The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. EXNER: In this connection, I want to draw the Tribunal's
attention to an entry in Jodl's diary 1807, on 25th May; it
is on Page 119 of the second volume of my Document Book.
Under 25th May, it says:

  "Colonel General Halder draws the attention of the
  Fuehrer to increasing partisan activity-"

THE PRESIDENT: Wait a minute. The defendant stated, I think,
that in this directive of his on 6th May, 1944, there was an
order that guerrillas should be treated as prisoners of war.
Will you refer us to the passage?


Q. Will you name the passage, defendant?

A. It is number 163, on Page 131.

Q. Page 131 of the second volume.

A. May I read it?

Q. Yes.

  A. "All guerrillas captured in enemy uniform or civilian
  clothing or surrendering during combat are to be treated,
  on principle, as prisoners of war. The same applies to
  all persons encountered in the immediate fighting area
  who are to be considered as guerrilla accomplices, even
  when no acts of combat can be proved against them.
  Guerrillas in German uniform or in the uniform of an
  allied armed. force are to be shot after careful
  interrogation if captured in combat. Deserters, no matter
  how they are dressed - and, may I add, even if they are
  dressed in German uniform - are, on principle, to be well
  treated. The guerrillas must hear of this."

                                                  [Page 312]

THE PRESIDENT: Just a minute. Well, perhaps as it is one
o'clock, we might break off now.

(The Tribunal adjourned until 1400 hours.)



Q. I have no further question concerning the guerrilla
regulations. The prosecution charges that you, through No.
161 of the guerrilla regulations - that refers to the
document we submitted and used last, F-665, Page 130 of
Volume II - were responsible for the destruction of whole
villages and even of the total population of villages, in
France. Will you please comment on this?

A. I believe the opposite is true. Through No. 161, I
reduced collective measures and collective punishments that
the Fuehrer had decreed without regard to what was permitted
by Article 50 of The Hague Land Warfare Rules. In this
Article, collective punishment is prohibited unless the
entire population is equally guilty in terror activities of
any kind. Therefore, with this No. 161, I did not order the
burning down of villages, not even in exceptional cases,
but, on the contrary, I said that such collective measures
may only be used in very exceptional cases and then only
with the approval of a division commander. For he was the
one who had a court at his disposal and could make a
juridical investigation.

I do not wish to weary the High Tribunal with other merits
of this document. I discussed therein the good treatment of
the population, the necessity of leaving them what is needed
for life, etc. I do believe, in any event, that this
document actually is a model example of an attempt to
include this sort of war within the scope of International
Law. I did this as I was of the conviction that at that
period of time the French Maquis movement and also the Tito
revolt had begun to turn into a regular war.

Now, the case of the Second SS Panzer Division is cited as
an example of things that I caused through 161. I can say
only that the behaviour of the SS Panzer Division is the
responsibility of its commander. Only months later did I
gain any knowledge of this. I am grateful to the French
prosecution for having submitted this document, and I am
grateful also for the statement that the Maquis movement, in
the beginning, was nothing else than a franc-tireur warfare,
the heroism of which I do not dispute.

Q. Now we shall turn to a different problem, the low level
flyers, as cited in Document 731-PS, Page 139 of the second
Document Book, and Page 144 of Volume II of my Document
Book. From these documents it can be seen that from various
sources there were proposals for the treatment of hostile
low flying airmen who had made emergency landings. Can you
tell us, first of all, what was the reason for this and what
was your attitude toward these proposals?

A. I shall try to be as brief as possible. The reason was
that numerous reports of civilians being machine-gunned from
individual enemy aircraft contrary to International Law had
been received. The Fuehrer demanded counter-measures, and
that is the cause for Memo 731-PS, Exhibit RF 1407. It is
not a draft for an order, still less an order. It is only a
note containing proposals made by the Luftwaffe in regard to
that situation. There was no talk as yet about lynching. The
fact that I concerned myself with this problem at all may
find its explanation in the responsibility with regard to
International Law which, as I have previously mentioned, I
believed had rested with me since 1st May. The note which I
wrote on the document has already been read. I objected to a
statement, that is, a case which I nevertheless considered
entirely admissible according to International Law, and this
was later crossed out and replaced by a statement that it
was also to be considered murder if a soldier landing with a
parachute was shot at. I wrote this objection on Document
735-PS. The concept of lynching

                                                  [Page 313]

DR. EXNER: I should like to state for the assistance of the
Tribunal where this passage is. The remark made by Jodl in
his handwriting is found on Page 144 of the Document Book.
Various proposals are made in this memo, and then Jodl adds,
"To number 3", then there is a notation.


Q. Please comment on this, defendant.

A. My notation was: "Is the Foreign Office in agreement with
Point 3-B?", namely, that the shooting of our own aviators,
who have been shot whilst parachuting to earth, is to be
considered a mean terrorist act.

Q. This Point 3-B may be found up toward the top of the same

Will you please continue?

A. I should like to say that lynching was suggested in an
article by Goebbels, published in the Volkischer Beobachter.
The more I concerned myself with this problem, the more it
was obvious that nothing at all could be achieved with
measures of this kind, for one could never apprehend a
guilty low-flying airman, for he would either escape or he
would crash on the ground. This would only lead to a general
murder of airmen. Therefore, I made the decision - and I was
in complete agreement with Field Marshal Keitel on this
point - to cause this entire action to fail. The Tribunal
can see that between Document 731-PS, which was compiled on
21st May, and Document 735-PS, sixteen days had elapsed
wherein nothing had been done. When, on 6th June, I received
a rather lengthy report, I noted on it, "This is not
sufficient; we have to start all over again; how can we be
certain that the other enemy airmen will not be treated in
the same way? Should some legal procedure be arranged or
not?" If I wrote that, then, my Lord justices, it is
absolute proof, if you consider my general method of work,
that I had no other intention than to stall until the matter
had solved itself. And I succeeded in this case. No military
office issued an order. We did not even go so far as to have
a draft of an order. The only thing we had were these scraps
of paper. It has been proved and will be proved further that
many months afterwards the Fuehrer made the gravest
accusations against us and against the Luftwaffe in
particular for having "torpedoed" his order.

Q. Now we shall turn to something entirely different. The
Chief of the OKW, in a letter written in 1941, called you
and Warlimont his representatives for collaborating with the
Eastern Ministry of Rosenberg. That is Document PS-865,
Exhibit USA 143. How did that work out in practice?

A. Not at all. Apart from one conference in 1943 dealing
with an appeal to the peoples of the East, I had no
connection with Rosenberg's ministry whatsoever. The only
collaboration which went on constantly was carried on by my
propaganda division, for all pamphlets which it compiled and
which were distributed from the air over Russia were
discussed first with the Eastern Ministry.

Q. Then why were you appointed at all? Why was that

A. That was purely a matter of form, since Minister Dr.
Lammers wrote generally to each higher Reich office asking
that a deputy be designated. Then Field Marshal Keitel
designated a deputy.

Q. We shall now turn to something new. We have been shown
the rather strange Document C-2, Exhibit USA 90, which is
not contained in my Document Book, but the Tribunal will
presently recall it. It is a compilation in tabular form in
which certain incidents of significance in International Law
are cited in the first column. In the second column there
are examples; in the third and fourth -

MR. ROBERTS: It is Page 163 in the big Document Book.

Q. (Continuing.) This is a diagrammatic compilation which
sets down on one side a certain incident, and on the other
enumerates the consequences of this incident and its
appraisal in the light of International Law, its
propagandistic exploitation and so forth.

                                                  [Page 314]

Will you explain why this compilation was made? It is really
a very strange document. Twelve infringements of
International Law by our side are set down, and, I believe,
thirteen infractions of International Law by the enemy.

A. I do not believe that this document is so remarkable
after all. It was compiled at the end of September 1938,
shortly before the Munich conference; since I did not know
for certain in my division whether we would have an armed
conflict or not, and since at that time the stipulations of
International Law were not clear to us, I wanted, through a
wealth of examples, to have the International Law experts
tell me what the present attitude was towards these
infractions of International Law.

Every officer in my division then endeavoured to obtain
examples and we tried to cover every branch of International
Law through a specific example.

I believe it is noteworthy that even then we concerned
ourselves with the concept of International Law. There can
be no doubt whatsoever that I alone carry responsibility for
the fact that I searched out these examples. But if one were
to object to the reply to these examples, that is to the
standpoint taken by International Law or to the
justification according to the rules of warfare, I can only
say that this did not come from me; this emanated from the
office of Canaris. Apart from that, it shows a very careful
and noteworthy attitude to International Law, specifically
concerning air warfare. In any event, it was on a much
higher level than the one adopted in actual practice.

Q. Therefore, was it the intention to commit these
infractions of International Law?

A. Not at all, but as one conversant with the history of
warfare, I knew that never yet in this world has there been
a war in which infractions of International Law did not

If, perhaps, there should be an objection that quite at the
end of the paragraph there is: "Explanation by the
Propaganda Ministry", I should like to say that at the end -
considering the rules of warfare and the standpoint of
International Law, and that Admiral Gurtner, who gave the
reply, himself referred to it - it is pointed out that
propaganda could be used only after the question of
International Law had been clarified. The whole matter of
the answer was only a temporary one, since first the Foreign
Office and the various branch chiefs of the Wehrmacht would
have to be listened to for their opinion.

DR. EXNER: I asked for Admiral Gurtner as a witness in this
matter, but it seems to be a more or less insignificant
matter, and I shall therefore forgo the calling of this


Q. I want to ask you the following question in this
connection. What was your attitude in general as to the
limitations placed on the conduct of war by International

A. I considered and valued International Law with which I
was well acquainted as a prerequisite for the decent and
humane carrying on of the war. Copies of The Hague Land
Warfare Regulations and the Geneva Convention were always
lying on my desk. I believe that by my attitude on the
Commissar Order, by my attitude towards lynching and my
attitude toward the intention to repudiate the Geneva
Convention, bluntly rejected by all commanders-in-chief and
all branches of the Wehrmacht and by the Foreign Office, I
have proved that I tried, as far as it was possible for me,
to observe International Law.

Of course, there is a wealth of positive proof available.
The respective documents will probably be submitted by my
Defence Counsel. I primarily refer to the behaviour of the
German Wehrmacht in Norway, a matter which I worked out and
dealt with myself. I also refer to guerrilla regulations -

Q. I submit AJ-14, on Pages 99 and 100 in my Document Book,
Volume I. These are special directives for conduct during
the occupation of Norway and Denmark, directives which,
therefore, were issued when these countries were

                                                  [Page 315]

occupied. There are some very characteristic sentences
contained in this document, sentences which I would like to
read. If you will please turn to Page 98, Point 1:

  "The military occupation of Denmark and Norway is taking
  place for the purpose of insuring the neutrality of these
  countries. The objective must be to execute the same

Then on Page 99, at the top, it says:

  "Directives for conduct in personal relations with the
  Norwegian population. Every member of the army must be
  aware that he is not entering enemy country, but the
  troops are entering Norway for the protection of the
  country and for the safety of its inhabitants.
  Therefore, the following is to be observed:
     1. The Norwegian has a strongly developed national
     consciousness. Moreover the Norwegian people feel
     themselves closely related to other Nordic people.
     Therefore avoid anything that might wound national

Point 2 is also very characteristic. Then I shall turn to
Point 4.

     "The home of the Norwegian is holy according to the
     Old-Germanic conception. Hospitality is offered
     generously. Property is inviolable. The house remains
     - "

THE PRESIDENT: It is not necessary to read all of this. One
paragraph is enough to show the nature of the document, is
it not?

DR. EXNER: Then I should like to point to the remainder of
the document, which I shall not read, and ask that the High
Tribunal take official notice of this document.

Then there is a directive here, AJ-16 -

THE PRESIDENT: But, Dr. Exner, that last document does not
appear to have been signed by the defendant, does it?

DR. EXNER: It is not signed by the defendant.


What have you to do with this document, defendant?

A. It is signed by von Falkenhorst, but it is well known
that the Wehrmacht Operational Staff and the staff of von
Falkenhorst were formed into a unit for the Norwegian
enterprise. I participated in the drawing up of this
document and I submitted it to the Fuehrer and he approved
of it, and there is an entry to that effect in my diary.

Q. Then AJ-16, which I should like to submit herewith.

"Special directives for the administration of the occupied
countries of Holland, Belgium and Luxembourg." This is Page
161, Volume II of my Document Book. I shall quote only from
Page 162 in order to save time. I shall read perhaps the
last sentence.

  "International Law is to be strictly observed in every
  case ..."

But I should like to have the High Tribunal read the other
regulations and take judicial notice of them.

In this same connection I should like to mention Document
PS-440, Exhibit GB 107, in my Document Book II, Page 164.
Those are directions No. 6, regarding the conduct of war,
dated 21st November, 1939. It says in respect to the tasks
of the air force - I shall read the last paragraph:

  "Localities, especially large open cities, and industries
  are not to be attacked without a compelling military
  necessity, neither in the Dutch nor Belgian nor
  Luxembourg areas." Signed Keitel.

Did you also draft that?

A. I drafted this order.

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