Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-182.06
Last-Modified: 2000/10/11

As far as partisan warfare is concerned, charges could be
made against Jodl only in two cases:

1. If he had permitted this warfare to take place in a
disorderly and "chaotic" manner, as one witness has
asserted, or

2. If he had issued battle directions, and if these had been
contrary to International Law.

But neither of the two is the case; Jodl was not personally
responsible for this matter, but he was obliged to take an
interest in the partisans when their number reached
proportions which were beginning to interfere with the
military operations. In 1942 he issued a directive regarding
bands which was replaced by a second one in 1944. Therefore
it cannot be said that no rules existed for this form of
combat.

Nor can Jodl be reproached on the grounds of the second
point. Although Hitler wished to have a type of warfare
waged against these dangerous opponents which hardly took
ethics and International Law into account, Jodl - without
his knowledge - issued a pamphlet about the combating of
partisans which cannot be objected to legally. He went so
far as to have partisans in civilian clothing treated as
prisoners of war and to permit the burning down of villages
to be carried out only on the orders of a divisional
commander; this was intended to and could prevent violations
of Article 50 of the Hague Convention on Land Warfare (I
refer to Document RF 665, Document Book II, JO 44).

Jodl cannot be reproached, however, if the combating of
partisans nevertheless degenerated badly. It is not a matter
for the Chief of the Operational Staff of the Armed Forces
to supervise the observance of his directions in four
theatres of war.

(c) Burning down of houses in Norway (PS-754).

The prosecution has accused Jodl during cross-examination of
having ordered the destruction of Norwegian villages. This
accusation refers to the teleprint of 28th October, 1944, to
the High Command of the 20th Mountain Army. The prosecution
has a false idea of the role which Jodl had to play.

The military position was then as follows: the Germans were
retreating to the not yet completed Lyngen line. And there
was danger that the Red Army would continue to follow up
during the winter and would destroy the much weaker German
units if, whilst advancing along the Reich Road 50, the only
one that could be used at this time of the year, they found
the homes and the population with their local knowledge
available. Without these billets and the support from the
population the Russian advance was impossible. The
evacuation of the population and the destruction of the
houses would eliminate the danger and, over and above this,
it would make partisan warfare against the German troops
impossible. But the evacuation of the population was also
necessary in the interests of the population itself.

                                                  [Page 148]

In this situation Hitler issued - not on the advice of the
soldiers but on that of the Reich Commissioner for the
occupied Norwegian territories - the decree which Jodl
reported, "by order", to the High Command of the 20th
Mountain Army through the proper channels with all Hitler's
military and ethical considerations. One can really hear
Hitler's radical way of speaking.

Jodl who, as a result of a telephone conversation with the
staff of General Randulic, knew that the mountain troops did
not need such a far-reaching military order and therefore
did not want it, was against this order and - when he could
not prevent it - sought for a solution which in practice led
to the correct result. He wanted the order to be carried out
by the troops only in so far as was absolutely essential
militarily and in accordance with what was permissible under
the Hague Convention on Land Warfare (Article 23 g). He knew
that his brother, who was in command in the North, thought
exactly as he did; he knew the soldierly spirit of the
mountain troops as a whole, and he knew in advance in this
particular case that this order went too far for the troops.
So that it should be understood correctly by everyone right
from the start, he not only explained clearly that it was a
"Fuehrer order" in the introduction to the teletype message
- the second paragraph expressly uses these words - but he
let the soldiers know that the Fuehrer had issued this order
on the suggestion of the Reich Commissioner and not on the
suggestion of the military. Thus they were fully informed
and they acted accordingly. No militarily unjustified
demolitions occurred. Thus, among others, the three town of
Kirkenes, Hammerfest and Alta were not destroyed. According
to the literal application of the order they would have had
to be destroyed.

(d) Deportation of the Jews from Denmark (UK 56):

The prosecution wants to make Jodl responsible for the
deportation of the Jews from Denmark. It bases this
accusation on a teletype message which Jodl sent "by order"
to the commander of the German troops in Denmark. It is
particularly difficult to understand this accusation by the
prosecution; for the different documents submitted by the
prosecution absolutely prove that the deportation of the
Jews from Denmark was decided upon by Hitler on a suggestion
from Dr Best, therefore on a suggestion from the civil
authorities and over the objections of the commander of the
German troops, and that this task was assigned to the
Reichsfuehrer SS. The OKW was concerned with the whole
affair only because at that time a military state of
emergency existed in Denmark, so that the commander of the
German troops, as the highest executive authority in the
country, had to be informed by his superior authority of the
action ordered by Hitler and assigned to Himmler, in order
to prevent friction between the German authorities in
Denmark.

On 20th September, 1943, Keitel and Jodl had received the
first intimation of the. discussions between Hitler, the
Foreign Office and Himmler, in a teletype message from the
German commander. Jodl had only one wish - to keep the armed
forces out of this affair. His temperamental note on General
von Hanneken's teleprint of 3rd October, 1943 (D-647), also
shows this. There he wrote: "... is a matter of complete
indifference to us". (Namely: whether the Reichsfuehrer SS
publishes the figure of the Jews arrested or not.) It shows
only too well that this has nothing at all to do with moral
considerations, either positively or negatively.

The whole thing had nothing to do with the armed forces. But
difficulties could arise as a result of Himmler's action, as
the armed forces were after all responsible for peace and
order in Denmark. Such difficulties had to be headed off.
The Wehrmacht could not alter the decision taken by Hitler
in this police matter, and could not have altered it even if
it had been competent to deal with this question.

Jodl simply informed the commander, by the teletype message
(UK 56), of the decision Hitler had taken in this police
matter. And the Reichsfuehrer SS, the Foreign Office, and
the Commander-in-Chief of the Reserve Army were simul-

                                                  [Page 149]

taneously informed by Jodl that he had let the commander in
Denmark know. Now there was a clear line, and friction
between German offices was excluded. And the OKW had only to
see to this.

One cannot say that the information which Jodl gave made
easier the execution of the order, which Hitler had decided
on apart from the Wehrmacht. It is clear to anyone who knows
even a little about Hitler's position of power that friction
between German offices would in no way have prevented the
thing being carried out, but would at most only have delayed
it, and would certainly not have made it more pleasant for
the persons affected.

May it please the Tribunal, there is an old saying in
criminal law, a saying which I always find cited in foreign
decisions too, that "actus non facit reum nisi mens sit
rea". Two things go to make a crime; the "actus", the
objective side of the crime, the deed, and the "mens rea",
the subjective side, the guilt. The prosecution is involved
in an odd contradiction there; in some cases it stresses the
"mens rea" and fails to see that the criminal "actus" is
lacking: I have shown this in the case of the above-
mentioned marginal comments, which do not represent any
illegal actions, but at most could allow one to infer an
illegal frame of mind. In other cases the prosecution looks
only at the "actus", but does not ask whether a "mens rea"
is also present. This second mistake is more dangerous, as
here the outside of the crime is visible to everyone and it
is often only a delicate psychological examination that can
lead to the conclusion that there is no "mens rea" which
corresponds to the "actus". We will speak of this farther
on.

As regards the action, what is meant is behaviour declared
criminal by the Charter. This behaviour can consist of
positive action or of omission. If a father sees his child
drowning while bathing and does nothing to save him although
he could have done so, we declare him guilty either of
murder or of killing by negligence, according to the degree
of his guilt. This commission of a crime by omission is
important in this trial too, for the prosecution repeatedly
stresses that Jodl was present at this or that meeting, at
this or that speech. On one single page of the Anglo-
American Trial Brief the phrase "Jodl was present at" occurs
six times. What does this mean legally? Being present at and
listening to things can be of great importance with regard
to the evaluation of a later deed, for the doer cannot
excuse himself by saying "I did not know" if he participated
in the discussion of a plan. But mere presence does not in
itself make one an accomplice. According to British law,
even actual presence when a crime is committed makes one an
accomplice only if encouragement is added. The same applies
in German law. But where this is not involved, to lay stress
on a person's presence when a criminal intention was
discussed can only amount to a reproach that "he knew about
and tolerated it".

Today, we often hear this reproach of having tolerated
crimes. Not only in this Court. The whole German people are
reproached for having tolerated a criminal regime and the
annihilation of millions of Jews. Undoubtedly a crime can
also be committed by tolerating things. But to make it a
serious criminal charge, e.g., one of intentional killings,
two prerequisites must be fulfilled: 1. The subjective side:
he must have known that the victim would meet his death if
he did not intervene; 2. He must have been in duty bound and
able to prevent this death.

Mr. President, would this not be a convenient time to
adjourn?

THE PRESIDENT: Yes.

(A recess was taken until 1400 hours.)

THE MARSHAL: May it please the Tribunal, the defendant Hess
is absent.

PROFESSOR EXNER: We were dealing with crimes committed under
toleration. As far as Jodl is concerned, the following
applies: What an officer or official is legally bound to do
or to, prevent depends on the regulations governing
competence,

                                                  [Page 150]

and we know how strictly Hitler insisted on their being
adhered to, how sharply he managed to divide up the
political and military leadership and the military and the
SS in their spheres of action. This, indeed, was the reason
why Jodl took every opportunity to oppose the plan for
extending the SS, for one thing was clear once something had
become the sphere of the SS, the armed forces had lost their
right to have any say in it. It does not, therefore, mean
much, for instance, that Jodl was present at a discussion
between Hitler and Dr. Best, at which one of the things
discussed was terrorism in Denmark and the way to fight it
(RF 90). The mention of so-called "counter-murders", if such
were really discussed, was not heard by Jodl - he was not
present at parts of the session. His presence at this
session does not mean much if only because the whole matter
concerned occupied territory and did not concern the Chief
of the Armed Forces Operational Staff, who was brought into
this meeting because of other things which were discussed
there. Thus, even if Jodl had heard more drastic things at
that time than he actually did, any interference would have
been out of the question and would have been rejected at
once.

The reproach of having tolerated things also implies that
the possibility existed of preventing the crime. In the case
of Jodl, we are mostly concerned with Fuehrer orders, which,
it is said, he should have prevented. But enough has already
been said here about how things stood with regard to
influencing Hitler's decisions. As long as his decision had
not yet been made, arguments could, under favourable
circumstances, still impress him; but once his decision was
made, it was irrevocable. Any assumption to the contrary is
simply based on ignorance of the facts. In the course of
time Jodl did actually develop other methods of influencing
decisions of the Fuehrer, or at least of influencing their
practical effects. He used delaying tactics; either he
waited so that the matter should perhaps be forgotten, or
else he made difficulties and raised objections, the type of
counter-arguments having actually to be adapted to Hitler's
way of thinking - the order regarding Commissars is a case
in point - or he sent for opinions from various departments
in order to gain time, as in the case of low-flying airmen.
If the order had to be published, he often inserted into it
on whose suggestion the order had been issued, in order to
show the Commanders-in-Chief that he did not identify
himself with this matter, as in the case of the Norwegian
villages. Or he tried to influence the practical application
by overlooking failure to carry out the order, as in the
case of the Commando Order, etc. But if one thinks that he
could simply have refused to draft an order which was
contrary to ethics, one has only to look at the Commando
Order, where this method had exactly the opposite effect to
what was intended.

I now come to the second part of the Latin saying I quoted:

The deed in itself is no crime, "nisi sit mens rea".

This is the last point in my statement and is at the same
time the most difficult and the most important in a modern
criminal trial.

"No guilt, no punishment"; this principle has been accepted
in all civilised States since the Renaissance, even though
different views as to the nature of guilt may exist in some
places.

Allow me first to make a short comparison between the Anglo-
American legal view and that held on the Continent, for
example in Germany. It is important when judging some cases.

I have already had to touch on an important point of the
question of guilt when discussing aggressive wars. If one
really seeks to make Jodl, the General Staff Officer,
responsible for waging these wars, it is at any rate of
decisive importance to know how he viewed the whole state of
affairs. If he believed, on the basis of the reports he
received, that facts existed which - if they were true -
justified the waging of war, then Jodl cannot be reproached
with having knowingly, waged an unlawful war. This applies
even if his assumption was based on mistakes. Such mistakes
exclude design. In a decision, Green v. Tolson, it is
stated:

                                                  [Page 151]

  "In common law a reasonable belief in the existence of
  circumstances which, if true, would make the act for
  which a prisoner is indicted an innocent act, has always
  been held to be a good defence."

In another decision, Regina v. Prince, it is stated:

  "It seems to me to follow that the maxim as to 'mens rea'
  applies whenever the facts which are present to the
  prisoner's mind and which he has reasonable ground to
  believe, and does believe to be the facts, would, if
  true, make his act no criminal offence at all."

In a third case, Commonwealth v. Pressby (an American
decision) a good example is given:

A sentry shoots at his commanding officer who is approaching
him, in the belief that he is an enemy. This last example is
closely related to the wars of aggression which are to be
judged here.

As a rule, ignorance of criminal law is no excuse under
British law. However, the following principle is worthy of
note:

  "If, however, there is a doubt as to a question of law, a
  person cannot be convicted and subjected to imprisonment
  if he has merely acted on a mistaken view as to the law."

Naturally a mistake about preliminary questions in civil law
can also exclude criminal intention:

  "If a person' takes what he believes to be his own, it is
  impossible to say that he is guilty of felony."

This rule could also be significant in our field too, for
mistakes regarding the regulations of International Law.

Yet in this doctrine of mistakes I see a certain difference
between it and German law, for in German law, any mistake,
even if resulting from negligence, excludes intention. In
British law this seems to apply only to "reasonable"
mistakes "unaccompanied by negligence". If that sentry had
shot too soon, without sufficient investigation, he would
indisputably under German law only have to be sentenced for
killing by negligence. In England and America, if I
understand it correctly, this mistake by negligence would
not be taken into consideration at all, and this soldier
would have to expect a sentence for intent to kill. But this
difference in the conceptions of law should not play any
part in our case, for one can hardly reproach Jodl with
having come to his interpretation of the situation on the
basis of a hurried and careless examination of his reports.

There is one more point of divergence in the law. I will not
read the following, in order to save time, and I wish to
omit paragraph one on Page 110.

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