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.
Before I go into the charges against Milch for his participation in the so-called slave labor program, I must make a few fundamental statements. I shall begin by examining the question as to what extent the Hague Convention on land warfare and the Geneva Convention of 1929 were valid for the treatment of Russian prisoners of war. By the statements of witness von Neurath it has been confirmed that the U.S.S.R. in 1919 specifically withdrew from the Hague Convention on land warfare as well as the former Geneva Convention. Jurists will not dispute the fact that a formal withdrawal from agreements is of greater importance in the relations between states than the act of joining such a convention.
Even if one were of the opinion that the Hague Convention on Land Warfare and the Geneva Convention represented merely the codification of already existing international law, so that also the state that did not join the conventions would be bound to this already existing international law in all details, even in such a case the expressly stated withdrawal from such a convention must mean also a withdrawal from the natural international law. If this were not the case, the withdrawal from such conventions would be an act without meaning which so intelligence politicians as those to be found in the USSR would never undertake. Nor is this conception of mine contradicted by the expert opinion offered in the first Nuernberg trial (Canaris Document No. EC-338) because this expert opinion is only concerned with the order of Hitler and Keitel regarding the killing and cruel treatment of prisoners. It is of course clear that inhumane acts do not become permissible even though withdrawing from a convention. What we must examine here, however, is purely the question whether or nor, and for what activities, such prisoners of war may be used. Detailed regulations of international law, which in themselves do not contain atrocities, can, in my opinion, be nullified by expressly withdrawing from a convention codifying existing international law. Finally, we wish to draw the attention to Article 82, Paragraph 2, of the Geneva Convention of 1929 which contains the following regulation: "If in wartime one of the belligerents is not a member of the convention the regulations of this convention remain valid, nevertheless, for the belligerents who have signed the convention." This does not mean that the signatories are bound to the Geneva Convention also with regard to the treatment of soldiers of a non-signatory power, but only with regard to soldiers of the signatories who are at war. Article 82, paragraph 2, of the Geneva Convention, therefore, states that with regard to the relations of nonsignatories the convention is not valid. The regulation was made so that it should not be thought that if a non-signatory participated in the war the Geneva Convention would not apply to that war.
That my opinion was shared by the USSR becomes clear beyond doubt from Exhibit Mi 49 presented by me, which contains the decision of the Council of the Peoples Commissioners of the USSR of 1 July 1941.
This decision does not mention any limitation with regard to the use of prisoners of war for labor except for the regulations under Number 25. According to this, prisoners of war may not be used as workers in the battle zone, nor for the personal needs of the administrations, or by other prisoners of war (orderly services). Exhibit Mi 51 concerning employment of German women prisoners of war in Russia also reveals the same conception of the USSR.
The objections that not Russia's conception but that of the United States of America matters here is not justified. Existing regulations between two states can only be judged on the legal relations valid for those two states. If both states regulate a given question in agreement with conclusive acts in the same way, that regulation becomes international law valid for the relations of those two states and must be taken into consideration by all other states. It is the right of sovereign states to regulate their relations as they wish. Other states have no right to interfere in the right of sovereignty and they must acquiesce in the legal conception existing between those two states regarding any issue concerning their citizens. Therefore, legal opinions of another state must not be taken as a basis for the judging of actions which occurred between the nationals of these two states.
As in Milch's sphere of competency Russian prisoners of war were used neither at the from nor as orderlies, he cannot be found guilty so far as the treatment of Russian prisoners of war is concerned.
All this also applies to the treatment of the Russian civilian population whose rights could have been cared for by the Hague Convention for Land Warfare alone. Here, too, Russia's express withdrawal from the convention is of great importance.
In my opinion it cannot be argued that Germany attacked Russia and that, for that reason, employment of the civilian population would be illegal even if this were not illegal in itself. That alone would mean that Germany would be bound to the regulations and that Russia was not.
From the point of view of international law this is an impossible situation. For two belligerent states there cannot be a different international law.
Moreover, the validity of the regulations laid down in the Hague Convention for Land Warfare can be canceled by a special factor which precludes lawlessness. In all codes of law of the civilized world the law of so-called emergency situations exists. This conception of law must also be applied to international law. That Germany was in an emergency situation in that sense that the use of the civilian population for labor in the occupied territories was only caused by the emergency situation, I have shown in detail a little while ago. Modern war means total war and as such has suspended, in several points, international law as it existed up to now. It is uncontested that according to the Hague Convention for Land Warfare actions of combat against the civilian population are forbidden. Moder air warfare, having as its aim total annihilation of armament and production of the enemy, brought with it to a great extent warfare against the civilian population without any of the belligerents regarding such combat actions as forbidden according to the Hague Convention on Land Warfare. This also applies to the total blockade of a country which aims at starving the population of that country. These comprehensive ways of waging war which hit all classes of the population permit, in my opinion, to a state which is at war, especially on account of the fact that its civilian population is brought into the strife, to use for its purposes labor from occupied countries so as to maintain its production and armament.
Concerning the relations of the other nations involved in the war there is no doubt that for the above the Hague Convention on Land Warfare and the Geneva Convention of 1929 are valid. But it is just as clear that it is left to the nations to change and abolish these regulations by special agreements between one another. A good example here is the Armistice Treaty signed in 1944 between the Russian and Roumanian governments according to which Roumania had to pledge itself to put at the dis posal of Russia a large number of people for reconstruction purposes.
Complying with this agreement, in January 1945 many thousand members of the Roumanian state were deported to Russia by compulsion and against their will. This case shows what, in such matters, may be legal and valid. Moreover, that agreement was made under some force of bayonets, as in all history is usually the case with every treaty between a conquered and conquering state. The Exhibit Mi 47 proves that in the case of Germany the Control Council (see Section VI, Number 19, of the Proclamation No. 2) imposed on the German authorities even without a treaty, simply based on unilateral orders, the same obligation, i.e., to put at disposal labor for personal services inside and outside Germany. That such orders could naturally only be fulfilled by the German authorities by means of a labor service law will not be contested by anybody.
These one-sided orders given by the victor to the vanquished, whether they be issued on the basis of an armistice brought about by force of arms or on the basis of command or law following the unconditional surrender of a state, are not contrary to law.
It should, therefore, be stated that the rules of the Hague Land Warfare regulations can be suspended between two states. I have given proof for the fact that there were between Germany and France agreements whereby the French population had to make themselves available for work in Germany, first, by volunteering, and later, on the basis of a law for compulsory labor issued by the French government. No restrictions were laid down to what extent and for what purpose these people were to be employed.
The objection has been raised that the Vichy government was a government of traitors, but it was that government which concluded the armistice with Germany, and throughout the war all Frenchmen, including those in De Gaulle's camp, would raise passionate protests when they thought that one of its articles had been violated. Thus, they all acknowledged that an armistice could be concluded, and was concluded. Once you acknowledge the existence of an armistice agreement, you cannot, logically or legally, deny the legality of the government which has concluded the armistice.
You must eat your cake as it is and you must not pick out the plums alone.
As for the situation in Holland and Belgium, both those countries surrendered unconditionally.
According to international law Germany was, therefore, in a position in its dealings with the authorities of these countries to regulate the labor commitments of the civilian population unilaterally in the same manner as this has now been handled in regard to the German population by the Control Council.
As far as Poland is concerned, that country, on the basis of the partitioning agreement between Russia and Germany, had lost its sovereignty. That such partitioning agreements can abrogate the existence of a state has already been historically proven by the former partitioning agreements of the bordering countries in regard to the Polish state. Moreover, the agreements concluded between the victorious nations after this war have abrogated the sovereignty of the German state over very large areas in the East and thus have created new sovereignty for the population of these territories.
Germany released the Polish prisoners of war and could at any time issue legal labor directives as regards the Polish civilian population since the latter were under German sovereignty. So far as the Italian prisoners of war are concerned, the evidence has shown that the Mussolini government, which at the time was the covenant government in that part of Italy not occupied by the allied forces, made then available for work in the armament industry, especially after Germany had to manufacture armaments for Mussolini's Italy.
Testimony of Vorwald. Here it should also be mentioned that Milch's opinion that Italian prisoners of war who fled from a transport should be shot does not mean a cruelty. All countries of the world have prisoners shot who attempt to escape, as proved by me in Exhibit MI 26. So far as the civilian population of other southeastern states are concerned, they were only recruited and employed as free workers based on approval by the legally existing governments of these countries.
In addition, it is interesting to point out that the agreement between France and Germany, according to which France was supposed to allocate French civilians for the labor commitment in exchange for the release of prisoners of war, had a parallel in the discussion of the question regarding the fate of German prisoners of war still in allied countries. In France, in particular, the request has been made to make possible the release of German prisoners of war by making available German civilians as workers in Place of the prisoners of war. This, too, is evidence to the effect that such an agreement is not contrary to international law.
That, Your Honors, is the legal position as I must present it.
May I propose, Your Honors, to recess now. Otherwise I would have to interrupt a long passage.
THE PRESIDENT: We will now take a recess.
THE MARSHAL: This Tribunal is in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: Tribunal 2 is again in session.
DR. BERGOLD: In regard to the question of guilt, a special point has still to be considered. All legal theories consider that the defendant is not liable for punishment if after careful consideration and careful inquiries he has gained the conviction that his action was permissible. It has been shown that in Germany prisoners of war and foreign civilians were being employed within the war production even at the time when Milch had not yet taken over the office of the GL. In other words, he was already confronted with the situation, the exploitation of which he is being reproached for today.
The testimony of the witness Vorwald and that of the defendant himself showed that Milch made inquiries from the competent authority as to whether the employment of prisoners of war and foreign civilians which he found in existence was admissible under the then prevailing regulation. He has testified here that he received an affirmative answer. Furthermore, he testified that the admissibility of the utilization of foreign civilian workers was discussed soon after the first World War in an investigation staff committee of the German Reichstag. The chairman of that investigation committee was Prof. Dr. Schucking, a legal authority of repute, who had become known throughout the world as a passionate champion of pacifism and democracy. This committee, as the defendant gathered from the discussions held at the time, could not and did not find that employment of foreign civilian workers in armament industry was inadmissible.
Impressed by his earlier experience, the defendant has the right to believe the information given to him by his superior office that employment of foreign manpower and of prisoners of war was admissible. Moreover, this information was not issued without reason. The reasons given for it were rather in accordance with the reasons which I have described in detail above. How should Milch, who is not a legal expert, who as a layman did not understand anything about applicable international law, how could he form a different opinion?
It is the right of every citizen to believe the legal information supplied by his superior and the concomitant authorities, for no one can impose upon a citizen the duty to undertake on his own accord an examination of the legal questions involved. In a modern state this would result in an untenable situation whereby everyone of the citizens would acquire his own conception of the law.
Dissenting opinions from abroad Milch was not in a position to hear since he was not allowed to read foreign newspapers nor listen to foreign broadcasts, nor did he do so.
He acted in good faith, and this has to be considered in his favor today, the more since he knew and may well assume that these measures were only temporary, and were brought about irresistibly by the necessities of war.
THE PRESIDENT: May I interrupt you a minute. Is it a principle of the German Law that ignorance of the law is an excuse for its breach? Is it a principle of the German Law -- can you hear me now?
DR. BERGOLD: Yes. Excuse me.
THE PRESIDENT: Can you hear me now?
DR. BERGOLD: Yes.
THE PRESIDENT: Is it a principle of the German Law that ignorance of the law is an excuse for violating it?
DR. BERGOLD: It is a principle inasmuch as if somebody has been misled by his superiors on the significance of the law. Everybody must inquire of what the law is, but if his superior authorities had given him certain information, he can rely on that.
THE PRESIDENT: Suppose a person is advised by his own counsel as to the law, and counsel is wrong, does that excuse the client?
DR. BERGOLD: The client's lawyer is not considered to be a sufficient authority, it must be a governmental authority.
THE PRESIDENT: Well, suppose a high government official, a man in high authority who was not a lawyer advised his subordinate as to his legal rights and duties, and that advice was wrong?
DR. BERGOLD: That would mean that there would be an excusable error, an excusable legal error.
THE PRESIDENT: You mean then, and it is your position that if Goering, for example, had told Milch that it was his legal right to go out and shoot a person without a hearing, or a trial, that Milch would be justified legally in doing that?
DR. BERGOLD: I did not get it, Your Honor. Would you repeat it, please.
THE PRESIDENT: If, for example, Goering, who was a person in high authority, advised Milch that he had the legal right to go out and shoot a person, that would be justification for Milch doing so, legally?