Chapter LII: Section 2: A III f (17)

When I come to consider in how far Milch’s activity on the Central Planning Board could be charged against him, I am aware that some of the minutes of the Central Planning Board could, in themselves, be interpreted as a charge against Milch. But if your Honors consider that out of sixty meetings of the Central Planning Board the prosecution could only list fifteen meetings in which labor questions were discussed—this being done in some instances in a perfunctory and casual way—it results from this fact already that the Central Planning Board, as to its aim, was not charged with the guiding of manpower, which at that time was the focal point of many schemes in all countries and, above all, in Germany.

In this trial there was much argument between the prosecution and the defense as to the significance and the essence of the Central Planning Board until, eventually, with the help of the key Document NOKW-245, Prosecution Exhibit 157, the argument was decided. There it says literally, “Speer and I (that is, Milch) are of the opinion that he (Sauckel) has to be incorporated somehow in the Central Planning Board in order to get the labor assignment, as well as the material, into our hands. At the present time we have no possibility to steer it.” These words were voiced on 23 February 1943 after the Central Planning Board had been in existence for already one year. These words were not voiced at that time for the purpose of _ex post facto_ whitewashing, but they expressed the complete truth and have characterized the situation in quite simple and clear words for always and unmistakably. No decree has been submitted, nor order of Hitler has been proved, to show that this situation was changed. At no time, indeed at no time, was Sauckel a member of the Central Planning Board. If the prosecution wants to consider the wish Milch uttered at that occasion as incriminating, they are at liberty to do so. However, this is not a punishable deed, and nobody can tell what amount of good Milch could have done if he had factually been in charge of the labor assignment. His other deeds account for the assumption that he would certainly have stopped abuses and would have mitigated all that was necessary as far as possible. The members of this trial would not believe, at first, in the depositions of all the witnesses who have been heard here, including Koerner, stating that the Central Planning Board dealt with labor questions merely for reasons of information. The wording of the speeches seemed to contradict it. But, your Honors, the witnesses have also testified before you that the speeches could only be understood if they are read. Prosecution Exhibit 157 has put an end to all such doubts. Whoever wants to pronounce here the verdict with all the necessary seriousness cannot bypass this document. Nobody can contend any longer that the defendant has not told you the full truth. Therefore, his statement under oath is to be believed, which agrees with Speer’s statement in that the so-called labor assignment meetings were held with Sauckel always with the sole aim to obtain from Sauckel, who had reported so many false figures and was not scrupulous about telling the truth, eventually and for once, clear figures. Likewise, Document NOKW-195, Prosecution Exhibit 143, the report on the meeting of 28 October 1943, held at Goering’s place, shows a constant struggle with Sauckel in order to obtain true figures because Hitler would not believe that Sauckel’s figures were completely false. It has been proved that factually both Speer and Milch have been reproached because they did not fulfill the program made by Hitler, although many millions of workers had allegedly been at their disposal. Alone for air armament, according to Goering’s calculation based on Sauckel’s figures, five million workers should have been available—whereas the entire air armament employed a much lower total of people. As Hitler was a dangerous man and his reproaches could have disagreeable consequences, Speer and Milch cannot be blamed for wanting to get this subject clear; consequently, if they discussed this problem in detail—especially during the 53d and 54th meetings of the Central Planning Board—this has nothing to do at all with labor procurement. That these meetings have not been summoned by Milch—that they have been summoned by Speer and his ministry—has been proved. Milch presided over these meetings only because Speer was ill. But he only carried through the order of his friend Speer. But even these discussions do not alter the fact that the Central Planning Board as such had nothing to do with labor procurement. These very discussions were of a purely informative nature. By them the Central Planning Board did not obtain any influence on the carrying out of labor procurement nor on its distribution. How characteristic it is, however, for the personality of Milch that he used even this discussion about Sauckel’s figures in order to reduce the millions of new workers whom Hitler had ordered in January 1944 to quite a considerable extent.

In all the discussions submitted there is nowhere a word to be found, either to the effect that Milch had requested workers for his air armament. If the need for workers was under discussion, then always only, as the defendant himself confirmed, in regard to the basic industries—that is, mining and the iron industry and in regard to agriculture. It was always a question, as the records show, of the commitment of prisoners of war. But even according to the Geneva Convention prisoners of war may be employed in mining, in the production of iron, and in agriculture. These places of work are not actual armament industries.

That Milch did not have anything to do with the commitment of Russians in antiaircraft defense, which was not under him at all; that, on the contrary, he even opposed it, and that that part of the minutes of the 33d meeting of the Central Planning Board must be incorrect here, too, has been stated by the witnesses Hertel, Koenig, as well as others equally incontestably. It has now been proved that this order was issued by the OKW directly via Goering.

Thus Milch, in his capacity as member of the Central Planning Board, was neither perpetrator of, nor accomplice in, crimes; nor did the Central Planning Board have as its purpose the commission of such crimes. Its sole purpose was the distribution of raw materials—an activity which is not prohibited under any conditions.

The third activity of Milch which could bring him in connection with the so-called slave labor was the activity on the Jaegerstab. Were one to view this membership in the Jaegerstab from the point of view of the prosecution, one could perhaps maintain the previously formed opinion that this activity was limited to the increased use of slave labor. The testimony of Speer, Vorwald, and Milch, however, have shown that the Jaegerstab had two main aims, namely, first, to raise the production of fighter planes and, secondly, to facilitate Milch’s resignation from his office by transferring the entire air armament industry to the ministry of Speer.

Formerly, to be sure, Milch was one of the chairmen of this Jaegerstab, but the witnesses—among them Schmelter, Hertel, Eschenauer and Vorwald—have testified that the actual chairman of this Jaegerstab was Saur. Milch very soon withdrew from the Jaegerstab; in March 1944 he still participated in fifteen meetings, in April only eight, in May only five, and in June only two. Nothing proves the veracity of the testimony of the defendant more than the quite obvious decrease in his participation. If one considers the fact that the Jaegerstab held its meetings daily one realizes how rapidly the decrease in the activity of the defendant was. If one considers furthermore that he was not always present at the meetings at all, that he did not hear most of the details of the discussions at these meetings, one can say with certainty that he was really not the man who had the biggest influence in the Jaegerstab, and who performed the practical work there. The expression “breakfast director”, which the witness Dorsch applied to the defendant, characterizes the situation excellently. The Jaegerstab was concerned with labor questions only insofar as it guided the so-called transfer of workers who were already working in industry, in the event changes in production occurred, especially effecting, as far as possible, their transfer from closed down bomber factories to fighter plane factories. However, in this connection it is almost exclusively a question of so-called skilled workers, as the witness Schmelter, a specialist in this field, has confirmed. In this process no new workers of any kind were introduced into industry. The witness Schmelter, however, finally expressly confirmed that no real influence was exerted on Sauckel and his offices. Wishes regarding the transfer were merely referred to the Organization Sauckel. This fact in particular was emphasized in the statement of Schmelter with all the clarity desirable.

Thus, it has been proved in regard to this committee, too, that it had nothing to do with the bringing of workers into Germany from abroad, nor dealt with their redistribution. Thus, it was also not the purpose of the Jaegerstab to decide labor questions. Finally, it has thus been clarified that the ministry of Speer was the office which handled labor questions, insofar as it was necessary in the framework of the transfers. On the basis of the submitted documents, it seems at first as though the Jaegerstab had initiated and carried out the building of underground factories or of concrete protected factories above ground. The witnesses Speer, Hertel, Eschenauer, Koenig, Pendele, as well as Milch, himself, however, all clearly and decisively confirmed that these constructions were ordered directly by Hitler and Goering, and that the defendant had opposed these orders because he considered them senseless. It has furthermore been declared that Hitler himself, handled the needs of workers for these undesirable constructions. The Jaegerstab was connected with these constructions, according to all the testimony, only to the extent that it had to examine which ones of the fighter plane factories had to be installed in them. In this connection it must be remembered that a number of these constructions were also allocated for armament factories of the Wehrmacht. Thus, Milch also cannot be charged with any responsibility in this count. He was neither formally nor actually in a position to prevent Hitler’s and Goering’s orders.

Nor had Milch anything to do with the allocation of Hungarian Jews to these factories, quite apart from the fact that it has been made clear that these Jews were allocated only in the summer of 1944, which was stated by the last prosecution witness, Krysiak, that is, at a time when Milch had withdrawn from his office for some time. It has been proved that Hitler issued relevant orders here and that the Jaegerstab trip to Hungary was entirely unconnected with this matter because it was undertaken solely for the purpose of a conference with the legal Hungarian government. These consultations were merely concerned with agreements regarding aircraft production by the Hungarian industry in the large caves near the Danube. Not one single document has shown that Milch either agreed to or welcomed the employment of Hungarian Jews.

To sum up, I may say then that even within the Jaegerstab Milch was neither a principal nor an abetter in the crimes listed in the indictment. I might add that it was not the purpose of the Jaegerstab to carry out such crimes. In any case he was by no means the leading man on that board. It has been found with certainty beyond all doubt that the Jaegerstab served the purpose of helping the defendant to withdraw from office.

Mention must also be made of the question of concentration camp inmates working. Before going into details, I should like to make a few basic remarks. From all the trials in which I acted as counsel, from the questions asked in this courtroom, from various discussions I have had with citizens of your country, I have, your Honors, attained the certainty that in your circles no one believes in the truthfulness of the defendants’ and all other witnesses’ statements, namely that the average German knew nothing about the happenings in the concentration camps and that the defendant did not know of the existence of such camps, with the exception of Dachau and Oranienburg. As most Germans certify to this and as all witnesses swear to this under oath, it is first of all difficult to understand why such statements are not believed. It can only be explained by the fact that the citizens of your country have been so much influenced by press propaganda and the newly discovered facts that they put more trust in the reports of their newspapers than in the assurances of the citizens of a country which is now known throughout the world as the place of origin of many atrocities.

But should such prejudice which does not originate from [one’s] own and actual experience influence the judgment? I believe and always have believed that it is one of the essential laws of justice to base one’s judgment strictly on facts which have become evident during a trial. It is a proven fact that in Germany no one was allowed to write about concentration camps; that the rules of secrecy which had been imposed by the dictatorial regime had to be kept very strictly; and that even the German authorities in case of their violating these rules of secrecy, were threatened with death, as I have proved by the submission of Defense Exhibit 36.

From the statement of the witness Roeder, who, incidentally, explained that the defendant had neither the power of passing a death sentence nor of sending people to concentration camps, you have learned that the concentration camp inmates spoke to nobody about their condition. Even the prosecution witness Krysiak has told you that the prisoners did not dare to lodge complaints to anybody. How could the Germans generally learn about conditions in concentration camps? Milch, too, could not and did not learn about them, as he has told you, for the secrecy was kept even among the highest authorities. May the propaganda of your country insist on the contrary as much as it likes, what I have stated here still remains true, and I can certify it myself.

I myself who during the time of the so-called Third Reich often enough defended men who were accused because of their political views, I, who was watched by the Gestapo, who was attacked in the public newspapers of Nuernberg and especially was mentioned with name in the notorious “Stuermer” on account of my defense of unhappy Jews, I, too, didn’t learn anything about these camps, although clients came to me after their release from the concentration camp Dachau. I always asked them and I always received the answer that they had nothing special to report. It was, of course, no pleasant life, but they reported that it was not so bad.

I would ask you, your Honors, to consider how we could have learned of these conditions.

May I remind you in this connection that deeds have been committed in the east of the former German territory, in the Sudeten-German border territories of Czechoslovakia, and other countries, deeds which, even if one imagines them at their worst, remain far behind the truth. About these atrocities the international press has kept silent although one day history will speak and one will learn about them with horror. I have refused to give proof of the events which were brought about by your armies after the collapse. I could have mentioned many deeds which can be called nothing but grave infringements against the Geneva Convention. I could have given you a picture of how in the prisoners’ camps in the early days hundreds of German prisoners died of starvation. I am not accusing anyone. Shortcomings of organization and of human nature but not express orders and rules account for it.

I only mention this, your Honors, in order to point out that you did not learn about this and that it is only our unhappy and wretched people who know about it. But we who have had the bitter experience of the power of propaganda and of the force of secrecy know that ignorance of such matters can be excused and believed. Therefore, no one may say from the outset that all the unanimous statements by witnesses and the declarations of Milch are to be disbelieved. They have been sworn to; and the verdict must take them into consideration.

According to these it is certain that Milch only knew of the employment of concentration camp inmates in the Heinkel plant in Oranienburg and that he was of the opinion that these were German criminals and German political prisoners, of whose mistreatment, however, he had no knowledge. The use of prisoners and convicts is not a crime against humanity. This, however, should not have to be mentioned. In all countries in the world it is customary for prisoners to be obliged to work. In Germany this was even regulated by law to such an extent that the prisoners who were condemned to prison, that is, not to the penitentiary, also had to work. For a prisoner to have to work is not an atrocity. An atrocity can be seen only if the prisoner has to do this work under conditions which injure his health or which are inhuman.

But Milch did not know that the food, the housing, and the treatment of the prisoners were inhuman. One would have to prove such knowledge before one could punish him for it. You have heard, on the contrary, that he always did everything possible when he heard of individual cases of abuse. He even tried to help, as the Kruedener affidavit, Defense Exhibit 37, proves, in a case where he was not competent. As the testimony of Kruedener revealed this was a case of inadequate accommodations. Moreover, as the witness Koenig has testified, he instituted an improvement in the food given the prisoners at Rechlin on his own initiative, and he generally saw to it that workers got better rations.

But that does not mean that he knew that those prisoners were starving. It was unfortunately so that because of the total blockade of Germany by the Allied forces the food available to the civilian population of Germany was very poor. I myself had only had the minimum ration card; and I could tell you a long story about how difficult it was to work on such rations. Milch, however, obtained better food for everyone working under him for armament. It was he who was the first to obtain extra rations for his air armament industry because the workers worked overtime. As a number of records of the Central Planning Board and the Jaegerstab show, he obtained additional rations for the prisoners of war and, for example, sent the Russians into agriculture so that they might get better food there and be padded a little. He had an office set up in the Jaegerstab in order to obtain additional food and clothing for the workers, as the witness Schmelter has testified.

The improvement in the food of the inmates of Rechlin concentration camp was part of these measures. If he did this through his estate, it was because he had no influence with the administration of the concentration camps in respect of the issue of additional ration cards.

It would not correspond with justice if he was pronounced punishable for the employment of concentration camp inmates under these conditions. The compulsory labor of prisoners has always been lawful in Germany even before the Third Reich. He knew nothing of cruelties and atrocities or inhuman treatment. Therefore, his consent to these cannot be proved.

If I may summarize then, I believe that my opening statement for the defense had correctly revealed that Milch was not a slave holder, moreover that he never aspired to be one, that he was of the opinion that the employment of such workers was permitted, and finally that he had done everything to keep down the employment of foreign workers as much as possible and to make it as humane as possible. At any rate the prosecution’s description of him is in no way accurate, and could only originate from a misunderstanding of the man, his speeches, and of his background. Sauckel and Speer had far greater responsibility in this connection. It was they who had real influence, and not Milch, but even in the case of Speer who was higher than Milch in his position, the International Military Tribunal has granted extenuating circumstances in connection with the manpower issue. I am convinced that Milch thought employing such labor was permissible, and that he did everything in his power to keep such employment to the lowest level and as human as possible.

I am conscious of the fact that the verdict of the International Military Tribunal is a great obstacle for me, and nevertheless the Tribunal was merely composed of human beings, and it had passed judgment under particularly difficult circumstances, and in composition it opened the door to politics into the courtroom. I do not need to remind you that in the English speaking countries, several verdicts of the Tribunal were subjected to very serious criticism. I myself here attacked one point of this verdict with better witnesses and better evidence, that with regard to slave labor, for example, the International Military Tribunal based itself upon a wrong assumption. Nobody stated there that the U.S.S.R. had called off the Hague Convention of Land Warfare. I checked up on those features of defense, and I found that all the time it was only talk that the U.S.S.R. had not become a partner of the convention. The statement of von Neurath revealed that notice of withdrawal was expressly given.

Here we not only pronounce penalty verdicts or judgment, but also political judgments, whether we want to or not. Especially in politics there is always some fluctuation. Every day new facts turn up, which throw different light upon things. The distance of time which always grows greater and greater and separates us from the irritating events of the past allows an ever clearer judgment. The man who returns from battle is always confused. The more he becomes calm the more he admits justice towards his enemy.

Honorable Judges of this Tribunal, when you judge please don’t forget the whole personality of Milch. He always concerned himself as a good and noble man, and I am not only convinced of that as his counsel but also as a human being. The world would have a different outlook if his superiors had listened to his advice, which was intended to serve the people of this world, and the common will of the people, and peace. In his heart he always took the side of the fighter who fought for united Europe, which now has been joined also by his former enemy number one, Churchill. May this statement of Milch which has thrown new light upon things serve this aim. Poor and tortured Europe needs an enduring peace. May his statements also open the eyes of those among the German people who still cannot give up their misconceptions of many years, and show them what crime has been committed against them.

But you, Honorable Judges, must recognize from the attitude of the defendant Milch that he never became unfaithful to himself, and even if he had been perhaps under the spell of erroneous conception, he has always wanted the best for his and other people.

I have profound confidence in you, Honorable Judges, that you, equally detached from your own people, will find an independent, true and righteous judgment that corresponds to the truth. I shall consider it as an honor for my person if I have contributed to this through my painstaking labor.

-----

[152] Defense Counsel Dr. Friedrich Bergold delivered the closing statement before the Tribunal on 25 March 1947, Tr. pp. 2377-2435.

[153] Trial of the Major War Criminals, vol. I, p. 226.

[154] Ibid., p. 253.

[155] Memorandum of 15 September 1941 from Canaris to Keitel concerning an OKW order regulating the treatment of Soviet prisoners of war, contained in _Nazi Conspiracy and Aggression_, vol. VII, p. 411, U.S. Government Printing Office, Washington, 1946.

VI. FINAL STATEMENT OF THE DEFENDANT,
25 MARCH 1947[156]

DEFENDANT ERHARD MILCH: Since I became a soldier in 1910 my work has been devoted to my German people. In the First World War I was at the front from the first to the last day. Then with others I built up the German air lines, and when in 1933 the government asked me to enter the Air Ministry, despite many misgivings, I could not refuse to take up that task because it was pointed out to me that I could not turn a deaf ear to this call of the German people.

I have remained faithful to the idea which I conceived at the time of the air lines, that all nations must collaborate, particularly the European nations. Pressed together in a small area, and whenever possible, mostly outside my actual sphere of work, I dedicated myself to that task. I was opposed to war because my experiences from the First World War showed me that the living standard of any people would not be improved by war, and on the contrary everybody would be grievously harmed.

It was for me a matter of course, even in the late great war, the planning of which was unknown to me, to do my duty in my post. My full effort was dedicated to the air defense of the German homeland. This I conceived to be the only possibility to obtain bearable peace terms. Even though I had nothing to do with the employment of workers, including foreign workers, I considered it to be my duty to make precise investigations into the admissibility of work by foreigners, investigations which were answered in the affirmative; I also made efforts to keep the numbers as low as possible and to see to it they would work in protected factories in foreign countries.

I always made efforts to improve the living conditions of all types of workers.

My statements made to the best of my knowledge and conscience to this Tribunal were directed to the world at large, and above all to the German people, in order to show that only by peaceful understanding of the nations among each other could life and civilization be secured in future and that understanding was not only necessary but also possible if good will prevails. But I also wanted to show my fellow Germans quite clearly that an autocratic government which is not controlled must end in disaster.

My personal fate is of no consequence in this connection. I am interested only in one thing—that the German people should, as soon as possible, be relieved of their untold suffering and should join the community of nations as an equal partner.

-----

[156] Tr. pp. 2489-90.

VII. JUDGMENT

A. Opinion and Judgment of the United States
Military Tribunal II[157]

The indictment in this case contains three counts, which may be summarized as follows:

_Count One_: War crimes, involving murder, slave labor,
deportation of civilian population for slave labor, cruel and
inhuman treatment of foreign laborers, and the use of prisoners
of war in war operations by force and compulsion.

_Count Two_: War crimes, involving murder, subjecting
involuntary victims to low-pressure and freezing experiments
resulting in torture and death.

_Count Three_: Crimes against humanity, involving murder and the
same unlawful acts specified in counts one and two against
German nationals and nationals of other countries.

For reasons of its own, the Tribunal will first consider counts two and one, in that order, followed by consideration of count three.

COUNT TWO

More in detail, this count alleges that the defendant was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving medical experiments without the subjects’ consent, in the course of which experiments, the defendant, with others, perpetrated murders, brutalities, cruelties, tortures, and other inhuman acts. The so-called medical experiments consisted of placing the subject in an airtight chamber in which the air pressure is mechanically reduced so that it is comparable with the pressure to which an aviator is subjected at high altitudes, and in experimenting upon the effect of extreme dry and wet cold upon the human body. For these experiments inmates of the concentration camp at Dachau were selected. These inmates presented a motley group of prisoners of war, dissenters from the philosophy of the National Socialist Party, Jews, both from Germany and the eastern countries, rebellious or indifferent factory workers, displaced civilians from eastern occupied countries, and an undefined group known as “asocial or undesirable persons.”

In approaching a judicial solution of the questions involved in this phase of the case, it may be well to set down seriatim the controlling legal questions to be answered by an analysis of the proof.

(1) Were low-pressure and freezing experiments carried on at
Dachau?

(2) Were they of a character to inflict torture and death on the
subjects? (The answer to these two questions may be said to
involve the establishment of the _corpus delicti_.)

(3) Did the defendant personally participate in them?

(4) Were they conducted under his direction or command?

(5) Were they conducted with prior knowledge on his part that
they might be excessive or inhuman?

(6) Did he have the power of opportunity to prevent or stop
them?

(7) If so, did he fail to act, thereby becoming _particeps
criminis_ and accessory to them?

The periods during which these experiments were conducted become extremely significant in determining the responsibility of the defendant. The evidence is uncontradicted that the low-pressure experiments were inaugurated in March 1942, and were concluded by the end of June 1942. The cold water experiments extended from August to October 1942, and the freezing experiments from February to April 1943. During all of these periods the defendant was Under State Secretary of the Reich Air Ministry, Inspector General and Second in Command under Goering of the Luftwaffe, to which post he was appointed 19 November 1941. In these various capacities, certain military duties devolved upon him, especially as Inspector General. For example, he was ordered by Hitler to take an air squadron to Norway on a purely military expedition, and during the siege of Stalingrad, early in 1943, he was ordered by Hitler to attempt to transport into Stalingrad by air food and supplies for the beleaguered German Army. His high military standing is indicated by the fact that he was one of the twelve field marshals of the German armed forces. The major part of his duties, however, revolved around the production of aircraft for the Luftwaffe. He was primarily a production man, charged with the duty of keeping military airplanes supplied in sufficient quantity to the air arm of Germany’s military machine. This naturally involved the procurement in large quantities of the two essential ingredients of production—labor and raw material—and an over-all supervision of any efforts having to do with that arm. One of the defendant’s immediate subordinates was Professor Hippke, who held the post of Inspector of the Medical Services of the Luftwaffe. Hippke was a physician, and had supervision of all matters involving the health and physical welfare of the personnel of the Luftwaffe.

The low-pressure experiments at Dachau were conducted by three physicians, Dr. Romberg, Dr. Ruff, and Dr. Rascher. It is quite apparent from the evidence that Dr. Rascher, who was attached to the Luftwaffe but made frantic efforts to have himself transferred to the SS, was principally responsible for the nature of the experiments. Dr. Ruff and Dr. Romberg were also attached to the Luftwaffe and were, therefore, remotely under the command and control of the defendant, but the evidence is persuasive that, although they were interested in and helped conduct the experiments up to a certain point, the excesses which resulted in torture and death are attributable to Dr. Rascher. It is quite apparent that the actual activities of these three physicians were far removed from the immediate scrutiny of the defendant even though their activities were conducted within the orbit of the Luftwaffe, over which the defendant had command.

Approaching now the determinative questions listed above, some progress can quickly be made in arriving at judicially satisfactory answers.

(1) As to the first question, the evidence is overwhelming and
not contradicted that experiments involving the effect of low
air pressure and freezing on live human beings were conducted at
Dachau from March through June 1942.

(2) Approaching the second question, it is claimed by the
defendant that only legitimate scientific experiments were
conducted which did not involve pain or torture and could not
ordinarily be expected to result in death. It is remotely
possible that so long as the experiments were under the guidance
of Dr. Ruff and Dr. Romberg some consideration was given to the
possible effect upon the subjects of the experiments. But it is
indisputable that the experiments conducted by Dr. Rascher
involved torture and suffering in the extreme and in many cases
resulted in death. Under the specific guidance of Dr. Rascher,
the air pressure was reduced to a point which no flier would
ever be required to undergo (14,000 meters). The photographs of
the subjects undergoing these experiments indicate extreme agony
and leave no doubt that any victim who was fortunate enough to
survive had undergone a harrowing experience. The Tribunal does
not hesitate to find that these experiments, performed under the
specious guise of science, were barbarous and inhuman. It has
been urged by the defendant that the only persons used as
subjects of these experiments were habitual criminals who had
been sentenced to death and who were given the dubious option of
offering themselves for the experiments and receiving as a
reward, if they survived, a commutation of the death sentence to
life imprisonment. This claim scarcely merits serious
consideration. A number of witnesses stated that they had a
vague understanding that this was the case, but the record is
entirely barren of any credible testimony which could possibly
justify such a finding of fact.

(3) The prosecution does not claim (and there is no evidence)
that the defendant personally participated in the conduct of
these experiments.

(4) There is no evidence that the defendant instituted the
experiments or that they were conducted or continued under his
specific direction or command. It may perhaps be claimed that
the low-pressure chamber, which was the property of the
Luftwaffe, was sent to Dachau at the direction of the defendant,
but even if this were true it could not be inferred from that
fact alone that he thereby promulgated the inhuman and criminal
experiments which followed. The low-pressure chamber was
susceptible of legitimate use and, perhaps, had Dr. Rascher not
injected himself into the proceedings, it would have been
confined to that use.

(5) Assuming that the defendant was aware that experiments of
some character were to be launched, it cannot be said that the
evidence shows any knowledge on his part that unwilling subjects
would be forced to submit to them or that the experiments would
be painful and dangerous to human life. It is quite apparent
from an over-all survey of the proof that the defendant
concerned himself very little with the details of these
experiments. It was quite natural that this should be so. His
most pressing problems involved the procurement of labor and
materials for the manufacture of airplanes. His position
involved vast responsibilities covering a wide industrial field,
and there were certainly countless subordinate fields within the
Luftwaffe of which he had only cursory knowledge. The Tribunal
is convinced that these experiments, which fell naturally and
almost exclusively within one of his subordinate departments,
engaged the attention of the defendant only perfunctorily, if at
all.

(6) Did the defendant have the power or opportunity to prevent
or stop the experiments? It cannot be gainsaid that he had the
authority to either prevent or stop them insofar as they were
being conducted under the auspices of the Luftwaffe. It seems
extremely probable, however, that, in spite of him, they would
have continued under Himmler and the SS. But certainly he had no
opportunity to prevent or stop them, unless it can be found that
he had guilty knowledge of them, a fact which has already been
determined in the negative. As early as 20 May 1942, the
defendant wrote to Wolff, Himmler’s Adjutant, stating:

“* * * our medical inspector [Dr. Hippke] reports to me that the
altitude experiments carried out by the SS and Luftwaffe at
Dachau have been finished. Any continuation of these experiments
seems essentially unreasonable * * *

“The low-pressure chamber would not be needed for these
low-temperature experiments. It is urgently needed at another
place and therefore can no longer remain in Dachau.”

Certainly the defendant did not have the opportunity to prevent
or stop the experiments if he had been told and was convinced
that they had terminated on 20 May 1942, and there is no reason
to believe that he did not rely upon Dr. Hippke’s report as to
their termination. Considerable emphasis is laid upon the
testimony that a motion picture of the experiments was brought
to Berlin and exhibited in the Air Ministry Building, where the
defendant had his office. It may even be said that the picture
was brought to Berlin for the defendant’s edification. But it
appears that he was not present when it was shown and that, in
any event, the showing was long after the experiments were
concluded, at which time the defendant certainly could do
nothing toward preventing them or stopping them.

(7) In view of the above findings, it is obvious that the
defendant never became _particeps criminis_ and accessory in the
low-pressure experiments set forth in the second count of the
indictment.

As to the other experiments, involving subjecting human beings
to extreme low temperatures both in the open air and in water,
the responsibility of the defendant is even less apparent than
in the case of the low-pressure experiments. The same letter of
20 May 1942 to Wolff does indicate that the defendant was aware
of the proposed sea-water experiments. In it he says—

“* * * the carrying out of experiments of some other kind, in
regard to perils at high seas, would be important. These have
been prepared in immediate agreement with the proper offices;
Oberstabsarzt Weltz will be charged with the execution and
Stabsarzt Rascher will be made available until further order in
addition to his duties within the medical corps of the
Luftwaffe. A change of these measures does not appear necessary,
and an enlargement of the task is not considered pressing at
this time.”

It is true that Rascher wrote interminable reports as to the results of these experiments, but there is no proof that they ever reached the defendant. On the contrary, they were addressed to Himmler and to Rudolf Brandt, his adjutant. At the Nuernberg conference in November 1943, which was held after all experiments had been finished, reports were made which even to a mildly curious lay person might have indicated that the experiments had been tinged with excesses and fatalities. But two facts are striking. First, the defendant was not present at the conference and only received a report of it later; and, second, the experiments were at that time all over.

It must be constantly borne in mind that this is an American court of justice, applying the ancient and fundamental concepts of Anglo-Saxon jurisprudence which have sunk their roots into the English common law and have been stoutly defended in the United States since its birth. One of the principal purposes of these trials is to inculcate into the thinking of the German people an appreciation of, and respect for, the principles of law which have become the backbone of the democratic process. We must bend every effort toward suggesting to the people of every nation that laws must be used for the protection of people and that every citizen shall forever have the right to a fair hearing before an impartial tribunal, before which all men stand equal. We must never falter in maintaining, by practice as well as by preachment, the sanctity of what we have come to know as due process of law, civil and criminal, municipal and international. If the level of civilization is to be raised throughout the world, this must be the first step. Any other road leads but to tyranny and chaos. This Tribunal, before all others, must act in recognition of these self-evident principles. If it fails, its whole purpose is frustrated and this trial becomes a mockery. At the very foundation of these juridical concepts lie two important postulates (1) every person accused of crime is presumed to be innocent, and (2) that presumption abides with him until guilt has been established by proof beyond a reasonable doubt.

Unless the court which hears the proof is convinced of guilt to the point of moral certainty, the presumption of innocence must continue to protect the accused. If the facts as drawn from the evidence are equally consistent with guilt and innocence, they must be resolved on the side of innocence. Under American law neither life nor liberty is to be lightly taken away, and, unless at the conclusion of the proof there is an abiding conviction of guilt in the mind of the court which sits in judgment, the accused may not be damnified.

Paying reverent attention to these sacred principles, it is the judgment of the Tribunal that the defendant is not guilty of the charges embraced in count two of the indictment.

COUNT ONE

Count one of the indictment charges the defendant with the commission of specified 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, resulting in the enslavement, torture and murder of civilians of foreign countries. The indictment further charges that he similarly participated in the use of prisoners of war in war operations and work having a direct relation to war operations, resulting in inhuman treatment and death to captured members of the armed forces opposed to Germany. The indictment alleges that these acts were in violation of international law and the recognized principles of civilized warfare and in specific violation of numerous treaties and conventions to which Germany was a party.

It is claimed by the prosecution that the defendant’s responsibility for these alleged crimes arises from his activities in three capacities (1) as Aircraft Master General (Generalluftzeugmeister); (2) member of the Central Planning Board; and (3) chief of the Jaegerstab. The Central Planning Board was established by a decree of the Fuehrer, dated 29 October 1943. That decree fitted the task of production of material goods of every kind into the framework of the Four Year Plan and charged the Central Planning Board with the procurement and distribution of material of every description. The Board consisted of Reich Minister Speer, Under Secretary Koerner, and the defendant. On 1 March 1944, the Jaegerstab was established, consisting of Speer, Saur (a subordinate of Speer), and the defendant. The Jaegerstab concerned itself exclusively with the material needs of the Luftwaffe, and was headed, naturally, by the defendant. It became apparent that neither of these two bodies could adequately deal with the problems of production without constantly dealing with the question of labor supply. Meetings of the Central Planning Board were held at least weekly and the minutes of those meetings which were offered in evidence show a constant and unremitting concern with the problem of labor. Fritz Sauckel was in supreme command of the procurement of labor for the entire war effort, and his conduct in carrying out his task has been vividly portrayed in the judgment of the International Military Tribunal:[158]

“* * * As local supplies of raw materials and local industrial
capacity became inadequate to meet the German requirements, the
system of deporting laborers to Germany was put into force. By
the middle of April 1940 compulsory deportation of laborers to
Germany had been ordered in the General Government; and a
similar procedure was followed in other eastern territories as
they were occupied. A description of this compulsory deportation
from Poland was given by Himmler. In an address to SS officers
he recalled how in weather 40 degrees below zero they had to
‘haul away thousands, tens of thousands, hundreds of thousands.’
On a later occasion Himmler stated:

“‘Whether ten thousand Russian females fall down from exhaustion
while digging an antitank ditch interests me only insofar as the
antitank ditch for Germany is finished * * *. We must realize
that we have 6-7 million foreigners in Germany * * *. They are
none of them dangerous so long as we take severe measures at the
merest trifles.’

“During the first two years of the German occupation of France,
Belgium, Holland, and Norway, however, an attempt was made to
obtain the necessary workers on a voluntary basis. How
unsuccessful this was may be seen from the report of the meeting
of the Central Planning Board on 1 March 1944. The
representative of the defendant Speer, one Koehrl [Kehrl],
speaking of the situation in France said: ‘During all this time
a great number of Frenchmen were recruited, and voluntarily went
to Germany.’

“He was interrupted by the defendant Sauckel: ‘Not only
voluntary, some were recruited forcibly.’

“To which Koehrl [Kehrl] replied: ‘The calling up started after
the recruitment no longer yielded enough results.’

“To which the defendant Sauckel replied: ‘Out of the five
million workers who arrived in Germany, not even 200,000 came
voluntarily.’ And Koehrl [Kehrl] rejoined: ‘Let us forget for
the moment whether or not some slight pressure was used.
Formally, at least, they were volunteers.’

“Committees were set up to encourage recruiting, and a vigorous
propaganda campaign was begun to induce workers to volunteer for
service in Germany. This propaganda campaign included, for
example, the promise that a prisoner of war would be returned
for every laborer who volunteered to go to Germany. In some
cases it was supplemented by withdrawing the ration cards of
laborers who refused to go to Germany, or by discharging them
from their jobs and denying them unemployment benefit or an
opportunity to work elsewhere. In some cases workers and their
families were threatened with reprisals by the police if they
refused to go to Germany. It was on 21 March 1942 that the
defendant Sauckel was appointed Plenipotentiary-General for the
Utilization of Labor, with authority over ‘all available
manpower, including that of workers recruited abroad, and of
prisoners of war’.

“The defendant Sauckel was directly under the defendant Goering
as Commissioner of the Four Year Plan, and a Goering decree of
27 March 1942 transferred all his authority over manpower to
Sauckel. Sauckel’s instructions, too, were that foreign labor
should be recruited on a voluntary basis, but also provided that
‘where, however, in the occupied territories, the appeal for
volunteers does not suffice, obligatory service and drafting
must under all circumstances be resorted to.’ Rules requiring
labor service in Germany were published in all the occupied
territories. The number of laborers to be supplied was fixed by
Sauckel, and the local authorities were instructed to meet these
requirements by conscription if necessary * * *.

“* * * the evidence before the Tribunal establishes the fact
that the conscription of labor was accomplished in many cases by
drastic and violent methods. The ‘mistakes and blunders’ were on
a very great scale. Manhunts took place in the streets, at
motion picture houses, even at churches and at night in private
houses. Houses were sometimes burnt down, and the families taken
as hostages, practices which were described by the defendant
Rosenberg as having their origin ‘in the blackest periods of the
slave trade.’ The methods used in obtaining forced labor from
the Ukraine appear from an order issued to SD officers which
stated:

“‘It will not be possible always to refrain from using force * *
*. When searching villages, especially when it has been
necessary to burn down a village, the whole population will be
put at the disposal of the commissioner by force * * *. As a
rule no more children will be shot * * *. If we limit harsh
measures through the above orders for the time being it is only
done for the following reason * * *. The most important thing is
the recruitment of workers.’

“The resources and needs of the occupied countries were
completely disregarded in carrying out this policy. The
treatment of the laborers was governed by Sauckel’s instructions
of 20 April 1942 to the effect that—

‘All the men 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.’

“The evidence showed that workers destined for the Reich were
sent under guard to Germany, often packed in trains without
adequate heat, food, clothing, or sanitary facilities. The
evidence further showed that the treatment of the laborers in
Germany in many cases was brutal and degrading * * *. They were
subject to constant supervision by the Gestapo and the SS, and
if they attempted to leave their jobs they were sent to
correction camps or concentration camps. The concentration camps
were also used to increase the supply of labor. Concentration
camp commanders were ordered to work their prisoners to the
limits of their physical power. During the latter stages of the
war the concentration camps were so productive in certain types
of work that the Gestapo was actually instructed to arrest
certain classes of laborers so that they could be used in this
way. Allied prisoners of war were also regarded as a possible
source of labor. Pressure was exercised on noncommissioned
officers to force them to consent to work, by transferring to
disciplinary camps those who did not consent. Many of the
prisoners of war were assigned to work directly related to
military operations, in violation of Article 31 of the Geneva
Convention. They were put to work in munition factories and even
made to load bombers, to carry ammunition and to dig trenches,
often under the most hazardous conditions. This condition
applied particularly to the Soviet prisoners of war. On 16
February 1943, at a meeting of the Central Planning Board, at
which the defendants Sauckel and Speer were present, Milch said:

“‘We have made a request for an order that a certain percentage
of men in the ack-ack artillery must be Russians; 50,000 will be
taken altogether, 30,000 are already employed as gunners. This
is an amusing thing, that Russians must work the guns.’”

And on 4 October 1943, at Poznan, Himmler, speaking of the Russian prisoners, captured in the early days of the war, said:

“‘At that time we did not value the mass of humanity as we value
it today, as raw material, as labor. What, after all, thinking
in terms of generations, is not to be regretted, but is now
deplorable by reason of the loss of labor, is that the prisoners
died in tens and hundreds of thousands of exhaustion and
hunger.’

“The general policy underlying the mobilization of slave labor
was stated by Sauckel on 20 April 1942. He said:

“‘The aim of this new gigantic labor mobilization is to use all
the rich and tremendous sources conquered and secured for us by
our fighting armed forces, under the leadership of Adolf Hitler,
for the armament of the armed forces, and also for the nutrition
of the homeland. The raw materials, as well as the fertility of
the conquered territories and their human labor power, are to be
used completely and conscientiously to the profit of Germany and
her allies * * *. All prisoners of war from the territories of
the West, as well as the East, actually in Germany, must be
completely incorporated into the German armament and nutrition
industries * * *. Consequently it is an immediate necessity to
use the human reserves of the conquered Soviet territory to the
fullest extent. Should we not succeed in obtaining the necessary
amount of labor on a voluntary basis, we must immediately
institute conscription or forced labor * * *. The complete
employment of all prisoners of war, as well as the use of a
gigantic number of new foreign civilian workers, men and women,
has become an indisputable necessity for the solution of the
mobilization of the labor program in this war.’”

Continuing with the quotation from the IMT decision:[159]

“* * * As the dominant member of the Central Planning Board,
which had supreme authority for the scheduling of German
production and the allocation and development of raw materials,
Speer took the position that the Board had authority to instruct
Sauckel to provide laborers for industries under its control and
succeeded in sustaining this position over the objection of
Sauckel. The practice was developed under which Speer
transmitted to Sauckel an estimate of the total number of
workers needed. Sauckel obtained the labor and allocated it to
the various industries in accordance with instructions supplied
by Speer.