Chapter LVII: Section 2: A III f (22)

That the defendant, Erhard Milch, was born in Germany on 30 March 1892, that he was a member of the Air Force of the German Army in World War I and was a contemporary in said air force with Goering, Udet, and others; that after the termination of World War I he returned to Germany, had a business and later was connected with the manufacture of civilian airplanes.

Prior to the outbreak of World War II he became a member of the Nazi Party and materially aided in the rebuilding of the air force of the German Reich. Shortly prior to the outbreak of World War II he visited various countries as a personal emissary of the Fuehrer, Hitler; to France, England, Holland, Italy and other countries in an effort to establish so-called permanent peace between the German Reich and these nations. That on 23 May 1939, the defendant attended a conference for the purpose of planning World War II with the following present: Hitler, Goering, Col. Gen. von Brauchitsch, Col. Gen. Keitel, Gen. Halder, Gen. Bodenschatz, Rear Admiral Schniewind, Col. (GSC.) Jeschonnek, Col. Warlimont, Lieut. Col. Schmundt, Captain Engel, Lieut. Commander Albrecht, and Captain v. Below. At the time of this meeting the defendant held a high position in the German Army, to wit, the rank of colonel general.[166]

At this meeting the Fuehrer, Hitler, gave his plan of aggressive war, and in this plan was included the attack of Poland at the first suitable opportunity; what the struggle would be like; the question of a short or long war; England’s weakness; the consequences of such a war; the unrestricted use of all resources available; the plan of attack; and the working principles of an entire and complete program. Aggressive war was planned and initiated at this meeting, and the defendant was one of the high-ranking officers who counseled and approved of the plan.

After the outbreak of the war and the subsequent attack on Poland, the defendant actively participated in the prosecution of aggressive war until after the capitulation and fall of France. From that time on he did not participate as a combat officer but was used in the general economy for the prosecution of war in Germany, and particularly as to the building and maintenance of the Luftwaffe. Later he was elevated to the rank of field marshal in the Luftwaffe and was second in command only to Goering.

The defendant was a member of the Central Planning Board which was established and organized in April 1942, and said organization served as a means of consolidating in a single agency all controls over German war production. The Central Planning Board held regular meetings, and the defendant presided over and was present at a majority of such meetings. The Central Planning Board at each meeting kept full minutes, and a great number of said minutes have been submitted to the Tribunal and reflect the fact that the defendant had a dominant role in the meetings of said board. The scope and authority of the Central Planning Board is contained in the minutes of a meeting held on 27 April 1942, and the duties and responsibilities of the board, according to said minutes, were announced as follows:

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

On 20 October 1942, the statutes of the Central Planning Board were published and distributed, a portion of which are as follows:

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

The Central Planning Board was superior to “the highest Reich authority, the Reich protector, the Governor General, and the executive authorities in the occupied countries.”

The International Military Tribunal found that the Central Planning Board “had supreme authority for the scheduling of German production and the allocation and development of raw materials.” The International Tribunal found further in its opinion, in the case of United States vs. Goering and others, “that the Central Planning Board requisitioned labor from Sauckel with full knowledge that the demands could be supplied only by foreign forced labor and that the board determined the basic allocation of this labor within the German war economy.” The International Military Tribunal found further in its opinion the following:

“In the fall of 1943 Funk (who was then indicted before said
Tribunal in regard to deportation and the use of foreign forced
labor in the German Reich) was a member of the Central Planning
Board which determined the total number of laborers needed for
German industry, and required Sauckel to produce them, usually
by deportation from occupied territories * * * but Funk was
aware that the board of which he was a member was demanding the
importation of slave laborers, and allocating them to the
various industries under his control.”

The prosecution offered evidence which tended to show that Albert Speer was the Plenipotentiary for Armament and was the nominal head of the Central Planning Board and that the defendant was a member of said board and was, by the order of Hitler, assigned to assist Speer as the head of said board. During much of the time of the existence of said board Speer was ill and unable to attend the meetings and look after the duties of the board and during this time the defendant was the acting head of said board and presided over its meetings as chairman.

Fritz Sauckel was Plenipotentiary for Labor and was directly responsible for the procurement and allocation of labor to the various war industries. However, the Tribunal finds as a fact that although Sauckel had the primary duty of procuring and allocating labor, the Central Planning Board on many occasions, as the minutes of the meetings of said board show, called Milch into conference with the members of the Central Planning Board and in such conferences labor was assigned and allocated by the Central Planning Board and Sauckel. The minutes of the Central Planning Board, as introduced by the prosecution, show that the members of the Central Planning Board knew and discussed the fact that labor was being deported from occupied countries against their will and were being used in various factories manufacturing armaments, airplanes, and other articles essential and necessary to the war effort, that such foreign workers were being forcibly taken from their homes without knowledge of their destination, and by force and against their will, crowded into box cars without food or water or toilet facilities, transported great distances, and forced to work in factories manufacturing war materials and other necessary items for the prosecution of the war as slave laborers.

I find as a fact that the defendant Milch had knowledge of the way and manner in which such labor was procured and the work that they were forced to do, and that he aided, abetted, counseled, advised, and assisted in the deportation, allocation, and work of said slave laborers.

The documents and reports of the meetings as offered by the prosecution are too voluminous to incorporate herein, but said records clearly show that the defendant was one of the authorized agents who dealt with the procurement, deportation, and work of thousands and thousands of slave laborers from occupied countries.

_JAEGERSTAB_

I find as a fact that it was the defendant who conceived and instigated the formation of the Jaegerstab, and that the defendant directed its activities and acted as its chairman. The Jaegerstab assumed control over fighter production and exploited foreign forced labor in the armament industry and directed the use of the same. The Jaegerstab was assigned top priority for their projects, for the recruitment and commitment of manpower in the air armament industry. From the meetings of said board as offered in evidence by the prosecution, the question of manpower was time and time again referred to by the defendant. When other methods of obtaining its labor was not forthcoming, the Jaegerstab recruited its own labor either directly or by engineering snatching expeditions for the seizure of manpower arriving on transports from the East.

At one of the meetings of the Jaegerstab, Prosecution Exhibit 54, page 28, the defendant made this statement to his subordinates, that “international law cannot be observed here.” When the question of Italian civilian labor was being discussed at a meeting of the Jaegerstab, the defendant made the statement and advocated the shooting of those who attempted to escape in transit.

I find as a fact that the Jaegerstab was not a mere discussion group but was an agency with absolute authority over fighter production and acted by orders and directives, fixed hours of labor and conditions of work, and on one occasion fixed the established hours of work per week in the aircraft industry at seventy-two hours.

Much of the labor employed by the Jaegerstab in aircraft production and in the air armament industry was from concentration camp inmates and foreign forced labor. The defendant was well acquainted with the procurement and allocation of this labor.

I find as a fact, from the evidence offered in the case, that after the arrival of forced slave labor from occupied countries they were poorly fed, poorly clothed, were forced to work an excessive amount of hours each week, and that their general condition and treatment as a result of such forced labor resulted in the death of a great many and the permanent disability of others, both in body and in mind.

_GENERALLUFTZEUGMEISTER_

I find as a fact from the evidence offered in the case, that the defendant, as Generalluftzeugmeister, had complete control of aircraft production and that he requisitioned labor for the aircraft industry with knowledge of the brutal and inhuman techniques in recruiting these laborers; and that he gave directives for the criminal treatment of the same in the centers of production. Fritz Sauckel, Plenipotentiary for Labor, stated that it was “Milch who produced manpower figures for aviation.” Albert Speer testified as follows: “The requests of the air armament industry for laborers were presented by Milch, and he did not permit anyone to take this right away from him until March 1944.”

I find as a fact from the evidence offered on the part of the prosecution, that prisoners of war were included in the manpower that the defendant was requisitioning and distributing to the aircraft industry with full knowledge that they were prisoners of war. As chief of aircraft production, the defendant regulated the treatment of foreign forced labor in the German aircraft industry, fixed hours of labor and conditions of work, and by directives to his subordinates formulated the basic policy for the handling of such labor within the industry.

The evidence presented by the prosecution tended to show that the defendant advocated the most extreme measures in dealing with foreign forced labor, inhuman measures which violated every recognized principle of decency. When foreign forced laborers refused to work, the defendant ordered that they be shot. When they attempted to revolt the defendant directed that some of their numbers be killed, regardless of their personal guilt or innocence. In the case of prisoners of war who attempted to escape, the defendant ordered that these prisoners be shot and later hanged in the factory for all to see. On one occasion the defendant made the following statement, Prosecution Exhibit 145:

“The other day I talked to Himmler about it, and I told him that
his main task should be to see to the production of German
industry in case of internal uprisings of the foreign workers. I
said that consequently a well established method should exist,
and I have already given orders to the Chief A. W.[167] and to
the training stations to get military training in this field.
If, for instance, in the Locality X an uprising is started, then
a sergeant with a few men, or else a lieutenant with thirty men
has to turn up in the plant, and first of all shoot into the
crowd with a machine gun. What he should do after is to shoot
down as many people as possible in case of revolt. I have given
orders to that effect, and even if our own foreign workers are
involved—and then every tenth man is to be singled out and shot
while the others are lined up and see him.”

On another occasion, Prosecution Exhibit 148, when the defendant was speaking of the treatment of foreign workers, he made the following statement.

“In all these matters energetic interference must be made. I am
of the opinion that there should be only two types of punishment
in such cases; firstly, a concentration camp for foreigners, and
secondly, capital punishment.”

The prosecution offered a great number of documents containing statements made by the defendant in regard to orders and threats of violence, for mistreatment and punishment, tortures, killings, and hangings of foreign workers. Space is too short to quote in this judgment all of such pertinent documents.

Although the defendant denied making a number of these statements appearing in the documents, he admitted the authenticity and utterances of many, with the excuse that he was a man of very violent temper, who, when worried from overwork, was not wholly responsible for many utterances made by him. He protested further that he did not actually mean nor intend for orders given in such fits of temper to be carried out, but they were simply the result of uncontrolled anger, and understood by his associates and subordinates to have been uttered in such vein. In further extenuation he declared that head injuries resulting from two serious accidents were largely responsible for such uncontrollable temper.

I have given due consideration to the explanation given by the defendant and am compelled to reject it. If but only a few of such remarks could be attributed to the defendant, his protestations might be given some credence; but when statements such as appear in the documents have been persistently made over long periods of time, at many places and under such varying conditions, the only logical conclusion that can be reached is that they reflect the true and considered attitude of the defendant toward the Nazi foreign labor policy and its victims and are not mere aberrations brought on by fits of uncontrollable anger. I find as a fact, therefore, that the true attitude of the defendant toward foreign laborers and prisoners of war is that reflected in the documents of the prosecution and was not the result of uncontrollable fits of temper. I find, further, that the defendant ordered, advised, counselled, and procured inhumane and illegal treatment of foreign workers resulting in permanent injury and death to many.

COUNT NO. 2
_MEDICAL EXPERIMENTS_

The prosecution contends that in violation of the laws of war and of crimes against humanity, high-altitude and freezing experiments were carried out by the Luftwaffe physicians at Dachau, and that said physicians who conducted such experiments were under the command of and subordinate to the defendant Milch.

I am of the opinion from the evidence offered on the part of the prosecution that illegal and inhuman medical experiments were conducted at Dachau by Luftwaffe physicians who were under the command and subordinate to the defendant Milch and from which a great number of deaths ensued to concentration camp inmates and that great pain and suffering and permanent disability resulted to many others. I find as a fact from the evidence offered on the part of the prosecution that Dr. Erich Hippke was the Medical Inspector of the Luftwaffe and was the direct subordinate of the defendant Milch; that Hippke gave authority and ordered Dr. Rascher, a Luftwaffe physician, in the early spring of 1941 to use concentration camp inmates and prisoners of war as high-altitude experimental subjects for the benefit of the Luftwaffe. I further find, as a fact, that the witness Hippke at no time communicated this information to the defendant Milch, nor has the prosecution offered any direct evidence to the effect that the defendant Milch knew that such experiments had been conducted until after their completion. All of the testimony and the evidence, both for the prosecution and the defense, is to the effect that the defendant Milch did not have such knowledge of the high-altitude or low-pressure experiments which were carried out and completed by Luftwaffe physicians at Dachau until after the completion of such experiments. The evidence offered as to the knowledge or responsibility of the defendant Milch was not of such a nature as to show guilty knowledge on his part of said experiments.

As to the cooling or freezing experiments performed at concentration camp, Dachau, for which the defendant is charged with responsibility, I find as a fact that the defendant ordered experiments to be conducted at the camp for the benefit of the Luftwaffe. In a letter from Milch to Obergruppenfuehrer Wolff of the SS, dated 20 May 1942, the following is stated:

“In reference to your telegram of 12 May our medical inspector
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. However,
the carrying out of experiments of some other kind in regard to
perils at high sea 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 with 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.”

Further evidence makes it manifestly plain that subsequent to the receipt of the letter of Wolff, officers of the Luftwaffe, under the command and subordinate to the defendant, conducted medical experiments on concentration camp inmates at Dachau, against their will, by placing such experimental subjects in tanks of water of freezing temperatures, and requiring them to remain there for long periods of time while certain medical data concerning such subjects was gathered; and that as a result of such experiments, many of the human subjects died or were gravely injured.

The defendant admits giving orders for the conduct of experiments within the scope of the authority conferred by the letter, but contends that he did not know of, or contemplate, that the experiments would be conducted in an illegal manner or would result in the injury or death of any person. The defendant further asserts that he did not know or have any reason to believe that the experiments were conducted in such manner until after they had been completed. He therefore insists that he was and is not responsible for the unlawful manner in which the experiments were actually conducted by the Luftwaffe officers, and that he is not guilty of any crime as a result thereof.

The Tribunal, in its majority opinion, has fully considered the decision of the United States Supreme Court in the judgment in re Yamashita, and has found that said decision is not controlling in the case at bar. In weighing the evidence, the Tribunal was mindful of the fact that the defendant gave the order and directed his subordinates to carry on such experiments, and that thereafter he failed and neglected to take such measures as were reasonably within his power to protect such subjects from inhumane treatment and deaths as a result of such experiments. Notwithstanding these facts, the Tribunal is of the opinion that the evidence fails to disclose beyond a reasonable doubt that the defendant had any knowledge that the experiments would be conducted in an unlawful manner and that permanent injury, inhumane treatment or deaths would result therefrom.

Therefore, the Tribunal found that the defendant did not have such knowledge as would amount to participation or responsibility on his part and therefore found the defendant not guilty on charges contained in count 2.

CONCLUSIONS

(1) I concur in the opinion of the Tribunal that war crimes and crimes against humanity were committed by the defendant, including deportation, enslavement, and mistreatment of millions of persons; and that as a result thereof and in furtherance of such treatment, murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts were committed in a large scale measure upon citizens of occupied countries, prisoners of war, Jews, and other nationals. I agree further that the defendant was a principal in, accessory to, ordered, abetted, and took a consenting part therein. I also agree that for such acts and conduct on the part of the defendant, he is guilty of charges contained in count number one of the indictment.

The evidence produced during the trial upon the charges contained in this count showed conclusively that countless millions of persons were unlawfully deported, enslaved, and murdered. Especially were the Jews mistreated, tortured and murdered merely because they were Jews and their extermination desired. History discloses the fact that as early as the year 1349 in the city of Nuernberg, and within sight of where this opinion is being written, the citizens of Nuernberg drove the Jews from their city, confiscated their property, and erected a market place on the site of the Ghetto and the Liebfrauenkirche in place of the Synagogue. The hatred of the Aryan German for the Jew seems to have been constant during the many intervening years. History will record such conduct as a blot upon the name of the present German generation for many years to come.

(2) The Tribunal found the defendant not guilty of the charges contained in count number two, and I concur in such finding.

Under the American concept of liberty, as brought to us by our Anglo-Saxon heritage and the English Common Law, every person accused of crime is presumed to be innocent until proof of his guilt is established by the evidence and beyond a reasonable doubt. This presumption follows him throughout the trial and until he is found guilty beyond a reasonable doubt. In applying this God-given principle of liberty, one eminent American jurist uttered the following words:

“After considering and weighing all of the evidence you then
find that your minds are disturbed, your convictions
tempest-tossed, and your judgment, like the dove of the deluge,
finds no place to rest; the law says you must acquit.”

The defendant was given the full benefit of these great and lasting rules of law and has received at the hands of the Tribunal a fair and impartial trial in full accord with the American concepts of justice under the law.

(3) Count three of the indictment charges the defendant with crimes against “German nationals and nationals of other countries.” I am of the opinion that sufficient evidence was not produced by the prosecution to justify an adjudication by the Tribunal of guilt as to German nationals alone. However, as to such crimes against nationals of other countries, the Tribunal has heretofore considered such charges and has made an adjudication concerning the same in count number one of the indictment. The conclusion of the Tribunal is that the same unlawful acts of violence which constituted war crimes under count one of the indictment also constitute crimes against humanity as alleged in count three of the indictment. Therefore, the Tribunal found the defendant guilty of crimes against humanity under count three, with which finding I concur.

In weighing the evidence, the Tribunal simulated the ancient customs of using the seed of the oriental carob tree to balance the scales of justice. The defendant should not now complain.

Therefore, for the reasons stated, I am in full agreement with the judgment of the Tribunal and concur therein.

Respectfully submitted this the 15th day of April, 1947
[Signed] FITZROY D. PHILLIPS
Fitzroy D. Phillips
Judge, Military Tribunal No. II

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[166] See Table of Comparative Ranks, p. 331.

[167] Chef Ausbildungswesen (Chief of Training).

VIII. PETITIONS

A. Extract from Petition for Clemency to Military
Governor of United States Zone of Occupation

Nuernberg, 2 May 1947

To the Military Governor

PETITION

of

Attorney-at-law Dr. Friedrich Bergold,
Nuernberg, Prinzregenten-Ufer 7/III,
Defense Counsel, Military Court II

Nuernberg

in Case II against the defendant
Erhard Milch, General Field Marshal,
at present in the Court Prison, Nuernberg,
to modify the sentence of the Military Court II

Nuernberg

on 16/17 April 1947.

* * * * *

A

The sentence passed on counts I and III contains actual inaccuracies, which are inconsistent with the recorded evidence. Obviously, these errors have had an influence on the sentence as far as the award of punishment is concerned. A correction of these errors would necessarily lead to a less severe sentence.

1. The statements on page 3 of the judgment that Milch since 19 November 1941 was the second highest commander of the Luftwaffe is not in agreement with the evidence. The witnesses have testified that from 1938-1941 Milch held only one of the four highest commanding posts under Goering, and since 1941 two of the four highest Luftwaffe commanding posts. Only in regard to seniority he was the oldest officer of these four highest commands. This is important because evidence has been given for the fact that the general staff of the Luftwaffe had the responsibility for the armament program of the Luftwaffe.

2. It is not consistent with recorded evidence that the Central Planning Board had been created by a decree of the Fuehrer of 29 October 1943. It has been proved by the statement of Speer that the decree of 29 October 1943 was a decree issued by Speer a long time after the creation of the Central Planning Board and without authorization of the defendant Milch. Since this decree was issued by Speer for his sphere of administration only, no conclusion can be drawn therefrom against the defendant.

3. It is not consistent with recorded evidence that the Court finds that the Central Planning Board handled the labor problem as such. Exhibit 151 of the prosecution proved the opposite. The witnesses who have been heard have confirmed that the Central Planning Board handled the labor problem only for information purposes for the distribution and production of raw materials and in order to clarify the untrue statements of Sauckel. This Exhibit 151 constitutes essential new evidence which is of greatest importance in regard to the verdict of the International Military Tribunal.

4. It is not consistent with recorded evidence that the defendant had admitted having seen Russian prisoners of war at service at 8.8 and 10.5 cm. antiaircraft guns in aircraft factories in Luftgau 7. The witness Vorwald made this statement on the basis of his own observation.

It has been proved that Milch had nothing to do with the allocation of Russians to the antiaircraft artillery (flak), and that he declared himself against it.

5. It is not consistent with recorded evidence that Milch said that Russian prisoners of war had volunteered for work in war plants. What he did state—and this was in agreement with the witnesses Vorwald and Foerster—was that Russian prisoners of war had volunteered for service at the antiaircraft artillery (flak), with the reservation that they would not be used for combatting Russian airplanes. This condition was fulfilled. Thus, there is no question of an inadmissible use of prisoners of war for war service.

6. It is not consistent with recorded evidence that Sauckel, the Plenipotentiary for the Allocation of Labor, participated in at least 15 sessions of the Central Planning Board. Only 15 minutes concerning the sessions [minutes of 15 sessions] of the Central Planning Board have been submitted. These minutes prove that Sauckel was not present at most of these sessions.

7. It is not consistent with recorded evidence that the defendant was informed about the methods employed and the cruelties on the occasion of the recruiting and utilization of foreign workers. All witnesses who have been heard have stated the opposite. It is therefore not permissible to assume without the basis of exact proof that Milch was informed about these matters. The Court concludes from the fact that foreign workers and prisoners of war had been used that Milch must necessarily have recognized that the methods must have been cruel. Speer has stated explicitly that the cruel methods were not necessary and that, therefore, they were an error. But if they were not necessary then the conclusion drawn from them without any explicit proof was not permissible.

8. It is not consistent with recorded evidence that 100,000 Polish prisoners of war were deported to concentration camps. The opposite has been proved, viz., that Polish prisoners of war, in accordance with the agreement between Russia and Germany were released from captivity and employed as civilians.

9. It is not consistent with recorded evidence that Romanian nationals were subjected to deportation. Not one single piece of evidence for that has been submitted. Romania was mentioned by the defense only in connection with the armistice agreement between Russia and Romania.

10. It is not consistent with recorded evidence that Milch used Hungarian Jews. It is proved by the evidence that this did not happen before the summer of 1944 when Milch had resigned from his positions.

11. It is not consistent with recorded evidence that the Schmundt minutes must be correct, for the reason that if any allusion to a war had been omitted, Hitler would not have spoken at all. It has been proven that Hitler spoke merely theoretically about the world situation in case there should be a war at some time. He did not mention that he wanted to foment aggressive wars.

B

The judgment states that the defendant recommended more drastic and more cruel measures in regard to the recruiting and utilization of workers. (Page 18 of the judgment.)

This is in discrepancy with the recorded evidence.

Here the defense does not argue about the separate reasons given by Judge Michael A. Musmanno, since these reasons do not constitute the official judgment. These reasons also contain factual errors and even use material which has not been discussed during the trial.

These separate reasons, however, make it possible to draw a conclusion in regard to the sentence of the judgment which states that the defendant recommended more drastic and more cruel measures.

It has been proved through the evidence that utterances to that effect were made by the defendant only in smaller circles and while he was in a state of excitement. It has been proved that no action was ever taken in conformity with these utterances. It has been proved that the defendant never asked for action pursuant to such utterances. It has been proved that he did not have any executive power in regard to any measures whatsoever. It has finally been proved that the record concerning such utterances must in part be incorrect.

Therefore, it has not been proved that the defendant approved such cruelties or demanded them in earnest.

C

The objection must be raised that the Military Tribunal did not clarify at all the legal questions which were raised by the defense in connection with the fact that the Russian Government has explicitly renounced the Hague Convention concerning Land Warfare and the previous Geneva Conventions. Since the Decree Number 7 of the Military Government for Germany provides, in Article XV, that reasons have to be given for the sentence, the Tribunal would have had to state its position in regard to these questions. This also constitutes a defectiveness of the verdict and this defect may possibly have had an influence on the award of the punishment.

D

The Military Tribunal has extensively referred on page 14 and 15 to the verdict of the International Military Tribunal against Speer. The Tribunal has therefore made the reasons of the International Military Tribunal its own to a large extent.

But consequently the Military Tribunal would have had to examine the problem of extenuating circumstances. The defense has already pointed out that the fact that he organized protected factories constituted for Speer an extenuating circumstance. During the trial it has been clearly proved that Milch was the first who already in 1941 organized protected factories, and that he was, therefore, the inventor of this kind of employment.

The problem of extenuating circumstances involves further the examination of the question, whether Milch had more to do with the utilization of foreign workers and prisoners of war than Speer. This examination was omitted. Exhibit Milch 55 and also all the evidence proved that Speer’s participation in the utilization of foreign workers and prisoners of war was considerably more extensive.

If the Tribunal had examined the extenuating circumstances, then the result would undoubtedly have been that the defendant would have been allowed extenuating circumstances on a large scale. Due to the fact that the responsibility of Speer was greater than that of Milch, Milch should not have received a more severe sentence than Speer.

Consideration should also have been given to the fact that it was proved that Milch continually advocated restrictions in the employment of foreign workers and of prisoners of war, and that he did indeed succeed in achieving such restrictions.

Finally, consideration should also have been given to the fact that Milch withdrew from his positions as early as spring and summer 1944, and that he had nothing to do with the extraordinary aggravation of all conditions which took place toward the end of the war.

This weighs more than what Speer did—the nonexecution of some insane orders which Hitler issued at the end of the war in 1945.

This consideration too should have led the Tribunal to a much less severe sentence. The fact that this was not taken into consideration is therefore made a part of this petition.

(Signed) DR. BERGOLD

B. Petition to the Supreme Court of the United States
for Writ of Habeas Corpus

Erhard Milch, Petitioner _vs._ United States of America

Nuernberg, 2 May 1947

IN THE SUPREME COURT OF THE UNITED STATES

Application for Leave to File Petition for Writ of Habeas Corpus

Petition for Writ of Habeas Corpus

I, the undersigned Erhard Milch, have been charged in Case No. II before the Military Court No. II Nuernberg of illegally, deliberately, and intentionally having committed war crimes and crimes against humanity, as defined in Control Council Law No. 10 Article II, viz. the following:

_Count One of the Indictment._ War crimes, including murder, slave labor, deportation of the civilian population for slave labor, cruel and inhuman treatment of foreign workers, and the employment of prisoners of war by force and duress in actions connected with warfare.

_Count Two of the Indictment._ War crimes, including murder, whereby involuntary victims were exposed to sub-pressure and cold, experiments resulting in torture and death.

_Count Three of the Indictment._ Crimes against humanity, including murder and the unlawful acts listed in counts one and two of the indictment, committed against Germans and foreigners.

(page 2 of original)

I have been acquitted on count II of the indictment and found guilty by the sentence passed by the Military Court II on 16/17 April 1947 in respect of counts I and III of the indictment, and am condemned therefore to lifelong imprisonment.

I hereby make application for the sentence of the Military Court II passed on 16/17 April 1947 to be completely quashed, as being inadmissible according to Articles 63 and 64 of the Geneva Convention of 1929.

_Substantiation_

Decree No. 7 of the Military Government of Germany concerning the constitution and competency of certain military courts, constitutes a violation of Article 63 of the Geneva Convention of 1929, insofar as Decree No. 7 is applied to prisoners of war as well, and in its Article II appoints special courts for passing sentences on prisoners of war. Article 63 of the Geneva Convention of 1929 lays down, “Sentence against a prisoner of war may only be passed by the same courts and according to the same procedure as a sentence against persons belonging to the fighting forces of the country where he is a prisoner”. A field marshal is equal to a five-star general of the United States of America. The present Court consisted of three judges, of which not one has the military rank which I have. It therefore does not correspond to the court which, according to the laws of the United States of America, could pass sentence on a five-star general. The authority of the present Court is, however, expressly recognized by me.

Furthermore, Decree No. 7 of the Military Government of Germany constitutes a violation in Article XV of Article 64 of the Geneva Convention of 1929, because Article XV declares the sentence of the court in finding the defendant guilty, to be final and incontestable. Article 64 of the Geneva Convention of 1929 stipulates that prisoners of war must be allowed to employ the same legal means against a verdict as are granted to members of the fighting forces

(page 3 of original)

of the country where they are detained.

The rules laid down by the Geneva Convention of 1929 represent compulsory international law of a universal character and cannot be altered either by a signatory power alone or by an agreement between several signatory powers, but only by the consent of all signatory powers. In no case may they be altered by a decree of Military Government, not even by a decree of the Control Council. The rights of a prisoner of war, which are based upon the regulations of the Geneva Convention of 1929, can neither be waived nor cancelled.

The violation of the regulations of the Geneva Convention has now come about with the passing of sentence and the now existing restrictions placed in the way of contesting the verdict, not already by the trial as such.

I am still a prisoner of war. I have not been released from captivity. I am therefore still under the protection of the Geneva Convention, the same as before.

The violation of the Geneva Convention is all the more serious, in that I am still a prisoner of war of the British. True, the defense counsel was told at the beginning of the trial in reply to an express question, that my transfer to the jurisdiction of the United States of America was already effected, but it was not proved until the conclusion of the passing of sentence. That should have been absolutely necessary.

After the serving of the indictment and the beginning of the actual trial, an attempt was made on 4 January 1947 to gain my veiled consent to my release without saying anything, whereby I was asked to accept release money. On the receipt, however, I expressly noted, “Without recognizing my release”. I declared that release by American officers was not

(page 4 of original)

permissible at that moment and moreover a German field marshal could not be released in any case under existing German law.

After this explanation on my part, the American major conducting the proceedings revealed to me that another separate release proceeding would have to be carried out against me then.

Thereby it is clear that I am still a prisoner of war today. At any rate, I was when the trial begun and therefore in accordance with Article 60 of the Geneva Convention the protecting power for German prisoners of war, viz., Switzerland, should have been informed of the proceedings. This too constitutes a violation of the Geneva Convention of 1929. If the public prosecution authorities, however, were to refer to the fact that I was released after the trial had begun, then they should be confronted with the assertion that such a release is invalid. It would represent nothing but an evasion of the regulations of the Geneva Convention of 1929. I was not set at large for a single day. But that is demanded by a release from captivity as a prisoner of war. A release from captivity as a prisoner of war while maintaining captivity would be a release in fraudem legis.

Therefore the sentence constitutes a violation of international law. At the same time this violation is also a violation of the Habeas Corpus Act. None, under whatever pretext, may be deprived of the rights of legal proceedings and of a legal judge.

I therefore request the Supreme Court in Washington to examine whether the Decree No. 7 of the Military Government of Germany may be applied in my case, and whether, with due regard to the regulations of Article 60-65 of the Geneva Convention, the present Military Court II

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Nuernberg was in a position to pass sentence on me.

Furthermore I enclose a copy of my petition to the Governor-General [Military Governor of U. S. Zone of Occupation].

[Signed] ERHARD MILCH

[Note: Another petition with the same text was submitted to the
United States Supreme Court by Dr. Bergold, Defense Counsel.]

IX. AFFIRMATION OF SENTENCE BY THE
MILITARY GOVERNOR OF THE UNITED
STATES ZONE OF OCCUPATION

Military Tribunal II, Case No. 2

In the Case of

The United States of America

_vs._

Erhard Milch, Defendant

_Order with Respect to Sentence_

In the case of the United States of America against Erhard Milch, tried by United States Military Tribunal II, Case 2, Nuernberg, Germany, the defendant on 17 April 1947 was sentenced by the Tribunal to be transported to the Rebdorf Prison and there confined for the remainder of his natural life. A petition to modify the sentence, filed on behalf of the defendant by Dr. Friedrich Bergold, his defense counsel, has been referred to me pursuant to delegation by the Military Governor under the provisions of Article XXIII of Military Government Ordinance No. 7 and paragraph 6_b_ of Regulation No. 1 under said Ordinance. I have duly considered the petition and the record of the trial, and in accordance with Article XVII of said Ordinance and paragraph 6_b_ of said Regulation it is hereby ordered that—

The sentence imposed by Military Tribunal II, upon Erhard Milch be, and hereby is, in all respects affirmed.

[Signed] FRANK A. KEATING
FRANK A. KEATING
Major General USA
Deputy Military Governor
17 June 1947

X. ORDER OF THE UNITED STATES SUPREME
COURT, 20 OCTOBER 1947, DENYING
WRIT OF HABEAS CORPUS

Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Murphy, Mr. Justice Jackson, Mr. Justice Rutledge, and Mr. Justice Burton.

No. 50, Misc. Erhard Milch, petitioner, _vs._ The United States of America. The motion for leave to file petition for writ of habeas corpus is denied. Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that the petition should be set for hearing on the question of the jurisdiction of this Court. Mr. Justice Jackson took no part in the consideration or decision of this application.