[Page 414]

[Page 415]

Q. Now, I want you to look at a part of that document which, quite properly, of course, was not read.

MR. ROBERTS: It is Appendix 5 which will be part, my Lord, I assume, of AJ 14, the number which this document was given when it was put in, in the examination-in-chief. But I am handing the Tribunal copies of Appendix 5 because it does not appear in the Jodl Document Book.

BY MR. ROBERTS:

Q. Well, now, Appendix 5 I can describe as the sting in the tail of this document:

"Guiding Principles for the attitude of troops in occupied areas. Only - " I do not read the first few paragraphs - "only in the event of the civil population resisting or behaving rebelliously can the following decisions be carried out:

"(1) If the civilian population offers resistance, or if attacks must be feared, the arrest of hostages should, on principle, be resorted to. Hostages should only be arrested on orders of the commander of a regiment or a commander of equivalent rank ...."

"When accommodating and feeding hostages it should be borne in mind that they are not imprisoned because of crimes. Hostages and population are to be informed that the hostages will be shot at any sign of hostile action. Previous sanction of the shooting by the Divisional Commander must be obtained .... "

Then: "Armed resistance by the civilian population is to be crushed by force of arms."

The last sentence on that page: "The death penalty will be imposed for violence of any kind against the German Armed Forces.

Immediate trials will take place by Field Courts Martial. The Regimental Commander can appoint the Summary Court which will be composed of one Captain, one Sergeant, one Corporal, hear witnesses and draw up the sentence in writing. The verdict will be the death penalty if guilty, otherwise acquittal. The sentence will be executed immediately after confirmation by the Regimental Commander.

The following are to be considered as acts of violence: sabotage, destruction of our lines of communication, cutting of telephone wires, demolition, etc."

A. These instructions are, word for word, in complete accord with our directives which, in times of peace, were laid down by the group of experts on International Law in co-operation with the Foreign Office and with German professors of International Law. It would have been well, if only these, our military precepts, our military court procedure laid down before we went to war; had been followed consistently everywhere. Our official directives with regard to the question of hostages were in accordance with International Law, and there is no doubt that under International Law, as applicable in the year 1939, the taking of hostages was admissible.

Q. I suggest to you, as you raise that point, that nowhere in International Law will you find the shooting of hostages legalised at all.

A. But it is not expressly prohibited anywhere in International Law. I believe it is an open question. In our directives, even in the handbook on tactics, the concept of taking hostages had been laid down for years.

Q. That may be so, and I do not want to argue with you about it. I suggest to you that The Hague Regulations protect the lives of civilians in occupied countries, unless they commit crimes, of course, and also prohibit collective punishments of the innocent.

[Page 416]

A. I can only summarize and say that every word here is in accord with the directives applicable in the German Army, and these directives were not illegal. But one would have to argue this problem with experts on International Law.

Q. Very good. Now, will you look at one other document dealing with Norway? It is 582-D.

MR. ROBERTS: My Lord, it is a new document, and I offer it as Exhibit GB 491.

BY MR. ROBERTS:

Q. Is that a document which comes from your office?

A. Yes. It originated with the Wehrmacht Operational Staff, Quartermaster Section.

Q. Do you know of it or not?

A. I cannot recall it exactly, but there are some notes of mine on it, and so I undoubtedly saw the document.

Q. Oh, yes. Where are the notes, witness?

A. They are on the back page of the last teleprint message.

Q. Oh, I see what you mean, yes. Well, will you take first of all ... I had forgotten that you were getting more than one document. Will you take first of all the document dated 2nd February, 1945? I think it is the top one.

A. There are no remarks of mine on that document, so I cannot say with certainty whether I have seen it.

Q. Just have a look at it and tell me whether you have seen it.

A. I do not think I have seen this. I do not ... I have no recollection of having ever read it.

Q. Well, then, I do not think it would be right to cross-examine you on that document.

MR. ROBERTS: My Lord, in that case, I would ask to withdraw it, and I will not put it in as an exhibit.

THE PRESIDENT: I think the defendant said that it was from his office.

MR. ROBERTS: Very well, then. I will ... He did that.

Q. You see what the document says, defendant. It is dated 2nd April, 1945 it deals with -

A. The 2nd of February.

Q. It is the 2nd of February. It deals with Reich Commissar Terboven's report to the Fuehrer. It says:

"Those responsible for attempts to murder and to carry out sabotage are the resistance elements within Norway with a bourgeois-national majority and a Communist minority, as well as individual groups which have come direct from England or Sweden.

The bourgeois-national majority was opposed to the Communist minority as to the conception of sabotage and murder, and in particular with regard to their extent and nature. This resistance has become progressively weaker during the course of the past year.

Official departments of the exile government, as for instance the Crown Prince Olaf, as so-called Commander-in-Chief of the Norwegian Armed Forces, and various other leaders, have called upon the population, in speeches and orders, to carry out sabotage. As a result, there are particularly good grounds for charging every supporter of the exile government with being an instigator or accomplice.

The aim of the coming measures must therefore be, to strengthen the power and will, to turn once more against sabotage by threatening the very

[Page 417]

influential class of leaders in the bourgeois camp; thereby to exacerbate more and more antagonism between the bourgeois and Communists."

"1. Outstandingly influential representatives of the definitely anti-German and anti-Nazi class of industrialists to be shot without trial on the accusation that they are instigators or accomplices and to be reported that they were convicted as a result of police investigations.

2. Less important men to be sent to Germany to work on fortifications.

3. In cases where the circumstances warrant it, proceedings to be taken before the SS and police court, and the execution of the sentences of death to be given wide publicity."

And then the last paragraph but one:

"The Fuehrer has only agreed to these suggestions in part. Especially in connection with efforts at protection against acts of sabotage, he has rejected taking hostages. He has rejected the shooting of influential Norwegian representatives without trial," which is underlined in blue pencil.

A. No, it is not mine.

Q. You see, it is a remarkable document, witness, because that is one instance where your department is suggesting a course of what I submit is brutal action, which for once the Fuehrer rejects.

A. I believe, Mr. Roberts, you are somewhat mistaken. No suggestion at all is being made here, but the Wehrmachtfuehrungsstab is advising the military commander in Norway of what Reich Commissar Terboven had told the Fuehrer. He reported to the Fuehrer first about the general situation, and then he made the suggestions mentioned here; and the Wehrmachtfuehrungsstab, the Operational Staff, which obviously had a representative at this meeting - I, however, was not there - immediately advised the military commander of the magnificent suggestions of his "friend" Terboven.

That is what happened and these suggestions went beyond ... they were too much even for the Fuehrer. But they were not our suggestions.

Q. Very good, witness, I hear your answer, and the Tribunal will consider it. It may be accepted. The document speaks for itself.

THE PRESIDENT: Will you read the first ... the subject description? Orientation about Reich Commissar Terboven's report to the Fuehrer.

MR. ROBERTS: Yes.

Q. That is the first, that is the subject, is it not, the beginning, witness? Orientation about Reich Commissar Terboven's Report? Whose orientation? Your department's?

A. Orientation of the 20th Mountain Army, that is, of General Boehm. General Boehm as Commander-in-Chief of the Mountain Army, High Command 20, is advised of the report made to the Fuehrer by Reich Commissar Terboven, so that he would know what his friend Terboven had suggested. It is no more than information on what Terboven said to the Fuehrer. I cannot tell you who was present, I was not there. The entire thing did not originate with me, I have never seen it.

Q. Well, now, the second document, this is from Terboven to Bormann on 28th October, 1944. That is with regard to the evacuation east of Lyngen. I do not think I need read that. Then, the next document, maybe the second document, it is a teleprint of 6th April, 1945, from Oberfuehrer Fehlis, SS Oberfuehrer to the Operational Staff, and it says:

"In accordance with the instructions of the OKW-Operational Staff, dated 29-3-45, members of the Norwegian Resistance Movement who appear in organized units and who are easily recognizable as combatants owing to armlets or other insignia are to be treated as POW's." And then

[Page 418]

the SS Oberfuehrer says: "I consider this instruction completely intolerable. I explained this clearly to Lt.-Col. Hass and Major Benzo from the Operational Staff who stayed here. There have been isolated appearances of uniformed groups in Norway, but there has been no fighting. According to an order of the Norwegian Resistance Military Organization which was found, inquiries were made from the Defence High Command in London as to whether armed resistance should be offered in case of German or Norwegian police action. So far there has been no partisan or other fighting in Norway. On one occasion, captured members of the Resistance Military Organization in uniform claimed the right to be treated as POW's. If this demand were met at the present moment, the result would be that active fighting on the part of the Military Organization would be set going. Please obtain cancellation of the order of the Operational Staff."

"The objection is justified. Norway has a government in its own country. Whoever fights against it in the country is a rebel. It is another question in the case of Norwegian troops who were taken to England and from there brought into the struggle under England's order."

A. Yes.

Q. And you stick to that, do you? I mean you ... that is your opinion today?

A. Yes, indeed. I am of the opinion, from the point of view of International Law, that members of a resistance movement against their own Norwegian government are certainly not to be considered as normal troops, but as rebels. But if Norwegian troops come to Norway from England, then they are regular soldiers. And that, today, is still my opinion on the basis of International Law.

Q. What do you call their own Norwegian government, the puppet government which was set up by the Germans?

A. There was the government of Quisling at the time; and, in any event, speaking now from the point of view of International Law we were occupying the country, and therefore, according to International Law, were justified in issuing laws and enforcing them. That is accepted under International Law, and resistance against it is considered all over the world as rebellion. The same applies to us in Germany today.

Q. Now, I want to deal quite shortly with three other matters and then I have finished. I want to deal first of all with what you have said with regard to Hitler's suggestion to revoke the Geneva Convention. You say you were instrumental in preventing him from renouncing that Convention?

A. Yes.

Q. Would you look at a document which has already been put in, 158-C, which is Exhibit GB 209. I think you have loose copies of it; it is not in a document book. This was put in with regard to the case against Donitz. It is headed:

"Extracts from Minutes of the Hitler Conference on 19th February, 1945": The Commander-in-Chief Navy was present on 19-2-45."

"The Fuehrer is considering whether or not Germany should renounce the Geneva Convention. As not only the Russians but also the Western Powers are violating International Law by their actions against the defenceless population and the residential districts, it appears expedient to adopt the same course in order to show the enemy that we are determined to fight with every means for our existence, and also to urge our people to resist to the utmost. The Fuehrer orders the C-in-C of the Navy to consider the pros and cons arid to state his own opinion."

"The C-in-C Navy informed General Jodl, and the representative of the Minister for Foreign Affairs, Ambassador Hewel, of his views with regard to Germany's possible renunciation of the Geneva Convention. From

[Page 419]

a military standpoint there are no grounds for this step as far as the conduct of the war at sea is concerned. On the contrary, the disadvantages outweigh the advantages; even from a general standpoint it appears to the C-in-C Navy that this measure would bring no advantages. It would be better to carry out the measures considered necessary without warning, and at all costs to save face with the world. The Chief of Armed Forces Ops Staff and Ambassador. Hewel are in full agreement."

A. Grand Admiral Donitz.

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