At that time he asked to be allowed to retire but in spite of threat of suicide could not obtain that.
Such a man of such a past must be believed when he testified that even in 1939 he had no knowledge of Hitler's aggressive intentions. Milch had misgivings about Hitler because he regarded that measure taken against Czechoslovakia as a breach of peace, and he was sufficiently intelligent to see that Britain would no longer tolerate such violations. Hitler was dishonest with him and always introduced his intentions for peace known to him, even forbidding him the manufacture of bombs. The defendant never requested the manufacture of bombs because he intended to lead a war of offense, but only therefore because he was convinced that England, having the understanding of the international situation, would fight against the Nazi regime.
Up to that time, Your Honor, nobody can find any inconsistency in the defendant's outlook. It was no offense if he requested the Wehrmacht for his country to fight the world's conflict, and therefore for that reason he favored a rearmament, and as long as all nations were peaceminded and maintained armies, Germany had the right to maintain armed forces as well. I beg you to remember that the defendant demanded from his superiors that rearmament should be effected in a slow and reasonable manner and that he had a difference in that respect.
It was not without reason, Your Honor, I repeat that. Only for one to keep all these things in mind will it be possible to judge whether or not the defendant's statement regarding the conference of 23 May 1939 is correct. A man who loves peace and works for peace was present at that conference and states today, or testified that his speech in question did not contain any mention of aggressive way against Poland or any other country. He even testified in this courtroom that this speech did not have the contents as it is laid down in the Schmundt Protocol.
I realize that the International Military Tribunal came to the con clusion that the Schmundt Protocol is correct.
All defendants and witnesses which were heard at that time declared that the contents of the speech were not of so aggressive a nature as it is laid down in the minutes. The defense counsel made a mistake at that time of not calling all the witnesses which I requested. Nobody went to the trouble of critically examining the text of the record. I can already understand why the IMT reached a different conclusion, having heard the defendant's general objection, which remained unsubstantiated in detail. Nowhere has it yet been permissible in law to maintain the verdict of the previous court although new and better evidence has been given.
The witnesses Warlimont, Schniewindt, Engel, and Raeder stated that several passages of the Schmundt record contained a number of false assertions regarding Hitler's words. Warlimont testified that he was not present, although he is listed as among those present. Milch's testimony made it absolutely correct that Goering was not present. If there were only so few persons present and there were mistakes made concerning the presence of persons, the record must have been made up a long time after the event, because no faults of that kind would have been feasible. Schniewindt testified that a number of points contained in the Schmundt record were never discussed at that time at all. He had the opinion that many ideas laid down in the record were born out at a later period, that is to say, 1940. These ideas concerned for example the use which could be made of war production, after the defeat of France, the importance of aircraft carriers for convoys, the collaboration of Italy, and the break through the Maginot Line by this force, about Japan; last but not least, the so-called Fuehrer decree. By the statement of Felmys it is proved forever that the so-called Fuehrer order was given only on 12 December 1940. Even Raeder stated that the principles of the Fuehrer order were laid down at another occasion and that they were accordingly carried out afterwards. This other occasion was stated by the statement of Felmys. Also Raeder did not hear anything about Japan; he considered it impossible that Italy and the break through the Maginot Line were dis cussed and he also states that nobody mentioned a better production of cruisers.
He also testified that in that meeting a two-front war was not mentioned, because he as an officer would have noticed that. Furthermore, he testified that Belgium and Holland were not referred to and that after the speech Goering did not open a debate. Even though the witness was not present at all times, it is rather strange that he should not have heard mention of any of the very points not heard either by the other witnesses. The defendant Milch gave you the precise details of those points of the speech which were not mentioned at the time, and he was even in a position to tell you when these various points were first conceived.
Who, taking his responsibility with justice, can still seriously keep up the findings of the IMT now that these precise statements have shown us the errors of the Schmundt record. A record containing so many grave mistakes is no longer of probitive value and can never be made the basis for any judgment. I am convinced that after this trial the historians of the whole world will regard the Schumdt record as the product of a later period; i.e., between the fall of 1940 and the Spring of 1941 and that they will regard it as the result of time, drawn up to make Hitler, then regarded as the victor, seem possessed of a prophetic gift which in reality he never had.
The conference did take place on 23 May 1939; that is true. It's real topics, however, can no longer be stated on the basis of the Schmundt record. Thus, the statements made in the first Nurnberg trial gain a different and greater significance. Never again, therefore, will it be possible for anyone to say that on that occasion Hitler preached war and the enslavement of Europeans.
There is yet another argument possible against this record, which, it is alleged, also contains the plan for slave labor.
Document EC-109, Exhibit 8, and 016-PS, Exhibit 13, submitted by the Prosecution, show in all clarity the use of European peoples in German armament works was a measure forced by the emergencies of the war and that the idea was born and realized only by the military difficulties resulting from the war with Russia.
With clean hands and a pure heart, Milch entered the war in August 1939, having previously advised Goering to fly to Britain to avoid the war. He himself became the victim of Hitler's deception, and he himself believed that the war had been forced upon Hitler. Who can disregard justice to such an extent as to reproach Milch with having held that belief? It is his misfortune, but not his guilt, to have been deflected from the truth by misleading propaganda. Who would so misinterpret patriotism, heretofore regarded as one of man's noblest instincts, as to reproach Milch for having done in 1939 his duty as a soldier?
He had never prepared any aggressive wars. In every case he was informed shortly before the event, and nothing is more typical of the opinion his superiors held of him than the fact that he chanced to hear about the preparations for the war against Russia through a subordinate, who in turn had been told of Hitler's' plan before the Field Marshal was told. The first Nurnberg trial has already shown that Milch saw Goering at once in an effort to prevent that war. Goering himself admitted this. Milch's good intentions were of no avail because Goering turned him down. As Milch's superior officer, he even went so far as to forbid Milch to see Hitler and to tell him that he, Goering, would prevent Milch from being admitted to Hitler's presence.
One of Your Honors, in putting questions to the defendant, aimed to show that it might be regarded as incriminating to the defendant that he did not resign in 1941 or at least in 1943.
Your Honors, only if one has lived in Germany these last years is it possible truly to judge that problem. As I said in my opening speech, one can judge the man only against his background, through his upbringing, from which usually nobody can escape, no matter in what country he lives. Milch was brought up as a soldier. He absorbed ideas which for centuries were regarded as true and inviolate laws. It is not blamed for not having freed himself from them. I have said this once before.
At that time nobody in Germany was in a position to protest against certain events, against certain aims of the Party. All that one could do was to criticize things within one's own immediate circle and tell one's intimate collaborators how to improve matters. If in Germany anybody had attempted at any time to express criticism publicly, either by word or by publicly resigning, nobody would have been the wiser for it. This system was so ruthless and its stranglehold over public opinion so great, that it would and could suppress anything.
You need only remember that during the first IMT trial it was shown that von Papen's criticism in his Marburg speech was completely withheld from the German public. Had Milch done anything, nobody would have heard about it, and his action would have been useless, perhaps senseless, as nothing would have been changed for the better. Your Honors may not know that six to eight generals, including General von Falkenhausen, once commander in chief in Belgium, and Colonel General Halder, one of Germany's highest and best leaders, were thrown into concentration camps because they had deviated from Hitler's line. This is not connected with 20 July 1944.
Nobody in Germany knew about this. Pictures of General Count Spohneck were sold as a here two years after this man had vanished into a concentration camp. Such were the lies and the deceptions of Goebbels' propaganda. We have learned since the end of the war that prior to 20 July 1944 there were 50 to 60 generals in Moabit prison, without anyone in Germany knowing anything about that. You will understand the full falsehood of propaganda when you recall the base distortions by which the dismissals of Generals von Blomberg and von Fritsche were announced to the German public.
Believe me, Your Honors, protests in Germany were not possible at that time. The only result would have been the futile death of the protesting person. If Milch had attempted to fly abroad, his whole family -- such were the detestable methods of those in power - would have been put to death on the basis of what was known as Family Responsibility.
Now can Milch be reproached with not having refused service and allegiance. No soldier could do this. Should an member of the Anglo-U.S. Air Forces suddenly have refused to go out on an operation which would bring death to innocent women and children, he would not have been regarded as a here. He would have been put before a courtmartial.
You would have accused Milch of not having participated in an attempt on Hitler's life. Although he was an energetic man, the defendant, was, because of several concussions of the brain which he suffered, inclined to terrifying fits of rage, or ranting speeches, but they have showed that in his heart of hearts he was kind and soft. Sentences passed he would ameliorate, and as the witness Richter testified he made up the fine which he inflicted himself by secretly passing to the family of the punished man a very large sum of money, larger than the fine itself. The witness Vorwald expressly stated that basically Milch was a man soft of heart who conducted himself as softhearted people would. He whose character is basically soft, who only in a rage caused by disease and worry utters harsh words, never followed by action, is not capable of murder. Thus, no just man will blame him for not having liquidated Hitler, and Milch did what in his conscience he felt to be possible and necessary. He had the courage of telling the dictator to his face what he thought of the situation. He demanded Hitler to desist from his plans, to dismiss the most important man, such as Goering, Ribbentrop and Keitel, to give up the supreme command and establish a cabinet of equal powers, and he finally desired that peace should be brought about.
Your Honors, it would be easy to say that as a Field Marshal he did not thereby endanger himself. The statement of the next witness Krysiak, the fate of the generals which I mentioned to you, show what was done in Germany to men who did such things, but the defendant went one step further. He succeeded in inducing Goering also to demand the end of the dictatorship and the instituting of a Reich cabinet. Your Honors, this means that this defendant thereby risked his life. He could not foresee that nothing would happen to him. That nothing did happen to him was not due to his rank, but to Hitler's opinion to the effect that this man was not yet dispensable. Everybody can only be sentenced according to his potentialities. Your Honors must not compare conditions in your free and noble country to those in Germany. Only the German world as it then was should be the basis of your judgment here.
It is not true to say that Milch gave his continued support to the objectionable aims of the party. He continued to do his duty because as he testified 2385-A he wished to prevent the worst from happening to his people, the total destruction of the cities and of Germany's cultures.
It was his constant hope to organize the defense in such manner as to prevent bombing warfare from taking its full effect, that same bombing warfare which is the scourge of mankind, whatever one may think of its military value. Would it be for us to judge him in view of the fact that he did not obtain his aim because of the stupidity and failings of his superiors? Milch furthermore testified before you that by an improved defense he hoped to obtain better peace terms for his people. I can assure your Honors that since 1941 the Goebbels' propaganda told the German people time and again the horrible terms the enemy would impose on them in the event of peace. That included an item to the effect that the whole of the German male population would be castrated, should Germany lose the war, so that the German people would perish. Who has the courage to say that it is despicable for a man of battle to organize a defensive system under the news impact of such items in order to obtain better peace terms?
It would be a distortion that Milch thus believed Hitler's aim of destroying Europe for he knew that the war had been lost. He was intelligent enough to see that with the lost war the end of Hitler's ideology would come. It was not the party he wanted to serve when he hoped for loss severe peace terms as a result of a better defense, but he hoped for a lost war that would not mean the loss of the legal rights of a whole nation as is the case unhappilly today. Only he who comprehends and understands all these things can appreciate Milch's action and judge them fairly. And subsequently, when he saw that his objective of saving the German people from the world would fail, Milch withdrew from the regime. He could not resign of his own volition . That was an impossibility for a soldier in Germany. He did not choose to act dishonorably, which no one can expect from a decent man. In Germany, soldiers are removed from their offices only by their superiors. Thus, as he put it himself, Milch could only organize his own elimination from office by gradually transferring his task to Speer's ministry. As his superiors thereupon regarded him as superfluous and were glad to be rid of this man, Milch was finally free. Then began the scheme on the part of his superiors to liquidate him.
Such was the position of Milch the man, and such by and large were his motives. For him to have acted in this and no other way is not dishonorable, and only he can cast the first stone who never in his born days gave in to public opinion in defiance of his better judgment, who has never considered his superiors, and who proved himself to be above his upbringing, and had the courage of fighting for his convictions even with the most brutal methods.
Before dealing with the details of the indictment I should like to make these basic points. The Prosecution created the impression after all under the conspiracy count it would hold Milch responsible for everything in totality that was done in connection with labor assignments and experiments within the confines of the Luftwaffe, nay, within the confines of the German government departments. This is not admissible. The indictment may be referred to Control Council Law No. 10. Nothing is mentioned there that conspiracy to commit crimes against humanity or war crimes constitutes an offense. Only conspiracy against peace is punishable. The way the law is formulated, particularly Count 2 of Article 2, makes it clear beyond doubt that activities listed therein only concern participation but no independent types of crime. Where there is an independent crime then also in the case of war crimes and crimes against humanity there would have to be a provision similar in Count 1-A, Article 2 of the Control Council law where the crime is defined as "participation in a common plan or conspiracy for the purpose of committing one of the crimes above set forth." In this connection the verdict of the I.M.T. must also be considered. The verdict states at the end of the sixth part of the verdict, "Count One, however, charges not only the conspiracy to commit aggressive war but also to commit war crimes and crimes against humanity, but the charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the charter provides the leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. In the opinion of the Tribunal these words would add a new and separate crime to those already listed.
The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count 1, that the defendants conspired to commit war crimes and crimes against humanity and will consider only the common plan to bring about, incite and wage aggressive war." And under Figure 8 the I.M.T. states further: "As heretofore stated the charter does not define as a separate crime any conspiracy except the one set out in Article 6-A dealing with the crimes against peace." The verdict was so formulated because the charter was unclear at this point. As above stated the Control Council law contains no such provisions, so much the less because in this case conspiracy does not constitute a separate crime. The provisions of Article 2, Paragraph 2, No.6 state that whoever was connected with this planning or execution is guilty of a form of individual defense and cannot be acquitted with the concept of the common plan or conspiracy. Article 2 defines clearly the type of crime referred to in Paragraph 1, namely 1, the individual crime of violation of peace; 2, conspiracy against peace; 3, individual war crimes; 4, individual crimes against humanity, and finally the form of participation as laid down in Apt. 2 qualities, proof has been furnished herewith that a so-called conspiracy to commit war crimes and crimes against humanity is not punishable in the case of every man under indictment. It has to be examined therefore whether Milch made himself guilty of any individual type of participation. It would have to be shown that either as a principal or accessory he participated in a crime or that he especially ordered or initiated it. It would have to be proved that he gave his approval for a definite crime. That approval, however, cannot refer to a general approbation but such approval can only be considered as participation in crime if by his approval he strengthened and stiffened the criminal will of the perpetrators. It must therefore be made clear that he knew of the individual crimes and that he intended to put them into action by means of his approval. In that case his subsequent approval would not suffice. No one, as yet has been punished because of an inner or moral attitude. Finally it must be examined whether Milch was connected with the planning or commission of such crimes.
Here again it must be understood, of course, that this connection must be capable of causing the crime, and that Milch knew about the connection and therefore the crime. The question of membership in any organization or association which was connected with the execution of crimes requires special examination. It is clear that mere membership as such in any organization wherein any member may at one time have committed punishable act cannot make every other member of that organization punishable. Otherwise a monstrous situation would arise where the commander in chief of a large army was punishable if any member of that army committed a war crime. Where in this world in all time has it happened that in such a huge organization as wartime armies soldiers did not at one time or another commit punishable acts? This is inevitable and it occurs in all armies. It can therefore only by a question here whether the organization or the association of which the defendant was a member had as its particular purpose the commission of war crimes or crimes against humanity.
Letter F of Article 2, Paragraph 2. This will be considered here. Since Milch is not charged with a crime against peace it would also have to be especially proved that he participated in the common plan of conspiracy for the commission of crimes against the peace. That he held high office can not of its own make him punishable. This is also evident from the Tribunal of the I.M.T. who acquitted three persons who equally held high office in Germany.
Bearing in mind these points of view one has to examine the individual counts of the indictment. In answer to the prosecution's charge that Milch in February 1944 had ordered two Russian officers to be shot, Exhibit Milch 40 to 44, and the testimony of the witness Vorwald have proven that the said officers were shot on the basis of an express order by Hitler who received, through political channels, the report of the incident earlier than Milch. Exhibit Milch 40 to 44 and the testimony of Vorwald have made it clear that Milch, first of all, had no possibility of issuing such an order, and secondly, that he did not cause it's being ordered, and thirdly, that ho only gained knowledge of the incident after the officers had been shot.
The witness Vorwald was in a position to testify that Milch even angrily protested against such an order.
The passage in the record of the 53d meeting of the Central Planning Board of 16 February 1944, also contained in Exhibit Milch 10, can therefore not be made the basis for a judgment. Whoever, knowing the German languages, reads the text critically must realize that the utterances of Milch recorded therein are contradictory in themselves and therefore cannot possibly contain the real statements made by Milch. They are contradictory to the true course of events; they are contradictory to Milch's real authority, and finally, they are contradictory to the inner attitude of the defendant who himself angrily describes this act as a crime when speaking to the witness Vorwald.
It is significant for the question of the probative value of all verbatim records submitted to consider that such recording of the true events is found here. Records containing such mistakes cannot be made the basis for a judgment. If we assume, however, that Milch really made these utter ances which are so wrong, then this passage would remove all doubt that Milch during moments of excitement was no longer master of his thoughts and words and therefore cannot be held responsible for then.
It would be a serious offense against justice, however, if judgment was to be pronounced on the basis of such stenographic notes taken by an unknown person who may have been in error.
Milch is furthermore accused of having abetted, participated in and been 2390(a) connected with cruel and inhuman experiments carried out on concentration camp inmates at Dachau.
I believe that here too, evidence has shown that Milch is innocent. It has been proved by the clear, although long-winded, deposition of the witness Hippke that the defendant had heard for the first time on the 31st of August 1942, that human experiments were being carried out on others than volunteers from the Luftwaffe; that is, at a moment when the high-altitude experiments were already completed and when the freezing experiments too were about to be completed.
In this connection I recall that the final report on freezing experiments was available in print already on 10 October 1942, so that these experiments too must have been completed at a considerably earlier time. On 31 August 1942, the defendant learned merely from Hippke that human experiments had been carried out on criminals who had been sentenced to death and who had volunteered in order to obtain a pardon. He was told expressly that nothing had happened so far during these experiments. It is obvious that experiments as such, do not in themselves constitute an offense against humanity, whether or not they are in use in some foreign countries. At any rate much evidence has already been submitted by the defense in the medical trial proving that also in democratic states of the world, experiments have been carried out and are being carried out on volunteering criminals, experiments which constitute a danger to the life and health of the experimental subject.
The prosecutor has submitted in evidence his last exhibit, Exhibit Number 161, showing irrefutably that Himmler too had ordered that only men sentenced to death are to be used for these experiments. Hippke did not even misinform Milch. That, besides the experiments which were of importance to the Luftwaffe, Himmler had also started secret experiments, is shown from this very Exhibit 161, because therein Himmler directs Rascher to continue these special experiments on which he had reported to him, and even to carry out revival experiments.
Both witnesses Ruff and Romberg have testified unanimously that nothing has happened during these experiments. Death casualties had occurred during Rascher's own experiments which he carried out on Himmler's behalf. Only 2391 a the aim of these experiments remained unclear to the witness, which is now being clarified by Exhibit 161, but Milch had no knowledge of all this.
He fully believed what Hippke told him, nor did he ever have any cause to distrust Hippke and he could not distrust him more as he knew that high-altitude experiments had already previously been carried out on Luftwaffe personnel of his own Air Force without any danger being involved. Not even Hippke has had knowledge of cruelties and death casualties. How much less can be proven that the defendant could have had any knowledge. It does not say anything against the defendant that he had signed already before 31 August 1942 some letters which had been submitted to him by his offices. Nobody has been able to state that Milch had dictated these letters at all. It could not even be proved that he had seen or read the letters from the SS to which these letters refer. It is impossible for a man who has had such a burden of work and such a large sphere of tasks as the defendant had to take care of every trifling matter in his office, that these letters which to anybody who has no knowledge of the underlying facts appear harmless and unimportant could also not arouse the defendant' s suspicion. Should he be charged with responsibility for them then, this would be a responsibility which could not be borne by anybody. This would mean to overestimate human working capacity. It is the very idea of any great organization to relieve the chiefs or the heads of attentions to details in order to make them free for the main tasks. If such a man were to be asked to take care of everything, then the organization would be unsuccessful and no man in the world could form a great work comprising many people, and no man in the world would be willing to head such an organization if the chief of the organization should be held responsible for everything that his subordinate agencies commit. Everybody has the right generally to trust his subordinates as long as he has no reason to distrust them.
Hippke's descriptions were unimpeachable and gave no reason for misgivings His tenure of office at that time was irreproachable so that Milch had not to distrust Hippke's activities and all the less so because already at an earlier date human experiments had been carried out by the Luftwaffe in a manner above reproach.
Milch has testified to the effect that he had not read the report on high-altitude experiments. Evidence has shown that he has not seen the film nor could he have caused for this film to be shown; else he would have attended the presentation, but he was not even in Berlin on that day; therefore, he could not become suspicious from what occurred. Likewise Milch never received the report on freezing experiments, nor did he ever get a final report on this matter.
Finally, Milch had no reason to distrust the fact that the SS participated in the experiments. He knew that Hippke was part of it and was therefore entitled to believe that everything would be in order. Therefore, Milch was neither a principal in nor an accessory to, nor has he ordered or instigated these experiments. He has never given his consent to the crimes committed because he had no knowledge whatsoever of them nor was he connected with their planning or their execution, nor was he a member of any organization aiming at the commission of such crimes. This is not the aim of the Luftwaffe to carry out such criminal experiments, and with the DVL he had nothing to do at all. It is irrelevant that at that time Rascher was a member of the Luftwaffe. Exhibit 161 proves that Rascher received the orders to execute the crimes as a member of the SS from Himmler himself, and also carried them out in that capacity. Finally, it must be said that the Wolff letter of November, 1942, was only written after the crimes were committed. It has not been proved that Milch ever saw this letter. He was not in Berlin when the letter arrived. That he has testified. The letter was sent to the medical Inspectorate which only answered it in 1943, as Hippke has testified.
Also, the fact that Rascher was transferred to the SS had nothing to do with the defendant. That was a matter settled outside of his competency. The personnel chief of the Luftwaffe was at no time subordinated to him, and it must also be taken into consideration that according to the evidence Milch had no knowledge of Rascher's having committed any crimes. One can not charge Milch with the fact that Rascher referred to him. The testimony of Neff and Exhibit Milch 55, the affidavit of Punzengruber, have shown to this Tribunal 2393 a that Rascher was a confirmed liar whoso statements have no probative value and therefore, I believe that Milch in this matter too has shown to this tribunal his complete innocence.