration.
According to these it is certain that Milch only knew of the employment of concentration camp inmates in the Heinkel plant in Oranienburg and that he was of the opinion that these were German criminals and German political prisoners, of whose mistreatment, however, he had no knowledge. The use of prisoners and convicts is not a crime against humanity. This, however, should not have to be mentioned. In all countries in the world it is customary for prisoners to be obliged to work. In Germany this was even regulated by law to such an extent that the prisoners who were condemned to prison, that is, not to the penitentiary, also had to work. For a prisoner to have to work is not an atrocity. An atrocity can be seen only if the prisoner has to do this work under conditions which injure his health or which are inhumane.
But Milch did not know that the food, the housing, and the treatment of the prisoners were inhumane. One would have to prove such knowledge before one could punish him for it. You have heard, on the contrary, that he always did everything possible when he heard of individual cases of abuse. He even tried to help, as the Kreudener affidavit, Exhibit MI-37, proves, in a case where he was not competent. As the testimony of Kruedener revealed this was a case of inadequate accommodations. Moreover, as the witness Koenig has testified, he instituted an improvement in the food given the prisoners at Rechlin on his own initiative. Moreover, he generally saw to it that the workers got better rations.
But that does not mean that he knew that those prisoners were starving. It was unfortunately so that because of the total blockade of Germany by the allied forces the food available to the civilian population of Germany was very poor. I myself had only had the minimum ration card; and I could tell you a long story about how difficult it was to work on such rations. Milch, however, obtained better food for everyone working under him for armament. It was he who was the first to obtain extra rations for his air armament industry because the workers worked overtime. As a number of records of the Central Planning Board and the Fighter Staff show, he obtained additional rations for the prisoners of war and, for example, sent the Russians into agriculture so that they might get better food there and be padded a little. He had an office set up in the Fighter Staff in order to obtain additional food and clothing for the workers as the witness Schmelter has testified.
The improvement in the food of the inmates of Rechlin concentration camp was part of these measures. If he did this through the estate, it was because he had no influence with the administration of the concentration camps in respect of the issue of additional ration cards.
It would not correspond with justice if he was pronounced punishable for the employment of concentration camp inmates under this condition. The compulsory labor of prisoners has always been lawful in Germany even before the Third Reich. He knew nothing of cruelties and atrocities or inhuman treatment. Therefore, his consent to this cannot be proved. If I may summarize then, I believe that my opening statement for the defense had correctly revealed that Milch was not a slave driver, moreover that he never initiated it, nor was he of the opinion that the employment of such workers was permitted, and finally that he had done everything to keep down the employment of foreign workers as much as possible and to make it as humane as possible. At any rate the Prosecutions description of him is in no way accurate, and could only originate from a misunderstanding of the man, his speeches, and of his background. Sauckel and Speer had far greater responsibility in this connection. It was they who had real influence, and not Milch, but even in the case of Speer who was higher than Milch in his position, the International Military Tribunal has granted extenuating circumstances in connection with the manpower. I am convinced that Milch thought employing such labor was permissible, and that he did everything in his power to keep such employment to the lowest level and as human as possible.
I am conscious of the fact that the verdict of the International Military Tribunal is a great obstacle for me, and nevertheless the Tribunal was merely composed of human beings, and it had passed judgment under particularly difficult circumstances, and in composition it opened the door to politics into the courtroom. I do not need to remind you that in the English speaking countries, several verdicts of the Tribunal were subjected to very serious criticism. I myself here attacked one point of this verdict with better witnesses and better evidence. That with regard to slave labor, the International Military Tribunal, for example, based itself upon a wrong assumption. Nobody has stated there that the USSR has called off the Hague Convention of land warfare.
I have checked up on those features of defense, and I found that all the time it was only talk that the USSR had not become competent of the Convention. The statement of Jeurath has revealed that notice was expressly given.
Here we not only pronounce penalty verdicts or judgment, but also political judgments, whether we want to, or not. Especially in politics there is always some fluctuation. Every day new facts have turned up, which throws different 2434 a light upon things.
The distance of the time always grows greater and greater and has become separated from the events of the past which allows a mere conscious judgment. The man who returns from battle is always confused. The more he becomes calm the more he admits justice towards his enemy.
The Honorable Judges of this Tribunal when you judge please don't forget the whole personality of Milch. He always concerned himself as a good and noble man, and I am not only convinced of that as his counsel but also as a human being. The world would have a different outlook if his superiors had listened to his advice, which were made to serve the people of this world, and the common will of the people, and peace. In his heart he always took the side of the fighter who fought for united Europe, which now has been joined also by his former enemy Number One, Churchill. May this statement of Milch which has thrown new light upon things serve this aim. The poor and tortured Europe needs an enduring peace. May his statements also open the eyes of those among the German people who still cannot give up their misconceptions of many years, and show them what crime has been committed against them.
But you Honorable Judges must recognize from the attitude of the defendant Milch that he never became unfaithful to himself, and even if he had been perhaps under the spell of erroneous conception, he has always wanted the best for his and other people.
I have profound confidence in you, the Honorable Judges, that you, equally detached from your own people, will find an independent, true and righteous judgment that corresponds to the truth. I shall consider it as an honor for my person, if I have contributed to this through my painstaking labor.
MR. DENNEY: May it please Your Honors.
THE PRESIDENT: Mr. Denney.
MR. DENNEY: We close today the trial of a major war criminal. A leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen.
The evidence set forth before the Tribunal has shown that Erhard Milch was 2435 a primarily implicated as a leader in a program to bring laborers into Germany by force, of allocating them to the various segments of the German war economy, and of munitions.
We deal here with a top military and economic planner who at all times was fully informed as to the aims and objectives of the Nazi plan. Unlike his colleagues SPEER and SAUCKEL, MILCH entered the conspiracy early. The defendant was one of a small group of men who constituted the leadership of the Reich.
Before dealing directly with the responsibility of the defendant for the crimes charged in the Indictment, as shown by the evidence, we should like to review, briefly, the law applicable to these crimes.
THE LAW.
The indictment charges and the evidence has connected tho defendant with a wide variety of crimes incident to the enforced labor program of the Nazi regime. In themselves, these crimes are not now except in their enormity. In domestic law they have, from ancient times, borne such familiar titles as assault, battery, murder, kidnapping and pillage. In international law the principles which protect the individual from undue interference with his person and his personal freedom have given rise to a series of kindred precepts governing the conduct of a nation which has gained factual control over the citizens of another state. We shall consider briefly some salient precepts and prohibitions of international law up to, and including the provisions of Control Council Law No. 10.
Much of the labor which supplied Germany with the tools of total war was exacted from people who had been uprooted from their homes in occupied territories and imported to Germany. Displacement of groups of persons from one country to another is the proper concern of international law insofar as it effects the community of nations.
The law has recognized that some conditions may justify the transfer of people from one country to another. Correspondingly, and with much more relevance to the present case, international law has enuciated certain conditions under which the fact of deportation becomes a crime.
If the transfer is carried out without a legal title, as is the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has prevented temporarily the rightful sovereign from exercising power over its citizens.
Articles 43, 46, 49, 52, 55 and 56 of the Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as a crime the deportation of civilians from an occupied territory. However, Article 52 states tho following conditions under which services may be demanded from the inhabitants of occupied countries:
1. They must be for the needs of the army of occupation;
2. They must be in proportion to the resources of the country; and 3. They must be of such a nature as not to involve the inhabitants in the obligation to take part in military operations against their own country.
Insofar as this section limits the conscription of labor to that required for the needs of the army of occupation, it is clear that the use of labor from occupied territories outside of the area of occupation is forbidden by the Hague Regulations.
The illegality of the deportation of civilians in territories under belligerent occupation was demonstrated in the First World War when the Germans attempted a deportation program of Belgian workers into Germany. This measure met with world-wide protest and was abandoned after about four months.
Among the voices raised in protest against the deportation of Belgians by Germany in 1916-1917 was that of Lansing, Secretary of State. He wrote:
"The Government of the United States has learned with the greatest concern and regret of the policy of the German Government to deport from Belgium a portion of the civilian population for the purposes of forcing them to labor in Germany, and is constrained to protest in a friendly spirit but most solemnly against this policy which is in contravention of all precedent and all principles of international practice which have long been accepted and followed by civilized nations in their treatment of non-combatants in conquered territory."
Other protests were lodged with the German Government by Spain, Switzerland, Netherlands and Brazil, all neutral countries. International lawyers all over the world condemned Germany's action in the strongest terms.
The opposition in the German Reichstag accused the Government of violating the Hague Convention and refused to vote for the war budget.
It is worthy of note, in passing, that the defendant has testified at this trial that he know of this effort at deportation of labor on the part of Germany in the First War and that he was much interested in the investigation conducted by a Reichstag Committe concerning this matter. He could not have followed this investigation, as he admits he did, without learning that the deportation in question was violation of internation law.
The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal. A conspicuous example of illegality of purpose is found when the deportation is for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country.
An attempt has been made by the Defense in this trial to show that persons were deported from France into Germany legally and for a legal purpose, by pointing out that such deportations were authorized by agreements between Nazi and Vichy French authorities. This defense is both technically and substantially deficient. Many of the Vichy Government's highest officials who held office by reason of and under the protection of Nazi power, have been punished for treason by the present legitimate government. And two, the agreements themselves were illegal - because they were exacted under duress, and because they were void "ab initio" because of their immoral content. It is common knowledge that oven tho puppets of Vichy did not of their own accor agree to the Nazi deportation measures. It is equally clear that these agreements were "contra bonos mores." Then to it was illegal for any French Government, to conclude agreements which provided for the compulsory mass deportation of French workers to aid tho enemy's war effort. At the time of the agreement between Germany and Vichy there was merely a state of suspension of hostilities.