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Discovering Diverse Content Through
Random Scribd Documents
 [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

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

[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.
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