Chapter XLVIII: Section 2: A III f (13)

A. That was not a bonus but the President of the Air Ministry told me that the industry wanted to give me a present to the value of 50,000 marks. I told him that I rejected this present; it looked to me like bribery. He immediately withdrew the offer, especially as he knew that never in my life had I accepted a present from industry while I was in government service.

* * * * *

Q. Was it possible for you to remove directors of industry, or to appoint them?

A. No. Either there were limited companies [G.m.b.H.], or shareholder companies, and they had their own organizations, their own administrations. The shareholders appointed the board of directors and the board of directors decided who was to be the general manager, and we never interfered with that.

* * * * *

Q. Witness, will you explain to the Tribunal how overburdened you were with work during all these years?

A. May I refer to my field of tasks which is shown in one exhibit?

DR. BERGOLD: May I ask this Tribunal now to see the charts which are in the document book—the first document?

* * * * *

A. Until the end of 1941 my main task was that of Inspector General of the Luftwaffe. From that point onward, the work as GL took the first place, while in my capacity as Inspector General I was continuously travelling by plane. But as Inspector General I was tied more closely to the Berlin ministry. Oh, I beg your pardon, I mean to say as GL. There we had meetings every day; and in my capacity as GL I took over a technical staff in the Ministry of over four thousand. I reduced this staff to about half; but in spite of that the number of conferences and meetings could not be reduced. Therefore, I had to go through the incredible amount of papers which were to be read and also the papers which had to be signed; and I had to take them home in the evening. I think that always amounted to two large suitcases and sometimes even three of them. On the average I would work at home until 2:00 o’clock, a.m. The reading was the main task because in all technical matters I had to be up to the mark myself; and that was not very easy for me because, after all, I had not studied technique but rather was a self-taught man as a soldier who had been a pilot. In the morning I would start my duties at 9:00 o’clock or at 9:15. Generally I would eat my lunch at my desk, and often I even ate my dinner at my desk, so that I had the impression that I was overburdened with work. Even apart from these two functions, as GL and Inspector General of the Luftwaffe, the direction of the different other offices in the Ministry made quite a lot of work for me, though in my last position the excellent General Foerster took most of the work off me.

Q. Witness, are the offices correct as they are shown on this chart which I have submitted to the Tribunal, and can you confirm them as such?

A. Yes.

DR. BERGOLD: May it please the Tribunal, this concludes my interrogation; and I make room now for the prosecution.

_CROSS-EXAMINATION_

MR. DENNEY: You testified as a witness before the International Military Tribunal on behalf of the defendant Goering, did you not?

A. Yes, I did.

Q. And in the course of your testimony before the Tribunal you stated that you were the second highest officer in the air force?

A. Yes, that was my rank.

Q. So that the only one who ranked higher than you was Goering?

A. Yes.

Q. And that continued up until the time when you told us this morning that you completely withdrew, which, I believe was some time in January of 1945?

A. Yes. May I remark here that from 1937 several officers were in the second place. That is to say, the chief of the general staff, the chief of the personnel office, and also the GL. We were all of the same rank, as it were, but I was the most senior officer among them.

Q. And under Goering there were really four echelons; that is, the chief of staff, the inspector general, the GL, and the director of the personnel office?

A. Yes. They were all equal to each other.

Q. Goering was on top, and then came these four in a parallel line below him; is that right?

A. Yes, under Goering.

Q. And you, from 1941, November, following Udet’s death until sometime in the middle of 1944, held both the office of GL and inspector general?

A. That is correct.

* * * * *

MR. DENNEY: If your Honor pleases, I ask that this be marked Prosecution Exhibit 133 for identification. This is a letter, dated 1 April 1943. The writer of the letter is Sauckel, and the letter is addressed to the defendant.

“Most honored Field Marshal,

“I take the liberty of enclosing in confidence three copies of
the speech I gave in Poznan on 5 and 6 February 1943, on the
occasion of the Reich and Gauleiters meeting and beg you kindly
to peruse it. The figures contained in this speech refer to the
end of the year 1942. Of course, the figures given concerning
utilization of labor have again increased in the meantime. I
would ask for your continued sympathetic understanding of the
interests of manpower utilization, and your understanding and
assistance in my task as far as possible. On my side, I can
assure you that I always have asked the offices of the labor
allocation administration subordinate to me for close and
successful cooperation with all departments, and that I will do
so for the future too.

“Heil Hitler,
“Yours respectfully,
[Signed] “Sauckel”

And, on the 7th, the last page, the defendant acknowledges receipt of this letter:

“Most esteemed Gauleiter,

“I thank you most cordially for kindly transmitting to me the
speech you made in Poznan on 5 and 6 February 1943 on the
occasion of the Reich and Gauleiters meeting.

“Heil Hitler! Yours.”

* * * * *

Q. Do you recall receiving it from Sauckel on 1 April 1943?

A. No. At the beginning of April I wasn’t there the first few days. I see a remark, by somebody else, on this document. It probably says—I can’t read it very well—“for the files of the Central Planning Board”. Perhaps this letter may have been submitted to me later on—I do not know whether I replied myself. I certainly did not read the report because otherwise I would be able to recall the figures.

Q. But you did initial the letter, didn’t you?

A. I do not know. I do not recall it at all.

* * * * *

MR. DENNEY: On the copy that your Honors have, I believe it’s apparent in the upper left-hand corner of the first page, the defendant’s initials appear there, as well as on the original letter.

* * * * *

Q. Now, do you ever recall saying that you would put the German workers into concentration camps, the ones who did not work well?

A. When I talked about slackers, I referred to education by Himmler, but not to sending them into concentration camps. Himmler had other training places for workers where such people who were disinclined to work were being trained by making their supplementary rations dependent on their production.

Q. Don’t you recall that you asked that certain camps be set up especially to take care of these German workers who weren’t doing well?

A. I did not say that we should make a special camp, but that they should go to the training camps which already existed and we could get them back from there. I do wish to emphasize here these were people, Germans, who did not do their duty towards their Fatherland. I thought it justified that such people should be trained.

* * * * *

MR. DENNEY: Witness, I believe you said you kept a diary?

A. A diary? You could not call it exactly a diary, I only took some short notes concerning my stay, and I jotted down a few key words which conveyed generally the most important matters.

Q. That was lost, was it, or destroyed, when you were captured?

A. It has not been lost. I still have it here.

Q. That is what you are referring to?

A. If I look up where I was at a particular day or what personalities I met, I refer only to the most important questions, not to everything, I can see whom I was with. Sometimes there is a table of contents, too, which is more detailed, according to the interest I had in those questions. For instance, for 28 October, which you referred to a while ago, I only have the following: My dispute with Goering he had reported to Hitler; he had not obtained anything, and now he started to vent his bad humor on me. Then comes a short note again that there was a conference afterwards with Goering. That was in Karinhall. It went on for the whole day. It was one hour from Berlin by car. I noted down that Speer was there, that Sauckel was there, Grawitz, von der Heyde, and some others. There is no mention what subjects were discussed, but the attendance of Sauckel clarifies the matter for me. That is an example of how I would enter these notes in this book.

Q. Insofar as you recall, you were at that meeting on 28 October?

A. Yes, indeed. I have found it here in my book.

* * * * *

PRESIDING JUDGE TOMS: Mr. Denney, let’s get an unequivocal answer to this. Did you put the initials on the letter from Sauckel?

MILCH: The “Mi”, yes, indeed.

Q. You wrote that?

A. Yes, I did. I wrote it. Somebody else wrote “to the files—”

Q. Never mind what somebody else wrote. Now, on the first page of the pamphlet, the printed speech, there are some initials. Did you write those?

A. On the cover, yes; I did, “Mi, 6/4”, that is what I wrote.

Q. All right.

MR. DENNEY: Do you recall saying that Americans were never assigned to work in any of the airplane factories?

MILCH: Yes, I said that.

Q. This is Document NOKW-364, which is a partial translation of the minutes of the Jaegerstab, held on 19 June 1944. The cover page, which is photostated here in the German, which will be given to the Secretary General, bears the initials of the defendant.

PRESIDING JUDGE TOMS: Is this a new exhibit?

MR. DENNEY: Yes, your Honor. This will bear Prosecution Exhibit Number 135 for identification, if your Honor pleases. Document NOKW-364, a partial translation of the minutes of the Jaegerstab of a meeting held 19 June 1944. On the covering page there appear the initials of the defendant. Perhaps the Secretary General would be good enough to let Mr. Blakeslee have the original so the cover page can be shown to the defendant. Just show it to him, Mr. Blakeslee.

(The document was handed to the defendant.)

* * * * *

MR. DENNEY: Do your records show that you attended a conference of the GL on 4 August 1942?

A. Yes, indeed. These discussions were twice a week. (_NOKW-409, Pros. Ex. 140._)

* * * * *

JUDGE MUSMANNO: Curiosity consumes me as to what would happen if an officer inferior in rank to yourself took you at your word and actually executed a number of these workers or prisoners of war. Would that officer then be punished?

A. No one was there who would have been in a position to do that. Apart from that, all those who were under my orders knew me and my way of handling things. They knew that I didn’t mean it, and apart from that they always laughed about my remarks when I let myself go, as they said.

Q. In other words the comment of the Field Marshal in a matter of this seriousness was really of no value?

A. Because the people knew that I got excited very easily about certain things, and these incidents here have been selected and produced. From every one of these meetings which took place twice a month, there was a long report and owing to one or other of these reports, maybe once or twice, there would be a certain outburst or explosion, and then, as we soldiers were accustomed to do, we would just get mad, that is all. However, I didn’t intend to do anything about it and I spoke to those under my orders when the opportunity offered. They pointed the matter out to me. They knew exactly from my words that this was not meant seriously. They knew exactly that no such order had been given and that I myself would never cause anybody to be punished, not even then when it might have been justified, for the very simple reason that I did not have the power to administer punishments.

JUDGE PHILLIPS: Mr. Denney read this paragraph to you, Document NOKW-409, Prosecution Exhibit 140. I understood you to say this, that the paragraph did not contain your attitude there, that you never gave such an order, that when you were worried you sometimes used strong language as a soldier would. Didn’t you say that?

A. Yes.

Q. Well, now whether you meant it or not, you would say these things, and by so doing you counseled and advised others under you at a meeting over which you presided to do such things. Whether you meant it or not you did that, didn’t you?

A. No, I never gave an order by using these words, because my people spoke with me, and they knew afterwards from my words that I never meant it earnestly.

Q. Didn’t you say, “I would band the workers together and have fifty percent of them shot. I would then publish this fact and compel the other fifty percent to work by beating if necessary.” Did you say that or not?

A. I do not remember having said that. However, three days ago I believe I said that, when I had such a rush of blood to my head, due to that injury I had, and I couldn’t remember what I had said at that particular moment. I just burst out with rage.

Q. Well, if you did say that, you were advising and counseling others to do that, were you not?

A. No, that was not a counsel or an advice to anybody else. On the contrary, it was known that if someone had done such a thing I would have intervened myself.

* * * * *

[March 20]

JUDGE MUSMANNO: Since we are on the subject of Jews, I would like to refer to something which occurred at the first trial. Now you are not compelled to discuss this matter if for any reason you prefer not to, but you will recall that you were cross-examined by Justice Jackson on the subject of your being Aryanized. Do you recall that?

A. Yes, I recall it.

Q. Now you gave an explanation at the trial which, however, was not definite, it seems to have left something in mid-air, and since you have given us quite a long autobiographical sketch of yourself, if you would care to enlighten us on this point, you are free to do so.

A. My point of view is as I stated at the time.

Q. Yes.

A. That point of view I still adhere to.

Q. Let us see. You were asked certain questions and gave certain answers as follows:

“Question: At that time” (Goering had referred to 1933) “Goering
had you—we will have no misunderstanding about this—Goering
made you what you call a full Aryan; was that right?

“Answer: I do not think he made me one; I was one.

“Question: Well, he had it established, let us say.

“Answer: He had helped me in clearing up this question, which
was not clear.

“Question: That is, your mother’s husband was a Jew; is that
correct?

“Answer: It was not said so.

“Question: You had to demonstrate that none of your ancestry was
Jewish; is that correct?

“Answer: Yes, everybody had to do that.

“Question: And in your case that involved your father, your
alleged father, is that correct?

“Answer: Yes.” [There the inquiry rested.]

A. Yes.

Q. Just what had to be done to demonstrate that you were a full Aryan, and why did the question arise?

A. The first time that question arose was in 1933, and the occasion was the following: The president of the German Aero Club was reported as being adverse to the Hitler regime, and I protected that man. Following that, a man who was a member of the SA sent a letter to Goering, and I may add that this was a man who was trying to become a state secretary in the Air Ministry, and he had been deeply hurt when he, an old Party member, had to take second place to me. In this letter he said that State Secretary Milch was not a full Aryan. This happened in the summer of 1933. Goering forwarded this letter to me, and I went to Goering. Following that I was asked to submit my family tree. That is how this matter arose.

Q. In other words, you had to establish that no Jewish blood flowed in your veins, is that correct?

A. Yes, that is what I was supposed to do.

Q. And you established that to their satisfaction?

A. That was established.

* * * * *

Q. * * * Now, I understand you to say that the first time you learned of the proposed war against Poland was on 21 August, and even then it was not very clearly indicated that a war could actually be unleashed, and that further it was not until the very end of the day, that is to say, at five o’clock in the afternoon of 31 August that you were directed to put the Luftwaffe, or all your forces, in readiness for the attack. Is that correct? Is that what you said?

A. On 31 August, not to get ready, but I received the order: “The attack starts tomorrow,” that was the order for an attack, whereas, over-all preparations had been made previously at the meeting which took place with Hitler on 22 August, only then there was still the possibility of negotiations which were still going on. These negotiations came to an end on 31 August at 1700 hours.

Q. Did you not tell this Tribunal that after the meeting of 23 May 1939 you were convinced that war was not intended?

A. 23d of May?

Q. Yes, 23 May 1939?

A. Yes.

Q. That you had no intimation that Hitler intended an aggressive war on Poland?

A. Yes, because at that time, according to my recollection, Hitler stated again and again that he was certainly going to settle the Polish problem, but that he would not allow war to break out.

Q. And that you had called to his attention the necessity of manufacturing bombs, because you believed that hostilities might break out?

A. That was before that date, before the 23d, and also after the 23d, because I myself did not share Hitler’s optimism. Although he may not have intended to wage war, his policy might nevertheless have led to war, for he alone was not the deciding factor, the others would have something to say as well.

Q. And that assumption lulled you into the conviction that there would be no war, since he refused you authority to manufacture bombs?

A. Today I must assume that, at that time I was not aware of it.

* * * * *

Q. When did you first learn that an attack on Russia was intended?

A. At the beginning of January 1941—I beg your pardon—yes, that is right, 1941, on 13 January actually. It was then that Goering, during a conference with a large circle of commanding officers, informed us that one’s attention should be turned to the East, as Hitler was fearing an attack by the Russians.

Q. Yes, and you finally came to the conclusion that the declaration of war, or rather, the undeclared war against Russia was a crime against Germany.

A. Yes.

Q. Did you think it was a crime against Russia?

A. Yes, against Russia also.

Q. Also?

A. Yes.

Q. Now, you endeavored to see Hitler to persuade him not to enter this war.

A. Yes.

Q. And your immediate circle, your military friends, realized that it was foolhardy to provoke a war with Russia and thereby establish two fronts?

A. Exactly the way I saw it, yes. My immediate circle were of the same opinion as I was.

Q. And all the generals were of the same impression—that it was hopeless for Germany, and that further it was tragic and suicidal to Germany to allow Hitler to take over the control of the armed forces? You were practically unanimous in that belief, were you not?

A. This was never discussed in any larger circles.

Q. But you have testified—it is in the record—that you were all of that belief.

A. It transpired at a later stage, when it was discussed, that they were all of the same opinion.

Q. When was that?

A. Later on in the course of the war.

Q. When did you realize that it was a mistake to have Hitler as Commander in Chief of the Armed Forces?

A. I, personally?

Q. When was it thoroughly recognized, even though not expressed at a public meeting among the generals, that it was suicidal, a great mistake, to have Hitler as Commander in Chief?

A. That was the general point of view after Stalingrad. That is when it became general.

Q. And when was that?

A. That was the end of January 1943.

Q. Yes. You still had two and a half years of war ahead of you?

A. Yes.

Q. Why didn’t you do something about having Hitler removed?

A. It was my duty toward my people to keep allegiance to him. I had sworn an oath of allegiance to Hitler. I am only a human being who can see this world subjectively and I cannot presume to be an impartial judge on such questions. Moreover, I believe that in the whole of Germany’s history there is not one instance of soldiers rising against their military commander. I certainly do not know of one.

Q. Even though you realized that Hitler was leading Germany into stark annihilation and unspeakable hardship, and even though all the generals were of that same belief, yet you upheld this fetish of an allegiance which was destined, and very clearly so, to bring unparalleled misery to the people that you professed to be faithful to?

A. Your Honor, I personally did not presume to say that my judgment was right, and that Hitler’s judgment, and the judgment of all those around him, was wrong.

Q. Then, you modify your statement that Hitler was wrong? You say that he might have been right?

A. No, no, I am not saying that. What I am trying to say is that it was my point of view that the question whether the head of the state was to be overthrown or not was a matter for the constitution, and that for this eventuality the constitution and the state must surely have powers, means through which in such cases there could be intervention; but then it could not be the task of any individual general to take steps in such questions, which were, after all, unlawful.

* * * * *

-----

[139] The defendant Milch testified in his own behalf on eight full trial days (March 11, 12, 13, 14, 17, 18, 19, and 20, 1947). His testimony is recorded in 581 mimeographed pages (_Tr. pp. 1696-2276_).

[140] Wolfgang Vorwald, former Commander of Luftgau (Air Force Administrative Command) VII, Munich.

[141] Defendant in case of United States _vs._ Ernst von Weizsaecker, et al. See Vols. XII, XIII, XIV.

[142] Doc. R-124, Pros. Ex. 48-A, Conference of 1 March 1944, pp. 484-498.

V. CLOSING STATEMENTS

A. Closing Statement of the Prosecution[143]

MR. CLARK DENNY: We close today the trial of a major war criminal—a leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen. The evidence set forth before the Tribunal has shown that Erhard Milch was primarily implicated as a leader in a program to bring laborers into Germany by force, of allocating them to the various segments of the German war economy, and of munitions.

We deal here with a top military and economic planner who at all times was fully informed as to the aims and objectives of the Nazi plan. Unlike his colleagues Speer and Sauckel, Milch entered the conspiracy early. The defendant was one of a small group of men who constituted the leadership of the Reich.

Before dealing directly with the responsibility of the defendant for the crimes charged in the indictment, as shown by the evidence, we should like to review, briefly, the law applicable to these crimes.

_THE LAW_

The indictment charges and the evidence has connected the defendant with a wide variety of crimes incident to the enforced labor program of the Nazi regime. In themselves, these crimes are not new except in their enormity. In domestic law they have, from ancient times, borne such familiar titles as assault, battery, murder, kidnapping and pillage. In international law the principles which protect the individual from undue interference with his person and his personal freedom have given rise to a series of kindred precepts governing the conduct of a nation which has gained factual control over the citizens of another state. We shall consider briefly some salient precepts and prohibitions of international law up to, and including the provisions of Control Council Law No. 10.

Much of the labor which supplied Germany with the tools of total war was exacted from people who had been uprooted from their homes in occupied territories and imported to Germany. Displacement of groups of persons from one country to another is the proper concern of international law insofar as it affects the community of nations.

The law has recognized that some conditions may justify the transfer of people from one country to another. Correspondingly, and with much more relevance to the present case, international law has enunciated certain conditions under which the fact of deportation becomes a crime.

If the transfer is carried out without a legal title, as is the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has prevented temporarily the rightful sovereign from exercising power over its citizens.

Articles 43, 46, 49, 52, 55, and 56 of the Hague Regulations, which limit the rights of the belligerent occupant, do not _expressly_ specify as a crime the deportation of civilians from an occupied territory. However, Article 52 states the following conditions under which services may be demanded from the inhabitants of occupied countries:

1. They must be for the needs of the army of occupation;
2. They must be in proportion to the resources of the country; and
3. They must be of such a nature as not to involve the inhabitants in
the obligation to take part in military operations against their
own country.

Insofar as this section limits the conscription of labor to that required for the needs of the army of occupation, it is clear that the use of labor from occupied territories outside of the area of occupation is forbidden by the Hague Regulations.

The illegality of the deportation of civilians in territories under belligerent occupation was demonstrated in the First World War when the Germans attempted a deportation program of Belgian workers into Germany. This measure met with world-wide protest and was abandoned after about four months.

Among the voices raised in protest against the deportation of Belgians by Germany in 1916-1917 was that of Lansing, Secretary of State. He wrote:

“The Government of the United States has learned with the
greatest concern and regret of the policy of the German
Government to deport from Belgium a portion of the civilian
population for the purposes of forcing them to labor in Germany,
and is constrained to protest in a friendly spirit but most
solemnly against this policy which is in contravention of all
precedent and all principles of international practice which
have long been accepted and followed by civilized nations in
their treatment of noncombatants in conquered territory.”

Other protests were lodged with the German Government by Spain, Switzerland, Netherlands, and Brazil, all neutral countries. International lawyers all over the world condemned Germany’s action in the strongest terms.

The opposition in the German Reichstag accused the government of violating the Hague Convention and refused to vote for the war budget.

It is worthy of note, in passing, that the defendant has testified at this trial that he knew of this effort at deportation of labor on the part of Germany in the First War and that he was much interested in the investigation conducted by a Reichstag Committee concerning this matter. He could not have followed this investigation, as he admits he did, without learning that the deportation in question was a violation of international law.

The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal. A conspicuous example of illegality of purpose is found when the deportation is for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country.

An attempt has been made by the defense in this trial to show that persons were deported from France into Germany legally and for a legal purpose, by pointing out that such deportations were authorized by agreements between Nazi and Vichy French authorities. This defense is both technically and substantially deficient. Many of the Vichy Government’s highest officials, who held office by reason of and under the protection of Nazi power, have been punished for treason by the present legitimate government. And, too, the agreements themselves were illegal—because they were exacted under duress, and because they were void _ab initio_ because of their immoral content. It is common knowledge that even the puppets of Vichy did not of their own accord agree to the Nazi deportation measures. It is equally clear that these agreements were _contra bonos mores_. Then, too, it was illegal for any French Government to conclude agreements which provided for the compulsory mass deportation of French workers to aid the enemy’s war effort. At the time of the agreement between Germany and Vichy there was merely a state of suspension of hostilities. French resistance had not ceased, and the outcome of the war continued to be uncertain. Lastly, the deportation agreements were invalid because their manifest purpose was to aid Germany in the commission of the crime of aggressive war. That an agreement in furtherance of an act which is illegal in international law is invalid has been stated by various authorities. For example, Professor Charles Cheney Hyde, of Columbia University, defines as internationally illegal “agreements which are concluded for the purpose of, and with a view to, causing the performance of acts which it (international law) proscribes.”

Professor Hall, page 382 of the 8th Edition of International Law (1924), declares:

“The requirement that contracts shall be in conformity with law
invalidates, or at least renders voidable, all agreements which
are at variance with the fundamental principles of international
law and their undisputed applications * * *.”

Lauterpacht on International Law by L. Oppenheim, in volume I, page 706, states:

“It is a unanimously recognized customary rule of international
law that obligations which are at variance with universally
recognized principles of international law cannot be the object
of a treaty.”

The final condition under which deportation becomes illegal occurs whenever generally recognized standards of decency and humanity are disregarded. This flows from the established principle of law that an otherwise permissible act becomes a crime when carried out in a criminal manner.

A study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements, that deportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is illegal, or whenever the deportation is characterized by inhumane or illegal methods.

Article II (1) (_b_) lists under war crimes “ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory.” It is clear that Law No. 10 establishes the following separate and distinct crimes: ill-treatment of civilians from occupied territories; deportation to slave labor of such civilians; and deportation for any other purposes of such civilians.

The prohibition of deportation of civilians from occupied territories irrespective of the purpose, as stated in Control Council Law No. 10, is a recognition of the principle of international law that a power in belligerent occupation has no right or authority (title) to deport the citizens of the occupied territories. The separate specification as a war crime in Law No. 10 of ill-treatment of civilians from occupied territories is a recognition of the rule of international law, as heretofore discussed, that even an otherwise lawful deportation (by an authority having title and for a legitimate purpose) is rendered illegal where the deportees are ill-treated.

Without entering into a detailed discussion of the evidence, it should be pointed out at this point, that all these conditions for criminal deportation were abundantly present in the enforced labor program of Germany during the 2d World War, and that the _knowing connection_ of the defendant with all phases of illegal deportation has been established.

Article II (1) (_c_) of Control Council Law No. 10 specifies certain crimes against humanity. Among these is listed the “deportation * * * (of) any civilian population * * *”. The general language of this sub-section, as applied to deportation, indicates that Control Council Law No. 10 has indeed unconditionally condemned, as a crime against humanity, every instance of the deportation of civilians. Under this sub-section, there would seem to be no room for argument as to the legality of any agreement on the part of any government, legitimate or illegitimate, which allows deportation of its subjects in time of war.

We come now to a consideration of the crime of enslavement. Whereas Article II (_b_) names deportation to slave labor as a war crime, Article II (1) (_c_) states that the “enslavement * * * (of) any civilian population” is a crime against humanity. Thus, Law No. 10 treats as separate crimes, and different types of crime, “deportation to slave labor” and “enslavement.”

Article II (_b_) does not specify as a crime the detention (as distinguished from the deportation) of civilians for use as slave labor or for any other purpose. However, the section does stipulate that any atrocities or offenses against persons which constitute violations of the laws or customs of war, _including but not limited to_ deportation to slave labor, are war crimes. Use or detention of persons from occupied territories for slave labor or for any other purpose, in and of themselves, _do_ constitute violations of the laws and customs of war. Ergo, such use or detention is a _war crime_ within II (1) (_b_) of Law No. 10.

The _crime against humanity_ which is termed “enslavement” in Article II (1) (_c_) of Law No. 10 is susceptible of two meanings. It can be understood to embrace the initial act of deprivation of the freedom of another, and an act whereby such deprivation is continued, or either of them, or it may be interpreted as referring only to the initial measures whereby a person is deprived of his freedom.

It is the contention of the prosecution in this case that all phases of the slave labor program, the taking, the transportation, the detention, the use and the inhuman treatment of foreign workers as practiced by the Nazi state and participated in by the defendant, constitute enslavement within the meaning of Article II (1) (_c_). No sufficient reason appears for the limitation of the crime to the mere initial act. In every true and complete sense a person is enslaved from the moment when his liberty is taken from him until the time when it is restored to him. It is more than probable that if Law No. 10 is intended to limit the crime of enslavement to the initial measures under which a person was deprived of his liberty, there would have been some definite indication, either in the language or in the context of the statute.

Even if we were to concede the narrowest possible meaning for the term “enslavement” in Article II (1) (_c_), so as to understand by it only the first acts of deprivation of liberty, all acts under which such people were kept in an enslaved status would be crimes against humanity, because the same section defines as such any atrocities and offenses committed against the civilian population. By express proviso “enslavement” and “deportation” are only illustratively mentioned, and “other inhuman acts committed against any civilian population” constitute crimes against humanity.

The result is that whether we adopt the broad interpretation of the term “enslavement” or the narrower one, the deportation, the transportation, the retention, the use and the inhuman treatment of civilian populations are crimes against humanity. The prosecution charges that the defendant was criminally connected with all the phases of the slave labor program, whether these divisions be comprehended within the technical term “enslavement” or be divided between the crime of “enslavement” and that of “other inhuman acts.”

We shall now make brief comment on the subject of the treatment and use of prisoners of war. The Hague and Geneva Conventions merely codify the precepts of the laws and usages of all civilized nations. Article 31 of the Geneva Convention provides that “labor furnished by prisoners of war shall have no direct relation to war operations.” Thus the Convention forbids:

1. The use of prisoners of war in manufacture or transportation
of arms or munitions of any kind, and

2. The use of prisoners of war for transporting material
intended for combat units.

The Hague Regulations contain comparable provisions.

The essence of the crime of the misuse of prisoners of war derives from the kind of work to which they are assigned—in other words, to work directly connected with the war effort. The prosecution would like to recall to the court the evidence which connects the defendant with both the _illegal employment_ of prisoners of war and with their abusive treatment. The Tribunal will recall that the defendant ordered the murder of prisoners of war who attempted to escape. We will discuss this crime more fully later. It will be remembered that there never has been a substantial denial of the fact that prisoners of war were used to man German antiaircraft batteries. Nor is it subject to doubt that prisoners were used in air armament industries over which the defendant exercised supervisory control.

We now come to the consideration of the basic charges and the law governing the defendant’s complicity in, and responsibility for, the Medical Experiments Program. The fundamental crime with which the defendant is charged in this connection is murder. Also involved are various atrocities, tortures, offenses against the person, and other inhuman acts.

The applicable provisions of Control Council Law No. 10, Article II, are (_b_) war crimes, (_c_) crimes against humanity. In connection with the criminal Medical Experiments Program, the prosecution submits that the defendant is guilty of—

(_a_) War crimes, namely violations of the laws and customs of
war, as the medical experiments performed upon involuntary
persons, some of them nationals of countries at war with the
German Reich, involved the commission of murders, tortures, and
other inhuman acts.

(_b_) Crimes against humanity, namely medical experiments
performed upon involuntary German nationals and nationals of
other countries, in the course of which, brutalities, murders,
and other inhuman acts were committed.

Before we pass from the law involved in this case to a consideration of the evidence, we wish to mention the legal basis for the prosecution’s contention that the defendant must share the guilt which attaches to the slave labor program and the conduct of medical experiments upon unconsenting human beings. Control Council Law No. 10 defines for us the theory upon which this trial proceeds in Article II, paragraph 2, when it says:

“Any person without regard to nationality or the capacity in
which he acted, is deemed to have committed a crime as defined
in paragraph 1 of this Article, if he was (_a_) a principal or
(_b_) an accessory to the commission of any such crime, or
ordered or abetted the same or (_c_) took a consenting part
therein or (_d_) _was connected with plans or enterprises
involving its commission or_ (_e_) _was a member of any
organization or group connected with the commission of any such
crime_. * * *” [Emphasis added.]

Without wishing to limit the scope of the testimony in this case, the Tribunal’s attention is directed to the evidence which has established that the defendant, as a member of the Central Planning Board, and the Jaegerstab, and as Generalluftzeugmeister, and in every one of his capacities, was connected with “plans and enterprises” for the commission of war crimes and crimes against humanity, and was a “member of organizations and groups”, within the meaning of subdivisions (_d_) and (_e_) of paragraph 2, “connected with the commission of such crimes”.

Count One, paragraph 6, of the indictment charges the defendant Milch with guilt in the murder of prisoners of war who had attempted to escape from enforced labor in German war industry. The gist of this crime is murder, which is, and always has been, prohibited by every country which laid any claim to civilization. It was specified as a war crime under the Hague and Geneva Conventions and under the provisions of Article II of Control Council Law No. 10. The evidence which connects the defendant with this crime will be discussed in another part of this summation.

Law Number 10, Article II, paragraph 3 provides that the death penalty or lesser sentences may be prescribed for the commission of war crimes and crimes against humanity as defined in the statute.

We turn now from the law to the evidence. In the presentation of its case in chief, the prosecution first offered evidence to describe the slave labor program in Germany in all its stark terror. It then turned to a presentation of the proof which connected the defendant with the slave labor program in two of his principal capacities, as member of the Central Planning Board and as member of the Jaegerstab. Next there was put in evidence the documents which established the defendant’s connection with the medical experiments, and finally, after the defense had put in its case, the defendant was confronted with the evidence of additional documents which connected him with the detention and mistreatment of slave labor in his capacity as Generalluftzeugmeister. In summing up the evidence the prosecution wants to keep roughly the same order. It will deal in turn with the evidence of the defendant’s activities as member of the Central Planning Board and as member of the Jaegerstab. The documents relating to the defendant as Generalluftzeugmeister will then be dealt with and, in conclusion, the defendant’s implication in the criminal medical experiments will be discussed.

When, in the course of presenting the evidence, we first turned our attention from the general documents which established the body of the crime of slave labor to the documents which were to prove the defendant’s connection with that crime, we asked the Court’s attention to certain key words which we said would run like small threads through our proof. These words were cited to be “procurement, allocation and use”. It was stated that we would often use them. We offered many documents to prove Milch’s connection with each of the functions described by these key words. Once again, we ask the Tribunal to keep these words in mind.

The Central Planning Board, which was established in April 1942, served as a means of consolidating in a single agency all controls over German war production. The minutes of the Central Planning Board which have been submitted to the Tribunal reflect the dominant role played by the defendant at meetings of the Board.

The best evidence of the scope and authority of the Central Planning Board is contained in the Board’s own minutes. The first conference of the Central Planning Board was held on 27 April 1942. The duties and responsibilities of the Board were announced in these words:

“The Central Planning in the Four Year Plan (decree of the Reich
Marshal of Greater Germany [Goering] of 22 April 1942) is a task
for leaders. It encompasses only principles and executive
matters. It makes unequivocal decisions and supervises the
execution of its directives. The Central Planning does not rely
on anonymous institutions difficult to control but always on
individuals and fully responsible persons who are free in the
selection of their working methods and their collaborations, as
far as there are no directives issued by the Central Planning.”

Then, six months later, on 20 October 1942, the statutes of the Central Planning Board were published and distributed. A portion of these states:

“The Central Planning Board created by the Fuehrer and Reich
Marshal in order to unify armament and war economy deals only
with the decision of basic questions. Professional questions
remain the task of the competent departments which in their
field remain responsible within the framework of the decisions
made by the Central Planning Board.”

It is addressed to: “The highest Reich authorities, the Reich Protector, the Governor General and the executive authorities in the occupied countries.” The letter of transmittal stated in part:

“Enclosed I send you for your information the statutes of the
Central Planning Board with the request to support the office of
the Central Planning Board in every possible way in its work,
and to direct, more particularly, your section chiefs and
reporters to forward all information requested orally, or by
writing, in the shortest possible time. By this collaboration by
your section chiefs and reporters, the building up of larger
machinery in the framework of the Central Planning Board is to
be avoided.”

The International Military Tribunal found that the Central Planning Board “had supreme authority for the scheduling of German production and the allocation and development of raw material”.

It needs no emphasis that the effective performance of these functions necessarily involved the Board in the requisitioning and distribution of labor, and the records of the Board, which have been submitted, leave no doubt that the Board exercised the authority conferred upon it in the field of labor. The International Military Tribunal in its opinion found that the Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor, and that the Board determined the basic allocation of this labor within the German war economy.

In assessing the guilt of the defendant Funk, the Court said:[144]

“In the fall of 1943, Funk was a member of the Central Planning
Board which determined the total number of laborers needed for
German industry, and required Sauckel to produce them, usually
by deportation from occupied territories. Funk did not appear to
be particularly interested in this aspect of the forced labor
program, and usually sent a deputy to attend the meetings, often
SS General Ohlendorf, the former Chief of the SD inside of
Germany and the former Commander of Einsatzgruppe D. But Funk
was aware that the Board of which he was a member was demanding
the importation of slave laborers, and allocating them to the
various industries under its control.”

Bearing in mind the fact that Funk was a minor member of the Board, how much greater is the responsibility of the defendant who was a dominant figure on the Board throughout its existence.

There is no need to review in historical detail the defendant’s personal participation in the criminal activities of the Board. A few references to the pattern for 1944 will suffice. The Tribunal will recall that Albert Speer, the other dominant member of the Board, was ill during most of this period.

On 4 January 1944, demands were made at a Hitler conference that Sauckel produce four million new workers from the occupied countries. The defendant was present at the conference, and at this meeting, Sauckel, in pledging himself to perform his recruitment tasks, indicated that the demands could be met only by Himmler, and the promise of assistance was forthcoming from the Reich Leader SS.

The allocation of this labor to the various sectors of the German economy was determined by the Board at its 53d meeting. The defendant was the presiding officer at this meeting. The chart compiled by Milch and found in his files shows his personal knowledge of the sources of the labor being allocated.

Sauckel was, however, unable to satisfy completely these demands. He reported this inability at its 54th meeting. This meeting of the Board was presided over by the defendant, and the minutes which we have submitted show the subordinate position occupied by Sauckel with respect to the Board. The Tribunal will recall Sauckel’s opening statement:

“Field Marshal, gentlemen, it goes without saying that we shall
satisfy as far as possible the demands agreed upon by the
Central Planning Board.”

And then later on in the meeting:

“If I am to fulfill the demands which you present to me * * *.”

We shall not review in detail the minutes of this meeting, but the Tribunal’s attention is again directed to the fact that Sauckel was questioned closely by the defendant who suggested that the Wehrmacht be assigned to the task of assisting in the recruitment drive. The defendant suggested that French workers be coerced by a system of premeditated starvation. In dealing with the problem of Italian laborers, the defendant suggested that only those who went to Germany or worked in protected factories be given food.

As a further means of meeting the manpower shortage, consideration was given to possible measures for increasing the productive power of prisoners of war. Accordingly, on 5 March 1944, a conference was held at the Fuehrer Headquarters. It is evident from the minutes which have been submitted to the Tribunal that the defendant was in attendance. The Tribunal will recall that the decision was made to give the direction of the Stalags to the SS, in order to increase the production power of the prisoners. This was not to apply to the Americans or the English. The Tribunal will take judicial notice of the methods of the SS.

On 7 July 1944, Sauckel issued a report showing new manpower placed at the disposal of German war industry during the first half of 1944. We shall not review in detail this report, but merely state that it is proof of the Board’s directive to Sauckel.

This report, however, showed a deficit, and on 11 July 1944 a further conference was held to solve the question of how greater compulsion could be exerted on persons to work in Germany. The defendant has testified that he was in virtual retirement from production matters since late June 1944. Yet the record of this conference shows that he was present. The result of this conference was the greater utilization of the Wehrmacht in the recruitment of forced labor. The directive of Field Marshal von Kluge, which has been submitted in evidence, makes specific reference to the results of this conference.

Here, in brief, we have the picture. The defendant and the Board, of which he was a dominant member, requisitioning forced labor from Sauckel, allocating this labor to the various sectors of the German war economy, and later improvising new and more brutal techniques of force and terror for the recruitment of new labor.

The defense, besides denying the power and authority of the Central Planning Board, has challenged the authenticity and accuracy of its transcripts. The prosecution has been compelled to rely upon these minutes for much of its proof.

In this connection, it might be said that these same transcripts constituted the basis for findings of fact by the International Military Tribunal. They are quoted in the decision of that Court.

The statutes of the Central Planning Board, mentioned a few minutes ago, show the extreme care taken to insure the accuracy of reporting these meetings, as well as action taken or ordered to be taken. The statutes of the Board provide in part: