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."
The letter of transmittal stated in part:
Enclosed I send you for your information the statutes of the Central Planning Board with the request to support the office of the Central Planning Board in every possible way in its work, and to direct, more particularly, to your section chiefs and reporters to forward all information requested orally or by writing, in the shortest possible time. By this collaboration by your section chiefs and reporters, the building up of larger machinery in the framework of the Central Planning Board is to be avoided."
The International Military Tribunal found that the Central Planning Board: "had supreme authority for the scheduling of German production and the allocation and development of raw material."
It needs no emphasis chat the effective performance of these functions necessarily involved the Board in the requisitioning and distribution of labor, and the records of the Board which have been submitted leave no doubt that the Board exercised the authority conferred upon it in the field of labor. The International Military Tribunal in its opinion found that the Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor and that the Board determined the basic allocation of this labor within the German war economy.
In accessing the guilt of the defendant Funk, the Court said:
"In the fall of 1943, Funk was a member of the Central Planning Board which determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from 2449a occupied territories.
Funk did not appear to be particularly interested in this aspect of the forced labor program, and usually sent a deputy to attend the meetings, often SS Gen. Ohlendorf, the former Chief cf the SD inside cf Germany and the Commander of Einstzgruppo D. But Funk was aware that tic Board cf which he was a member was demanding the importation of slave laborers, and allocating them to the various industries under its control."
Bearing in mind the fact that Funk was a minor member cf the Board, now much greater is the responsibility of the defendant who was a dominant figure on the Board throughout its existence.
There is no need to review in historical detail the defendant's personal participation in the criminal activities cf the Board. A few references to the pattern for 1944 will suffice. The Tribunal will recall that Albert Spoor, the other dominant member of the Board, was ill during most of this period.
On January 1944, demands were made at a Hitler conference that Sauckel produce four million new workers from the occupied countries. The defendant was present at the conference, and at this meeting, Sauckel, in pledging himself to perform his recruitment tusks, indicated that the demands could be mot only by Himmler, and the promise of assistance was forthcoming from the Reich Fuehrer SS.
The allocation cf this labor to the various sectors of the German economy was determined by the Board at its 53rd meeting. The defendant was the presiding officer at this meeting. The chart compiled by Milch and found in his files shows his personal knowledge of the sources cf the labor being allocated.
Sauckel was, however, unable to satisfy completely these demands. He reported this inability at its 54th Meeting. This Meeting of the Board was presided over by the defendant, and the minutes which we have submitted show the subordinate position occupied by Sauckel with respect to the Board. The Tribunal will recall Sauckel's opening statement:
"Field Marshal, Gentlemen, it goes without saying that we shall satisfy as far as possible the demands agreed upon by the Central Planning Board." And then later on in the meeting:
"If I am to fulfill the demands which you present to me..."
We shall not review in detail the minutes of this meeting, but the Tribunal's attention is again directed to the fact that Sauckel was questioned closely by the defendant who suggested that the Wehrmacht be assigned to the task of assisting in the recruitment drive. The defendant suggested that French workers be coerced by a system of premediated starvation. In dealing with the problem of Italian laborers, the defendant suggested that only those who went to Germany or worked in protected factories be given food.
As a further moans of meeting the manpower shortage, consideration was given to possible measures for increasing the productive power of prisoners of war. Accordingly, on 5 March 1944, a conference was held at the Fuehrer Headquarters. It is evident from the minutes which have been submitted to the Tribunal that the defendant was in attendance. The Tribunal will recall that the decision was made to give the direction of the Stalags to the SS, in order to increase the production power of the prisoners. This was not to apply to the Americans or the English.
The Tribunal will take judicial notice of the methods of the SS.
2451a On 7 July 1944, Sauckel issued a report showing new manpower placed at the disposal of German war industry during the first half of 1944.
We shall not review in detail this report, but merely state that it is proof of the Board's directive to Sauckel.
This report, however, showed a deficit, and on 11 July 1944 a further conference was held to solve the question of how greater compulsion could be exerted on persons to work in Germany. The defendant has testified that he was in virtual retirement from production matters since late June 1944. Yet, the record of this conference shows that he was present. The result of this conference was the greater utilization of the Wehrmacht in the recruitment of forced labor. The directive of Field Marshall von Kluge, which has been submitted in evidence, makes specific reference to the r suits of this conference.
Here, in brief, we have the picture. The defendant and the Board of which he was a dominant member requisitioning forced labor from Sauckel, allocating this labor to the various sectors of the German war economy, and later improvising new and more brutal techniques of force and terror for the recruitment of new labor.
The defense, besides denying the power and authority of the Central Planning Board, has challenged the authenticity and accuracy of its transcripts. The Prosecution has been compelled to rely upon these minutes for much of its proof.
In t is connection, it might be said that these same transcripts constituted the basis for finding of fact by the International Military Tribunal. They are quoted in the decision of that Court.
The Statutes of the Central Planning Board, mentioned a few minutes ago, show the extreme care taken to insure the accuracy of the reporting these meetings, as well as action taken or ordered to be taken.
The Statutes of the Board provide in part:
"In order to have the conferences properly prepared and to have the execution of the decisions supervised, the Central Planning Board appoints an office. This office consists of the deputies appointed by each of three members of the Central Planning Board; one of these three deputies shall be appointed chief of the office." Then follows a handwritten marginal note which I shall omit.
"In accordance with the attached distribution of work the office appoints reporters. These reporters are at the disposal of all members of the Central Planning Board. The office appoints one reporter to keep the record."
And then, Tasks of the Office? The office prepares the meetings of the Central Planning Board in such a manner that the members of the Central planning Board have the agenda and the material of discussion 24 hours in advance. For this purpose the office conducts preliminary talks with the competent departments, etc.
On the strength of the record made by the reporter, the office sees to the execution of the decisions of the Central Planning Board by the competent agencies, and sees to it that the deadlines fixed are complied with.
The members of the office keep the members of the Central Planning Board informed between the sessions."
The minutes of these meetings which have been submitted to this Tribunal show that these proceedings were recorded and transcribed with characteristic German detail and accuracy. We need only refer to the charts and tables, and the remarks quoted in the transcripts. Of the 59 meetings fully covered by these official reports, 41 were prepared and signed by Ministerialrat Steffler -- who was personally responsible for the accuracy and completeness of these reports.
Without the Central Planning Board the slave labor program could not have functioned.
THE PRESIDENT: Shall we take a recess before reading some more?
MR. DENNEY: This might be a good time.
THE MARSHALL: The Tribunal is in recess fifteen minutes.
(A recess was taken.)
THE MARSHALL: Tribunal Number Two is again in session.
MR. DENNY: If it pleases your Honors--the Jaegerstab. Here we have tho defendant in immediate contact with the slave labor program at its peak. By tho testimony of tho defendant, it was he who conceived and instigated the formation of the Jaegerstab. Speer and the defendant constituted its loadership. Speer's participation was nominal and it was tho defendant who directed its activities and acted as its chairman. Speer was ill during part of tho Jaegerstab's existence and has stated to the Court that he did not preside at a meeting.
The Jaegerstab assumed control over fighter production when the exploitation of foreign forced labor in air armament had already reached unparralleled heights. On February 18, 1944, tho defendant had told his colleagues in tho Central Planning Board that "our best now engine is made 88% by Russian prisoners of war". On March 25, he told his engineers that seen the percentage of foreign personnel in tho aircraft industry would roach 90%. Reich Fuehrer of the SS Himmler, reporting to Goering on March 9, 1944, an the employment of concentration camp personnel in tho aircraft industry, stated that nearly 36,000 prisoners were employed and that an increase to 90,000 was expected. The formation of the Jaegerstab is partly explainable in terms of tho battle to increase the man power resources available for fighter production.
Tho Jaegerstab was assigned top priority. Projects for tho recruitment and commitment of manpower were discussed by tho Jaegerstab. The evidence presented before the Tribunal has shown that questions of manpower were time and tine again referred to tho defendant. No have soon him agreeing to use his prestige and influence upon Sauckel in efforts to obtain now workers for aircraft production. When manpower in sufficient numbers was not forthcoming through normal channels, tho Jaegerstab did not shrink from other methods of obtaining its labor. When necessary, tho Jaegerstab recruited its own labor, either directly or by engineering "snatching" expeditions for tho seizure of manpower arriving on transports from tho East.
The defendant's frank admission to his subordinates that "International Law cannot be observed here" characterizes best his own participation in the activities of the Jaegerstab. Where, as was the case with France, transfers of production facilities were concerned, the defendant advocated tho stripping of tho country and the deportation of its people as PW's. When tho discussion turned to PW's, tho defendant was quick to suggest their transfer to places under air attack. When the transportation of Italian civilian conscripts directly recruited by tho Jaegerstab for service in Gemany was in question, it was tho defendant who advocated tho shooting of these who attempted to escape.
The Jaegerstab was no more discussion group. As an agency with absolute authority over fighter production, the Jaegerstab acted by orders and directives. The Jaegerstab fixed hours of labor and conditions of work. It was tho Jaegerstab, for example, which established tho 72-hour work week in tho aircraft industry.