Paragraph 1 (section c) specifies as a crime against humanity, deportation of civilian populations. Article II, Paragraphs 2 and 5 proclaim that anyone taking a principal or consenting part in these crimes or belonging to a plan or enterprise for the commission of these crimes is guilty of an offense for which the death penalty may be prescribed.
The Prosecution will prove that Milch was a principal in the deportation into slave labor of civilian populations from occupied territories. It will show that he was involved in the murder and ill-treatment of prisoners of war. Evidence will be presented which will prove that he was engaged in plans and enterprises which directly involved the use of slave labor. He will show that this man was as muck concerned with the employment of slave labor as was any man in Germany. In his positions as a member of the Central Planning Board, as General Luftzeugmeister of the Air Force and as Chief of the Jaegerstab, he had full opportunity to hear all the grim details of the exploitation of slave labor. He participated in decisions and formulated basic policies with reference to its use and over and above all this he skewed his personal animosity and his gratuitous fanaticism in constantly urging the most repressive and cruel measures in the procurement and exploitation of foreign workers.
During the course of this trial, an attempt will be made to distinguish among that which this defendant did as General Luftzeugmeister, as Chief of the Jaegerstab, as State Secretary for Air and as a member of the Central Planning Board. At times at will be difficult, if not impossible, to state in just which capacity ho was acting at a particular time. He must emphasize now that it is not essential to the proof of this case that we should be able always to specify the exact capacity in which the defendant acted.
The multiplicity of his connection with the slave labor program is his greatest condemnation and it is because he knew so much and did so muck that there can be for him no excuse.
Erhard Milch operated at a policy level high in the chain of command above the work boss and the concentration camp guard. We need not show him driving the workers to their tasks or crowding them into the hovels in which they lived. We are not primarily concerned with tho minute details of the slave labor program which were carried out by minions who obeyed non like the defendant. We are dealing with a planner of a great crime and it has not been difficult for the law to seek out and punish these who plan as well as those who obey. The law would indeed be derelict if only these were punished who pulled the trigger to kill, or, comparably speaking, ran a slave camp in which people worked an 84 hour week and dragged out a miserable existence under conditions from which death was welcome relief.
This defendant cannot plead in truth that he did not know that the use of slave labor was wrong. He cannot use even the technical excuse so common among the Nazis that this was not illegal because the Nazi law authorized it. Official sanction of slavery would have been a law so evil that even the Nazi masters dared not proclaim it. A search through the nass of decrees and pronouncements which passed for law during the regime of Adolf Hitler fails to reveal sanction for slavery of foreign laborers. On the other hand certain prohibitory laws survived from a more respectable day.
Paragraph 234 of the German Criminal Law (published in 1942 in Munich and Berlin pp. 364-365) provides that "whosoever seizes a person by ruse, threat, or force in order to expose him in a helpless situation, and to bring him into slavery, serfdom and foreign Army and Navy service shall be punished for kidnapping with penal servitude.
This law was in force during the Nazi regime and was published in the most recent edition of German Criminal Law which we have been able to find.
That mal-treatment was common place in the course of the enforced labor program in Germany is well known; that starvation, murder and all types of personal abuses took place is notorious. All of this was found as a fact in the decision of the International Military Tribunal. There can be no question of the responsibility of the defendant for the murders and privations which were the inevitable by-product of the slave labor program.
But we need not follow the crime of slave labor down to its last detail in order to show the defendant as the murderer he was. We can and will prove that he directly participated in crimes of which murder was often the intended and on numerous occasions the inevitable result.
The Prosecution charges, and will prove, that he took an Important, responsible and essential part in the practice of experiments upon human beings carried out against their wills and in callous disregard of the lives of its victims.
Cut then to bare essentials the charges set forth in Paragraphs 8 and 9 of Count II of the Indictment and in Paragraph 11 of Count III can be summarized by the statement that the defendant was officially connected with and took a consenting part in enterprises in which criminal medical experiments were performed upon involuntary subjects.
The nature and extent of these experiments and the fact that they were conducted for the specific benefit of the Luftwaffe will be, shown in some detail. We will prove that the defendant was the responsible Luftwaffe officer with ultimate supervisory authority over the experiments. The Court will see that throughout the duration of these experiments, the defendant was constantly treated by all concerned as the ultimate authority within the Luftwaffe in control of the experimental equipment and in charge of certain personnel who were actively engaged in them.
Evidence will be presented which will prove that the defendant was thoroughly informed of the criminal activities of Dr. Rascher, the experimenter, and his associates. We will prove that a conference was hold at the defendant's office, that films were shown there, that communications were sent to him from highest Nazi sources which specifically referred to opposition on the part of "narrow-minded doctors" to the experiments. A web of evidence will be adduced to portray the defendant, as he really was, an active partner in crime. We will show that the defendant authorized the initiation of freezing experiments and that he ordered an extension of the high altitude experiments for a period of two months during which extended period a number of experimental subjects died.
At the conclusion of the evidence with respect to the medical experiments upon human beings there will remain no doubt that Erhard Milch was a knowing, willing and active participant in murder.
Throughout the trial the Prosecution will place before the court a number of statements which will portray him as a man who believed no tears should be shed for the victims of total war when German soldiers were every day making the ultimate sacrifice for the Fatherland. This man was not a hard headed, single minded production chief whose only problem was to get things done and whose rash statements were the impetuous remarks of an over-worked executive. Milch will be shown as a man who boasted of his responsibility in the hanging of prisoners of war, who urged that any effort on the part of foreign workers to strike during enemy action should be not with rifle fire, who offered protection to slave supervisors who should mistreat their subjects. We will show that he was not too busy to inform himself fully of everything with which he was officially connected and that over and above this he went out of his way to learn the most minute details of matters with which he was very remotely connected.
And now a brief word about the type of evidence with which the Prosecution will prove its case. It must be borne in mind that we are not concerned with a single localized incident or with a series of such incidents. The proof which we must show cannot be brought forth from the daily events of ordered society. It must be drawn from the cold ashes of a broken nation. The documents which will be brought into court have been taken from all corners of a continent. They have one common feature which elevates them in the hierarchy of evidence to a place above the story of sincere but fallible eye-witnesses. These documents are official German records, some of them records of the defendant's own organizations. In some cases they bear the defendant's signature or his hand-written initials. In every case they are authentic records compiled by Germans, accurate because there was no reason for falsification or exaggeration, thorough because of a national fetish for attention to detail, reliable because they were made at times when the German fortunes of war were high and their scriveners had no reason to fear that one day they would be confronted with their hand made records of criminality.
It would seem that at this point there should be some discussion of the various organizations with which the defendant was connected.
We are concerned principally with that part of the OKW (Oberkommando Wehrmacht) High Command of the Armed Forces, known as the OKL (Oberkommando Luftwaffe) the German Air Force. The Chief of the OKL was Reich Marshal Hermann Goering. His Inspector General and State Secretary in the Air Ministry was the defendant Erhard Milch.
As such, from July 1940, he held the rank of Field Marshal (comparable to the American rank of General of the Armies).
The other two branches of the OKW with which we are incidentally concerned were the OKH (Oberkommando Heeres) the Army, and the OKH (Oberkommando Marine) the Navy. The Army was commanded by Field Marshal von Brauchitsch until December 1941, at which time it was taken over by Hitler. The Navy was commanded by Grand Admiral Raeder until 1943, thereafter by Grand Admiral Doenitz.
The Luftwaffe Medical Service came under this defendant in his capacity as Inspector General of the Luftwaffe. The Medical Service was headed by Dr. Erich Hippke until January 1944, thereafter it was headed by Dr. Oskar Schroeder.
There was an experimental institute, in Berlin, called the DVL. This was a technical research institution for aero-research. This was subordinate to this defendant in his position as General Luftzeugmeister.
We now turn to the Central Planning Board. This was established by a Goering decree, pursuant to a Hitler order of April 22nd 1942. The Board consisted of Albert Speer, Erhard Milch, and Paul Koerner. Later, by a supplementary Goering decree, in September 1943, Walther Funk was added to the Board. Speer and Milch were the dominant members, and Koerner and Funk played comparatively minor roles. The Central Planning Board was, in effect, a consolidation of all controls over German war production. The Board was found by the International Military Tribunal to have "had supreme authority for the scheduling of German production and the allocation and development of raw material". Hand in hand with this goes the corollary of the procurement and allocation of labor. Reich Marshal Goering, in his decree of April 22nd 1942, stated in part - "It (the Central Planning Board) encompasses that which is fundamental and vital. It makes unequivocal decisions and supervises the execution of its directives". The Central Planning Board requisitioned labor from Sauckel with full knowledge that the demands would be supplied by foreign forced labor, and the Board determined the basic allocation of this labor within the German war economy. Sauckel was the servant of the Central Planning Board in the procurement of slave labor. There are records of some 50 odd meetings of the Board between the time of its establishment in 1942, and 1945. The defendant was present at all but a few of these meetings and on occasion his was the dominant voice. The International Military Tribunal found that "...the Central Planning Board determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deporta tion from occupied territories".It is worthy of note that Speer was appointed Reich Minister for Armaments and Munitions on February 2, 1942, Sauckel was appointed Plenipotentiary General for the Utilization of Labor on March 21, 1942, and Central Planning Board was created on April 22, 1942.
Turning now to the defendant's position as Chief of the Jaegerstab. The Jaegerstab was formed pursuant to a Speer decree of March 1, 1944, for the purpose of increasing the production of German fighter aircraft, which, because of effective and heavy raids by strategic air forces of Great Britain and America, had suffered a production decrease to a figure below 1,000 planes a month.
Because of this reduced production of fighter planes, Milch had requested Speer to establish a commission to deal with this most vital problem. The commission was created and Speer and Milch were joint chiefs. The Jaegerstab was actually a group cf experts, drawn from the various phases of German industry and supplemented by representatives of the various Ministries concerned, such as Labor, Supply, Transportation, Power and Energy, Raw Materials, Health, Repairs and so forth.
Meetings were held almost daily, in the beginning at the Air Ministry in Berlin and later at Tempelhof airfield in the same city. The Jaegerstab functions were these: the quick repair of plants damaged in bombing or strafing operations, the dispersal of German aircraft plants and the construction of underground factories for aircraft production.
As it was with the Central Planning Board, so it was with the Jaegerstab, a major problem was the procurement of slave labor. The workers for Jaegerstab were procured from the Sauckel Ministry, from occupied countries and from the SS, who supplied concentration camp inmates and Hungarian Jews.
So successful was the work of Jaegerstab that Speer decided to enlarge its functions to include other phases of armament and munitions production. Accordingly, on August 1, 1944, he issued a decree expanding the functions of Jaegerstab and changing its name to Ruestungsstab.
The position of General Luftzeugmeister was taken over by the defendant in 1941, following the death of Colonel General Ernst Udet. In this post the defendant was in charge of all technical research in the Luftwaffe and his was the overall responsibility for all aircraft production. As such he spoke for the Luftwaffe in the meetings of the Central Planning Board and in conferences with Hitler. It is obvious that here again the procurement of labor was a primary consideration for one who had the complete responsibility for keeping the Luftwaffe in the air.
In the trial before the International Military Tribunal, it was determined that 5,000,000 laborers were deported to Germany. Of these, 4,800,000 did not come voluntarily.
The evidence will show that the defendant's responsibility was as great, if not greater, than was Sauckel's. Erhard Milch raised his voice in demanding that foreign labor be procured by any methods and in advocating that cruel and repressive measures be taken by those in charge of these laborers. There is no record of any utterance by him, which can be offered as a mitigating circumstance to his complete complicity in the criminality of the slave labor program.
The evidence on the altitude and freezing experiments will reveal him as a man completely without concern for the welfare and lives of the wretched, unwilling victims of the criminal tortures conducted for the benefit of the Luftwaffe.
The series of trials, of which this is one, if it is to serve its purpose in exposing and punishing the abuses of Nazidom, must strike hard at the cores of savage German militarism and its technical counterpart, industry for war. Erhard Milch is the foremost example of the union between German militarism and German heavy Industry. What useful purpose is served by condemning these two and allowing their sponsors, men like Milch, to go unpunished?
We take it as a fundamental proposition that man is not the helpless product of his environment. Civilization is a lengthy chronicle of men who triumphed over difficulty. Its survival depends on the moral fibre of individuals who can use circumstance, not be determined by it.
If society must answer for the actions of men and not men for the course of society, then, indeed governments are our masters and not our servants, then, indeed, law dictates but does not express justice. Erhard Milch lived during years of violence and in an evil environment but he was a man well able to overcome these factors and become a force for good. It was by his own free choice that ha followed the line of least resistance and became one of the evil spirits who cast a dark shadow of war and crime over Germany and the world. He had a choice between the easy wrong and the hard right -- he chose the former. Peace, order and progress depend an men of sufficient courage to choose at times a hard, just path. Ours indeed is an exacting standard - but the rewards are great - and the alternative is chaos.
MR. DENNEY: If Your Honor please, at this time I respectfully request an adjournment until tomorrow morning. The document book in German was handed to Dr. Bergold, night before last at seven o'clock, and we do not as yet have our first document book. We shall have it by tomorrow morning. I believe it would be most helpful, if the Tribunal is agreeable, to adjourn until that time.
PRESIDENT: You will be ready to proceed with the table of proof tomorrow morning then?
MR. DENNEY: Yes, sir.
PRESIDENT: Very well, then, under those circumstances, the Tribunal will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 3 January 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Erhard Milch, defendant, sitting at Nurnberg, Germany on 3 January 1947, 0930, Justice Toms, presiding.
THE MARSHAL: The Honorable Judges of military Tribunal Number 2.
Military Tribunal No. 2 is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the court.
MR. DENNEY: Your Honors please, I would first like to hand up to the Court, not as an exhibit but just by the way of being of assistance to the Court, a list of comparative rank in the United States Army, the German Army, the SS and various other German organizations. As I say, it is not to be considered as an exhibit and I will hand one copy of it to the Defense counsel. This is the same chart given to the Tribunal in the first case and also in the case that is going on upstairs. As far as the presentation of documents is concerned we propose, with the Court's approval, to follow the same procedure in presentation of documents as was followed in the initial case before the International Court and which is presently being followed in the United States against Karl Brandt and others. The prosecution will mention a specific document by identifying numbers and will give to it a number at the time that it is offered and we respectfully suggest that the Clerk assign the numbers to it that we will mention at the time that the document is offered. Of course, the defense counsel will have his opportunity to object and if no objection is raised, why, then the document will be deemed to have been received in evidence and to receive the number which has been announced when the document was offered. We believe that this is the most expeditious and orderly way to enter the document. It was followed before and it seemed to have worked fairly well. At the time we present it a member of the prosecution staff will hand the original or a certified copy which is serving as the original to the Clerk of the Tribunal Judge Dixon or his representative, and he will, of course, place a number on the exhibit.
Normally we won't find it 25 a necessary to read entire documents into the record as has been done on some cases before.
In the first case the reason they read so many complete documents was because of the fact they had to be translated into four languages. Very often at the time the document was presented the translation in one or two of the languages was not available so they read the whole document into the record. However, that doesn't mean there aren't some we won't try to read entirely into the record.
THE PRESIDENT: Mr. Denny, the documents which you are about to introduce are the same ones we have had before in this document book?
MR. DENNEY: Yes, sir.
THE PRESIDENT: Which are indexed but have not been given exhibit number?
MR. DENNEY: That's correct, your Honor. Now, we charge that these two books that are up there now constitute Document Book 1. The index in the first volume being for both volumes and the page numbers that have been placed in the lower right hand corner I will refer, your Honor, to the pages as we go along. We have given the defense counsel a copy of these documents Tuesday evening and we shall continue to abide by your Honor's ruling of giving the copy 24 hours in advance except in so far as documents which will be produced for cross-examination. Counsel in that instance will have to see new documents when used for cross-examination or when they will be handed to the witness so there will be some he has not seen before. Generally speaking, we will try to direct the attention of the Court by reading the parts of the documents which we deem most relevant. Of course, we would like to make it clear we are offering the whole document when we do offer it, even though we don't read it. As far as the method of authentication of the documents is concerned, we will again follow the procedure that has been followed before the International Military Tribunal and is now being used by Mr. McHaney in the case of the United States against Karl Brandt and others.
Probably for a purpose of showing the process whereby these documents were initially obtained it might be well to read from the transcript in order that the record may show and the Court will understand how these captured documents were sent to Nurnberg for the present case going on before Military 26 a Tribunal 1. I have here pages 75 and 76 of the original transcript.
When the United States Army entered Germany, it had specialized military personnel whose duties were to capture and preserve enemy documents, records and archives. Such documents were assembled in temporary document centers. Later each Army established fixed document centers in the United States Zone of Occupation where there documents were assembled and the slow process of indexing and cataloguing was begun. Certain of these document centers in the US Zone of Occupation have since been closed and the documents assembled there sent to other document centers. When the International Military Tribunal was set up, field teams under the direction of Major William N. Coogan were organized and sent out to the various document centers. Great masses of German documents and records were screened and examined. Those selected were sent to Nurnberg to be and were given trial identification numbers in various series, such as the letters "PS", "L", "R", "CH", and "C" indicating the means of acquisition of the documents. As an example, the "PS" documents or most of them were obtained by Col. Storey in Paris so they gave them "P" for Paris and the "S" is Storey and the "L" means London. Within each series, documents were listed numerically. The prosecution in this case shall have occasion to introduce in evidence documents processed under the direction of Major Coogan. Some of these documents were introduced in evidence before the International Military Tribunal and some were not. Those which were, this Tribunal is required by Art. XX of Ordinance 7 to take judicial knowledge thereof. However in order to simplify the procedure, we will introduce photostatic copies of documents used in Case 1 before the International Military Tribunal to which will be attached a certificate by Mr. Fred Niebergall, the Chief of our Document Control Branch, certifying that such document was introduced in evidence before the International Military Tribunal and that it is a true and correct copy thereof.
These documents have been and will be made available to the defendants just as in the case of any other document.
As to the documents processed under the direction of Major Coogan and which was not used in the case before the International Military Tribunal, they are authenticated by the affidavit of Major Coogan and dated 19 November 1945. This affidavit served as a basis of authentication and substantially all documents used by the Chief of Counsel before the IMT. It was introduced in that trial as United States of America Exhibit No. 1. Since we will use certain documents processed for the IMT trial, I would now like to introduce as Prosecution Exhibit No. 1 the Coogan affidavit in order to authenticate such documents. This affidavit explains the manner and means by which captured German documents were processed for use in War Crimes Trials, I can't read it because it's substantially the same as the affidavit of Mr. Niebergall to which I shall come in a moment. I believe Judge Dickson has a copy of this affidavit with the original for Your Honors. If Your Honors please, I believe that is the original affidavit and there are some photostatic copies which -
JUDGE MUSMANNO: Mr. Denney, it would appear to me that where you have a document of sufficient importance as to be studied by the Tribunal in analyzing all the testimony, that you read a substantial part of it into the record.
MR. DENNEY: Yes, but if Your Honor please, that is exactly our intention.
JUDGE MUSMANNO: That the record itself will be complete without having to leaf through a number of other documents.
MR. DENNEY: Yes, your Honor, that is exactly what I have in mind. The only reason that I mentioned that we won't read the complete document in every instance is because that process was followed on occasion before the first trial and I thought perhaps Your Honors might have the idea that every document should be read in toto. Now, of course, if Your Honors, want it, we will definitely do it, but we do definitely have in mind to read into the record documents at some length where they are important and where we fool that they are cast like either on the slave labor program or medical experiments or that we fool is definitely on the subject, but of course that is for Your Honors' ruling.
JUDGE MUSMANNO: In other words, tho record should be self-sustaining.
MR. DENNEY: Yes, we have that in mind, Your Honor.
Coming now to the manner in which the documents are authenticated by the affidavit of Mr. Niebergall, I now like to offer as Prosecution's Exhibit No. 2 the Niebergall affidavit and with Your Honors' permission I should like to read it into the record; one, in view of the fact that the Coogan affidavit was omitted; and 2 two, in order that the record will show how these exhibits were obtained and how they are authenticated. This affidavit was made on 3 December 1946.
MR. PRESIDENT: Let me interrupt a second, Mr. Denney. We appear to have some German and some English copies. Let's get this straightened out.
MR. DENNEY: Yes, sir, I am very sorry.
Mr. Niebergall's affidavit, which was executed on 3 December 1946, reads as follows:
"I, Fred Niebergall, A.G.O. D-150636, of the Office of Chief of Counsel for War Crimes, do hereby certify as follows:
"1. I was appointed Chief of the Document Control Branch, Evidence Division, Office of Chief of Counsel for War Crimes (hereinafter referred to as 'OCC') on 2 October 1946.
"2. I have served in the U.S. Army for more than five years, being discharged as a 1st Lieutenant, Infantry, on 29 October 1946. I am now a reserve officer with the rank of 1st Lieutenant in the Army of the U.S. of America. Based upon my experience as a U.S. Army Officer, I am familiar with the operation of the U.S. Army in connection with the seizing and processing 29(a) of captured enemy documents.
I served as Chief of Translations for OCC from 29 July 1945 until December 1945, when I was appointed liaison officer between Defense Counsel and the Translation Division of OCC and assistant to the executive officer of the Translation Division. In my capacity as Chief of the Document Control Branch, Evidence Division, OCC, I am familiar with the processing, filing, translation, and photostating of documentary evidence for the United States Chief of Counsel.
"3. As the Army overran German occupied territory and then Germany itself, certain specialized personnel seized enemy documents, records, and archives. Such documents were assembled in temporary centers. Later fixed document centers were established in Germany and Austria where these documents were assembled and the slow process of indexing and cataloguing was begun. Certain of these document centers have since been closed and the documents assembled there sent to other document centers.
"4. In preparing for the trial before the International Military Tribunal (hereinafter referred to as 'IMT') a great number of original documents, photostats, and microfilms were collected at Nuernberg, Germany. Major Coogan's affidavit of 19 November 1945 describes the procedures followed. Upon my appointment as Chief of the Document Control Branch, Evidence Division, OCC, I received custody, in the course of official business, of all these documents except the ones which were introduced into evidence in the IMT trial and are now in the IMT Document Room in Nuernberg. Some have been screened, processed, and registered in accordance with Major Coogan's affidavit. The unregistered documents remaining have been screened, processed, and registered for use in trials before military tribunals substantially in the same way as described below.
"5. In preparing for trials subsequent to the IMT trial, personnel thoroughly conversant with the German language were given the task of searching for and selecting captured enemy documents which disclosed information relating to the prosecution of Axis war criminals. Lawyer and Research Analysts were placed on duty at various document centers and also dispatched on individual missions to obtain original documents or certified photostats thereof.
The documents were screened by German speaking analysts to determine whether or not they might be valuable as evidence. Photostatic copies were then made of the original documents and the original documents returned to the files in the document centers. These photostatic copies were certified by the analysts to be true and correct copies of the original documents. German speaking analysts, either at the document center or in Nurnberg, then prepared a summary of the document with appropriate reference to personalities involved, index headings, information as to the source of the document, and the importance of the documents to a particular division of OCC.
"6. Next, the original document or certified photostatic copy was forwarded to the Document Control Branch, Evidence Division, OCC. Upon receipt of these documents, they were duly recorded and indexed and given identification numbers in one of six series designated by the letters: 'NC', 'NI' 'NM' 'NOKW' and 'NP', indicating the particular Division of OCC which might be most interested in the individual documents. Within each series, documents were listed numerically.
"7. In the case of the receipt of criminal documents, photostatic copies were made. Upon return from the Photostat Room, the original documents were placed in envelopes in fireproof safes in tho Document Room. In the case of the receipt of certified photostatic copies of documents, the certified photostatic copies were treated in the same manner as the original documents.
"8. All original documents or certified photostatic copies treated as originals are now located in safes in the Document Room, where they will be secure until they are presented by the Prosecution to a court during the progress of a trial.
"9. Therefore, I certify in my official capacity as herein above stated, that all documentary evidence relied upon the OCC is in the same condition as when captured by military forces under the command of the Supreme Commander, Allied Expeditionary Forces; that they have been translated by competent qualified translators; that all photostatic copies are true and correct copies of the criminals, and that they have been correctly filed, numbered, and processed as above outlined.