Opinion and Judgment of the United States Military Tribunal II*
[*Concurring opinions were filed by Judge Musmanno, see pp. 797-859, and by Judge Phillips, see pp. 860-878.]
The indictment in this case contains three counts, which may be summarized as follows:
Count One: War crimes, involving murder, slave labor, deportation of civilian population for slave labor, cruel and inhuman treatment of foreign laborers, and the use of prisoners of war in war operations by force and compulsion.
Count Two: War crimes, involving murder, subjecting involuntary victims to low-pressure and freezing experiments resulting in torture and death.
Count Three: Crimes against humanity, involving murder and the same unlawful acts specified in counts one and two against German nationals and nationals of other countries.
For reasons of its own, the Tribunal will first consider counts two and one, in that order, followed by consideration of count three
More in detail, this count alleges that the defendant was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving medical experiments without the subjects' consent, in the course of which experiments, the defendant, with others, perpetrated murders, brutalities, cruelties, tortures, and other inhuman acts. The so-called medical experiments consisted of placing the subject in an airtight chamber in which the air pressure is mechanically reduced so that it is comparable with the pressure to which an aviator is subjected at high altitudes, and in experimenting upon the effect of extreme dry and wet cold upon the human body. For these experiments inmates of the concentration camp at Dachau were selected. These inmates presented a motley group of prisoners of war, dissenters from the philosophy of the National Socialist Party, Jews, both from Germany and the eastern countries, rebellious or indifferent factory workers, displaced civilians from eastern occupied countries, and an undefined group known as "asocial or undesirable persons."
In approaching a judicial solution of the questions involved in this phase of the case, it may be well to set down seriatim the controlling legal questions to be answered by an analysis of the proof.
(1) Were low-pressure and freezing experiments carried on at Dachau?
(2) Were they of a character to inflict torture and death on the subjects? (The answer to these two questions may be said to involve the establishment of the corpus delicti.)
(3) Did the defendant personally participate in them?
(4) Were they conducted under his direction or command?
(5) Were they conducted with prior knowledge on his part that they might be excessive or inhuman?
(6) Did he have the power of opportunity to prevent or stop them?
(7) If so, did he fail to act, thereby becoming particeps criminis and accessory to them?
The periods during which these experiments were conducted become extremely significant in determining the responsibility of the defendant. The evidence is uncontradicted that the low-pressure experiments were inaugurated in March 1942, and were concluded by the end of June 1942. The cold water experiments extended from August 1942 to October 1942, and the freezing experiments from February 1943 to April 1943. During all of these periods the defendant was Under State Secretary of the Reich Air Ministry, Inspector General and Second in Command under Goering of the Luftwaffe, to which post he was appointed 19 November 1941. In these various capacities, certain military duties devolved upon him, especially as Inspector General. For example, he was ordered by Hitler to take an air squadron to Norway on a purely military expedition, and during the siege of Stalingrad, early in 1943, he was ordered by Hitler to attempt to transport into Stalingrad by air food and supplies for the beleaguered German Army. His high military standing is indicated by the fact that he was one of the twelve field marshals of the German armed forces. The major part of his duties, however, revolved around the production of aircraft for the Luftwaffe. He was primarily a production man, charged with the duty of keeping military airplanes supplied in sufficient quantity to the air arm of Germany's military machine. This naturally involved the procurement in large quantities of the two essential ingredients of production - labor and raw material - and an over-all supervision of any efforts having to do with that arm. One of the defendant's immediate subordinates was Professor Hippke, who held the post of Inspector of the Medical Services of the Luftwaffe. Hippke was a physician, and had supervision of all matters involving the health and physical welfare of the personnel of the Luftwaffe.
The low-pressure experiments at Dachau were conducted by three physicians, Dr. Romberg, Dr. Ruff, and Dr. Rascher. It is quite apparent from the evidence that Dr. Rascher, who was attached to the Luftwaffe but made frantic efforts to have himself transferred to the SS, was principally responsible for the nature of the experiments. Dr. Ruff and Dr. Romberg were also attached to the Luftwaffe and were, therefore, remotely under the command and control of the defendant, but the evidence is persuasive that, although they were interested in and helped conduct the experiments up to a certain point, the excesses which resulted in torture and death are attributable to Dr. Rascher. It is quite apparent that the actual activities of these three physicians were far removed from the immediate scrutiny of the defendant even though their activities were conducted within the orbit of the Luftwaffe, over which the defendant had command.
Approaching now the determinative questions listed above, some progress can quickly be made in arriving at judicially satisfactory answers.
(1) As to the first question, the evidence is overwhelming and not contradicted that experiments involving the effect of low air pressure and freezing on live human beings were conducted at Dachau from March 1942 through June 1942.
(2) Approaching the second question, it is claimed by the defendant that only legitimate scientific experiments were conducted which did not involve pain or torture and could not ordinarily be expected to result in death. It is remotely possible that so long as the experiments were under the guidance of Dr. Ruff and Dr. Romberg some consideration was given to the possible effect upon the subjects of the experiments. But it is indisputable that the experiments conducted by Dr. Rascher involved torture and suffering in the extreme and in many cases resulted in death. Under the specific guidance of Dr. Rascher, the air pressure was reduced to a point which no flier would ever be required to undergo (14000 meters). The photographs of the subjects undergoing these experiments indicate extreme agony and leave no doubt that any victim who was fortunate enough to survive had undergone a harrowing experience. The Tribunal does not hesitate to find that these experiments performed under the specious guise of science, were barbarous and inhuman. It has been urged by the defendant that the only persons used as subjects of these experiments were habitual criminals who had been sentenced to death and who were given the dubious option of offering themselves for the experiments and receiving as a reward, if they survived, a commutation of the death sentence to life imprisonment. This claim scarcely merits serious consideration. A number of witnesses stated that they had a vague understanding that this was the case, but the record is entirely barren of any credible testimony which could possibly justify such a finding of fact.
(3) The prosecution does not claim (and there is no evidence) that the defendant personally participated in the conduct of these experiments.
(4) There is no evidence that the defendant instituted the experiments or that they were conducted or continued under his specific direction or command. It may perhaps be claimed that the low-pressure chamber, which was the property of the Luftwaffe, was sent to Dachau at the direction of the defendant, but even if this were true it could not be inferred from that fact alone that he thereby promulgated the inhuman and criminal experiments which followed. The low-pressure chamber was susceptible of legitimate use and, perhaps, had Dr. Rascher not injected himself into the proceedings, it would have been confined to that use.
(5) Assuming that the defendant was aware that experiments of some character were to be launched, it cannot be said that the evidence shows any knowledge on his part that unwilling subjects would be forced to submit to them or that the experiments would be painful and dangerous to human life. It is quite apparent from an over-all survey of the proof that the defendant concerned himself very little with the details of these experiments. It was quite natural that this should be so. His most pressing problems involved the procurement of labor and materials for the manufacture of airplanes. His position involved vast responsibilities covering a wide industrial field, and there were certainly countless subordinate fields within the Luftwaffe of which he had only cursory knowledge. The Tribunal is convinced that these experiments, which fell naturally and almost exclusively within one of his subordinate departments, engaged the attention of the defendant only perfunctorily, if at all.
(6) Did the defendant have the power or opportunity to prevent or stop the experiments? It cannot be gainsaid that he had the authority to either prevent or stop them insofar as they were being conducted under the auspices of the Luftwaffe. It seems extremely probable, however, that, in spite of him, they would have continued under Himmler and the SS. But certainly he had no opportunity to prevent or stop them, unless it can be found that he had guilty knowledge of them, a fact which has already been determined in the negative. As early as 20 May 1942, the defendant wrote to Wolff, Himmler's Adjutant, stating:
"* * * our medical inspector [Dr. Hippke] reports to me that the altitude experiments carried out by the SS and Luftwaffe at Dachau have been finished. Any continuation of these experiments seems essentially unreasonable * * *
"The low-pressure chamber would not be needed for these low-temperature experiments. It is urgently needed at another place and therefore can no longer remain in Dachau."
Certainly the defendant did not have the opportunity to prevent or stop the experiments if he had been told and was convinced that they had terminated on 20 May 1942, and there is no reason to believe that he did not rely upon Dr. Hippke's report as to their termination. Considerable emphasis is laid upon the testimony that a motion picture of the experiments was brought to Berlin and exhibited in the Air Ministry Building, where the defendant had his office. It may even be said that the picture was brought to Berlin for the defendant's edification. But it appears that he was not present when it was shown and that, in any event, the showing was long after the experiments were concluded, at which time the defendant certainly could do nothing toward preventing them or stopping them.
(7) In view of the above findings, it is obvious that the defendant never became particeps criminis and accessory in the low-pressure experiments set forth in the second count of the indictment.
As to the other experiments, involving subjecting human beings to extreme low temperatures both in the open air and in water, the responsibility of the defendant is even less apparent than in the case of the low-pressure experiments. The same letter of 20 May 1942 to Wolff does indicate that the defendant was aware of the proposed sea-water experiments. In it he says,
"* * * the carrying out of experiments of some other kind, in regard to perils at high seas, would be important. These have been prepared in immediate agreement with the proper offices; Oberstabsarzt Weltz will be charged with the execution and Stabsarzt Rascher will be made available until further order in addition to his duties within the medical corps of the Luftwaffe. A change of thee measures does not appear necessary, and an enlargement of the task is not considered pressing at this time."
It is true that Rascher wrote interminable reports as to the results of these experiments, but there is no proof that they ever reached the defendant. On the contrary, they were addressed to Himmler and to Rudolf Brandt, his adjutant. At the Nuernberg conference in November 1943, which was held after all experiments had been finished, reports were made which even to a mildly curious lay person might have indicated that the experiments had been tinged with excesses and fatalities. But two facts are striking. First, the defendant was not present at the conference and only received a report of it later; and, second, the experiments were at that time all over.
It must be constantly borne in mind that this is an American court of justice, applying the ancient and fundamental concepts of Anglo-Saxon jurisprudence which have sunk their roots into the English common law and have been stoutly defended in the United States since its birth. One of the principal purposes of these trials is to inculcate into the thinking of the German people an appreciation of, and respect for, the principles of law which have become the backbone of the democratic process. We must bend every effort toward suggesting to the people of every nation that laws must be used for the protection of people and that every citizen shall forever have the right to a fair hearing before an impartial tribunal, before which all men stand equal. We must never falter in maintaining, by practice as well as by preachment, the sanctity of what we have come to know as due process of law, civil and criminal, municipal and international. If the level of civilization is to be raised throughout the world, this must be the first step. Any other road leads but to tyranny and chaos. This Tribunal, before all others, must act in recognition of these self-evident principles. If it fails, its whole purpose is frustrated and this trial becomes a mockery. At the very foundation of these juridical concepts lie two important postulates (1) every person accused of crime is presumed to be innocent, and (2) that presumption abides with him until guilt has been established by proof beyond a reasonable doubt.
Unless the court which hears the proof is convinced of guilt to the point of moral certainty, the presumption of innocence must continue to protect the accused. If the facts as drawn from the evidence are equally consistent with guilt and innocence, they must be resolved on the side of innocence. Under American law neither life nor liberty is to be lightly taken away, and, unless at the conclusion of the proof there is an abiding conviction of guilt in the mind of the court which sits in judgment, the accused may not be damnified.
Paying reverent attention to these sacred principles, it is the judgment of the Tribunal that the defendant is not guilty of the charges embraced in count two of the indictment.
Count one of the indictment charges the defendant with the commission of specified war crimes, as defined by Article II of Control Council Law No. 10, in that he was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving slave labor and deportation to slave labor, resulting in the enslavement, torture and murder of civilians of foreign countries. The indictment further charges that he similarly participated in the use of prisoners of war in war operations and work having a direct relation to war operations, resulting in inhuman treatment and death to captured members of the armed forces opposed to Germany. The indictment alleges that these acts were in violation of international law and the recognized principles of civilized warfare and in specific violation of numerous treaties and conventions to which Germany was a party.
It is claimed by the prosecution that the defendant's responsibility for these alleged crimes arises from his activities in three capacities: (1) as Aircraft Master General (Generalluftzeugmeister); (2) member of the Central Planning Board; and (3) chief of the Jaegerstab. The Central Planning Board was established by a decree of the Fuehrer, dated 29 October 1943. That decree fitted the task of production of material goods of every kind into the framework of the Four Year Plan and charged the Central Planning Board with the procurement and distribution of material of every description. The Board consisted of Reich Minister Speer, Under Secretary Koerner, and the defendant. On 1 March 1944, the Jaegerstab was established, consisting of Speer, Saur (a subordinate of Speer), and the defendant. The Jaegerstab concerned itself exclusively with the material needs of the Luftwaffe and was headed, naturally, by the defendant. It became apparent that neither of these two bodies could adequately deal with the problems of production without constantly dealing with the question of labor supply. Meetings of the Central Planning Board were held at least weekly and the minutes of those meetings which were offered in evidence show a constant and unremitting concern with the problem of labor. Fritz Sauckel was in supreme command of the procurement of labor for the entire war effort and his conduct in carrying out his task has been vividly portrayed in the judgment of the International Military Tribunal [Trial of the Major War Criminals,vol. I, pp. 243-47, Nuremberg, 1947.]:
"* * * As local supplies of raw materials and local industrial capacity became inadequate to meet the German requirements, the system of deporting laborers to Germany was put into force By the middle of April 1940 compulsory deportation of laborers to Germany had been ordered in the General Government; and a similar procedure was followed in other eastern territories as they were occupied. A description of this compulsory deportation from Poland was given by Himmler. In an address to SS officers he recalled how in weather 40 degrees below zero they had to 'haul away thousands, tens of thousands, hundreds of thousands.' On a later occasion Himmler stated:
"'Whether ten thousand Russian females fall down from exhaustion while digging an antitank ditch interests me only insofar as the antitank ditch for Germany is finished * * *. We must realize that we have 6-7 million foreigners in Germany * * *. They are none of them dangerous so long as we take severe measures at the merest trifles.'
During the first two years of the German occupation of France, Belgium, Holland, and Norway, however, an attempt was made to obtain the necessary workers on a voluntary basis. How unsuccessful this was may be seen from the report of the meeting of the Central Planning Board on 1 March 1944. The representative of the defendant Speer, one Koehrl [Kehrl], speaking of the situation in France said:
'During all this time a great number of Frenchmen were recruited, and voluntarily went to Germany.'
"He was interrupted by the defendant Sauckel: 'Not only voluntary, some were recruited forcibly.'
"To which Koehrl [Kehrl] replied: 'The calling up started after the recruitment no longer yielded enough results.'
"To which the defendant Sauckel replied: 'Out of the five million workers who arrived in Germany, not even 200000 came voluntarily.' And Koehrl [Kehrl] rejoined: 'Let us forget for the moment whether or not some slight pressure was used. Formally, at least, they were volunteers.'
Committees were set up to encourage recruiting, and a vigorous propaganda campaign was begun to induce workers to volunteer for service in Germany. This propaganda campaign included, for example, the promise that a prisoner of war would be returned for every laborer who volunteered to go to Germany. In some cases it was supplemented by withdrawing the ration cards of laborers who refused to go to Germany, or by discharging them from their jobs and denying them unemployment benefit or an opportunity to work elsewhere. In some cases workers and their families were threatened with reprisals by the police if they refused to go to Germany. It was on 21 March 1942 that the defendant Sauckel was appointed Plenipotentiary-General for the Utilization of Labor, with authority over 'all available manpower, including that of workers recruited abroad, and of prisoners of war'.
"The defendant Sauckel was directly under the defendant Goering as Commissioner of the Four Year Plan, and a Goering decree of 27 March 1942 transferred all his authority over manpower to Sauckel. Sauckel's instructions, too, were that foreign labor should be recruited on a voluntary basis, but also provided that 'where, however, in the occupied territories, the appeal for volunteers does not suffice, obligatory service and drafting must under all circumstances be resorted to.' Rules requiring labor service in Germany were published in all the occupied territories. The number of laborers to be supplied was fixed by Sauckel, and the local authorities were instructed to meet these requirements by conscription if necessary * * *.
"* * * the evidence before the Tribunal establishes the fact that the conscription of labor was accomplished in many cases by drastic and violent methods. The 'mistakes and blunders' were on a very great scale. Manhunts took place in the streets, at motion picture houses, even at churches and at night in private houses. Houses were sometimes burnt down, and the families taken as hostages, practices which were described by the defendant Rosenberg as having their origin 'in the blackest periods of the slave trade.' The methods used in obtaining forced labor from the Ukraine appear from an order issued to SD officers which stated:
"'It will not be possible always to refrain from using force * * *. When searching villages, especially when it has been necessary to burn down a village, the whole population will be put at the disposal of the commissioner by force * * *. As a rule no more children will be shot * * *. If we limit harsh measures through the above orders for the time being it is only done for the following reason * * *. The most important thing is the recruitment of workers.'
"The resources and needs of the occupied countries were completely disregarded in carrying out this policy. The treatment of the laborers was governed by Sauckel's instructions of 20 April 1942 to the effect that:
'All the men must be fed, sheltered and treated in such a way as to exploit them to the highest possible extent, at the lowest conceivable degree of expenditure.'
"The evidence showed that workers destined for the Reich were sent under guard to Germany, often packed in trains without adequate heat, food, clothing, or sanitary facilities. The evidence further showed that the treatment of the laborers in Germany in many cases was brutal and degrading * * *. They were subject to constant supervision by the Gestapo and the SS, and if they attempted to leave their jobs they were sent to correction camps or concentration camps. The concentration camps were also used to increase the supply of labor. Concentration camp commanders were ordered to work their prisoners to the limits of their physical power. During the latter stages of the war the concentration camps were so productive in certain types of work that the Gestapo was actually instructed to arrest certain classes of laborers so that they could be used in this way. Allied prisoners of war were also regarded as a possible source of labor. Pressure was exercised on noncommissioned officers to force them to consent to work, by transferring to disciplinary camps those who did not consent. Many of the prisoners of war were assigned to work directly related to military operations, in violation of Article 31 of the Geneva Convention. They were put to work in munition factories and even made to load bombers, to carry ammunition and to dig trenches, often under the most hazardous conditions. This condition applied particularly to the Soviet prisoners of war. On 16 February 1943, at a meeting of the Central Planning Board, at which the defendants Sauckel and Speer were present, Milch said,
'We have made a request for an order that a certain percentage of men in the ack-ack artillery must be Russians; 50000 will be taken altogether, 30000 are already employed as gunners. This is an amusing thing, that Russians must work the guns.'
And on 4 October 1943, at Poznan, Himmler, speaking of the Russian prisoners, captured in the early days of the war, said,
'At that time we did not value the mass of humanity as we value it today, as raw material, as labor. What, after all, thinking in terms of generations, is not to be regretted, but is now deplorable by reason of the loss of labor, is that the prisoners died in tens and hundreds of thousands of exhaustion and hunger.'
"The general policy underlying the mobilization of slave labor was stated by Sauckel on 20 April 1942. He said:
"'The aim of this new gigantic labor mobilization is to use all the rich and tremendous sources conquered and secured for us by our fighting armed forces, under the leadership of Adolf Hitler, for the armament of the armed forces, and also for the nutrition of the homeland. The raw materials, as well as the fertility of the conquered territories and their human labor power, are to be used completely and conscientiously to the profit of Germany and her allies * * *. All prisoners of war from the territories of the West, as well as the East, actually in Germany, must be completely incorporated into the German armament and nutrition industries * * *. Consequently it is an immediate necessity to use the human reserves of the conquered Soviet territory to the fullest extent. Should we not succeed in obtaining the necessary amount of labor on a voluntary basis, we must immediately institute conscription or forced labor * * *. The complete employment of all prisoners of war, as well as the use of a gigantic number of new foreign civilian workers, men and women, has become an indisputable necessity for the solution of the mobilization of the labor program in this war.'"
Continuing with the quotation from the IMT decision [Ibid. pp. 331-33.]:
"* * * As the dominant member of the Central Planning Board, which had supreme authority for the scheduling of German production and the allocation and development of raw materials, Speer took the position that the Board had authority to instruct Sauckel to provide laborers for industries under its control and succeeded in sustaining this position over the objection of Sauckel. The practice was developed under which Speer transmitted to Sauckel an estimate of the total number of workers needed. Sauckel obtained the labor and allocated it to the various industries in accordance with instructions supplied by Speer.
"Speer knew when he made his demands on Sauckel that they would be supplied by foreign laborers serving under compulsion. He participated in conferences involving the extension of the slave labor program for the purpose of satisfying his demands. He was present at a conference held during 10-12 August 1942 with Hitler and Sauckel at which it was agreed that Sauckel should bring laborers by force from occupied territories where this was necessary to satisfy the labor needs of the industries under Speer's control. Speer also attended a conference in Hitler's headquarters on 4 January 1944, at which the decision was made that Sauckel should obtain 'at least 4 million new workers from occupied territories' in order to satisfy the demands for labor made by Speer, although Sauckel indicated that he could do this only with help from Himmler.
"Sauckel continually informed Speer and his representatives that foreign laborers were being obtained by force. At a meeting of 1 March 1944, Speer's deputy questioned Sauckel very closely about his failure to live up to the obligation to supply four million workers from occupied territories. In some cases Speer demanded laborers from specific foreign countries. Thus, at the conference 10-12 August 1942, Sauckel was instructed to supply Speer with 'a further million Russian laborers for the German armament industry up to and including October 1942.' At a meeting of the Central Planning Board on 22 April 1943, Speer discussed plans to obtain Russian laborers for use in the coal mines, and flatly vetoed the suggestion that this labor deficit should be made up by German labor.
"Speer has argued that he advocated the reorganization of the labor program to place a greater emphasis on utilization of German labor in war production in Germany and on the use of labor in occupied countries in local production of consumer goods formerly produced in Germany. Speer took steps in this direction by establishing the so-called 'blocked industries' in the occupied territories which were used to produce goods to be shipped to Germany. Employees of these industries were immune from deportation to Germany as slave laborers and any worker who had been ordered to go to Germany could avoid deportation if he went to work for a blocked industry. This system, although somewhat less inhumane than deportation to Germany, was still illegal. The system of blocked industries played only a small part in the over-all slave labor program, although Speer urged its cooperation with the slave labor program, knowing the way in which it was actually being administered. In an official sense, he was its principal beneficiary and he constantly urged its extension.
"Speer was also directly involved in the utilization of forced labor as Chief of the Organization Todt. The Organization Todt functioned principally in the occupied areas on such projects as the Atlantic Wall and the construction of military highways and Speer has admitted that he relied on compulsory service to keep it adequately staffed. He also used concentration camp labor in the industries under his control. He originally arranged to tap this source of labor for use in small out-of-the-way factories; and later, fearful of Himmler's jurisdictional ambitions, attempted to use as few concentration camp workers as possible.
"Speer was also involved in the use of prisoners of war in armament industries but contends that he utilized Soviet prisoners of war only in industries covered by the Geneva Convention.
"Speer's position was such that he was not directly concerned with the cruelty in the administration of the slave labor program, although he was aware of its existence. For example, at meetings of the Central Planning Board he was informed that his demands for labor were so large as to necessitate violent methods in recruiting. At a meeting of the Central Planning Board on 30 October 1942, Speer voiced his opinion that many slave laborers who claimed to be sick were malingerers and stated: 'There is nothing to be said against SS and police taking drastic steps and putting those known as slackers into concentration camps.'"
Under the provisions of Article X of Ordinance No. 7, these determinations of fact by the International Military Tribunal are binding upon this Tribunal "in the absence of substantial new evidence to the contrary." Any new evidence which was presented was in no way contradictory of the findings of the International Military Tribunal, but, on the contrary, ratified and affirmed them.
The next question to be answered is whether or not the defendant Milch in this case knew that foreign slave labor and prisoners of war were being procured by Sauckel and used in the aircraft industry, which the defendant controlled. The defendant's own words, as gleaned from the minutes of the Central Planning Board and from his own testimony, conclusively answer this question in the affirmative. He testified that he knew that prisoners of war were employed in the airplane factory at Regensburg and that some twenty thousand Russian prisoners of war were used to man antiaircraft guns protecting the various plants. He stated further that he saw this type of war prisoners manning 8.8 and 10.5 [centimeter] antiaircraft guns at airplane factories in Luftgau 7 near Munich. Sauckel, the Plenipotentiary for Labor, sat in on at least fifteen meetings of the Central Planning Board, over which the defendant presided, and discussed at great length and in elaborate detail the problems involved in procuring sufficient foreign laborers for the German war effort. He frankly disclosed the cruel and barbarous methods used in forcing civilians of the eastern countries into the Reich for war work. He related the difficulties and resistance which confronted him and the methods which he used and proposed to use in forcibly rounding up and transporting foreign workers. The advisability of using prisoners of war and inmates of concentration camps in the Luftwaffe was frankly discussed, with the defendant offering advice and suggestions as to the most effective methods to be used. In the face of this overwhelming evidence, disclosing page after page of discussion between Speer, Sauckel, and the defendant in which the defendant urged more severe and coercive methods of procuring foreign labor from the East, it would violate all reason to conclude that he had no knowledge of the source of this labor or of the methods used in procuring it. His voice is constantly heard, pleading for more laborers from this source and clamoring for a larger share in Sauckel's labor pool. Hildebrand and Sagemeier for the coal mines, Rohland for the foundries, Kehrl for the coal and iron industries, Bruch and Becht for the rubber industry, Speer for the armament industry, and Milch for the aircraft industry all these and others joined in a pagan chorus, in which the harmony was frequently strained, but all singing the same song,
"We need laborers, men and women. We don't care where you get them, but give us more."
At the 54th meeting of the Central Planning Board, Sauckel stated in the defendant's presence:
"* * * Thereupon I even proceeded to employ and train a whole batch of French male and female agents who for good pay, just as was done in olden times for 'shanghaiing', went hunting for men and made them drunk by using liquor as well as words, in order to dispatch them to Germany. Moreover I charged some able men with founding a special labor supply executive of our own, and this they did by training and arming, with the help of the Higher SS and Police Fuehrer, a number of natives, but I still have to ask the Munitions Ministry for arms for the use of these men. * * *.
"* * * I and my assistants in fact have sometimes seen things happen in France that I was forced to ask, is there no respect any more in France for the German lieutenant with his 10 men? * * * We Germans must make an example of one case, and, by reason of this law, if necessary put Prefect or Burgomaster against the wall, if he does not comply with the rules; otherwise no Frenchman at all will be dispatched to Germany."
The defendant contributed to the discussion by saying, " * * As soon as you arrive the men run away to protect themselves from being sent to Germany * * *. The men even then will be whisked away unless quite another authority and power is on the watch, and this can only be the army itself. * * * I can find no remedy but that the army should assert itself ruthlessly."
As indicating that the defendant was not indifferent to the problem, at the same meeting, in referring to procuring labor from Italy, he offered the following suggestion:
"We could take under German administration the entire food supply for the Italians and tell them: only he gets any food who either works in a protected factory (that is, a factory in Italy manufacturing German war material) or goes to Germany."
Later in the same conference, the defendant made another contribution to the solution of the problem of foreign labor, saying:
"Now during the transfer it is necessary to see that the people really do arrive and do not run away before or during the transfer. If a transport has left a town and has not arrived, 500 to 600 persons from this place must be arrested and sent to Germany as prisoners of war. Such a thing is then talked about everywhere. If actions like this and other similar ones are carried out often, they would exert a certain pressure. The whole thing would be made easier, if we had control of food."
At the 53rd meeting of the Central Planning Board (16 February 1944), the defendant stated,
"Our best new engine is made 88% by Russian prisoners of war and the other 12% by German men and women."
Instances could be multiplied in which the defendant not only listened to stories of enforced labor from eastern civilians and other prisoners of war and thereby became aware of the methods used in procuring such labor, but in which he himself urged more stringent and coercive means to supplement the dwindling supply of labor in the Luftwaffe. As Germany's plight became more desperate, her loss of military personnel presented an alarming dilemma, resulting in the defection of thousands of workmen to the armed forces. This resulted in a shifting of the dilemma to industry and spurs were put to the labor procurement officers to fill the widening gap in the industrial labor ranks. Every branch of war industry constantly clamored for replacements and each vied with the others for a greater quota from the labor pool. Confronted by the desperate situation, the labor procurement officers, headed by the implacable Sauckel, cast aside all restraint and set out systematically to herd into the Reich any human being who could contribute to Germany's war effort. Under Sauckel's whip, no means however harsh were overlooked, and no person however exempt was spared.
The defense on this count is ingenious but unconvincing. As to the use of prisoners of war, the defendant testified that he had been advised by some unidentified person high in the National Socialist Councils that it was not unlawful to employ prisoners of war in war industries. The defendant was an old and experienced soldier, and his testimony revealed that he was well acquainted with the provisions of the Geneva and Hague Treaties on this subject, which are plain and unequivocal. In the face of this knowledge, the advice which he claims to have received should have raised grave suspicions in his mind. Presenting an entirely different aspect to his defense, he testifies that many of the Russian prisoners of war volunteered to serve in the war industries and apparently enjoyed the opportunity of manufacturing munitions to be used against their fellow countrymen and their allies. Other Russian prisoners of war, he states, were discharged as such and immediately enrolled as civilian workers. The photographs introduced in evidence, however, show that they still retained their Russian army uniforms, which makes their status as civilians suspect. Be that as it may, it does not adequately answer the charge that hundreds of thousands of Polish prisoners of war were cast into concentration camps and parceled out to the various war factories, nor the further fact that thousands of French prisoners of war were compelled to labor under the most harrowing conditions for the Luftwaffe.
As to the French civilian workers who were employed at war work in Germany after the conquest of France, it is the contention of the defendant that these workers were supplied by the French Government under a solemn agreement with the Reich. It is claimed with a straight face that the Vichy Government, headed by Laval, entered into an international compact with the German Government to supply French laborers for work in Germany. This contention entirely overlooks the fact that the Vichy Government was a mere puppet set up under German domination, which, in full collaboration with Germany, took its orders from Berlin. The position of the defendant seems to be that, if any force or coercion was used on French citizens, it was exerted by their own government, but this position entirely overlooks the fact that the transports which brought Frenchmen to Germany were manned by German armed guards and that upon their arrival they were kept under military guard provided by the Wehrmacht or the SS.
It was sought to disguise the harsh realities of the German foreign labor policy by the use of specious legal and economic terms, and to make such policy appear as the exercise of conventional labor relations and labor law. The fiction of a "labor contract" was frequently resorted to, especially in the operations of the Todt Organization, which implied that foreign workers were given a free choice to work or not to work for Germany military industry. This, of course, was purely fictitious, as is shown by the fact that thousands of these "contract workers" jumped from the trains transporting them to Germany and fled into the woods. Does anyone believe that the vast hordes of Slavic Jews who labored in Germany's war industries were accorded the rights of contracting parties? They were slaves, nothing less kidnapped, regimented, herded under armed guards, and worked until they died from disease, hunger, and exhaustion. The idea of any Jew being a party to a contract with Germans was unthinkable to the National Socialists. Jews were considered as outcasts and were completely at the mercy of their oppressors. Exploitation was merely a convenient and profitable means of extermination, to the end that, "when this war ends, there will be no more Jews in Europe". As to non-Jewish foreign labor, with few exceptions they were deprived of the basic civil rights of free men; they were deprived of the right to move freely or to choose their place of residence; to live in a household with their families; to rear and educate their children; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of the right to worship according to their own conscience. All these are the sign-marks of slavery, not free employment under contract. The German nation, before the ascendancy of the NSDAP, had repeatedly recognized the rights of civilians in occupied countries. At the Hague Peace Conference of 1907, an amendment was submitted by the German delegate, Major General von Guendell, which read,
"A belligerent is likewise forbidden to compel the nationals of the adverse party to take part in the operations of war directed against their country, even when they have been in his service before the commencement of the war."
The German manual for war on land (Kriegsbrauch im Landkriege, Edition 1902) stated:,
"The inhabitants of an invaded territory are persons endowed with rights * * * subject to certain restrictions * * * but who otherwise may live free from vexations and, as in time of peace, under the protection of the laws."
During the First World War, an order of the German Supreme Command (3 October 1916) provided for the deportation of Belgian vagrants and idlers to Germany for work, but specified that such labor was not to be used in connection with operations of war. The order resulted in such a storm of protest that it was at once abandoned by the German authorities.
It cannot be contended, of course, that foreign workers were entitled to comforts or luxuries which were not accorded German workers. It is also recognized that, especially during the latter part of the war there was a universal shortage of food and fuel throughout the Reich and in the discomforts arising therefrom foreign workers were bound to share. But it is an undoubted fact that the foreign workers were subjected to cruelties and torture and the deprivation of decent human rights merely because they were aliens. This was not true in isolated instances, but was universal and was the working out of the German attitude toward those whom it considered inferior peoples. If any decent human consideration was shown these workers, it was merely to maintain their productivity and did not stem from any humanitarian considerations.
The Tribunal therefore finds the defendant guilty of the war crimes charged in count one of the indictment, to wit, that he was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving slave labor and deportation to slave labor of the civilian populations of countries and territories occupied by the German armed forces, and in the enslavement, deportation, ill-treatment and terrorization of such persons; and further that the defendant was a principal in, accessory to, ordered, abetted, took a consenting part in, and was connected with, plans and enterprises involving the use of prisoners of war in war operations and work having a direct relation to war operations.
Count three of the indictment charges the defendant with crimes against humanity committed against "German nationals and nationals of other countries." Sufficient proof was not adduced as to such offenses against German nationals to justify an adjudication of guilt on that ground. As to such crimes against nationals of other countries, the evidence shows that a large number of Hungarian Jews and other nationals of Hungary and Romania, which countries were occupied by Germany but were not belligerents were subjected to the same tortures and deportations as were the nationals of Poland and Russia. In count one of the indictment these acts are charged as war crimes and have heretofore been considered by the Tribunal under that count in this judgment. In the judgment of the International Military Tribunal (Vol. I, Trial of the Major War Criminals, p. 254), the court stated,
"From the beginning of the war in 1939, war crimes were committed on a vast scale which were also crimes against humanity."
This is a finding of law and an interpretation of Control Council Law No. 10, with which this Tribunal is in full accord.
Our conclusion 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. Having determined the defendant to be guilty of war crimes under count one, it follows, of necessity, that he is also guilty of the separate offense of crime against humanity, as alleged in count three, and this Tribunal so determines.
In exculpation, the defendant states that he was a German soldier and that whatever was done by him or with his knowledge or consent was done in pursuance of a national military policy promulgated by Hitler and in obedience to military orders. He protests that, no matter how violently he disagreed with the methods used by the German Reich in the furthering of its policy of aggressive war, he was helpless to extricate himself and had no alternative except to stay with the venture to the bitter end. It is true that withdrawal may involve risks and dangers, but these are incidental to the original affiliation with the unlawful scheme. He who elects to participate in a venture which may result in failure must make his election to abandon the enterprise if it is not to his liking or to stay as a participant, and win or lose according to the outcome.
Much significance must be attached to the meeting of 23 May 1939, at which the defendant was admittedly present and in which Hitler spoke at great length as to his plans for the subjugation of friendly minor nations and the ultimate conquest of Europe. A Purported record of the events at this meeting has been introduced in evidence and has been found to be reliable and accurate by the International Military Tribunal. The defendant has throughout insisted that this record is spurious and was made by Schmundt long after the occasion which it records. Of course, it was never anticipated that this record, which was marked "Top Secret, To be Transmitted by Officer Only," would ever be captured and its contents become known. It is not surprising that those who sat and listened to the astounding program of the Fuehrer now wish that they had been absent. It cannot be denied that there was a meeting of some kind which the defendant attended and at which the Fuehrer spoke, and further that it was held a few short months before the actual invasion of Poland, as forecast in the report of the meeting. The Schmundt paper does not pretend to be a verbatim report of Hitler's exact words, but certainly all of the diabolical plans which it reveals were not manufactured by Schmundt out of thin air, attributed to Hitler, and then marked "Top Secret". Even if Hitler said only a small part of what is attributed to him by Schmundt, there was enough said to advise and warn a man of the defendant's intelligence and experience that mischief was afoot. Every sentence shrieks of war. The record hints at nothing else, and, if all references to conquest and war and world domination are eliminated, Hitler did not speak at all. At this early date, the defendant must be charged with knowledge that a war of aggression, to be ruthlessly pursued, was planned. This, then, was the time for him to have made his decision - the decision which confronts every man daily - to be honorable or dishonorable. Life consists quite generally in making such decisions. As an old soldier, schooled in the code of war and well aware of the principles to which an honorable soldier must adhere, he sat complacently and listened to a proposed program which violated national honor, personal integrity and the moral code of an honest soldier. He made his choice and elected to ride with the tyrant.
When the defendant joined the National Socialist Party in 1933, Germany was in the throes of dire economic and political distress and was burdened by a myriad of political parties, each with its separate program and all functioning at cross-purposes. The defendant elected to affiliate with the NSDAP because, he testified, he believed it offered the most likely agency for bringing order out of chaos. But very soon he must have realized that he had joined a band of villains whose program contemplated every crime in the calendar. The Nazi code was not a secret. It was published and proclaimed by the Party leaders in long harangues to the people; decrees and directives were broadcast; the infamous Streicher was spreading anti-Jewish obscenities throughout the Reich in "Der Stuermer"; Roehm and a large number of the SA were murdered by Hitler's orders; hundreds of German citizens were cast into concentration camps for "political re-education," without hearing or opportunity for defense; the iniquitous Gestapo stormed through the land, with power over life and liberty which could not be questioned; in public view Jews were beaten and killed, their synagogues burned and their stores destroyed. The Party proclaimed its objectives from the house-tops and verified them by open public conduct throughout the Reich. The significant fact which must not be overlooked is that all these things happened before the war was launched, at a time when there was no claim upon the loyalty of the defendant as a soldier to protect his homeland at war. He protests that he never subscribed to the master race philosophy, but 13 years before he joined the Party in 1933, its precepts and demands had been proclaimed, among which was Point 4,
"Only a member of the race can be a citizen. A member of the race can only be one who is of German blood, without consideration of creed. Consequently no Jew can be a member of the race."
The humblest citizens of Germany knew that the iniquitous doctrines of the Party were being implemented by ruthless acts of persecution and terrorism which occurred in public view. Thousands of obscure German citizens were only too well aware that they were living under the scrutiny of an army of spies and saw their friends and relatives summarily dispatched to concentration camps for the slightest suspicion of dissidence. The defendant did not live in a vacuum. He was not blind nor deaf. Long before 1939, long before his military loyalty was called into play, long before the door of withdrawal was closed, he could have seen the bloody handwriting on the wall, for murder and enslavement of his own countrymen was there written in blazing symbols. But he had taken on the crimson mantle of the Party, with all its ghastly implication, and he wore it with glory and profit to himself to the end. Others with more courage and higher principles and with more loyalty to the ancient German ideals rebelled and withdrew from the brutal crew - von Clausewitz, Yorck von Wartenburg, Schlegelberger, Schmitt, Eltz von Ruebenach, Tesmer. These men in high positions had the character to repudiate great evil, and if in so doing they took risks and made sacrifices, nevertheless, they made their choice to stand with decency and justice and honor. The defendant had his opportunity to join those who refused to do the evil bidding of an evil master, but he cast it aside and his professed repentance now comes too late.
What a sordid picture of a civilized nation - the nation of Goethe and Heine, of Beethoven and Schubert, even of Bismarck and von Hindenburg - fawning and cringing at the feet of a small man with delusions of grandeur. Even when madness crept in to intensify his frenzy and fear of defeat put spurs to his ferocity, they still said,
"We are his people. He is our immaculate leader."
Men of large capacities, even of genius, prostituted their talents before a puny renegade who used them impiously and paid off his puppets with medals and pelf. But the strutting menials stayed with him. So long as success was on the horizon, they bowed and scraped and sought to outdo each other in supine adulation. They tell us now, "Hitler was wrong." But they never told him that. Right or wrong, their only concern was, "Can he win the war? And what will it mean for me?" They heard him proclaim as early as November 1937,
"The question for Germany is where the greatest possible conquest could be made at the lowest possible cost,"
and they nodded and shouted, "Heil Hitler," and maneuvered to get closer to him. Before the invasion of Poland, they heard this bloodthirsty tyrant say,
"In starting and making a war, not the right is what matters, but victory."
And this defendant, as part of the unholy array, rolled up his sleeves and said,
"Let me help. Give me men and more men, no matter where you get them."
In a civilized state which recognizes the sanctity of human lives and human rights, no man - no group of men - should be endowed with impotence. The history of human relations, from Herod to Hitler, has repeatedly demonstrated this to be true. Omnipotence is only for God. Be a man ever so wise, ever so benevolent, ever so trustworthy, there still exists in him the frailty, the fallibility, the susceptibility to temptation that is inherent in every man. If the only protection against the tyranny of an autocrat is his own self-restraint, that is not enough, for power feed on power, and the temptation to stretch authority to its limit is irresistible.
What, then, of the responsibility of those who bask in the reflected radiance of omnipotence, who get their sustenance from it and who arrogantly carry out its mandates and crush any resistance to it? Are they not the hands and limbs of the monster, carrying out the orders of the head? Surely, they cannot be allowed to detach themselves from the corpus by saying,
"These arms and legs are innocent - only the head is guilty?"
In an authoritarian state, the head becomes the supreme authority for woe as well as weal. Those who subscribe to such a state submit to that principle. If they abjectly place all the power in the hands of one man, with no right reserved to check or limit or repudiate, they must accept the bitter with the sweet. This is especially true of those of high places in the state - those who choose to enjoy the honor, the emoluments and the power of such high stations. By accepting such attractive and lucrative posts under a head whose power they know to be unlimited, they ratify in advance his every act, good or bad. They cannot say at the beginning,
"The Fuehrer's decisions are final; we will have no voice in them; it is not for us to reason why; his will is law,"
and then, when the Fuehrer decrees aggressive war or barbarous inhumanities or broken covenants, to attempt to exculpate themselves by saying,
"Oh, we were never in favor of those things."
One cannot escape the conviction that, had the war terminated in victory for Germany, all the acts of Hitler, including those related to the charges in this indictment, would have been hailed as strokes of genius, and that this defendant would now be elbowing his way into the front row of those claiming to have successfully and victoriously carried out Hitler's orders and policies - in fact, claiming co-authorship in many. But with Germany defeated and Hitler dead, it becomes naively convenient to take refuge in the flimsy claim that no one except Hitler was in favor of the invasion of Poland and Russia and France and the rape of Holland and Belgium and Norway and Denmark.
The defendant insists that he knew nothing of the atrocities and violence which were culminating day by day throughout Europe. Being a good German, he says, he supinely obeyed the decree which forbade listening to foreign broadcasts or reading foreign periodicals. He surrendered to a political philosophy which outlawed the ordinary means of knowledge and which prevented the formation of rationalized opinion or judgment. No one might read or listen or talk except in predetermined channels. Ignorance was prescribed by law. The first weapon of tyranny is to keep its victims in darkness. The Germans were an intelligent, cultured people; they were not ignorant serfs. What a travesty to say that a people which has produced some of the greatest intellects in human history is not fit to be told the truth.
Desperate and discouraged peoples, distraught with the crushing problems of hunger and insecurity, have always cried out for a miracle worker to lead them out of the wilderness. Then is the golden opportunity for the mountebank with bland promises and soothing phrases to provide a poisonous panacea for their distress. In their desperation they fail to realize that despotism has a way of beginning with benevolence and ends by being merely despotic. Masquerading in the mantle of a messiah, the wily opportunist lulls them into subscribing to some glib Fuehrerprinzip which means,
"Ask no questions; leave everything to me."
And when the debacle comes, they realize that they have left everything to him - honor, dignity, self-respect, liberty, even life itself - and they end up degraded, ashamed, impoverished, and hopeless. But have they ended up wiser? The universal fear today is that in their desperation they will repeat the vicious process by saying,
"Last time we picked the wrong man. Let us seek a new messiah. He will save Us."
The lessons of one generation are quickly forgotten by the next, but the inexorable laws of nature are immutable. The tragic fruits of tyranny and intolerance will always be the moral decay of peoples and the degradation of human dignity.
Over the heavy gates which shut in the hapless victims at Dachau is a legend reading,
"Work will set you free."
The toil of slaves cannot set them free; it only serves to further enslave them. Some day an enlightened German people will storm those gates and all others like them and recast them into an image of Truth - an imperishable figure with eyes open and unbandaged. So long as Truth stands free and untarnished, no future Hitler will ever arise to deceive and degrade the German nation. Then there will never be another Dachau.
[Signed] Robert M. Toms, Presiding Judge
Fitzroy D. Phillips, Judge
Michael A. Musmanno, Judge