DR. BERGOLD: May it please the Tribunal, the point of course is to be ob served. They must take into account the period time. Milch was out on the 20-tin of June. From that print on he was no longer Generalluft zaigmeister; therefore, I am of the opinion that he can not be held responsible for the actions which occur after the 20th of June, even if we take it under the point of view of conspiracy.
MR. KING: If Your Honor please, I have something to add to that. I notice that the defendant states that he resigned as Luftzaigmeister and State Secretary in the Air Ministry. He makes no reference to the Jaegerstab. He states that the Jaegerstab ceased operation in July or August. He is not entirely clear there. He states very clearly that on June 20, he left his duties as Generalluft zaignmeister and Secretary of State in the Air Ministry. It is the only evidence which has been presented to the Tribunal as yet that the Defendant ceased to actively operate in production matters after June 20, 1944.
THE PRESIDENT: The Prosecution includes within the scope of the conspiracy any acts done under the Jaegerstab, do you not?
MR. KING: We do. We have attempted to trace the background of the Jaegerstab; to show by documents submitted, that Defendant Milch was originator of the conspiracy and that he conceived the conspiracy and instigated the formation.
We have shown that the crimes of the conspiracy extended beyond June 20, 1944, which date we do not accept as Milch's resignation date from the Jaegerstab. He stated in the interrogate n that he resigned as Generalluft zaignmeister and Secretary of State of the Air Ministry.
THE PRESIDENT: But he continued under the Jaegerstab?
MR. KING: That is right.
THE PRESIDENT: He continued the same alleged criminal acts which you charged him with in his former capacity?
MR. KING: That is correct, Your Honor.
THE PRESIDENT: What do you say to that Dr. Bergold?
THE PRESIDENT: Is my voice getting through?
DR. BERGOLD: Sir?
THE PRESIDENT: The point is, if I may explain to you; that the defendant is here accused of continuing with unlawful acts in one capacity, and then, immediately after, in another capacity, and that does not make any difference, that this document arose during the second phase of these acts instead of the first.
DR. BERGOLD: May it please the Tribunal, I have so far understood the defendant as well as the prosecution that on 20 June his activities with the Jaegerstab, too, were ended, of course, later on I shall prove that, so then I shall withdraw my objection but reserve the right to come back to it at a later point.
THE PRESIDENT: Very well.
DR. BERGOLD: Very good.
MR. KING: Starting with this document on page 161 of the English Document Book No. 4, with Schmelter speaking:
"Schmelter: I have a few more points. Up till now 12,000 female concentration camp internees, Jewesses, have been demanded. The matter is now in order. The SS has agreed to deliver these Hungarian Jewesses in batches of 500. Thus the smaller farms, too, will be in a position to employ these concentration camp Jewesses better. I request that these people should be ordered in batches of 500.
Mahnke: How many are still there.
Schmelter: There are still enough there."
The Prosecution now wishes to introduce Document N0KW 362, which is Prosecutor's Exhibit No. 75, at page 149 of the English Document Book and page 149 of the German. This is an excerpt taken from the Jaegerstab Staff meeting dated May 1 to 3rd, 1944. Defendant Milch was in attendance at this meeting. I read the reference to the speech by Schnauder, concerning the Heinkel factory, starting at the second paragraph at page 149:
"SCHNAUDER: 1) At the Heinkel factory at Barth there are 3,300 workers, consisting of 300 Germans and 3,000 concentration camp inmates. Of the 3,000 concentration camp inmates 1,500 are men. In order to maintain their working capacity it is necessary to evacuate these men too during daylight air attacks.
However, there are not enough guards and sometimes 354A there is a deficit of as many as 20.
As guards can not be drawn from any other source, it has been decided that the factory is to arm a.s guards certain men from its own ranks to guard the concentration camp inmates."
This document clearly shows the involuntary character of the labor employed at that factory within the jurisdiction of the Fighters' Staff.
With the incumbency of the invasion in the West, transfers of labor of the interior were discussed at meetings of the Jacgerstab; including labor employed in the Speer Labor Factory System.
The next document the Prosecution wishes to introduce shows the defendant's position in regard to recruitment; and treatment of this labor. The first document of this series is on page 143 of the English Document Book, and 143 of the German. This document is N0KW-334; and again a part of Prosecution Exhibit No. 75. The participants in this discussion include Wegener, who was in charge over all planning of the Jaegerstab; Werner who was in charge of aircraft or motors; Schaaf in charge of Supply of the Jaegerstab; Schaede who was in charge of Rationalization under Saur; Heyne who was chief of the airplant production; and Kleber who was chief of the OK in the Jaegerstab. The Tribunal will see from, this excerpt that type of treatment of personnel the defendant was advocating; as for the personnel transferred to Lorraine; the defendant treated them, as prisoners, and confined them, to barracks. Your Honors will also see in the case of the prisoners of war the defendant advocated their transfer to Brunswick on the assumption that air attacks against Brunswick would continue. This is at page 143 of the English Document Book, Wegener speaking:
"WEGENER: I have a question for Schmelter: Has the question of the transfer of Western Europeans been clarified?
WERNER: On this subject I can say that it is especially difficult for BMW, because we can only transfer Russians and concentration camp in mates, and the guards for these are mainly Belgians and French.
"WEGENER: As far as I can remember, 200 key personnel are needed for Markirch.
355A
MILCH: That must be brought before the Fuehrer again.
SCHAAF: Saur come back and said there was no more to be said on this subject to the Fuehrer.
MILCH: That is out-of-date now. I have discussed with Saur the fact that we can not keep up this state of affairs. Saur is of my opinion. It must be discussed once more with the Fuehrer. I can discuss it again with the Reichsmarshal.
We shall do what we can, but we cannot throw everything into confusion without due consideration. How should we then manage to produce!
I am convinced that the Fuehrer will agree as soon as we can put these people reasonably, into barracks, so that they do not come into contact with the population.
SCHAEDE: Whenever French key personnel are brought to Lorraine, they run away without fail in a short time. Then the firm has to be told. They do not come back from leave already.
MILCH: It will only work if we put these workers into barracks, he cannot exactly treat them as prisoners. It must appear otherwise, but it must be so in practice."
Then again Milch on page 33 speaks:
"MILCH:........ I am personally convinced after talking to the Fuehrer that he will agree as soon as it is made reasonable. The people should "not be able to mingle with the population and to conspire. Nor should they be allowed to run around free, so that they can cross the frontier every day. Both practices must be stopped."
Then, later on, Heyne speaking.
"HEYNE: I have two short points. Yesterday Machrisch-Truobau was removed from the program, because the Quartermaster General told me the previous night that it was possible to move on the morning of 28.4. Last night I was called up again, because the Chief of Prisoners of War Affairs did not quite agree with the now accommodation in Brunswich of the prisoners from Maehrisch-Truebau for some reasons of security.
I should like to ask Major Kleber, who was also yesterday announced as Mr. Saur's liaison officer with the OKW, to exert some pressure hero. Apart from 356A that General Schmidt said:
there were also some fighter units and such like in the burracks; he could not move out as quickly as that; he would not take orders; otherwise he would go to the Reichsmarshal."
Starting again with the paragraph "Apart from that General Schmidt said: "Apart from that General Schmidt said: there were also some fighter units and such like in the barracks; he could not move out as quickly as that; he would not take orders; otherwise he would go to the Reichsmarshall.
MILCH: I am of the opinion that that must be done at once. It's all the same to me if individual people do object. Protest does not interest me at all, whether from the Chief of Prisoners of War Affairs or from our side. Kleber, would you be so good as to take care of this?
KLEBER: As far as prisoners of war are concerned I can take care of it, but not where it concerns the Air Force. That must be handled separately.
MILCH: Naturally. This must be handled by us. There was in fact, another proposal but we do not want it. Otherwise someone else will come complaining.
KLEBER: I should like to transfer the prisoners further off to Brunswick.
MILCH: I think it is an excellent idea for the prisoners to go there if Brunswick continues to be attacked.
SAUR: I must come back again to the question of Western European workers. Make an energetic attempt to make a compromise within the factories. I think it will work out. I do not think the Fuehrer will give in even if we put the French into barracks. He has spoken so firmly and for reasons which I cannot but recognize.
I am all the more thankful that permission has been given for the Protectorate. I am going to see Staatsminister Frank on Friday, and I shall discuss with him the whole question of dispersal in the Protectorate. I should like Schmelter to accompany me to Prague on Friday to discuss the question of transfer of workers."
That is on the question of the transfer of Czech workers.
"MILCH: I said before that we wanted to carry out the transfer within the factories. Then if something is left over, we should have to approach the Fuehrer again, but only on condition that they arc in barracks, and that there are replacements for them."
A second document in this series which the Prosecution would like to bring to the Tribunal's attention is document NO. NOKW No. 350. This is at page 159, in the English Document Book, 177 in the German's. This again is part of the Prosecution's Exhibit No. 75. This is an excerpt from the Minutes of the -Jaegerstab Staff meeting of June 1st to the 3rd, 1944. On page 159 Milch speaking:
"MICH: We must write off these areas in France completely, and above all the factories which arc situated further into the country towards the South and West. For when the invasion begins, the guarding neither of a stretch of land, nor of a line will be possible, nor will anything function because of sabotage.....
No Frenchman will work when the invasion begins. I am of the opinion that the French should be brought over again by force, as prisoners.
SAUR: I should prefer to do it sooner.
LANGE: We have machines there too, in particular the presses.
MILCH: Everything must come out: machines and men."
Here we have the defendant advocating the stripping of territories in France, and the deportation of the population by force to Germany. By August 1, 1944, the achievements of the Jaegerstab were considered so successful that it was decided to enlarge the scope of its activity in order to include other phases of its achievements, and on that date a decree was issued to dissolve the Jaegerstab, creating in its place the "Rustungsstab." This change of name is referred to in Document NON -335, at page 164 cf the English Document Book, at page 162 of the Germans. This is an excerpt from the Jergerstab meeting dated 31 July, 1944. We have introduced this document to set the period of the existence of the Jaegerstab.
as between March 1, 1944 and August 1, 1944. The success with which the Jaegerstab accomplished its task is shown by the last document 358A in this Jaezerstab series, which the Prosecution wishes to introduce.
THE PRESIDENT: Will you give us that date again, that is, was it April?
MR. KING: March 1st, Your Honor.
THE PRESIDENT: March 1st.
MR. KING: To August 1st, 1944.
THE PRESIDENT: That covers the life of the Jaegerstab.
MR. KING: That is right.
We will locate this document in a moment, Your Honor. It's again part of our 124, Prosecution Exhibit No. 48-F, the report on tho conference of June 3 to 5, 1944 with the Fuehrer. The document is on Page 85 of tho English Document Book, Page 88 of the German, and shows the effectiveness of tho Jaegerstab as an-operating party. I will road paragraph No. 20 on Page 85 of the prepared notes on the Fuehrer's conference:
"In this connection, I explained to the Fuehrer that the opinion of the Reich Marshal, that the Army equipment for which I was responsible had kept back Air Force equipment in the last two years, was contradicted by the fact that since the beginning of the Fighter Staff in three months in spite of air attacks, aircraft production had doubled and this was not achieved in a short space of time by newly introduced production potentials from the Army equipment industry, as the Reich Marshal assumes, but solely by reserve which originated from the Air Force equipment industry itself."
This concludes at this time the presentation of documentary evidence concerning the Jaegerstab.
MR. DENNEY: If Your Honor please, I am afraid we have run out of document books again. We have one more phase of the case: the medical experiments; and I believe, Dr. Bergold, you had a copy of the German book served on you, did you not? The next book? You haven't received one as yet?
DR. BERGOID: No, sir.
MR. DENNEY: We hope to get it soon this afternoon. It's the same story we have had before. We have worked so long on it. This will be our last document book.
THE PRESIDENT: Dr. Bergold, if you got the next document book this afternoon, will you be ready to proceed tomorrow morning then? Will that be sufficient time?
DR. BERG0LD: Yes. Yes, Your Honor.
THE PRESIDENT: The Court will then be in recess until tomorrow morning at nine thirty.
THE MARSHAL: This Tribunal is recessed until nine thirty tomorrow morning.
(The Tribunal adjourned until 14 Jan 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 14 January 1947, 1105-1700. Justice Toms presiding.
THE PRESIDENT: Mr. Denny, before you proceed with the presentation of further proof, we would like to take up with you and Dr. Bergold the application for some witnesses.
The Defense has filed with the Tribunal applications for the production of several witnesses. The first one is Lester Gauss, who is a prisoner of war now in this city, and to which the Prosecution offers no objection. The Court will later enter an order permitting the production of that witness.
The next one is Kerkhoven van Denterghem, Belgian Ambassador in Berlin, to which the Prosecution does object upon the ground that the matters to which he would testify have to do with waging aggressive war, and that there is no count in the Indictment charging that offense.
Do you wish to be heard, Dr. Bergold, on that?
DR. BERGOLD (Counsel for defendant Milch): May it please the Tribunal, I ask for this witness for the following reasons; Namely because the Prosecution in their preliminary speech said that the defendant Milch know in advance or used his position under Goering to promote rearmament and that in advance he agreed with all the aims and goals of National Socialism. In my opinion, that is rather an important point in order to understand this matter which is before you whether he agrees on a full understanding between Belgium, France and Germany for a full cooperation and whether he actually tried to secure peace for Europe and forever. If he did that and if later on this thing did not succeed for reasons which are not his fault, this must be considered when trying to understand this man and his character, and in my opinion it can be a mitigating circumstance. I also refer to the fact, for instance, that the International Military Tribunal regarded it as a mitigating circumstance with the Defendant Speer that he opposed the destructive orders given by Hitler, although they referred to the German people only.
I must be able to prove that Milch was not the Nazi who is depicted by the Prosecution. That is the reason for my application in the case of Kerkhoven, Van Zeeland, Cot, and Delbos.
MR. DENNEY: If Your Honors please, Your Honor mentioned the first point, the fact that Milch is not made the defendant against the subsequent charge of waging aggressive war. As to the statement by Dr. Bergold that Speer's opposition was considered as a mitigating circumstance, the Doctor will certainly agree that that opposition took place late during the period of the war.
Third, the time in question, about which Count Kerkhoven van Denterghem is to be called is all prior to 1939, and I remind Your Honors that at the time of the invasion of the Low Countries, irrespective of what private statements to anyone may have been, this man was a general in the Luftwaffe and later a Field Marshal in the Luftwaffe, and it seems to me that his record, even as far as we are, is completely inconsistent with the matters that Dr. Bergold seeks to establish by producing this and other witnesses for whom he has asked.
The statement made in the opening was merely an outline of the defendant's career. The Court has his own statement that he was a soldier during the last war, that with some exception ho has been in the army ever since. The position which he held at the conclusion of the war, Field Marshal, irrespective of whether or not he had been shown of some of his posts, is clearly indicative of his attitude, at least between 1939 and 1945, whatever it may be now and whatever he may have expressed privately prior to those years.
I submit that the witness in question is not one who could cast any light for the benefit of the Court in these proceedings.
THE PRESIDENT: The applications submitted by the DEFENSE for the production of the following witnesses, will be denied by an appropriate order which will be entered:
Pierre Cot, French Air Minister of 1937; and KREIPE (FLIGHT GENERAL) GAUSS, the Defendant's Adjutant in 1937; VAN ZEELAND, Belgian Prime Minister in 1937; COUNT Kerkhoven van Denterghem, Belgian Ambassador in Berlin, and DELBOS, FRENCH Minister of Foreign Affairs in 1937.
Largely, because of the date, indicated, these applications will be denied.
Now, Mr. Denny, the Defense proposes to produce Von Neurath. I direct your consideration to the particular portion of the applications which says: "Soviet Russia denounced all treaties of the Czar Government, including the Geneva Convention and The Hague Agreement. Therefore, at the time of the acts indicated in the indictment, there was no agreement regarding the treatment of prisoners of war and the civilian population between Germany and Russia." Do you regard that as in issue.
MR. DENNY: Sir, we do not regard that as an issue, due to the fact that we maintain that it makes no difference whether the Soviet Union was a party to the Geneva and The Hague conventions. GERMANY was!
By the same token, if they had been engaged in war against some colony of a country the people of which had never heard of the GENEVA CONVENTION, then it would seem the force of their logic would be that in view of the fact that just because these people had never been subscribers to it, they would not be entitled to proper treatment as prisoners of war!
And, it is submitted, that has no bearing on this matter, whatsoever! There was a document which was submitted in CASE NO. 1, which we propose to produce at the proper time, an opinion by Admiral CANARIS. I believe it is document No. EC 338, in which he states that the custom of chivalrous treatment of prisoners of war was a custom that had grown up through the ages; it was only CODIFIED at GENEVA and at the HAGUE; and he indicates that the policy which was planned by the WEHRMACHT at that time placed it in a position where it had knowledge of all of the standards of chivalry which had grown up as regards treatment of prisoners of war and Civilian people in time of combat.
Of course, if your Honor please, conceding that the testimony of von Neurath would be that the U.S.R.R. had withdrawn from that: The Hague Agreement and the Geneva Convention; still, even if the man can come in and testify to it, I submit, it has no bearing at all on this case.
THE PRESIDENT: The Court gets your point, Hr. Denny, that had there been no Treaty, yet anyone who acts as complained of here would, nevertheless, have boon CRIMINAL; but it does indicate that you can not rely on the breach of treaty obligations as far as the Russians are concerned, perhaps you may rely on something else; and there was at least no contractual obligation, if I nay put it that way, to treat the RUSSIAN prisoners of war and the civilian population in any given way.
MR. DENNY: I think, if your Honor please, that it might be true that the Russians are, in the nature of an incidental beneficiary; perhaps, they were not specifically mentioned because they weren't party to the contract; but even if they were initially a party to the contract and then withdrew our point is that GERMANY had to abide by those prisoner of war rules which other countries had set up and of which she ha.d become a subscribing member. But, if for reasons known to the SOVIET UNION they intended to withdraw from them, GERMANY would still be bound to treat their prisoners of war according to the contract.
THE PRESIDENT: Docs that mean, that your position taken here is in effect, that the SOVIET having withdrawn, that GERMANY would still have to abide by and could not withdraw from the contract, even after it becomes unilateral?
MR. DENNY: That is for your Honors to determine. I think, having boon a signatory to the THE HAGUE AGREEMENT and THE GENEVA CONVENTION, they can not withdraw the contract, already entered into.
THE PRESIDENT: The TRIBUNAL will hear Dr. Bergold on this point.
DR. BERGOLD: Hay it Please your Honors and The TRIBUNAL, I disagree with Mr. Denny in this matter, The contractual obligations existed between Germany and all the other countries which joined the GENEVA Agreement and The HAGUE Convention.
The contract still would hold good for these countries. However, it did not apply to RUSSIA which had explicitly withdrawn because, if so, this would be a contradiction as to all contracts. When a contract is concluded between two persons or powers and one of the two parties says: "I RESIGN"! then, of course, surely, he can't ask the second party to keep its part of the contract! The point in question we are trying to prove here, is that the Defendant MILCH was told explicitly by the competent people! The HAGUE Convention and The GENEVA Convention did not apply to RUSSIA because they had withdrawn from all of these treaties and they never stick to any of their treaties, and have never made a statement to the effect that they would stick to these treaties in the future. The witness von Neurath can make statements to that effect.
THE PRESIDENT: Well, the Prosecution will pass on this matter later. I mis-spoke. I should have said the "TRIBUNAL"!
This leaves before us the question of the introduction of testimony of Admiral Raeder impeaching certain documents purporting to be a transcript of a speech by HITLER.
Dr. Bergold, was this same proof presented at the INTERNATIONAL TRIBUNAL?
DR. BERGOLD: Yes, your Honor.
THE PRESIDENT: Would it not be possible to present the proof that you wish to offer, by means of the transcript of the proceedings at that TRIBUNAL?
MR. DENNEY: We are willing to concede that as to any document offered, that proof if it is genuine is proper proof. We are concerned with the method of offering that proof.
DR. BERGOLD: May it please the Tribunal, concerning this record, we have spoken a. lot about THE INTERNATIONAL TRIBUNAL. It is quite correct that on that day there was a speech by Hitler. The Defendant Milch we wasn't asked concerning this matter in the first trial, now tells me about certain points in Case No. 1, which was the case before the International Tribunal. And we understand that the Schmundt memorandum was set up only after the outbreak of war, which was much later. This viewpoint before THE INTERNATIONAL TRIBUNAL was never put forth by any of the interested defendants; therefore, I must be given an opportunity to bring forth this new point of view, by interrogating RAEDER!
MR. DENNEY: If your Honor please, the document under discussion, was offered in evidence before the INTERNATIONAL TRIBUNAL. Present at the Conference in HITLER'S headquarters on May 23, 1939, were: GAUSS, RAEDER, MILCH, the defendant here, Keitel, von Neurath, and GOERING!
That trial took ten months; and it's beyond belief, that GRAND ADMIRAL RAEDER who was a defendant at that trial, this defendant, (who was called as a witness), Von Neurath (who was here in jail), and GOERING, (who was in the docks) could not remember that that memorandum was made at a much later time, and did not offer it, at that time!It seems to me inconceivable, that that case could have gone on, with these men present, without it having been mentioned that Schmundt's notes on the Conference were later revised!Dr. Bergold said it wasn't offered, in the first case! Yet Admiral Raeder took the stand in the first case.
There was a man fighting for his LIFE! And yet he never mentioned that Schmundt's notes on the conference of May 23rd, 1939 were later revised; never mentioned the fact that those notes were compiled after the beginning of hostilities!
THE PRESIDENT: Your argument, Hr. Denney, goes to the weight to be attached to the proposed testimony, does it not?
MR. DENNEY: My argument goes to the weight to be attached to the proposed testimony; and, also, the International Tribunal comment on this document, its opinion; and I would be glad to get your Honors that opinion, and read it to your Honors!
THE PRESIDENT: Well, Hr. Denney, what Dr. Bergold states is that the proposed document does not contain anything which HITLER said on that day, and it is obvious, that it does not, because he spoke for a couple of hours and several pages indicate that! Now, what Dr. Bergold proposes, is to have the Defendant indicate other things which HITLER said, which do not appear in this document. So, therefore, -- at least to me -- that would appear to be relevant.
MR. DENNEY: If Dr. Bergold wants to lay the foundation to admit it, and then call Admiral RAEDER to corroborate what he says, we have no objection.
THE PRESIDENT: Very well, then; no opposition on the DEFENDANT'S testimony being offered that the SCHMUNDT transcript does not contain a complete record, or a true record, the TRIBUNAL will authorize the production of the witness RAEDER, to corroborate the Defendant's testimony if, and when, it is offered.