Chapter XXXIV: Introduction (1)

The trial of Erhard Milch, formerly a Field Marshal in the German Air Force, is officially designated _United States of America vs. Erhard Milch_ (Case No. 2), and was heard by Military Tribunal II in the Palace of Justice at Nuernberg. The proceedings lasted from 13 November 1946 to 17 April 1947, in the course of which period the Court convened 39 times. The prosecution consumed 8 and the defense 28 trial days. A chronological table of the trial follows:

Indictment filed 13 November 1946
Indictment served 14 November 1946
Arraignment 20 December 1946
Prosecution opening statement 2 January 1947
Defense opening statement 27 January 1947
Prosecution and defense closing 25 March 1947
statements
Judgment 16 April 1947
Sentence 17 April 1947
Affirmation of sentence by Military 17 June 1947
Governor, U.S. Zone of Occupation
Order of the U.S. Supreme Court 20 October 1947
denying writ of habeas corpus

The prosecution introduced into evidence 161 written exhibits, some of which contained several documents. The defense introduced 51 written exhibits. The Tribunal heard the oral testimony of 3 witnesses who were called by the prosecution; 27 witnesses called by the defense were heard by the full court, and 3 before a commissioner. One witness was called by the Tribunal on its own motion. The defendant Milch testified at length in his own behalf.

The members of the Tribunal, and prosecution and defense counsel, are listed on the ensuing pages. Prosecution counsel were assisted in preparing the case by Walter Rapp, Chief of the Evidence Division, Norbert Barr and Bevenuto Selcke, interrogators, and Robert Blakeslie, Nancy Fenstermacher, and Tempa Altman Watson, research and documentary analysts.

The material selected for this volume was principally compiled by Mr. Paul H. Gantt as case editor, working under the general supervision of Mr. Drexel A. Sprecher, Deputy Chief Counsel and Director of Publications, Office, United States Chief of Counsel for War Crimes. Catherine W. Bedford, Henry Buxbaum, Emilie Evand, Gertrude Ferencz, Helga Lund, Gwendoline Niebergall, and Johanna K. Reischer assisted in selecting, compiling, editing and indexing the numerous papers.

John H. E. Fried, Special Legal Consultant to the Tribunals, reviewed and approved the selection and arrangement of the material as the designated representative of the Nuernberg Military Tribunals.

Final compilation and editing of the manuscript for printing was administered by the War Crimes Division, Office of the Judge Advocate General, under the direct supervision of Richard A. Olbeter, Chief, Special Projects Branch, with Alma Soller as editor, Amelia Rivers as assistant editor and John W. Mosenthal as research analyst.

ORDER CONSTITUTING TRIBUNAL II

OFFICE OF MILITARY GOVERNMENT FOR GERMANY (U.S.)
APO 742

16 DECEMBER 1946

GENERAL ORDERS } No. 85 }

PURSUANT TO MILITARY GOVERNMENT ORDINANCE NO. 7

1. Effective as of 14 December 1946, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled “Organization and Powers of Certain Military Tribunals”, there is hereby constituted, Military Tribunal II.

2. The following are designated as members of Military Tribunal II:

ROBERT M. TOMS Presiding Judge
FITZROI D. PHILLIPS^{*} Judge
MICHAEL A. MUSMANNO Judge
JOHN J. SPEIGHT Alternate Judge

^{*} OMGUS General Orders No. 5, 21 January 1947, corrected spelling to Fitzroy D. Phillips.

3. The Tribunal shall convene at Nurenberg, Germany, to hear such cases as may be filed by the Chief of Counsel for War Crimes or by his duly designated representative.

BY COMMAND OF LIEUTENANT GENERAL CLAY:

C. K. GAILEY
_Brigadier General, GSC_
_Chief of Staff_

OFFICIAL: SEAL:
G. H. GARDE Office of Military Government
_Lieutenant Colonel, AGD_ for Germany (U. S.)
_Adjutant General_

DISTRIBUTION: “B” plus 2—AG MRU USFET

MEMBERS OF MILITARY TRIBUNAL II

ROBERT M. TOMS, Presiding
Judge of the Third Judicial Circuit Court, Detroit, Michigan

FITZROY DONALD PHILLIPS, Member,
Judge of the Superior Court for the 13th Judicial District of the
State of North Carolina

MICHAEL A. MUSMANNO, Member,
United States Naval Reserve, on military leave from Court of Common
Pleas, Allegheny County, Pennsylvania

JOHN JOSHUA SPEIGHT, Alternate,
Prominent member of the Bar of the State of Alabama

ASSISTANT SECRETARIES GENERAL

Judge RICHARD D. DIXON From 20 December 1946 to 25 March 1947 Major MILLS C. HATFIELD From 16 April 1947 to 17 April 1947

PROSECUTION COUNSEL

CHIEF OF COUNSEL:
Brigadier General TELFORD TAYLOR

CHIEF TRIAL COUNSEL:
Mr. CLARK DENNEY

ASSISTANT TRIAL COUNSEL:
Mr. JAMES S. CONWAY
Miss DOROTHY M. HUNT
Mr. HENRY T. KING, JR.
Mr. RAYMOND J. MCMAHON, JR.
Mr. MAURICE C. MYERS

DEFENSE COUNSEL

Dr. FRIEDRICH BERGOLD
Main Counsel
Dr. WERNER MILCH^{*}
Assistant Counsel

^{*} Brother of the defendant Milch.

I. INDICTMENT

The United States of America, by the undersigned Telford Taylor, Chief of Counsel for War Crimes, duly appointed to represent said Government in the prosecution of war criminals, charges the defendant Erhard Milch with the commission of war crimes and crimes against humanity as defined in Control Council Law No. 10,[62] duly enacted by the Allied Control Council on 20 December 1945. The defendant Milch between 1939 and 1945 was State Secretary in the [Reich] Air Ministry (Staatssekretaer im Reichsluftfahrt ministerium), Inspector General of the Air Force (Generalinspekteur der Luftwaffe), Deputy to the Commander in Chief of the Air Force (Stellvertreter des Oberbefehlshabers der Luftwaffe), and Member of the Nazi Party (Mitglied der NSDAP). The defendant Milch was also Field Marshal in the Luftwaffe (Generalfeldmarschall in der Luftwaffe) 1940-45, Aircraft Master General (Generalluftzeugmeister) 1941-44, Member of the Central Planning Board (Mitglied der “Zentralen Planung”) 1942-1945, and Chief of the Jaegerstab 1944-1945. The war crimes and crimes against humanity charged herein against the defendant Milch include deportation, enslavement and mistreatment of millions of persons, participation in criminal medical experiments upon human beings, and murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts.

COUNT ONE

1. Between September 1939 and May 1945 the defendant Milch unlawfully, wilfully, and knowingly committed war crimes as defined by Article II of Control Council Law No. 10, in that he was a principal in, accessory to, ordered, abetted, took a consenting part in, and was connected with plans and enterprises involving slave labor and deportation to slave labor of the civilian populations of Austria, Czechoslovakia, Italy, Hungary, and other countries and territories occupied by the German Armed Forces, in the course of which millions of persons were enslaved, deported, ill-treated, terrorized, tortured, and murdered.

2. Between September 1939 and May 1945 the defendant Milch unlawfully, wilfully, and knowingly committed war crimes as defined by Article II of Control Council Law No. 10, in that he was a principal in, accessory to, ordered, abetted, took a consenting part in, and was connected with plans and enterprises involving the use of prisoners of war in war operations and work having a direct relation with war operations, including the manufacture and transportation of arms and munitions, in the course of which murders, cruelties, ill-treatment, and other inhumane acts were committed against members of the armed forces of nations then at war with the German Reich and who were in custody of the German Reich in the exercise of belligerent control.

3. In the execution of the plans and enterprises charged in paragraphs 1 and 2 of this count, millions of persons were unlawfully subjected to forced labor under cruel and inhumane conditions which resulted in widespread suffering. At least 5,000,000 workers were deported to Germany. The conscription of labor was accomplished in many cases by drastic and violent methods. Workers destined for the Reich were sent under guard to Germany, often packed in trains without adequate heat, food, clothing, or sanitary facilities; other inhabitants of occupied countries were conscripted and compelled to work in their own countries to assist the German war economy and on fortifications and military installations. The resources and needs of the occupied countries were completely disregarded in the execution of the said plans and enterprises. Prisoners of war were assigned to work directly related to war operations, including work in munitions factories, loading bombers, carrying ammunition, and manning antiaircraft guns. The treatment of slave laborers and prisoners of war was based on the principle that they should be fed, sheltered, and treated in such a way as to exploit them to the greatest possible extent at the lowest expenditure.

4. The defendant Milch from 1942 to 1945 was a member of the Central Planning Board which had supreme authority for the scheduling of production and the allocation and development of raw materials in the German war economy. The Central Planning Board determined the labor requirements of industry, agriculture, and all other phases of German war economy, and made requisitions for and allocations of such labor. The defendant Milch had full knowledge of the illegal manner in which foreign laborers were conscripted and prisoners of war utilized to meet such requisitions, and of the unlawful and inhumane conditions under which they were exploited. He attended the meetings of the Central Planning Board, participated in its decisions and in the formulation of basic policies with reference to the exploitation of such labor, advocated the increased use of forced labor and prisoners of war to expand war production, and urged that cruel and repressive measures be utilized to procure and exploit such labor.

5. During the years 1939-1945 the defendant Milch, as State Secretary in the Air Ministry, Inspector General of the Air Force, Deputy to the Commander in Chief of the Air Force, Field Marshal in the Luftwaffe, Aircraft Master General, and Chief of the Jaegerstab, had responsibility for the development and production of arms and munitions for the German Air Force. The defendant Milch exploited foreign laborers and prisoners of war in the arms, aircraft, and munitions factories under his control, made requisitions for and allocations of such labor within the aircraft industry, and personally directed that cruel and repressive measures be adopted towards such labor.

6. Pursuant to the order of the defendant Milch, prisoners of war who had attempted escape were murdered on or about 15 February 1944.

7. The said war crimes constitute violations of international conventions, particularly of Articles 4, 5, 6, 7, 46, and 52 of the Hague Regulations, 1907, and of Articles 2, 3, 4, 6, and 31 of the Prisoner-of-War Convention (Geneva, 1929), the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and Article II of Control Council Law No. 10.

COUNT TWO

8. Between March 1942 and May 1943 the defendant Milch unlawfully, wilfully, and knowingly committed war crimes as defined in Article II of Control Council Law No. 10, in that he 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, upon members of the armed forces and civilians of nations then at war with the German Reich and who were in the custody of the German Reich in the exercise of belligerent control, in the course of which experiments the defendant Milch, together with divers other persons, committed murders, brutalities, cruelties, tortures, and other inhumane acts. Such experiments included, but were not limited to, the following:

(_A_) _HIGH-ALTITUDE EXPERIMENTS._ From about March 1942 to
about August 1942 experiments were conducted at the Dachau
concentration camp for the benefit of the German Air Force to
investigate the limits of human endurance and existence at
extremely high altitudes. The experiments were carried out in a
low-pressure chamber in which the atmospheric conditions and
pressure prevailing at high altitudes (up to 68,000 feet) could
be duplicated. The experimental subjects were placed in the
low-pressure chamber and thereafter the simulated altitude
therein was raised. Many victims died as a result of these
experiments and others suffered grave injury, torture, and
ill-treatment.

(_B_) _FREEZING EXPERIMENTS._ From about August 1942 to about
May 1943 experiments were conducted at the Dachau concentration
camp primarily for the benefit of the German Air Force to
investigate the most effective means of treating persons who had
been severely chilled or frozen. In one series of experiments
the subjects were forced to remain in a tank of ice water for
periods up to 3 hours. Extreme rigor developed in a short time.
Numerous victims died in the course of these experiments. After
the survivors were severely chilled, rewarming was attempted by
various means. In another series of experiments, the subjects
were kept naked outdoors for many hours at temperatures below
freezing. The victims screamed with pain as parts of their
bodies froze.

9. The said war crimes constitute violations of international conventions, particularly of Articles 4, 5, 6, 7, and 46 of the Hague Regulations, 1907, and of Articles 2, 3, and 4 of the Prisoner-of-War Convention (Geneva, 1929), the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II, of Control Council Law No. 10.

COUNT THREE

10. Between September 1939 and May 1945 the defendant Milch unlawfully, wilfully, and knowingly committed crimes against humanity, as defined by Article II of Control Council Law No. 10, in that he was a principal in, accessory to, ordered, abetted, took a consenting part in, and was connected with plans and enterprises involving slave labor and deportation to slave labor of German nationals and nationals of other countries in the course of which millions of persons were enslaved, deported, ill-treated, terrorized, tortured, and murdered. The particulars of these crimes are set forth in count one of this indictment and are incorporated herein by reference.

11. Between March 1942 and May 1943 the defendant Milch unlawfully, wilfully, and knowingly committed crimes against humanity as defined in Article II of Control Council Law No. 10 in that he was 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, upon German nationals and nationals of other countries, in the course of which experiments the defendant Milch, together with divers other persons, committed murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts. The particulars of such experiments are set forth in count two of this indictment and are incorporated herein by reference.

12. The said crimes against humanity constitute violations of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and Article II of Control Council Law No. 10.

WHEREFORE, this indictment is filed with the Secretary General of the Military Tribunals and the charges herein made against the above-named defendant are hereby presented to the Military Tribunals.

TELFORD TAYLOR
Brigadier General, USA
Chief of Counsel for War Crimes
Acting on Behalf of the United States of America
Nuernberg, 13 November 1946

-----

[62] See vol. I, this series, pref. pp. III thru XXVIII for basic papers.

II. ARRAIGNMENT[63]

THE MARSHAL: Military Tribunal No. 2 is now in session. God save the United States of America and this honorable Tribunal.

PRESIDING JUDGE TOMS: The Marshal will ascertain whether the defendant, Erhard Milch, is present in Court.

THE MARSHAL: May it please your Honors, the defendant is present in the Court.

PRESIDING JUDGE TOMS: Is counsel for the defendant, Dr. Bergold, also present?

THE MARSHAL: Dr. Bergold is also present in the courtroom.

PRESIDING JUDGE TOMS: Prosecution may proceed with the arraignment by reading the indictment.

[At this point Mr. Clark Denney read the indictment. See p.
360.]

PRESIDING JUDGE TOMS: The defendant will stand. You have heard the indictment just read?

ERHARD MILCH: Yes.

PRESIDING JUDGE TOMS: And it has been translated into the German language which you understand?

ERHARD MILCH: Yes.

PRESIDING JUDGE TOMS: For more than 30 days you have had in your possession a copy of this indictment translated into the German language?

ERHARD MILCH: Yes.

PRESIDING JUDGE TOMS: You have also had the benefit of Dr. Bergold’s counsel for at least 30 days?

ERHARD MILCH: Yes.

PRESIDING JUDGE TOMS: Now then to this indictment how do you plead, guilty or not guilty?

ERHARD MILCH: Not guilty.

PRESIDING JUDGE TOMS: The Secretary General will enter upon the records of the Court the defendant’s plea of not guilty. You may be seated.

The Tribunal has set Thursday, the second day of January 1947 for the commencement of the trial of this action. Will the United States be ready on that date?

MR. DENNEY: The Government will be ready at that time, your Honor.

PRESIDING JUDGE TOMS: Dr. Bergold, will you be ready to proceed with the trial on the second of January?

DR. BERGOLD: Yes.

* * * * *

-----

[63] Tr. p. 7.

III. OPENING STATEMENTS

A. Opening Statement for the Prosecution[64]

MR. DENNEY: May it please your Honors, this defendant is Erhard Milch, Field Marshal in the Luftwaffe, Inspector General of the Luftwaffe, State Secretary in the Air Ministry, Generalluftzeugmeister, sole representative of the Wehrmacht on the Central Planning Board, Chief of the Jaegerstab,[65] and member of the Nazi Party.

This man is accused of war crimes and crimes against humanity in that he took part in the program for the enslavement and ill-treatment of the civilian population of vast territories conquered by the armed forces of Germany and in the employment of prisoners of war in tasks forbidden by the laws and customs of war. He is also accused of the torture and murder of concentration camp inmates and prisoners of war who were made the unwilling subjects of savage and fatal medical experiments.

The life of Erhard Milch is a story of personal and professional betrayal. A man of high intelligence, of great executive ability, he misused these talents to dedicate them to a scheme for conquest and a plan for the enslavement of the world. The 10 years of military service of the defendant from the age of 18 to 28 which took him through the First World War were a perfect preparation for the tasks to come. From 1915 to 1919, Milch was a scout, observer, adjutant and squadron leader in the German Air Force. At the very infancy of military aviation, the defendant began an association which was to last through his entire public career. It was at this time that he learned the needs and the problems of flying men, a knowledge which was to stand him in such good stead in his work as the founder of the Luftwaffe.

The defendant never dissociated himself from the aims and ideals of German militarism. He became one of the silent army of men who remembered, hated, and hoped; but unlike many others, this man did not sit idly by. He did not wait passively for Germany to rise again, he devoted his best efforts towards that end. In 1921, only 1 year after his discharge from the army, we find him working as chief of air operations [flights] in the new business of commercial aviation.

There is no necessity to fill out in detail the successive steps in the defendant’s rise in civilian air transportation—a few broad strokes suffice. The next significant event in his career came in 1925 when he joined the state-sponsored Lufthansa which within 3 years he was to form into the nucleus of a new air force. It is no euphemism that he was called the Father of German Air Transportation.

When Hitler came into power in 1933, Milch acceded to the requests of both Goering and Hitler and assumed the additional duty of State Secretary in the Air Ministry. It was understood from the start, and it was confirmed in 1937, that Milch would succeed Goering as Chief of the German Air Force in the event of the latter’s death or withdrawal. By the time the new Luftwaffe had publicly emerged from such embryos as the Air Sport League, the Air Defense League, and the Flying [Flieger] Hitler Youth, the defendant had become a Generalleutnant (the equivalent of the American major general). The honors which followed: field marshal in the Luftwaffe in 1940, which was gained from 2 months’ participation in the invasion of Norway; Generalluft-Zeugmeister in 1941; member of the Central Planning Board in 1942; Chief of the Jaegerstab in 1944, were proof alike of the evil genius of Erhard Milch and of his complete compatibility with the Nazi ambitions and methods.

This defendant became a member of the Nazi Party in May 1933. His work in the Party was important. He was indeed one of the little group of specialists of whom Mr. Justice Jackson, in his closing address before the International Military Tribunal, aptly said:

“It is doubtful whether the Nazi master plan could have
succeeded without their specialized intelligence which they so
willingly put at its command. They (speaking of Goering, Keitel,
Jodl, and the rest) did so with knowledge of its announced aims
and methods and continued their services after practice had
confirmed the direction in which they were tending. Their
superiority to the average run of Nazi mediocrity is not their
excuse. It is their condemnation.”[66]

Various Germans allowed themselves to be absorbed into the Nazi Party for a variety of reasons. Depression, financial and business betterment, ambition, discouragement with the previous political situation, and human weakness in the face of terrorism, all played their part in the recruitment of the Nazi machine. There were few cases in which a man made as clear, as deliberate, and as discreditable a choice of Nazism as did Milch.

The high esteem in which the defendant was held by Hitler and his position within the inner circle of Nazi militarists can be seen from the fact that he was one of a party of fourteen of Hitler’s highest and most trusted officers who attended a conference in the new Reich Chancellory on 23 May 1939, at which Hitler made known to his military chiefs his plans and objectives. (_L-79._)

All in all, two points stand out in even a quick survey of Milch’s career: First, he never accepted the defeat of Germany in the First World War; his life between the wars was devoted to the work of placing Germany in a position to challenge the world in the matter of air supremacy; and second, he was a man who was unlikely to allow either difficulty or honor to stand in the way of the accomplishment of his purpose—the objectives of the Nazi Party. If these characteristics are borne in mind, much of the defendant’s fanaticism and the unbelievable savagery with which he adhered to the Nazi plan for conquest at the expense of all values of human decency may be seen as the natural consequences of the acts of a man with his criminal philosophy.

We have then, at the outbreak of the war this man, already within the inner circle, already devoted to the Nazi scheme of things and quite essential to their fulfillment, with a record of organization and with the work of preparation behind him—poised with his companions for the kill. We see the air armadas, which were the labor of his love, helping to shatter Poland within 18 days, helping to reduce the Lowlands to smoking ruins within a few days’ time, assisting in the subjugation of the French military machine and in driving the British from the continent in a period of a few weeks. We see the hordes of the Fatherland racing on and on with the air arm always overhead, preparing the way, until Germany had overrun a territory from the Normandy Coast to Moscow, and from the North Sea to El Alamein.

Then began the occupation, the next step in the plan of the Third Reich—an empire which was to last a thousand years. Over an entire continent there spread the deadly rigor of a “Pax Germanica” in which there was to be one citizen class, one race of supermen, and the balance, one class of slaves. At first the occupation overlords maintained the appearance of legality. They gave receipts for the property they plundered, they offered inducements to the laborers they shanghaied, they went through the mockery of signing contracts which were both illusory and fraudulent. But even this sham disappeared as the war went on, and as early as 1942, the German occupation appeared in public as the ugly thing it was, complete with armed recruiters, military escorts on deportation trains and prison camps for the workers brought into Germany. Mr. Justice Jackson, in his opening address on behalf of the United States of America before the International Military Tribunal,[67] vividly described the character and extent of the slave-labor program in the following words:

“Perhaps the deportation to slave labor was the most horrible
and extensive slaving operation in history. On few other
subjects is our evidence so abundant and so damaging. In a
speech made on 25 January 1944 the defendant Frank, Governor
General of Poland, boasted, ‘I have sent 1,300,000 Polish
workers into the Reich.’ (_059-PS, p. 2._) The defendant Sauckel
reported that ‘out of the 5 million foreign workers who arrived
in Germany not even 200,000 came voluntarily.’ * * * Children of
10 to 14 years were impressed into service * * *.

“When enough labor was not forthcoming, prisoners of war were
forced into war work in flagrant violation of international
conventions (_016-PS_). Slave labor came from France, Belgium,
Holland, Italy, and the East. Methods of recruitment were
violent (_R-124_, _018-PS_, _204-PS_). The treatment of these
slave laborers was stated in general terms, not difficult to
translate into concrete deprivations, in a letter to the
defendant Rosenberg from the defendant Sauckel, which stated:

* * * * *

“‘All the men’ (prisoners of war and foreign civilian
workers) ‘must be fed, sheltered, and treated in such a
way as to exploit them to the highest possible extent at
the lowest conceivable degree of expenditure * * *’
(_016-PS_)”.

Working as we do every day with crimes of unbelievable enormity, we are apt to become quite deadened to the hideous nature of specific crimes. It is, therefore, well to stop and consider the particular offenses with which this man stands charged.

Crimes are best evaluated in terms of the rights they violate. The evil, slavery, which is the deprivation of another’s liberty, is best judged through a consideration of its opposite good, freedom. Freedom is, to an extent, properly regarded as the symbol of human progress, the measure of civilization. Much of man’s history can be expressed in terms of his fight for freedom. Man’s personal freedom is his most precious prerogative, the exercise of his free will is his distinctive function. The building of a legal structure to protect the freedom of the individual is the basic purpose of good government. Men have lived for freedom, worked for it, fought for it, and died for it.

It is precisely because of their destructive effects on the freedom of the individual that governments such as the Nazi German State are so hatefully and essentially evil. The Nazi rise to power is a story of duress which ripened into slavery, first for the people within Germany and then for those in the lands she conquered. The enforced labor program was no expedient forced upon Germany by the exigencies of war. It was a basic concept of the Nazi scheme and the permanent destiny of those who would come under the German yoke.

It is most natural, therefore, that Control Council Law No. 10, which was enacted for the guidance of this and other tribunals which are set up for the trial of the principals in the crime of Nazi Germany, should deal in very severe terms with that most Nazi of all crimes—slavery. Article II, paragraph 1 (sec. _b_) specifically names among the enumerated war crimes the ill-treatment or deportation to slave labor of civilian populations from occupied territory and the murder or ill-treatment of prisoners of war. Paragraph 1 (sec. _c_) specifies as a crime against humanity, deportation of civilian populations. Article II, paragraphs 2 and 3 proclaim that anyone taking a principal or consenting part in these crimes, or belonging to a plan or enterprise for the commission of these crimes, is guilty of an offense for which the death penalty may be prescribed.

The prosecution will prove that Milch was a principal in the deportation into slave labor of civilian populations from occupied territories. It will show that he was involved in the murder and ill-treatment of prisoners of war. Evidence will be presented which will prove that he was engaged in plans and enterprises which directly involved the use of slave labor. We will show that this man was as much concerned with the employment of slave labor as was any man in Germany. In his positions as a member of the Central Planning Board, as Generalluftzeugmeister, and as Chief of the Jaegerstab, he had full opportunity to hear all the grim details of the exploitation of slave labor. He participated in decisions and formulated basic policies with reference to its use, and over and above all this he showed his personal animosity and his gratuitous fanaticism in constantly urging the most repressive and cruel measures in the procurement and exploitation of foreign workers.

During the course of this trial, an attempt will be made to distinguish among that which this defendant did as Generalluftzeugmeister, as Chief of the Jaegerstab, as State Secretary for Air, and as a member of the Central Planning Board. At times it will be difficult, if not impossible, to state in just which capacity he was acting at a particular time. We must emphasize now that it is not essential to the proof of this case that we should be able always to specify the exact capacity in which the defendant acted. The multiplicity of his connection with the slave-labor program is his greatest condemnation, and it is because he knew so much and did so much that there can be no excuse for him.

Erhard Milch operated at a policy level high in the chain of command above the work boss and the concentration camp guard. We need not show him driving the workers to their tasks or crowding them into the hovels in which they lived. We are not primarily concerned with the minute details of the slave-labor program which were carried out by minions who obeyed men like the defendant. We were dealing with a planner of a great crime, and it has not been difficult for the law to seek out and punish those who plan as well as those who obey. The law would indeed be derelict if only those were punished who pulled the trigger to kill, or, comparably speaking, ran a slave camp in which people worked an 84-hour week and dragged out a miserable existence under conditions from which death was welcome relief.

This defendant cannot plead in truth that he did not know that the use of slave labor was wrong. He cannot use even the technical excuse, so common among the Nazis, that this was not illegal because the Nazi law authorized it. Official sanction of slavery would have been a law so evil that even the Nazi masters dared not proclaim it. A search through the mass of decrees and pronouncements which passed for law during the regime of Adolf Hitler fails to reveal sanction for slavery of foreign laborers. On the other hand, certain prohibitory laws survived from a more respectable day.

Paragraph 234 of the German Criminal Law (published in 1942 in Munich and Berlin, pp. 364-365) provides that “whoever seizes another by ruse, threat or force in order to expose him in a state of helplessness, or to deliver him into slavery, bondage, or a foreign military or naval service shall be punished for kidnapping by confinement in a penitentiary.” This law was in force during the Nazi regime and was published in the most recent edition of German Criminal Law which we have been able to find.

That maltreatment was commonplace in the course of the enforced labor program in Germany is well known; that starvation, murder, and all types of personal abuses took place is notorious. All of this was found as a fact in the decision of the International Military Tribunal. There can be no question of the responsibility of the defendant for the murders and privations which were the inevitable byproduct of the slave-labor program.

But we need not follow the crime of slave labor down to its last detail in order to show the defendant as the murderer he was. We can and will prove that he directly participated in crimes of which murder was often the intended and on numerous occasions the inevitable result.

The prosecution charges, and will prove, that he took an important, responsible, and essential part in the practice of experiments upon human beings carried out against their wills and in callous disregard of the lives of its victims.

Cut then to bare essentials the charges set forth in paragraphs 8 and 9 of count two of the indictment and in paragraph 11 of count three can be summarized by the statement that the defendant was officially connected with and took a consenting part in enterprises in which criminal medical experiments were performed upon involuntary subjects.

The nature and extent of these experiments and the fact that they were conducted for the specific benefit of the Luftwaffe will be shown in some detail. We will prove that the defendant was the responsible Luftwaffe officer with ultimate supervisory authority over the experiments. The Court will see that throughout the duration of these experiments, the defendant was constantly treated by all concerned as the ultimate authority within the Luftwaffe in control of the experimental equipment and in charge of certain personnel who were actively engaged in them.

Evidence will be presented which will prove that the defendant was thoroughly informed of the criminal activities of Dr. Rascher, the experimenter, and his associates. We will prove that a conference was held at the defendant’s office, that films were shown there, that communications were sent to him from highest Nazi sources which specifically referred to opposition on the part of “narrow-minded doctors” to the experiments. A web of evidence will be adduced to portray the defendant, as he really was, an active partner in crime. We will show that the defendant authorized the initiation of freezing experiments and that he ordered an extension of the high-altitude experiments for a period of 2 months, during which extended period a number of experimental subjects died.

At the conclusion of the evidence with respect to the medical experiments upon human beings there will remain no doubt that Erhard Milch was a knowing, willing, and active participant in murder.

Throughout the trial the prosecution will place before the Court a number of statements which will portray him as a man who believed no tears should be shed for the victims of total war when German soldiers every day were making the ultimate sacrifice for the Fatherland. This man was not a hard-headed, single-minded production chief whose only problem was to get things done and whose rash statements were the impetuous remarks of an over-worked executive. Milch will be shown as a man who boasted of his responsibility in the hanging of prisoners of war, who urged that any effort on the part of foreign workers to strike during enemy action should be met with rifle fire, who offered protection to slave supervisors who should mistreat their subjects. We will show that he was not too busy to inform himself fully of everything with which he was officially connected and that over and above this he went out of his way to learn the most minute details of matters with which he was very remotely connected.

And now a brief word about the type of evidence with which the prosecution will prove its case. It must be borne in mind that we are not concerned with a single localized incident or with a series of such incidents. The proof which we must show cannot be brought forth from the daily events of ordered society. It must be drawn from the cold ashes of a broken nation. The documents which will be brought into Court have been taken from all corners of a continent. They have one common feature which elevates them in the hierarchy of evidence to a place above the story of sincere but fallible eyewitnesses. These documents are official German records, some of them records of the defendant’s own organizations. In some cases they bear the defendant’s signature or his handwritten initials. In every case they are authentic records compiled by Germans, accurate because there was no reason for falsification or exaggeration, thorough because of a national fetish for attention to detail, reliable because they were made at times when the German fortunes of war were high and their scriveners had no reason to fear that one day they would be confronted with their hand-made records of criminality.

It would seem that at this point there should be some discussion of the various organizations with which the defendant was connected.

We are concerned principally with that part of the OKW (Oberkommando der Wehrmacht), Supreme Command of the Armed Forces, known as the OKL (Oberkommando der Luftwaffe), the High Command of the German Air Force. The Chief of the OKL was Reich Marshal Hermann Goering. His Inspector General and State Secretary in the Air Ministry was the defendant Erhard Milch. As such, from July 1940, he held the rank of field marshal (comparable to the American rank of general of the armies).[68]

The other two branches of the OKW with which we are incidentally concerned were the OKH (Oberkommando des Heeres), High Command of the Army, and the OKM (Oberkommando der Marine), High Command of the Navy. The army was commanded by Field Marshal von Brauchitsch until December 1941, at which time it was taken over by Hitler. The navy was commanded by Grand Admiral [Admiral of the Fleet] Raeder until 1943, thereafter by Grand Admiral Doenitz.

The Luftwaffe Medical Service came under this defendant in his capacity as Inspector General of the Luftwaffe. The Medical Service was headed by Dr. Erich Hippke until January 1944; thereafter it was headed by Dr. Oskar Schroeder.

There was an experimental institute in Berlin called the DVL which was a technical research institution for aero-research. This was subordinate to the defendant in his position as Generalluftzeugmeister.

We now turn to the Central Planning Board. This was established by a Goering decree, pursuant to a Hitler order of 22 April, 1942. The Board consisted of Albert Speer, Erhard Milch, and Paul Koerner. Later, by a supplementary Goering decree, in September 1943, Walter Funk was added to the Board. Speer and Milch were the dominant members, and Koerner and Funk played comparatively minor roles. The Central Planning Board was, in effect, a consolidation of all controls over German war production. The Board was found by the International Military Tribunal to have “had supreme authority for the scheduling of German production and the allocation and development of raw materials. * * *”[69] Hand in hand with this goes the corollary of the procurement and allocation of labor. Reich Marshal Goering, in his decree of 22 April, 1942, stated in part——“It (the Central Planning Board) encompasses that which is fundamental and vital. It makes unequivocal decisions and supervises the execution of its directives”. The Central Planning Board requisitioned labor from Sauckel with full knowledge that the demands would be supplied by foreign forced labor, and the Board determined the basic allocation of this labor within the German war economy. Sauckel was the servant of the Central Planning Board in the procurement of slave labor. There are records of some 50-odd meetings of the Board between the time of its establishment in 1942, and 1945. The defendant was present at all but a few of these meetings and on occasion his was the dominant voice. The International Military Tribunal found that the Central Planning Board determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from occupied territories.

It is worthy of note that Speer was appointed Reich Minister for Armaments and Munitions on 2 February 1942, Sauckel was appointed Plenipotentiary General for Labor Allocation on 21 March 1942, and the Central Planning Board was created on 22 April 1942.

Turning now to the defendant’s position as Chief of the Jaegerstab. The Jaegerstab was formed pursuant to a Speer decree of 1 March 1944, for the purpose of increasing the production of German fighter aircraft, which, because of effective and heavy raids by strategic air forces of Great Britain and America, had suffered a production decrease to a figure below 1,000 planes a month.

Because of this reduced production of fighter planes, Milch had requested Speer to establish a commission to deal with this most vital problem. The commission was created and Speer and Milch were joint chiefs. The Jaegerstab was actually a group of experts, drawn from the various phases of German industry and supplemented by representatives of the various Ministries concerned, such as Labor, Supply, Transportation, Power and Energy, Raw Materials, Health, Repairs, and so forth.

Meetings were held almost daily, in the beginning at the Air Ministry in Berlin and later at Tempelhof airfield in the same city. The Jaegerstab functions were these: the quick repair of plants damaged in bombing or strafing operations, the dispersal of German aircraft plants, and the construction of underground factories for aircraft production.

As it was with the Central Planning Board, so it was with the Jaegerstab, a major problem was the procurement of slave labor. The workers for the Jaegerstab were procured from the Sauckel Ministry, from occupied countries, and from the SS, who supplied concentration camp inmates and Hungarian Jews.

So successful was the work of the Jaegerstab that Speer decided to enlarge its functions to include other phases of armament and munitions production. Accordingly, on 1 August 1944, he issued a decree expanding the functions of the Jaegerstab and changing its name to Ruestungsstab.

The position of Generalluftzeugmeister was taken over by the defendant in 1941, following the death of Colonel General Ernst Udet. In this post the defendant was in charge of all technical research in the Luftwaffe and his was the over-all responsibility for all aircraft production. As such he spoke for the Luftwaffe in the meetings of the Central Planning Board and in conferences with Hitler. It is obvious that here again the procurement of labor was a primary consideration for one who had the complete responsibility for keeping the Luftwaffe in the air.

In the trial before the International Military Tribunal, it was determined that 5,000,000 laborers were deported to Germany. Of these, 4,800,000 did not come voluntarily.

The evidence will show that the defendant’s responsibility was as great, if not greater, than was Sauckel’s. Erhard Milch raised his voice in demanding that foreign labor be procured by any methods and in advocating that cruel and repressive measures be taken by those in charge of these laborers. There is no record of any utterance by him, which can be offered as a mitigating circumstance to his complete complicity in the criminality of the slave-labor program.

The evidence on the altitude and freezing experiments will reveal him as a man completely without concern for the welfare and lives of the wretched, unwilling victims of the criminal tortures conducted for the benefit of the Luftwaffe.

The series of trials, of which this is one, if it is to serve its purpose in exposing and punishing the abuses of Nazidom, must strike hard at the cores of savage German militarism and its technical counterpart, industry for war. Erhard Milch is the foremost example of the union between German militarism and German heavy industry. What useful purpose is served by condemning these two and allowing their sponsors, men like Milch, to go unpunished?

We take it as a fundamental proposition that man is not the helpless product of his environment. Civilization is a lengthy chronicle of men who triumphed over difficulty. Its survival depends on the moral fibre of individuals who can use circumstance, not be determined by it. If society must answer for the actions of men, and not men for the course of society, then, indeed, governments are our masters and not our servants; then, indeed, law dictates but does not express justice. Erhard Milch lived during years of violence and in an evil environment but he was a man well able to overcome these factors and become a force for good. It was by his own free choice that he followed the line of least resistance and became one of the evil spirits who cast a dark shadow of war and crime over Germany and the world. He had a choice between the easy wrong and the hard right—he chose the former. Peace, order, and progress depend on men of sufficient courage to choose at times a hard, just path. Ours indeed is an exacting standard, but the rewards are great, and the alternative is chaos.

-----

[64] Opening statement is recorded in mimeographed transcript.

[65] See section IV A3, p. 524 ff.

[66] Trial of the Major War Criminals, vol. XIX, pp. 417-18, Nuremberg, 1947.

[67] Ibid., vol. II, pp. 139-140.

[68] See Table of comparative ranks, p. 331.

[69] Trial of Major War Criminals, vol. I, p. 331.

B. Opening Statement for the Defense[70]

DR. BERGOLD: May it please the Tribunal, I undertake now to present the evidence for the defense. The prosecution has painted the blackest possible picture of the man I am here to defend. It has pronounced a moral judgment on him, even for the period of his life, which, according to the indictment, is not to be judged by this Tribunal.

Because of the great difference between the American and the German people I have no knowledge of whether such a method of prosecution is customary in the United States of America. The good principles of law which were practiced in Germany before 1933 provided that even counsel for the prosecution should not reproach the defendant for anything that is not subject to examination by the Tribunal. The meaning of this is that defense counsel also should be in a position to express his views with regard to these charges. This, according to my opinion, seems to be a fair principle.

Therefore, if it please the Tribunal, it shall be my aim in the course of my submission of evidence to prove by witnesses who have been approved and by the defendant himself that the charges made by the prosecution are incorrect, and I shall aim to prove that also for the charges which are not contained in the indictment.

Erhard Milch has never in his life been a traitor, as a person or in his profession, not even at the end of the National Socialist rule when he himself was threatened as to his life and his honor. As a man of high intelligence and great talent for organization, he always tried to do his best for his people and for the world.

To say of him that he misused his talent and devoted his life to a plan for conquest and enslavement of the world is to have a completely wrong conception of reality. He was never a militarist in the bad sense of the word. Never did he arm secretly before 1933 nor make use of the peaceful instrument of the commercial air fleet for any sinister purposes. He, the man who wanted to devote himself only to the tasks of peace, the man who in his capacity as director of the German Lufthansa collaborated with many European air transport companies and who conceived this collaboration as almost a forerunner of a unified Europe; he, the man who in 1937 devoted all his efforts, together with a few wise and courageous statesmen, to the attempt to bring about a full understanding and a large scale collaboration between France, Belgium, and Germany (unfortunately, the high Tribunal has not given me permission to furnish complete proof for this fact); he, Erhard Milch, truly never tried to enslave the world. If he had succeeded in his plans in 1937, then there would have been no 1938. And, all the more, there would not have been the horrible period of 1939 to 1945, the period in which the battle against intolerance became so hard and so complicated that we might think today that, as in an Arabian tale, this spirit of intolerance freed itself from the bottle and spread itself over so wide an area that, even today, it causes actions which one day must also be condemned by the just and the wise.

I shall prove that from the moment when this man tried, in 1937, to achieve his plans for peace he lost the confidence of his superiors. He never belonged to the intimate circle in which his superiors confided, even less so after 1937. They employed him unwillingly and only because they believed that they could not spare him because of his ability. It is cheap and easy to say now that this man should have denied his superiors the benefit of his talents. We shall prove that he tried to do so. But who can dare to judge with certainty what went on in the heart of such a man who was terribly aware of what dangers threatened his people, once the fateful step of starting the war had been taken? Neither did he want this step nor could he prevent it.

Should he really have chosen the path of revolt, this man who was brought up in a world in which, for all ages, military obedience had been an inviolate law, this man who had a passionate love for his people? How many human beings in any country are capable of breaking the chains of their education, and turn against the laws which have been inviolate for them ever since their childhood?

There is no punishable guilt, perhaps even no moral guilt in the fact that a man cannot free himself from the world of his education. Because it is the very essence of all education to give the man unbreakable laws and to create around him what philosophers call “the environment proper to his own nature.” Therefore, he has not made himself guilty by doing what his education and the conceptions of his environment made him call his duty, in a war which he did not want, which he tried to prevent; and the stopping of which he advised again and again after it had started. This duty, he felt, was to do his work and to prevent the worst which he anticipated, namely, the terrible devastation of his fatherland and its complete and helpless collapse.

I shall prove that he always, even after the war had broken out, concerned himself with questions of defense only; that he wanted to strengthen the fighter force, a defensive weapon with which he wanted to prevent the doom of the German cities. Perhaps, one day, the necessity for this doom will be judged differently. I shall prove that he condemned the attack against Soviet Russia as folly, and that he tried to prevent it. I shall show that in the spring of 1943 he submitted to Hitler detailed proposals for an immediate termination of the war and that he told him without reserve that the war was lost.

If it is true that from that moment onward he made efforts again and again to strengthen the fighter force, and that he took part in the creation of the Jaegerstab, who can reproach him with the intention to prolong the war if it will be proved that he knew that the enemy air forces would make a desert of Germany? Was it inhuman that he tried to prevent this total destruction even if the war was lost? He alone could not end the war. But he could try to prevent the inferno in Germany from becoming full reality. What true lover of his own country in any part of the world would not make the same attempt? Never can he be considered guilty on account of that, and even less so because of the fact that in other countries also voices have arisen and still arise which say that during the destruction of Germany many a thing happened which was not always compatible with military necessity.

Despite the pains he took, his superiors mistrusted him so much that both Goering and Hitler contemplated to have him put out of the way.

I shall show that he never endorsed the theory of the superman and of the master race; that he always remained humane and that he intervened on behalf of friends with disregard for his own security. He never was cruel. It may be that some of the minutes carry wild speeches about him which must strike your Honors who come from a different world and are used to different customs as terrible and incomprehensible. I shall prove to you that in the barracks yards, which made the first impress on the sensitive mind of young Milch, wild expressions were quite common and that in German barracks yards bombastic expressions were considered normal and truly militaristic style. Nobody in Germany did at any time take these expressions at face value. For this human element in particular, the old saying holds true that dogs which bark do not bite.