Chapter LVI: Section 2: A III f (21)

It is sufficient for this Tribunal to cite Control Council Law No. 10 as authority for its action in this case. Since, however, the Control Council came into being after the ending of the war, and since the laws which it published necessarily also followed the termination of hostilities, it has been argued by defense counsel that it does not comport with justice and reason that a defendant should be condemned for an act which, prior to its commission, was not accepted in international law as a crime. From the day of surrender Germany has been without a government of its own, and as the Allied powers are exercising quasi-sovereign jurisdiction in practically all phases of German relations, both internal and external, the very circumstances of Germany’s present political situation not only justifies but demands that the Control Council establish government in its three fundamental phases; namely, the judiciary, the executive, and the legislative. Otherwise chaos would fling Germany into even a more precipitous abyss than the one into which she has fallen, and the supreme and perhaps irreparable disaster, arrested by Allied intervention, would be upon her.

Yet it can be argued and it has been argued that despite the imperative need of an occupational force with its almost unlimited jurisdiction, such an occupying force simply represents the authority of victor over vanquished. In the discharge of its duties under the law which created it, this Tribunal is not called upon to answer the arguments just indicated, but a respect for the opinion of mankind invites a listing of the reasons which establish the justice of the procedure here invoked and the reasons which must invest its judgment with the solemnity and solidity of accepted international law.

In the first place, it is not Control Council Law No. 10 which makes abuse of civilian populations an international crime, nor even the decision of the International Military Tribunal, which in turn derived its power from the London Charter which had as its antecedent the Moscow Declaration of 1943. International law is not a body of codes and statutes, but the gradual expression, case by case, of the moral judgments of the civilized world, and no international law textbook of the last century ever sanctioned the deportation of a civilian population for labor. Although under Article 52 of the Hague Regulations, the inhabitants of occupied countries may be used for the needs of the occupying army, such civilians may be utilized only in proportion to the resources of the country, and they may not under any circumstances be required to take part in military operations against their own country. L. Oppenheim’s Treatise on International Law (Vol. II, Sixth Edition, page 345) states flatly that there is no right to deport inhabitants to the country of the occupant for the purpose of compelling them to work there.

It is submitted, however, that though this is the law and so recognized, total warfare, as it raged in World War II, suspended, if it did not outrightly abrogate, all these rules heretofore respected and esteemed as binding on civilized nations. In this respect defense counsel argues that “modern warfare, having as its aim total annihilation of the armed production of the enemy, brought with it to a great extent warfare against the civilian population,” and he cites total blockade as an illustration of his thesis. It is true that total blockade affects the entire blockaded population, as indeed air raids strike at the most helpless and harmless of the enemy’s civilians. The writer of this opinion was witness many times to the death and mutilation of inhabitants, including women, children, and old men, in Luftwaffe air raids aimed at legitimate war targets. German civilians also paid with their lives for living in their own country. And thus, it would seem in principle, that if civilians may legitimately be killed through military action, though noncombatant, they may certainly be made to work. But it does not follow that because military necessity unintentionally victimizes a civilian population, political domination may strip them of their civil rights and subject them to intentional torture and possible death. With all its horror modern war still “is not a condition of anarchy and lawlessness between the belligerents, but a contention in many respects regulated, restricted, and modified by law.” (Oppenheim, ibid., 421.)

Though the adversaries descend into the pit of bloody combat, there is always open to them the means of re-ascending to the level of nonhostile negotiations. The matter of temporary truces for recovering the dead and succoring the wounded, the making of arrangements through international relief organizations for the treatment of prisoners, the granting of safe passage through the lines of persons mutually agreed upon by the parties, all are instances which refute the logical development of defense counsel’s argument that total warfare justifies the abandonment of every restriction and authorizes the combatants to use all manners and means to win the conflict.

And no one was in a better position to understand this than the defendant. He had participated as a soldier in the First World War; he had, following the war, entered distinguished private enterprise; he had travelled extensively and was induced by none other than Hitler himself to enter the Air Ministry long before the outbreak of World War II because of his talents and abilities. It is idle for defense counsel to say that Milch “was never a good National Socialist.” If joining a political party, accepting its benefits and preferments, rising to supreme heights in grade and distinction, offering never-flagging loyalty to the Fuehrer, even in the face of a declared acknowledgment that the Fuehrer was leading Germany to disaster, if this does not make one a full-fledged National Socialist, then nothing does.

Milch did not simply passively ignore international law, he actively expressed a knowledgeable contempt for it. We have seen how he declared at one of the Central Planning Board meetings that “International law cannot be observed here.”

Defense counsel made much of the point that the German people did not want war, and the defendant himself described how when the first tanks moved through the streets of Berlin, the inhabitants of that city were silent and worried. But it is not clear how this observation advances the innocence of the defendant. If anything it adds to his moral guilt because the evidence reveals only too well that to the fullest extent of his energies he prosecuted a war which he states was against the will and interests of his people. The indictment has not charged him with waging aggressive war, but in view of his participation in the 23 May 1939 conference when Hitler outlined quite clearly his aggressive intentions, and in view of his (Milch’s) never tiring efforts in the war’s various phases—at the front, in the air, in production, in inspection—it cannot be said that to his trained mind the war had the aspects of a defensive and not an aggressive conflict. Although Milch has here repudiated belief in the master race theory, yet we know that he went through a formal procedure to establish the absence of Jewish blood in his veins. This procedure even took the embarrassing turn of statements concerning his parentage. In doing this, Milch could not help but know that the Jews were being persecuted by the political party to which he voluntarily belonged. Nor will the Tribunal believe his declaration that he knew of only two concentration camps in all of occupied Europe. For the Tribunal to acknowledge this statement would be to declare Milch weak-minded if not _non compos mentis_. Milch, was constantly threatening workers with the concentration camp. These threats he attributes to excessive anger as he does all his outbursts, to which we have already called attention.

Milch would have the Tribunal believe that his violent language was never intended to produce results. He explained that his declaration that Italian prisoners of war attempting to escape should be shot does not constitute cruelty because, in the words of his counsel, “all countries have prisoners shot who attempt to escape.” This contradicts another statement made in court wherein he lauded prisoners who sought to regain their freedom. When confronted with inconsistencies of this character, the defendant invariably sought refuge in the statement that he was never taken seriously in his threats to shoot, hang, or whip. He informs us that he never used a whip, that everybody knew he exaggerated, that nobody took him seriously, and that he did not have full control of himself. But Erhard Milch was not the village idiot. He carried a field marshal’s baton, and the lifting of that baton compelled obedience no matter how idiotic might be the demand. Further, Milch’s imprecations were not simple interjections; they frequently carried the appearance of orders already given or about to be issued. He may never have actually penned a death warrant or called out the SD with its murder squads, but is it so certain that underlings beyond his cognizance did not carry into effect his sometimes very clear directions on punishments to be inflicted?

Violent language is not as innocuous as Milch would have the present world believe. Even if it should be true that his immediate circle laughed at his fulminations, as was testified, there is no assurance that others laughed. A field marshal’s fraternizations are necessarily limited. There were not many who had the privilege to stand beside him, as did General Vorwald, and philosophically muse; “Now his neck is getting red again.” There were necessarily hundreds in the course of six years of war who, attending his various meetings, were not informed that his fire and brimstone were froth. Vorwald can laugh at a field marshal and a field marshal can laugh at a Hitler, but the comedy ceases there. Milch has ridiculed Hitler’s speeches and pointed out that certain portions of the Fuehrer’s orations were known as the “Adam and Eve” section. He indicated further that many of Hitler’s thunderings were mere bluff, but who can say today that he was bluffing?

Hitler’s most potent force for evil was language. With all that he has to answer for at the bar of history, it can be doubted that there exists proof that he with his own hands killed any man or even the proverbial fly. Hitler’s armory was language. It was Hitler’s language which mesmerized the German nation. Every one has said so. He had no other abilities. He was no soldier. All the generals were agreed on that. He could not ride a horse, he could not drive a car, he could not build a fence. He could hang paper and he could talk, and the German people regarded that talk as substance. And on the phosphorescent sea of his wildly undulating phrases they launched the ship of their well-being with the tragic result that fragments and splinters of that ship now piteously stare at one from every nook and corner of this once prosperous and happy land.

The greatest individual force of destruction in Germany for nearly 20 years was _Mein Kampf_. And yet _Mein Kampf_ was simply language. To the knowledge of the writer of this opinion, _Mein Kampf_ was never used as a missile or fired as a projectile, but is there a German sincerely interested in the welfare of his country today who doubts that its words were bullets, its phrases bombs, and its pages poison which, falling into the wells of the nation, corroded the thinking of the innocent and goaded into action the ambitions of the wicked?

As the record shows, Milch incessantly threatened the wildest excesses, he orally directed them, and he reported to his chief on one occasion that he had put certain ones into effect. In spite of his present disavowal, there is nothing in the transcript to indicate that he repudiated his threats at the time of utterance. The defense has repeatedly attacked the accuracy of the minutes of the Central Planning Board, the GL, and the Jaegerstab. All these documents were taken from the official files of the Reich Air Ministry. Furthermore, the defendant’s constant efforts on the stand to modify the far-reaching implications of his speeches concede the general correctness of the remarks attributed to him. Thus, making due allowance for stenographic errors, the defendant stands out through the pages of these reports as a resolute, persevering, determined worker, unyielding and loyal to his cause, which was the cause of the Fuehrer.

It can be believed that Erhard Milch was not seeking personal enrichment and a luxurious living, which was so obviously the nefarious and principal goal of his chief, the super-pilferer Hermann Goering. Milch was seeking victory for Germany, for which he held an understandable affection, but his intelligence, training, and experience in the affairs of the world told him inescapably that Germany was waging an aggressive and culpable war. Milch gave of his talents and energies to the winning of a war criminally begun and lawlessly prosecuted, which, had it ended in victory for the aggressors would have resulted in the heartless subjugation of countless millions of innocent and helpless people. The defendant has recounted his worries and anguish and has explained that this mental torment provoked many of his unbridled utterances, but what was the cause of this bitterness and mortification? Not that Europe had become a slaughterhouse, not that blood ran like water, not that the four Horsemen of the Apocalypse were galloping over the continent hurling famine, pestilence, and death into every city, village, and hamlet. Milch’s torment and soul-sickness were not that the human race and human dignity were being debased and degraded as they had never been before since man knew shame. It was not for all this that Milch’s heart was breaking. His consternation, his panic was that Germany was losing the war!

He said, “I had to walk into defeat with open eyes.” (_T-1948._) Also, “I could see what was coming and I could not help my people.” And in his bitterness he increased the fury of his verbal lashes over the backs of the foreign workers, he redoubled his efforts for more importations and screamed for more production. He knew, as far back as November 1941, that the war was lost; this knowledge was confirmed after Stalingrad, and every vestige of doubt as to the eventual result was shattered by the clouds of bombers over Germany every day. He knew that Hitler was leading Germany over the brink to ruin, and yet he called for more and more production to make the disaster all the more noteworthy. He was having difficulties with Goering, Hitler did not want him any more, and yet he stoked the fires of his wrath to an even higher degree of vengeance against the workers because they would not turn out more production for the war, every continuing day of which brought only greater misery to his people. The argument does not ring true. Milch may have believed Germany might lose the war but he certainly made every effort to have it end victoriously. This in itself is honorable for a soldier, but he allowed himself to use means and methods which the code of a soldier does not authorize or countenance, and therein he fell.

He has related several accidents which may have affected his health. He cracked-up two or three times with his plane and he suffered an automobile mishap as well. It is suggested, although not vigorously pressed, that all this may explain his towering wraths and lightning fury. But the plea in this case is not “Not Guilty because of Insanity.” Nowhere is it advanced that the defendant is not now, nor that at any time throughout the war was not, in the fullest possession of his mental faculties. If a temporary aberration is being suggested, it is remarkable that these deviations from the norm occurred only when he was urging the maximum and severest employment of forced labor and menacing with the direst punishment those who did not fulfill to the extreme the commitments of this illegal enterprise. If Milch was at any time deprived of his reasoning faculties, his temporary unbalance had method in it.

The Tribunal finds Erhard Milch guilty on count one of the indictment.

(b) Count Two

In considering Milch’s responsibility under count two, we will need to enumerate and weigh each reference to him in the testimony in this connection. The high-altitude experiments began in March and lasted until June 1942. Cold-water experiments were conducted during the period from the middle of August until October 1942. The dry-cold experiments lasted from February through April 1943. During this time Milch was Inspector General of the Air Forces, State Secretary in the Air Ministry, and Generalluftzeugmeister. As Inspector General he was in charge of the office which authorized research and medical experiments conducted in behalf of the Air Forces. General Hippke, physician in charge of the Luftwaffe Medical Department, was directly subordinate to the defendant. As Generalluftzeugmeister, Milch was head of air ordnance. Milch had charge of the development of technical experiments for the Luftwaffe.

All medical institutes and Luftwaffe medical men were subordinate to the Medical Inspectorate Chief, Dr. Hippke. The DVL[165] was subordinate to Hippke’s office in technical matters. Dr. Rascher conducted his experiments at Dachau. He was temporarily assigned to the SS, but retained his status as a Luftwaffe physician, rising from a second lieutenant to a captain in the Luftwaffe. During the period of the experimentations, Rascher was under the command of the Luftwaffe.

On 20 May 1942, Milch wrote a letter to General Wolff, stating that his medical inspector had reported to him that the high-altitude experiments conducted by the SS and the Luftwaffe had been finished, and he did not recommend that they should be continued. He did, however, authorize experiments “of some other kind in regard to perils at high seas.” On 4 June 1942, Milch authorized Hippke the continued use of the low-pressure chamber. On 20 July 1942, Rascher sent Brandt a report on the high-altitude experiments and the accompanying letter stated that it is Himmler’s desire that the report should be sent to Milch. On 25 August 1942, Himmler sent Milch a copy of the report and asked that he receive Dr. Rascher and Dr. Romberg for a lecture and a showing of the film made of the experiment.

On 31 August 1942, Milch wrote Himmler acknowledging the report and promising to receive the two gentlemen for the lecture and showing of the film. On 23 August 1942, Sievers wrote Brandt discussing a revival of the high-altitude experiments and stating that a report was to have been made to Milch, but that the report was not made. On 3 October 1942, Rascher wrote Brandt that the report to Milch, planned for September, could not be made because Milch was not present. On 27 November 1942, Wolff wrote Milch a long letter pointing out the need and the great value of the experiments with human beings, stating that Himmler “has accepted the responsibility for supplying death-deserving, asocial persons, and criminals from the concentration camps for these experiments.” He asks Milch to assign Rascher to the SS so that he can continue with the experiments directly under Himmler’s orders. “In any case, these experiments must not be stopped. We owe that to our men.”

Dr. Romberg stated in an affidavit that Milch “was familiar with these experiments.” Neff testified that “Milch’s name was mentioned in connection with the high-altitude experiments.” Sievers, Director of the Research and Teaching Association, stated that “Milch must have known about the experiments of Dr. Rascher.” Dr. Ruff stated that to his knowledge Milch was informed of these tests either by Hippke or by the SS. Dr. Becker-Freyseng said that Dr. Kalk told him he had seen Rascher in Milch’s office.

When the film was shown in Milch’s office on 11 September 1942, Milch was not present. Wolfgang Lutz testified that Milch had negotiated directly with Himmler regarding the execution of such experiments without consulting the Medical Inspectorate. Rudolf Brandt stated that Milch was fully informed about the low-pressure experiments. As late as January 1943, Milch had not replied to the letter sent him by Wolff, asking for the assignment of Rascher to the SS.

This, in brief, constitutes the case against Erhard Milch in connection with the medical experiments. In order to find Milch guilty on this count of the indictment, it must be established that—

1. Milch had knowledge of the experiments.
2. That, having knowledge, he knew they were criminal in scope and
execution.
3. That he had this knowledge in time to act to prevent the
experiments.
4. That he had the power to prevent them.

In pressing this count against the defendant, the prosecution has the burden, as it has the burden in every count, to prove the guilt of the defendant beyond a reasonable doubt. We begin our deliberations with the cardinal rule that the defendant is presumed to be innocent. Glancing at the evidence as a whole, it is a facile matter to say that the defendant must have known of the experiments; that, with so much smoke, there must be fire. But in addition to smoke, there must be light.

The proof against Milch on this count is entirely circumstantial, and before we can find him guilty we must conclude that every hypothesis resulting from the circumstances is consistent with guilt and inconsistent with innocence. One can easily reach the hypothesis of guilt from the documents and testimony but that hypothesis in many of its phases is also consistent with innocence. Thus, applying the rule of evidence just cited, the test of guilt fails.

So far as chronology is concerned, Milch does not come into the picture of the experiments until 20 May 1942 with a letter in which he states that his medical inspector informed him that the high-altitude experiments had been completed. Obviously if they were completed there was nothing he could do to prevent them. Nor did the medical inspector or anyone else testify that Milch was informed of the precise nature of the experiments. Further, there is no evidence that Milch ever received any reports at all on the freezing experiments.

No one ever suggested that Milch attended the operations at Dachau or that he ever gave an order that human beings were to be used to the point of death.

If we can imagine the pieces of evidence on this count as irregularly shaped blocks of wood floating on water, we find these blocks occasionally coming together and dovetailing into a pattern of guilt, but then we find them separating and just as often forming the pattern of innocence. No man should be convicted on evidence that does not remain fixed and immovable in granitic solidity. Guilt cannot be founded on a set of facts from which arguments are equally convincing as to guilt and as to innocence. Remarks such as “the defendant must have known,” or “to the best of my knowledge he knew,” and other similar inconclusive conjectures frequently used in this part of the case are not the kind of links which are imperatively needed to make up a chain strong enough to sustain the weight of a conviction.

The defendant is found not guilty on the second count of the indictment.

Though Milch is acquitted of complicity and participation in the medical experiments, we have nonetheless commented on those experiments at length. We have done this because otherwise the reference to Milch’s acquittal standing alone might convey impression that the experiments themselves were not criminal. The Tribunal holds that the _corpus delicti_ was established and a crime was committed, even though Milch is not guilty of it.

(c) Count Three

The third count of the indictment charges the defendant with crimes against humanity (slave labor and fatal medical experiments) committed on German nationals and nationals of other countries. As we have found him not guilty on count two, we necessarily also find him not guilty of the crime of fatal medical experiments in count three. We have, however, adjudicated him guilty on count one, and since the evidence establishes that nationals of other countries were also victims of slave labor under his control, we thus find Erhard Milch guilty on that part of the third count which covers the nationals of other countries. Sufficient proof was not submitted as to slave labor offenses against German nationals to justify an adjudication of guilt on that ground.

Thus, in recapitulation, we find the defendant guilty on count one, not guilty on count two, not guilty on count three insofar as it appertains to German nationals and guilty wherein it refers to “nationals of other countries.” In reaching these conclusions, we inescapably ascertain that Erhard Milch was a full-fledged member of the National Socialist Party of Germany. Further, that he adhered to the doctrines of this Party which, with the almost cataclysmic force of planetary violence, achieved more destruction than has been known since man stood upright on the shores of history. The conclusion is also unavoidable that it was individuals like Milch that made the Hitler plan of war and subjugation possible. Hitler was but one man and it was only because he had brilliant and able coadjutors that he could develop a war machine which achieved the incredible and fantastic record of smashing Poland in 18 days, striking France to her knees in 2 months, driving England from the continent in 6 weeks, overrunning Holland and Belgium in a few days, vanquishing Norway in several weeks, and Denmark overnight.

In those days of spectacular triumph, Milch had no complaint against Hitler. But it was precisely then that Hitler was working his greatest harm to Germany because it was inevitable that the people he had temporarily crushed would rise again and not rest until the evil power responsible for their suffering was destroyed. If Milch had entertained the loyalty to his people which he now professes, then was the time to withdraw from a program which was wreaking a devastation so universal that no country, including Germany, could escape.

The defendant stated from the witness stand he could not withdraw because he owed fealty to Hitler and to the German people. His loyalty to Hitler was loyalty to a man who he now states had marked him for liquidation, and so far as allegiance to the German people is concerned, they can feel no gratitude for an allegiance which increased their ruin, magnified their misery, and pushed them only deeper into the pit of despair. The Germans could do without a devotion of that kind.

The defendant apparently gained the impression in our questioning of him that some heroic sacrifice was expected on his part. We never intended, nor was it suggested, that he should take any action which could result in the forfeiture of his life. But he did himself volunteer from the witness stand that on two occasions he was ready to tell Hitler the truth even if it should mean his execution. If he was prepared to sacrifice his life on so futile a gesture, he could have taken some action which involved less hazard. He could thus, at least to that extent, have contributed to honesty and justice by refraining from threatening with death and whipping those who did not give of their last ounce of energy in the production of ordnance whose muzzles would eventually be turned on Germany itself.

In his last statement in court Milch declared that he was indifferent to his fate but he was interested in seeing Germany relieved of her suffering and re-admitted to the community of nations as an equal partner. We do not believe that any intelligent person can be indifferent to his fate, although one can summon sufficient spiritual fortitude to rise above an immediate regret. With regard to Milch’s wish for the German people, he has definitely performed one service in pulling aside the curtain to disclose to them the stupidities, the vanities, and the arrogances of their leaders which brought about their present state. The record of this case will particularly, of course, expose Milch’s own errors and his transgressions against international law, the laws and customs of war, the moral code of humanity and even commandments 4 and 7 of the 10 commandments of the German soldier.

The purpose of these postwar trials obviously is not vengeance. The object aimed at (as in the criminal jurisprudence of all civilized nations) is the ascertainment of truth. When guilt is established, the penalty imposed is to serve as a deterrent to all others who might be similarly minded. Albert Speer, convicted in the first trial, stated here in this courtroom that had trials such as these followed the First World War, the Second World War might have been averted. Erhard Milch may obtain some comfort from the realization that by the publication of the evidence of this trial he is definitely contributing to the education and well-being of Germany’s future, as indeed a precise contribution is being made to the cause of world justice itself.

Over 155,000 Americans made the supreme sacrifice in Germany in this war. These lads gave their lives for this ideal of world justice and world peace. America sought no territorial aggrandizement or material advantage. The American flag in this courtroom ensured to the defendant all the guarantees of the United States Constitution as to a fair trial. No person within the continental limits of the United States itself could have wished for a fuller opportunity to demonstrate his innocence of the charges brought against him.

America and her Allies bestowed upon Germany what no desire can achieve and what no money can buy. The Allied nations gave the blood of their youth to water the roots of the tree of liberty and tolerance which had withered in the twelve-year drought of National Socialism. It is to reveal who were responsible and what was responsible for the desiccation of that tree and to proclaim to the world the inevitable consequences to others who degrade the soil with the pollution and prussic acid of oppression that these trials have been established. The present trial is one chapter in the book which will forever condemn _Mein Kampf_ and offer to the new German nation a volume of proved fact, whose every page will tell of the sorrow awaiting any people which permit any man or men to hoist deceit above truth, power above justice, oppression above tolerance, war above peace and man above God.

[Signed] MICHAEL A. MUSMANNO
JUDGE MILITARY TRIBUNAL II

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[160] The reference “T” is to the page of the mimeographed transcript.

[161] “IMT” refers to Trial of the Major War Criminals before the International Military Tribunal, Vol. I, Nuremberg, Germany, 1947.

[162] Original German document read 50,000 but, due to clerical error, translation of document which was submitted in Court read 500,000. Incorrectness is obvious by total figure of 220,000 in last sentence.

[163] Chef Ansbildungawesen (Chief of Training).

[164] A word is missing here in the German original.

[165] Deutsche Versuchsanstalt fuer Luftfahrt (German Institute for Aviation Research). In this case, the reference is to the Medical Section of the Institute.

C. Concurring Opinion by Judge Fitzroy D. Phillips

This Tribunal has been duly organized and is now existing under the authority of Ordnance No. 7 pursuant to the powers of the Military Governor of the United States Zone of Occupation within Germany expressly conferred therein and further pursuant to the powers conferred upon the zone commander by Control Council Law No. 10 and Articles 10 and 11 of the Charter of the International Military Tribunal annexed to the London agreement of 8 August 1945, and by authority of Executive Order No. 9819 signed and issued by Harry S. Truman, President of the United States of America, the pertinent parts of said order as follows:

“By virtue of the authority vested in me by the Constitution and
the statutes, and as President of the United States and
Commander in Chief of the Army and Navy of the United States, it
is ordered as follows:

“1. I hereby designate Fitzroy Donald Phillips, Judge of a
Superior Court in the State of North Carolina; Robert Morrell
Toms, Judge of the Third Judicial Circuit Court, Detroit,
Michigan; and Captain Michael A. Musmanno (S), USNR, 086622, as
the members, and John Joshua Speight as the alternate member of
one of the several military tribunals established by the
Military Governor for the United States Zone of Occupation
within Germany pursuant to the quadripartite agreement of the
Control Council for Germany, enacted December 20, 1945, as
Control Council Law No. 10, and pursuant to Articles 10 and 11
of the Charter of the International Military Tribunal, which
Tribunal was established by the Government of the United States
of America, the Provisional Government of the French Republic,
the Government of the United Kingdom of Great Britain and
Northern Ireland, and the Government of the Union of Soviet
Socialist Republics, for the trial and punishment of major war
criminals of the European Axis. Such members and alternate
member may, at the direction of the Military Governor of the
United States Zone of Occupation, serve on any of the several
military tribunals above mentioned.”

and as such Tribunal, has jurisdiction to try and determine this case.

Subsequent to the organization of said Tribunal, Telford Taylor, Brigadier General, United States Army, Chief of Counsel for War Crimes, prepared and caused to be prepared a bill of indictment charging the defendant, Erhard Milch, with certain war crimes and crimes against humanity as will appear more specifically hereinafter in this judgment and on 14 November 1946 caused said bill of indictment to be duly served upon the defendant, Erhard Milch, by the Marshal for the United States Military Tribunals according to the provisions of law.

Thereafter said bill of indictment was made returnable and said cause set for trial before United States Military Tribunal No. II. Whereupon, Dr. I. Friedrich Bergold of the Nuernberg, Germany, bar was duly appointed as counsel for the defendant and accepted such appointment.

On 20 December 1946, at 9:30 a.m. in the Palace of Justice, Nuernberg, Germany, the defendant, Erhard Milch, being present in court and represented by his counsel, Dr. I. Friedrich Bergold, and the United States of America being represented by Telford Taylor, Brigadier General, United States Army, Chief of Counsel for War Crimes, and Honorable Clark Denney of counsel, the Tribunal duly arraigned the defendant upon the charges contained in the bill of indictment against him, and the defendant when called upon to plead to the bill of indictment entered a plea of Not Guilty. Whereupon the Tribunal set the date of 2 January 1947, for the trial of said case and adjourned until said time.

On 2 January 1947, United States Military Tribunal No. II met in the Palace of Justice, Nuernberg, Germany, and commenced the trial of this case.

The bill of indictment charging the defendant, Erhard Milch, with certain and specific war crimes and crimes against humanity is summarized as follows:

_Count One_: War crimes involving murder, slave labor, deportation of civilian populations 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.

The trial was conducted in two languages in the main, English and German, and in English, German, and French when French witnesses were testifying.

The hearing of evidence and the arguments of counsel concluded on 25 March 1947.

The prosecution offered three witnesses who gave evidence orally and 161 written exhibits, several exhibits containing many documents. The defense offered 27 witnesses who gave evidence orally and the defendant also testified in his own behalf, and in addition to oral evidence the defendant offered 51 written exhibits. The exhibits as offered by both the prosecution and defense contained documents, photographs, affidavits, interrogatories, letters, maps, charts, and other written evidence.

A complete stenographic record of everything said and done in court has been made as well as an electrical recording of all the proceedings.

Copies of all the documents and written evidence offered by the prosecution have been supplied to the defense in the German language. The applications made by the defendant for the production of witnesses and documents were passed upon by the Tribunal and orders made in pursuance thereof. The Tribunal, after examination, granted all of the defense applications which in their opinion were relevant to the defense of the defendant and denied a few that the Tribunal found not to be relevant. Facilities were provided for obtaining those witnesses and documents granted through the Office of the Secretary General of the Tribunal.

Much of the evidence presented to the Tribunal on behalf of the prosecution was documentary evidence captured by the Allied armies in German army headquarters, government buildings, and elsewhere, and some of said documents were captured in the private files of the defendant himself. The case therefore against the defendant rests in a large measure on the documents thus obtained. The documents offered against the defendant on the part of the prosecution were in a large measure of his own making or those that were made in the organizations of which he was a member and largely under his control, and the authenticity of which has not been challenged except in a few cases and in those he challenged them mainly on the correctness of the transcript and not upon the subject matter as a whole. The evidence, oral and written, together with exhibits and documents contain approximately 3,000 pages which constitutes the record in this case.

The trial was conducted generally along the lines as are usually followed in trial courts of the United States except as to the rules of evidence, and as to those the Tribunal was not bound by technical rules of evidence and admitted any and all evidence which it deemed to have probative value and in strict compliance with the provisions of Article VII of Ordnance No. 7.

The Tribunal has kept in mind throughout the entire trial that this was a Tribunal established for the purpose of trying major war criminals and in this particular case a fallen military field marshal of a conquered nation, and that he was entitled to the Anglo-Saxon and English common law presumption that he was innocent until his guilt was established beyond a reasonable doubt.

Article II of Control Council No. 10 is as follows:

“ARTICLE II

“1. Each of the following acts is recognized as a crime:

“(_a_) _Crimes against Peace._ Initiation of invasions of other
countries and wars of aggression in violation of international
laws and treaties, including but not limited to planning,
preparation, initiation or waging a war of aggression, or a war
in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing.

“(_b_) _War Crimes._ Atrocities or offenses against persons or
property constituting violations of the laws or customs of war,
including but not limited to, murder, ill-treatment or
deportation to slave labor or for any other purpose, of civilian
population from occupied territory, murder or ill-treatment of
prisoners of war or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of
cities, towns or villages, or devastation not justified by
military necessity.

“(_c_) _Crimes against Humanity._ Atrocities and offenses,
including but not limited to murder, extermination, enslavement,
deportation, imprisonment, torture, rape, or other inhumane acts
committed against any civilian population, or persecutions on
political, racial or religious grounds whether or not in
violation of the domestic laws of the country where perpetrated.

“(_d_) Membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal.

“2. 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 (_a_) was a principal or
(_b_) was 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 or (_f_) with reference to paragraph 1 (_a_), if he held a
high political, civil or military (including General Staff)
position in Germany or in one of its Allies, co-belligerents or
satellites or held high position in the financial, industrial or
economic life of any such country.

“3. Any person found guilty of any of the crimes above-mentioned
may upon conviction be punished as shall be determined by the
Tribunal to be just. Such punishment may consist of one or more
of the following:

“(_a_) Death.

“(_b_) Imprisonment for life or a term of years, with or without
hard labor.

“(_c_) Fine, and imprisonment with or without hard labor, in
lieu thereof.

“(_d_) Forfeiture of property.

“(_e_) Restitution of property wrongfully acquired.

“(_f_) Deprivation of some or all civil rights.

“Any property declared to be forfeited or the restitution of
which is ordered by the Tribunal shall be delivered to the
Control Council for Germany, which shall decide on its disposal.

“4. (_a_) The official position of any person, whether as Head
of State or as a responsible official in a Government
Department, does not free him from responsibility for a crime or
entitle him to mitigation of punishment.

“(_b_) The fact that any person acted pursuant to the order of
his Government or of a superior does not free him from
responsibility for a crime, but may be considered in mitigation.

“5. In any trial or prosecution for a crime herein referred to,
the accused shall not be entitled to the benefits of any statute
of limitation in respect of the period from 30 January 1933 to 1
July 1945, nor shall any immunity, pardon, or amnesty granted
under the Nazi regime be admitted as a bar to trial or
punishment.”

The defendant stands indicted for the violation particularly of the provisions of section _b_, which defines war crimes, and for the violation of the provisions of section _c_, which defines crimes against humanity, and for the violations of certain provisions of international conventions, particularly of Articles 4, 5, 6, 7, 46, and 52 of the Hague Regulations, 1907, and of Articles 2, 3, 4, 6, and 31 of the Prisoner-of-War Convention, Geneva, 1929, the laws and customs of war, the general provisions of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and further as particularly defined in Article II of the Control Council Law No. 10.

The first count in the bill of indictment has been designated by the prosecution as “Slave Labor,” the second count as “Medical Experiments” and the third count as “Slave Labor and Medical Experiments upon German Nationals.” The pertinent rules of law that are applicable in this case will now be considered, and we shall consider briefly some salient precepts and prohibitions of international law up to and including the provisions of Control Council Law No. 10.

The prosecution has offered evidence which tended to show that much of the labor which supplied Germany with the tools of absolute and total war was extracted from people who had been uprooted from their homes in occupied territories and imported to Germany against their will and often under the most trying and difficult circumstances. Displacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations. International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime. If the transfer is carried out without a legal title, as in the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field and is still resisting, the deportation is contrary to international law. The rationale of this rule lies in the supposition that the occupying power has temporarily prevented the rightful sovereign from exercising its power over its citizens. Articles 43, 46, 49, 52, 55, and 56, Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as crime the deportation of civilians from an occupied territory. Article 52 states the following provisions and 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.

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 manifestly clear that the use of labor from occupied territories outside of the area of occupation is forbidden by the Hague Regulations.

The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal, such as deportation 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. The defense as contained in this case is that persons were deported from France into Germany legally and for a lawful purpose by contending that such deportations were authorized by agreements and contracts between Nazi and Vichy French authorities. The Tribunal holds that this defense is both technically and substantially deficient. The Tribunal takes judicial notice of the fact that after the capitulation of France and the subsequent occupation of French territory by the German army, a puppet government was established in France and located at Vichy. This government was established at the instance of the German Army and was controlled by its officials according to the dictates and demands of the occupying army and a contract made by the German Reich with such a government as was established in France amounted to in truth and in fact a contract that on its face was null and void. The Vichy Government, until the Allies regained control of the French Republic, amounted to no more than a tool of the German Reich. It will be borne in mind that at no time during the Vichy regime a peace treaty had been signed between the French Republic and the German Reich but merely a cessation of hostilities and an armistice prevailed, and that French resistance had at no time ceased and that France at all times still had an army in the field resisting the German Reich.

The third and 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 close 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) (_c_) of Control Council Law No. 10 specifies certain crimes against humanity. Among those 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 unconditionally contended as a crime against humanity every instance of the deportation of civilians. Article II (1) (_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.” The Tribunal holds that the deportation, the transportation, the retention, the unlawful use, and the inhumane treatment of civilian populations by an occupying power are crimes against humanity.

The Hague and Geneva Conventions codify the precepts of the law 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 ammunitions of any kind; and (2) the use for transporting of matériel intended for combat units. The Hague Regulations contain comparable provisions. The essence of the crime is the misuse of prisoners of war derived from the kind of work to which they are assigned, in other words, to work directly connected with the war effort. The Tribunal holds as a matter of law that it is illegal to use prisoners of war in armament factories and factories engaged in the manufacture of airplanes for use in the war effort.

Now, considering the basic charges and the law governing the charge against the defendant in which it alleges his responsibility for and participation in the medical experiment 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 inhumane acts. The provisions of Control Council Law No. 10, which are applicable to this charge, to wit, Article II, are “_b._ War crimes” and “_c._ Crimes against humanity.” The bill of indictment charges:

“A. War crimes, namely violations of the laws and customs of war
as to medical experiments performed involuntarily upon persons,
some of whom were prisoners of war and citizens of countries who
were at war with the German Reich, and other deported citizens
from other countries who were at war with the German Reich
involving the commission of murders, tortures, and other
inhumane 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 inhumane acts were committed.”

The prosecution contends that the defendant Milch did not personally participate in or personally direct, counsel, or initiate such medical experiments but that the same was done by members of his command and that he was personally responsible for their conduct by virtue of the authority that he held over his subordinates.

In this connection in the recent case before the United States Supreme Court in re Yamashita, the opinion of which was handed down by the Supreme Court of the United States at the October term, 1945, of said Court, some of the pertinent holdings in this case are as follows:

“It is evident that the conduct of military operations by troops
whose excesses are unrestrained by the orders or efforts of
their commander would almost certainly result in violations
which it is the purpose of the law of war to prevent. Its
purpose to protect civilian populations and prisoners of war
from brutality would largely be defeated if the commander of an
invading army could with impunity neglect to take reasonable
measures for their protection. Hence the law of war presupposes
that its violation is to be avoided through the control of the
operations of war by commanders who are to some extent
responsible for their subordinates.

“This is recognized by the annex to Fourth Hague Convention of
1907, respecting the laws and customs of war on land. Article I
lays down the condition which an armed force must fulfill in
order to be accorded the rights of lawful belligerents, that it
must be commanded by a person responsible for his subordinates.

“These provisions plainly imposed on petitioner, who at the time
specified, was Military Governor of the Philippines, as well as
commander of the Japanese forces, an affirmative duty to take
such measures as were within his power and appropriate in the
circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore
been recognized, and its breach is penalized by our own military
tribunals.

“* * * It is plain that the charge on which petitioner was tried
charged him with a breach of his duty to control the operations
of the members of his command, by permitting them to commit the
specified atrocities. This was enough to require the commission
to hear evidence tending to establish the culpable failure of
the petitioner to perform the duty imposed on him by the law of
war and to pass upon its sufficiency to establish guilt.”

I am of the opinion and find as a fact from the evidence in this case that the defendant Milch between the years 1939 and 1945 was State Secretary in the Air Ministry, Inspector General of the Air Force, Deputy to the Commander in Chief of the Air Force, a member of the Nazi Party. The defendant Milch was also Field Marshal in the Luftwaffe, 1940 to 1945; Air Quartermaster General, 1941 to 1944; member of the Central Planning Board, 1942 to 1945; and Chief of the Jaegerstab, 1944 to 1945.

After hearing the evidence of both the prosecution and defense, and after having heard the arguments of counsel, and after having fully considered all of the evidence, the following facts are concluded:

COUNT NO. I
_SLAVE LABOR_