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.
French resistance had not ceased, and the outcome of the war continued to be uncertain. Lastly, the deportation agreements were invalid because their manifest purpose was to aid Germany in the commission of the crime of aggressive war. That an agreement in furtherance of an act which is illegal in international law is invalid has been stated by various authorities.
For example, Professor Charles Cheney HYDE of Columbia University defines as internationally illegal "agreements which are concluded for the purpose of, and with a view, to causing the performance of acts which it (international law) prescribes."
Professor HALL, page 382 of the 8th Edition of International Law (1924), declares:
"The requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of International Law and their undisputed applications."
Lauterpach on International Law by L. Oppenheim, at Volume I, page 706, states:
"It is a unanimously recognized customary rule of international law that obligations which are variance with universally recognized principles of International Law cannot be the object of a treaty."
The final condition under which deportation becomes illegal occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner.
A study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements, that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal, or whenever the deportation is characterized by inhumane or illegal methods.
Article II (1) (b) lists under war crimes "ill treatment or deportation to slave labor or for any other purpose of civilian population from occupied territories." It is clear that Law No. 10 establishes the following separate and dis tinct crimes:
ill treatment of civilians from occupied teritories; departation to slave labor of such civilians; and deportation for any other purposes of such civilians.
The prohibition of deportation of civilians from occupied territories irrespective of the purpose, as stated in Control Council Law No. 10, is a recognition of tho principle of international law that a power in belligerent occupation has no right or authority (title) to deport tho citizens of the occupied territories. The separate specification as a war crime in Law No. 10 of ill treatment of civilians from occupied territories, is a recognition of the rule of international law, as heretofore discussed, that even an otherwise lawful deportation (by an authority having title and for a legitimate purpose) is rendered illegal where the doportees are ill treated.
Without entering into a detailed discussion of the evidence, it should be pointed out at this point, that all these conditions for criminal deportation were abundantly present in the enforced labor program of Germany during the 2nd world War, and that the knowing connection of the defendant with all phases of illegal opertation has been established.
Article II (1) (c) of Control Council Law No. 10 specifies certain crimes against humanity. Among these is listed the "deportation ..... (of) any civilian population ....." The general language of this subsection, as applied to deportation, indicates that Control Council Law No. 10 has indeed unconditionally condemned, as a crime against humanity, every instance of the deportation of civilians. Under this subsection, there would seem to be no room for argument as to the legality of any agreement on the part of any government, legitimate or illegitimate, which allows deportation in time of war of its subjects.
We come now to a consideration of the crime of enslavement. Whereas Article II (b) names deportation to slave labor as a war crime, Article II (1) (c) states that the "enslavement" .....(of) any civilian population" is a crime against humanity. Thus, Law No. 10 treats as separate crimes and different types of crime "deportation to slave labor" and "enslavement."
Article II (b) does not specify as a crime the detention (as distinguished from the deportation) of civilians for use as slave labor or for any other purpose. However, the section does stipulate that any a trocities or offenses against persons which constitute violations of the laws or customs of war, including but not limited to deportation to slave labor, are war crimes. Use or detention of persons from occupied territories for slave labor or for any other purpose, in and of themselves, do constitute violations of the laws and customs of war. Ergo, such use or detention is a war crime within II (1) (b) of Law Number 10.
The crime against humanity which is termed "enslavement" in Article II (1) (c) of Law Number 10 is susceptible cf two meanings. It can be understood to embrace the initial act of deprivation of the freedom of another, and an act whereby such deprivation is continued, or either of them, or it may be interpreted as referring only to the initial measures whereby a person is deprived of his freedom.
It is the contention of the Prosecution in this case that all phases of the slave labor program, the taking, the transpertating, the detention, the use and the inhumane treatment of foreign workers as practiced by the Nazi state and participated in by the defendant, constitute enslavement within the meaning of Article II (1) (c). No sufficient reason appears for the limitation of the crime to the mere initial act.
In every true and complete sense a person is enslaved from the moment when his liberty is taken from him until the time when it is restored to him. It is more than probable that if Law No. 10 is intended to limit the crime of enslavement to the initial measures under which a person was deprived of his liberty, there would have been some definite indication, either in the language or in the context of the statute to so indicate.
Even if we were to concede the narrowest possible meaning for the term "enslavement" in Article II (1) (c), so as to understand by it only the first acts of deprivation of liberty, all acts under which such people were kept in an enslaved status would be crimes against humanity, because the same section defines as such any atrocities and offenses committed against civilian population. By express provise "enslavement" and "deportation" are only illustratively mentioned, and "other inhumane acts committed against any civilian population" constitute crimes against humanity.
The result is that whether we adopt the broad interpretation of the term "enslavement" or the narrower one, the deportation, the transportation, the retention, the use and the inhumane treatment of civilian populations are crimes against humanity. The Prosecution charges that the defendant was criminally connected with all the phases of the slave labor program, whether these division be comprehended within the technical term "enslavement" or be divided between the crime of "enslavement" and that of "other inhumane acts."
We shall now make brief comment on the subject of the treatment and use of prisoners of war. The Hague and Geneva Conventions merely codify the precepts of the laws and usuages of all civilized nations, Article 31 of the Geneva Convention provides that "labor furnished by prisoners of war shall have no direct relation to war operations."
Thus the Convention forbids:
1. The use of prisoners of war in manufacture or transportation of arms or munitions of any kind, and 2. The use for transporting material intended for combat units.
The Hague regulations certain comparable provisions.
The essence of the crime of the misuse of prisoners of war derives from the kind of work to which they are assigned -in other words, to work directly connected with the war effort. The Prosecution would like to recall to the court the evidence which connects the defendant, with both the illegal employment of prisoners of war and with their abusive treatment. The Tribunal will recall that the defendant ordered the murder of prisoners of war who attempted to escape. We will discuss this crime more fully later. It will be remembered that there never has been a substantial denial of the fact that prisoners of war were used to man German anti-aircraft batteries. Nor is it subject to doubt that prisoners were used in air armament Industries over which the defendant exercised supervisory control.
We now come to the consideration of the basic charges and the law governing tho defendant's complicity in, and responsibility for, the medical experiments program. The fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the parson, and ether inhumane acts.
The applicable provisions of Control Council Law No. 10, Article II , are (b) war crimes, (c) crimes against humanity. In connection with the criminal medical experiments program, the Prosecution submits that the defendant is guilty of:
A) War crimes, namely violations of the laws and customs of war, as the medical experiments performed upon involuntary persons, some of them nations of countries at war with the German Reich, involved the commission of murders, tortures and other inhumane acts.
b) Crimes against humanity, namely medical experiments performed upon involuntary German nations and nations of other countries, in the course of which, brutalities, murders and other inhumane acts were committed.
Before we pass from the law involved in this case to a consideration of the evidence, we wish to mention the legal basis for the Prosecution's contention that the defendant must share the guilt which attaches to the slave labor program and the conduct of medical experiments upon unconsenting human beings. Control Council Law No. 10 defines for us the theory upon which this trial proceeds in Article II, paragraph 2, when it says:
"Any person without regard to nationality or the capacity in which ho acted, is doomed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principle or (b) was an accessory to the commission of any such crime or ordered or better the same or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission or (c) was a member of any organization or group connected with, the commission of any such crime. ........"
Without wishing to limit the scope of the testimony in this case, the Tribunals attention is directed to the evidence which has established that the defendant, as a member of the Central Planning Board, and the Jaegerstab and as Generalluftseugmeister and in every one of his capacities was connected with "plans and enterprises" for the commission of war crimes and crimes against humanity, and was a "member of organ izations and groups", within the meaning of subdivisions (d) and (e) of paragraph 2, "connected with the commission of such crimes".Count one, paragraph 6 of the Indictment charges the defendant Milch with guilt in the murder of prisoners of war who had attempted to escape from enforced labor in German war industry.
The gist of this crime is murder is, and always had been, prohibited by every country which laid any claim to civilization. It was specified as a war crime under the Hague and Geneva Conventions and under the provisions of Article II of Council Law No. 10. The evidence which connects the defendant with this crime will be discussed in another part of this summation.
Law Number 10, article II, paragraph 3 provides that the death penalty or lesser sentences may be prescribed for the commission of war crimes and crimes against humanity as defined in the statute.
We turn now from the law to the evidence. In the presentation of its case in chief, the Prosecution first offered evidence to describe the slave labor program in Germany in all its stark terror. It then turned to a presentation of the proof which connected the defendant with the slave labor program in two of his principal capacities, as member of the Central Planning Board and as member of the Jaegerstab. Next there was put in evidence the documents which established defendant's connection with the medical experiments, and finally after the defense had put in its case, the defendant was confronted with the evidence of additional documents which connected him with the detention and mistreatment of slave labor in his capacity as Generalluftzeugmeister. In summing up the evidence the prosecution wants to keep roughly the same order. It will deal in turn with the evidence of the defendant's activities as member of the Central Planning Board and as member of the Jaegerstab. The documents relating to defendant as Generalluftzeugmeister will then be dealt with and in conclusion, the defendant's implication in the criminal medical experiments will be discussed.
When, in the course of presenting the evidence, we first turned our attention from the general documents which established the body of the crime of slave labor to the documents which were to prove the defendant's connection with that crime, we asked the court's attention to certain key words which we said would run like small threads through our proof. These words were cited to be "procurement, allocation and use". It was stated that we would often use them. We offered many documents to prove Milch's connection with each of the functions described by these key words. Once again, we ask the Tribunal to keep these words in mind.
The Central Planning Board, which was established in April 1942, served as a means of consolidating in a single agency all controls over German war production. The minutes of the Central Planning Board which have been submitted to the Tribunal reflect the dominant role played by the defendant at meetings of the Board.
The best evidence of the scope and authority of the Central Planning Board is contained in the Board's own minutes. The first conference of the Central Planning Board was held on April 27th, 1942. The duties and responsibilities of the Board were announced in these words:
"The Central Planning in the Four-Year Plan (decree of the Reich Marshall of greater Germany of April 22, 1942), is a task for leaders. It encompasses only principles and executive natters. It makes unequivocal decisions and supervises the execution of its directives. The Central Planning does not rely on anonymous institutions difficult to control but always on individuals and fully responsible persons who are free in the selection of their working methods and their collaborations, as far as there are no directives issued by the Central Planning." Then, six months later, on October 20th, 1942, the statutes of the Central Planning Board were published and distributed. A portion of these states?
"The Central Planning board created by the Fuehrer and Reich Marshall in order to unify armament and war economy deals only with the decision of basic questions. Professional questions remain the task of the competent departments which in their field remain responsible within the framework of the decisions made by the Central Planning Board."
"The highest Reich authorities, the Reich Protector, the Governor General and the Executive authorities in the occupied countries."