The first and second from Schmidtke on 10 January and from Gangolf on 13 January refer to another similar incident other than that with which we are here concerned. The third letter from Winterstein on 12 January says nothing about the deaths. The affidavit of Predl, other than stating that the deaths occurred on a Saturday, is of no value. The witness Barthelmeus, who made an affidavit, though a resident of Nurnberg, was not called. The affidavits of Klein and Popp ware offered; each is in a prison camp in the American zona, yet neither was called. The letter of Janko recites the facts in a context suggestive of the words used by the defendant when he described the incident in the 53rd meeting on CPB on February 16, 1944. Here, too, it is submitted that the circumstances under which the statement was made, leave no doubt that it was substantially accurate. The defendant boasted of his prowess as a commander who ordered executions when he would impress those who curried his favor at the Central Planning Board meetings but now he says he had no authority to give orders and if he had given them, they would not have been obeyed.
The defendant has offered, as a plausible reason for the employment of Russian, French and Italian prisoners of war, the fact that various historical events made it unnecessary to abide by the terms of the Conventions concerning prisoners of war. The witness von Neurath testified that Russia had renounced the Conventions in question, and hence Germany could renounce them as to Russia. As for France, it is contended that the alleged government headed by Pierre Laval had concluded an arrangement with the Reich which made it legal to employ prisoners of war in tasks forbidden by the Conventions. A similar reason is advanced for the use of Italian Prisoners, the concluding of an arrangement between the Reich and Mussolini. The International Military Tribunal made a finding with respect to this matter (p. 16892). "The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the USSR was not a party to the Geneva Convention, is quite without foundation. On 15 September 1941, Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on 8 September 1941.
I might add that Admiral Canaris was a member of the German navy. Resuming the quotation:
"He"--Canaris--"then stated: 'The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the USSR. Therefore only the principles of general international law on the treatment of prisoners apply. Since the 16th Century, there have gradually been established along the lines, that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle has developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure hapless people... The decrees for the treatment of Soviet Prisoners of war enclosed are based on a fundamentally different viewpoint' This protest, which correctly stated the legal position, was ignored".
The defendant was a soldier of some experience, he know it was improper, even criminal, to have the Russian prisoners work in the Luftwaffe factories, but he paid no attention to the breach of this duty of the soldier. The manner in which the Reich bludgeoned a treaty from the French is too well known to warrant discussion. It cannot be contended with any seriousness that the French prisoners of war, who were negotiated into slavery by a puppet government, were voluntary employed of the Germans. Indeed the witness Le Friec has testified that when he was taken to work in the airplane factory, he was told that he would "work on baby carriages". The position of the defendant with reference to Italian prisoners of war and their illegal employment is still more absurd, if that is possible. The Wehrmacht had moved into Italy early in the war and in 1943, when the Badoglio government concluded an armistice with the Allies, the Wehrmacht continued to occupy the northern part of Italy as an occupying power. They allegedly made a treaty with the by then tottering shadow of the former sawdust Caeser and proceeded to bring the Italian prisoners of war to the Reich to work. Here again the soldiery had been sold into bondage by their former chief. The record shows that the Russian, French and Italian prisoners of war were used to work in airplane factories. Whether they made the fighter plane, ME 109, or the jet fighter, ME 262, or the transport plane, Ju 52, is of little moment.
In the total warfare in which the Reich was engaged, there is one certainty, that nothing was being constructed which was not part of the war armament program.
The International Military Tribunal stated in this connection (p. 16915): "Many of the prisoners of war were assigned to work directly related to military operations, in violation of Article 31 of the Geneva Convention. They were put to work in munitions factories, and even made to load bombers, to carry ammunition and to dig trenches, often under the most hazardous conditions. This condition applied particularly to Soviet prisoners of war. On February 16, 1943, at a meeting of the Central Planning Board Milch said: 'We have made a request for an order that a certain percentage of men in the Ack Ack artillery must be Russians; 50,000 will be taken altogether. Thirty thousand are already employed as gunners. This is an amusing thing, that the Russians must work the guns'".
That every aircraft factory in the Reich had anti-aircraft batteries to protect it, goes without saying. Who would know better than the defendant that such use was made of the Soviet prisoners of war? Further, this type of artillery was a part of the Luftwaffe and not a separate branch in the ground farces, as it is in the US Army. The witness Foerster has testified that Soviet prisoners of war worked at the gun positions. If the number two man in the German Air Force could not have done anything toward arranging that the prisoners of war did not work in the factories or work the guns, then no one in the Wehrmacht could have done anything about the situation.
We have heard much of the defendant's violent temper and the resulting statements which, witnesses assert, were never taken seriously by those who heard them. The explanations offered by the Defense are as frivolous as the alleged outbursts were frequent. It would have been difficult, if not impossible, for one who occupied the positions held by the defendant, to accomplish anything if his subordinates had to sift all of the strong statements he made, in an effort to determine which of them were seriously said. Further, his strong statements about the procurement and treatment or 1 laborers are closely aligned with the grim reality as we have seen it.
We submit that this man of violent temper believed in, and consciously advocated, the ruthless measures he recommended, and that his subordinates, to the best of their ability, complied with his recommendations. It is not reasonable to assume that one with his power could have made statements, of the kind of which we have heard here, and that he would then rely on the good offices of those who were around him to insure that nothing was done as a result of these statements. The Reich was not a country of innocent victims of one tyrant, but rather it was composed of a series of tyrants, each like the mastertyrant, each with his own group of subordinates, who carried out the wishes and whims of their respective chiefs. If all men who held positions of authority in the Reich are to be believed when they say that they were personally opposed to criminal excesses, then we have the fantastic conclusion that these crimes were committed in the face of influential and unanimous opposition.
The witnesses produced by the Defense left a little to be desired. Without indulging in exhaustive detail, a few statements made by some are worth comment.
The witness Koenig said that he didn't know Himmler was head of the SS until 1945.
The witness von Brauchitsch did not know families were broken up and sent to concentration camps. It was this man, the aide to Goering, who passed on the Terboven letter of May 1942 to the defendant. The Court will recall that the letter told of the attempted escape and the resulting concentration camp detention of the Norwegians. It was the defendant who said that an attempt to escape by a prisoner of war is an honorable thing. Would not a similar effort on the part of some Norwegians merit something less than a concentration camp? Brauchitsch had said a little earlier that he did not know that foreigners were in concentration camps.
The witness Felmy has stated that some Jugoslav partisans were sent to Germany as laborers.
The witness Schniewindt, who was present at the conference of 23 May 1939, did not under any circumstances gain the impression that aggression was announced. 2477 The witness, Vorwald, a subordinate of the defendant and hence his concern for these proceedings, may be assumed as being something short of disinterest, was thoroughly glib and exceptionally agreeable.
He even agreed with the statement, on cross-examination, that the forces of the Reich were no longer in Africa in 1943. It is a matter of historical record that the invasion of that Continent began in November 1942 and that the campaign was concluded in the spring of the following year.
The witness Doerner, still laboring under the spell of the former leaders, stated that he believed Goering to be the last great man of the Renaissance.
The last witness of whom we shall speak is Karl Wolff. In his affidavit, he spoke of meetings between Himmler and Milch over coffee and cigars. He spoke of the great cultural works of the SS. Was he speaking of Dachau and Manthausen? With some vehemence, he insisted that he had deported only 1,050 Jews from all of Italy. He knew nothing of Dachau that led him to believe that anything unusual was happening there. Although he did say that in his visit there in 1942, the place was so clean that one could have oaten from the floor.
These represent a fair cross section of the witnesses, all of whom had roles of varying importance in the tragedy with which we are here concerned. Even as the defendant contends that he knew nothing of what went on, so do they echo the same refrain.
Much time has been spent in attempting to discredit the Schmundt record of the 23 May 1939 meeting. The Court is familiar with the findings which have been made by the International Military Tribunal, on this subject. There has been no additional light thrown on the matter by the evidence here presented to indicate that the Schmundt record is anything other than a correct record of the events which transpired at the meeting.
We wish to discuss now in conclusion one document offered by the Prosecution. This we have saved until the last because we believe that of all the evidence presented by the prosecution it is most typical of the defendant as a man and as a Nazi. We refer to the minutes of the conference of Air Force engineers and others which was presided over and was addressed by the defendant on 25 March 1944. This document, like so many others in this case, was initialed by the defendant.
The defendant stated that, as of the date of the conference, "We have in our employ today approximately 60 percent foreigners..."
He continued, "The ratio is gradually approaching 90 percent foreigners with 10 Percent German managers."
These are statements by a man who said he did not know about the extent to which foreign labor was used in his own industry, let alone in Germany. He stated that:
"The Fuehrer order provides cleanly that the fighter plane program which the Fighter Staff is starting has priority over all other fields of armaments..."
He showed knowledge of the production of tanks and infantry munitions. He spoke of having the Air Force production "to an extent safely underground" in four months time. It is here that he stated that he was head of the Jaegerstab and that Saur was his deputy and chief of staff. Touching on his conferences with the various plant officials, he stated:
"On the spot the individual gentlemen are then told - supported by the combined authority of the State, the Wehrmacht, and the Party, that is Saur and me, Speer is unfortunately still on sick leave, otherwise he would also be present - what it is all about."
He commented on labor:
"Thus, all pertinent questions are dealt with in the conferences about the commitment of labor and all competent men, who have anything to do with the commitment of labor, meet, especially the President of the competent Provincial Labor Office. Thus it is determined on the spot, in the individual spheres, what the factory lacks."
This is the man who has constantly maintained that he had nothing to do with labor. One can readily imagine a session between the Luftwaffe Field Marshal and a Labor Office chief.
We have heard the defendant deny and redeny any knowledge of the slave labor program as such, let alone the extent to which it went. It is our contention that anybody who walked the streets of Germany could net have failed to have become aware of the activities which were being carried on by Sauckel and his henchmen.
He makes an interesting reference to bureaucracy:
"It is an error to believe that civilian offices are more bureaucratic than military offices. On the basis of my continuous and extensive experience, I can assure you, exactly the opposite is true."
This from one who would have the Tribunal believe that his staff and officers were one big happy family who ran things in a rather casual catch as catch can fashion.
Speaking of the arrival of laborers, he said:
"In brief, the people arrive there and are put to work there. If any doubts exist as to whether a request is justified - for the people are not requested by numbers, but as electricians, blacksmiths, fitters, turners, as unskilled laborers, as foreigners - then this is settled. If the result shows that the request for people is not justified, then the matter is referred to a commission and this commission examines the facts within 48 hours. If it becomes apparent that dirty dealings are going on, my special court martial is called into Play, and it hands down a quick decision."
This from a man who has stated that he had no power to give orders. He stated further, "the normal work week in our industry is 72 hours." The witness Krysiak testified that they worked 84 hours at the factory where the Mauthausen inmates were employed.
Speaking of the difficulties that resulted from the hoarding of spare parts by the various foremen, he said:
"Now it is your task to teach these people some sense and to nut the entire system of hoarding on a sensible basis. I therefore ask you, as the Senior Authorities in the field; teach that to these people by force. There is no sense in writing letters. Such letters are not read. They would not understand them anyhow."
The wish of a Field Marshal is as an order and he advocated the use of force on his own people. The extent to which he urged that they go was expressed a few lines further on when he stated:
"Whoever hoards supplies must be punished immediately. By punishment I also mean shooting. For if these people are told what is at issue here and they still try to hide parts of their supplies or to cover them up, that is dirty dealing and a crime against Germany. I want to say that very clearly and I want to say it in very sincere words, so that you yourselves will realize that we are dealing here with a question which is of decisive importance for German's well being, that we are not dealing with an ordinary point of discussion but with a question which decides about the life and death of Germany."
He advocated killing Germans, not slackers but hoarders. He consciously used strong language, yet he would have it believed that he never smoke harshly except in a rage and that nothing ever came from his outbursts. He indicated knowledge of the overall figures on the breakdown of working hours.
"In considering the figures one has to know that 52 percent of the total man hours spent in equipping a plane and only 48 percent in building the aircraft frame and engine."
He has said that he was powerless to do anything about requests from industry, yet he stated:
"If I want something from industry, then industry comes and says, 'Yes, I have those and those requests.' Only then can I do what you want."
He again speaks of the death penalty when he says:
"Gentlemen, in this connection I may call your attention to another important point.
If I visit an office and find out that something is being hidden there, then I ask for the death penalty for such a crime today. That is fraud. That is sabotage of the German armament industry."
Can it be seriously contended that these words were regarded by the listeners as mere outbursts?
Next we have another illuminating passage on his attitude toward prisoners of war:
"Then there is still the human factor. We often had considerable difficulty with the human factor. The fluctuation there is very considerable. The quote of the Luftwaffe in the distribution of manpower was considerably lowered. The foreigners run away. They do not keep any contract. There are difficulties with Frenchmen, Italians, Dutch. The prisoners of war are partly unruly and fresh. The people are also supposed to be carrying on sabotage. These elements cannot be made more efficient by small means. They are just not handled strictly enough. If a decent foreman would sock one of those unruly guys because tho fellow won't work, the the situation would soon change. International Law cannot be observed here. I have asserted myself very strongly and with the help of Saur I have represented the point of view very strongly that the prisoners, with the exception of the English and the Americans, should be taken away from the military authorities. The soldiers are not in a position, as experience has shown, to come with these fellows who know all the answers. I shall take very strict measures here and shall put such a prisoner of war before my court martial If he has committed sabotage or refused to work, I will have him hanged right in his own factory. I an convinced that that will not be without effect."
These words are strangely reminiscent of his speech at the 53rd meeting of the Central Planning Board. He knew he had advocated and participated in flagrant violations of International Law and here he went on record on this subject.
We see the defendant making a "big request" of the Quartermaster General and calling for "energetic action" by the Chief of Supply. This was a meeting of considerable moment and these statements did not go unheeded.
He spoke of the laborers:
"...We in the Luftwaffe armament industry have Russians, French prisoners of war, Dutch, and members of 32 other nations. The obtaining of interpreters alone presents a big difficulty there."
Then he adds:
"We, the Quartermaster General and Generalluftzeugmeister, have already agreed that we are to balance the personnel also. Above all it is necessary that the member of the troops be treated in exactly the same way as the industrial worker."
We have a strong statement concerning the feelings of the German worker. He said:
"By unjust treatment the German worker means that the treatment is not the same for all. That is what makes the German worker indignant. He wants everyone to be treated the same way. He wants justice and does not want to be mistreated in words or any other way. He cannot stand it and he is right in not being able to stand it."
The defendant advocated that the German worker be carefully handled. The Tribunal has heard from the witnesses Ferrier, Lb Friec, and Krysiak how the foreign workers were handled.
He outlined the working program for the Raster weekend:
"Finally I ask that the troops received the fundamental order to work on Good Friday, the Saturday before Raster, and on Raster Monday in the same way as the people in the factories. The soldiers just do not have to go on furlough either. They must be told why."
Are these the words of a man who is without authority to issue orders concerning the troops?
He acknowledged his employment of Russian prisoners of war and advocated that shirkers among the factory laborers be whipped back to their jobs. He said:
"I further ask for support by the Luftwaffe physicians. With all the rabble that we have among the foreign workers there is of course a lot of shirking.
At the moment the Russians - that is, the Russian prisoners of war - are feigning a lot of fatigue and illness. The incidence of sickness of one and a half to two percent which we have had up to now has at least doubled and in some factories it has been increased to eight, nine, and. ten percent. That is, of course, done by previous agreement. There the official physicians must undertake an examination and if the physicians, who have to be very strict, find out that it is not true, then we return the fellows to work by means of the whip. Then the whip serves as cure."
He again spoke of orders that have been given:
"If the factory knows: Now we are going to be attacked, and it has a few trench shelters but does not have a bomb-proof shelter or the like, then the people simply ran away from the factory automatically at each raid after the first one, and they could usually not be caught the next day, either. That applies particularly to the foreigners. We have therefore now issued the following order, and have equipped the superiors accordingly with weapons and pistols: as soon as a factory which has already been attacked a few times can count on the raid's being aimed at that particular factory again, then the personnel leave the factory, but in closed groups by shops, under the leadership of the man in charge of the shop, and, to the extent that they are German personnel, they leave singing military songs."
Are superiors armed, with weapons and pistols to lead contented German workers away from a factory in case of an air raid? Little wonder that the foreigners who had been brought in like chattels ran away when the opportunity presented itself. Were these workers who were fleeing voluntary workers?
Commenting on the gravity of the task of fighter production, and the importance of the months of April and May 1944, he said:
"That will be decided in six to eight weeks. If we succeed in this, then we will once again have time to carry out all the other tasks and jobs of this war and can also achieve greater success in other fields."
Bore the "other fields" tasks to be accomplished in the sowing of seeds of the Reich's culture?
The defendant has said that he knew nothing about the living conditions of the foreigners. It is obvious that he knew something, for he said:
"I also ask you to be of considerable assistance in the question of lodging in connection with the question of the relationship between our military personnel at the airfields and the workers. If we bring the people over to work, we also have to provide them with places to live. As far as Germans are concerned this is not a problem. As far us foreigners are concerned, this has to be done in some suitable way. They can not be put together with our people, just like that. But they should not be so far away from the airfield that one can not get them to work at all."
No, don't let them live with the native workers, but be sure that they live close enough to the factory so that they can put in their 72 hours a week.
The importance of the fighter program is emphasized when ho said:
"There are no laws of bureaucracy, there are no regulations, there is nothing at all as important as the task of winning the war."
The defendant could not agree with anything that Hitler stood for after March 1943, he was trying to get out but here he speak of Hitler and his henchmen - men who, he said, were leading Germany to certain catastrophe, "It is quite surprising how the population has endured this thing so far and how it always gets on its feet again, when it is led in the proper way by true leaders who, thank God, are present among the people through the party and the rest of the leadership.
But you must not forget, gentlemen, the war of nerves has reached a point which causes us in the leadership group worry."
He has said that he was not a whole-hearted Nazi, but here he referred to. himself as one of the true leaders and this at a time when the hands on the clock tolling the hours of the Reich were approaching twelve. Yet he would have you believe that he was a minor man.
He -did not confine his speaking efforts solely to the Luftwaffe! ho was one of the leaders and as such it was natural that he should address the entir armament feeder industry. On that subject he said:
"What I am telling you today was told the other day to the entire armament feeder industry -- that includes the blacksmiths, foundries, crankshaft works of the iron producing industry, etc. They were likewise exhorted to produce the maximum; in the same way the Gauleitungen, all of the provincial offices, where ever we were, were addressed by us to that effect. But everyone considers that if he does not do his duty we do not ask whether there is a law, we ask only that he is the responsible one and that we will seize him no matter who he is.
His first peroration is indicative of his attitude:
"Please go wherever you are going and knock everybody down who blocks your way! We cover up everything here. We do not ask whether he is allowed to or whether he is not allowed to. For us, there is nothing but this one task. We are fanatics in this sphere. We do not even consider letting anything at all distract us from that task. No order exists which could prevent me from fulfilling this task. Nor shall I ever be given such an order."
Yes, the defendant was a fanatic. Too, he was one who could cover up. It was a wilful man who could say that.
There is an interesting statement concerning the number of employees of the Luftwaffe. The defendant set it at 1.8 million. This is somewhat in excess of the .5 million figure that one witness mentioned.
It has been insisted that he had nothing to do with labor, it has been insisted that he could give no orders, yet in his second peroration to the same speech, he said:
"We have given orders that will make you laugh. Some labor control offic or other suddenly declared that the Jaegerstab was not entitled, according to paragraph so-and-so, to establish a 72-hour work week; it was not valid. ** said: the gentleman is herewith informed; if he should say such a thing once more, he will be picked up; I have excellent cellars in this house. Then the opposition disappears immediately. But you have to count on such things, and the difficulty for you is that, in order to get through all the junk, one should clean out first of all a whole let of little pigsties. Something will come out of this whole affair with us, yet. Whoever of my technical people from the Ministry does not earn his keep with the Jaegerstab now, and does n** cooperate, I guarantee that he will never appear again in this Ministry, in the machine where I give the orders."
Is this the man who said he could not have people sent to concentration camps? The witness Krysiak was "picked up" for having said in 1940 that Germany would lose the war. He was arrested by the Gestapo as the result of private conversation. It is unbelievable that a Field Marshal could not, and did not, exercise the same power.
Today is the third anniversary of the speech of 25 March 1944, male by the defendant. His closing remarks on that day detail decisively the philosophy of the then Field Marshal of the Luftwaffe. Those assembled has been listening to their chief since midmorning. The hour was late. The hands of the clock were past twelve. Germany was in the fifth year of war. The defendant was concluding his speech. He said:
"Gentlemen, I know, not every subordinate can say: for me the law no longer exists, but he has to have someone who covers up for him, not out of cowardice. But if you act according to the spirit of the old field service regulation, 'Abstaining from doing something hurts us more than erring in the choice of the means', and if, moreover, you keep in touch and immediately clarify difficult points, so that something can be done, then we are willing accept the responsibility, whether this is the law or not.
I see only two poss bilities for me and for Germany; either we succeed and thereby save Germany, c we continue these slipshed methods and then get the fate that we deserve. I prefer to fall, while I am doing something that is against the rules but that is right and sensible, and be called to account for it, and, if you like, hanged, rather than be hanged because Papa Stalin is here in Berlin or the Englishmen. I have no desire for that. I would rather die in a different way. But I think we can accomplish this task, too. We are in the fifth year of war. I repeat: the decision will come during the next six weeks, Heil Hitler!"
The time is at hand for another decision, a decision which will follow the dictates of sound reason. The record which will be made by this Tribunal in its judgment will be one that shall give courage to peaceful free men everywhere. Indeed, the defendant is fortunate that the decision in the present cruise is in the hands of those who do believe that the law exists and vi 11 continue to exist. There is no place for passion or for prejudice in the ceaseless tasks, the seeking of truth and the establishing of justice.
DR. BEHGOLD: May it please your Honors, before I ask you to allow the defendant to make his final statement, I must follow my profession and make an objection here. Mr. Denney has quoted the affidavit of Schroeder. The Court may remember that I called the witness Schroeder to the witness stand and that I let him go because Mr. Denney said that the affidavit would not be used by him and it would not be part of this trial. I would therefore like to remain on that line, for otherwise I would have had to interrogate Schroeder.
MR. DENNEY: If your Honors please, the only quotation that was made from Schroeder was the chart which was offered in evidence, which he made. We did not offer the affidavit and we did not quote from the affidavit. We only spoke of the chart.
THE PRESIDENT: Well, it is understood that the affidavit is not to be considered by the Court. The law provides that at this time the defendant may, if he chooses, make a statement to the Tribunal. If he so desires he will approach the podium and speak into the microphone.
DEFENDANT ERHARD MILCH: Since I became a soldier in 1910 my work was to serve my German people. In the first World War I was at the front from the first to the last day. Then with others I built up German air lines, and when in 1935 the Government asked me to enter the Air Ministry, despite many misgivings, I could not refuse to take up that task because it was pointed out to me I could not turn a deaf car to this call of the German people.
My idea was conceived at the time of the air lines, that all nations must collaborate, particularly the European nations, gathered together on a small area. I have remained faithful and whenever possible, mostly outside my actual sphere of work, I dedicated myself to that task. I was opposed to war because the experiences from the first world War showed me that the living standard of the people would not be improved by war, and on the contrary everybody would be grievously damaged.
It was for me a matter of course, even in the late great war, the planning of which was unknown to me, to do my duty at my place. My full effort was dedicated to the air defense of the German homeland. This I conceived to be the only possibility to obtain bearable peace terms. Even though I had nothing to do with the employment of workers, including foreign workers, I considered it to be my duty to make precise examinations of the admissibility of work by foreigners which was answered in the affirmative, as I made also efforts to keep the figures as low as possible and to see to it that they would work in protected factories (Speer enterprises) foreign countries.
I always made efforts to improve the living conditions of all types of workers. My statements made to the best of my knowledge and conscience to this Tribunal were directed to the world at large and above all to the German people, in order to show that only by peaceful understanding of the nations among each other, could life and civilization be secured in future and that understanding was not only necessary but also possible if there is a will, but I also wanted to show my fellow Germans quite clearly that an autocratic government which is not controlled must end in disaster.
2489 a My personal faith is of no consequence in this connection.
I am interested in only one thing; that the German people should, as soon as possible, be relieved of their untold suffering and should join the community of nations as an equal partner.
THE PRESIDENT: This case is now in the hands of the Tribunal for the rendition of its final judgment. The Court will be in recess until Tuesday, the eighth day of April, at 9:30 in the morning, unless sooner convened.
THE MARSHAL: This tribunal is in recess until Tuesday, April 8, at 0930 hours, unless sooner convened.
"The tribunal adjourned until 8 April 1947 at 0930 hours.)
Court No. II, Case No. II.
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 16 April 1947, 1400-1530, Justice Toms presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable Judges of Military Tribunal II.
Military Tribunal II is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the Courtroom.
THE PRESIDENT: The case of the United States versus Erhard Milch is before this Tribunal, being Case Number 2. The record will show that the defendant and his counsel are present in Court. Will the Page give a copy of this to Mr. Denney and to General Taylor, and the copy in German to Dr. Bergold? The opinion and judgment of the Tribunal is about to be read. Judge Musmanno, have you something?
THE TRIBUNAL (JUDGE MUSMANNO): I am filing a concurring opinion.
THE PRESIDENT: This will be noted, please, by the Secretary General.
The Indictment in this case contains three counts, which may be summarized as follows:
COUNT ONE: War Crimes, involving murder, slave labor, deportation of civilian population for slave labor, cruel and inhuman treatment of foreign laborers, and the use of prisoners of war in war operations by force and compulsion.
COUNT TWO: War Crimes, involving murder, subjecting involuntary victims to low-pressure and freezing experiments, resulting in torture and death.
COUNT THREE: Crimes against Humanity, involving murder and the same unlawful acts specified in Counts One and Two against German nationals and nationals of other countries.
For reasons of its own, the Tribunal will first consider Counts Two and One, in that order, followed by consideration of Count Three.
Court No. II, Case No. II.
THE PRESIDENT: Judge Phillips, please.
JUDGE PHILLIPS: COUNT TWO
More in detail, this count alleges that the defendant was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving medical experiments without the subjects: consent, in the course of which experiments, the defendant, with others, perpetrated murders, brutalities, cruelties, tortures and other inhumane acts. The so-called medical experiments consisted of placing the subject in an air-tight chamber in which the air pressure is mechanically reduced so that it is comparable with the air pressure to which an aviator is subjected at high altitudes, and in experimenting upon the effect of extreme dry and wet cold upon the human body. For these experiments inmates of the concentration camp at Dachau were selected. These inmates presented a motley group of prisoners of war, dissenters from the philosophy of the National Socialist Party, Jews, both Germany and the eastern countries, rebellious or indifferent factory workers, displaced civilians from eastern occupied countries, and an undefined group known as "a social or undesirable persons."
In approaching a judicial solution of the questions involved in this phase of the case, it may be well to set down seriatim and controlling legal questions to be answered by an analysis of the proof:
(1) Were low-pressure and freezing experiments carried on at Dachau?
(2) Were they of a character to inflict torture and death on the subjects?
(The answer to these two questions may be said to involve the establishment of the corpus delicti.)
(3) Did the defendant personally participate in them?
(3) Were they conducted under his direction or command?
(5) Were they conducted with prior knowledge on his part that they might be excessive or inhuman?