The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th May to 6th June, 1946

One Hundred and Forty-Sixth Day: Tuesday, 4th June, 1946
(Part 5 of 9)

[DR. EXNER continues his direct examination of ALFRED JODL]

[Page 311]

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 page.

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 necessary?

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 occur.

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 witness.


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 Law?

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 peacefully."
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 honour."
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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