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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Second Day: Friday, 19th July, 1946
(Part 5 of 12)

[DR. EXNER continues.]

[Page 142]

2. Another very frequent case is where Jodl signed his order "I.A.", i.e., "Im Auftrag" (by order) or also initialled with his "J" orders signed by Keitel. Where does the responsibility lie here? We shall have to differentiate here between military and legal responsibility. From the military point of view, the superior, by whose order the order is signed, is responsible for it. Criminal law, however, lays the emphasis on the guilt, i.e., it wants to find the real culprit, not the person responsible from the military point of view. As, however, the person initialling a document or signing it "by order" in most cases is its author, it may happen that the latter is responsible from the point of view of criminal law, although he is not responsible in the military sense. For this reason it is necessary here to ascertain the actual share of both signatories in each case, and to determine the culpability accordingly.

3. Where Jodl did not affix his initial on the right below the last word of the document, but on the top right-hand corner of the first page, it means merely that the document was submitted to him for his information. It does not say whether be actually read it or approved it. Initials affixed in this manner do not, therefore,

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by themselves bring the person who initials into any connection with the order from the point of view of criminal law.

4. Jodl is also being charged now with certain notes, partly so-called "memoranda", partly hand-written remarks which he wrote on drafts or other documents. What is the position with regard to the legal significance of such notes?

The following statement has already been made in "Fall Grun" in connection with the tentative proposal to manufacture an incident. A memorandum contains the deliberations, statements of fact and opinions of the author or of other authorities, etc. It is not an order but the data on the basis of which the superior can decide whether he will issue an order and what order. As long as such a memorandum remains a memorandum, it is a purely internal affair without any significance in International Law and can never be a violation of the laws and customs of war; this is explicitly laid down as the prerequisite for punishment in Article 6b of the Charter.

The same applies to the marginal comment which so often occurs in the files of the OKW: "Yes", "No", or "That is impossible", etc.

Admittedly, such memoranda or marginal comment may obtain legal significance. If a memorandum contains a proposal which is contrary to International Law, and if it influences the superior in such a way that he issues an order with the same contents, this might possibly be regarded as participation in a violation of International Law. If, however, no order is issued, or if an order is issued which is contrary to the proposal, then this proposal has remained without effect, a purely internal matter, and not punishable under any circumstances.

Furthermore, a memorandum or marginal comment may be a guide to the writer's sentiments. It may be gathered from it that he is inclined favourably towards International Law or that he pays no heed whatsoever to considerations of International Law. That may often be an important help in judging his character.

But we do not punish the sentiments. Murderous intentions throw a bad light on the subject, but are not punishable. Caution must, of course, be exercised in the evaluation of such remarks. They are often thrown in thoughtlessly, without much. deliberation, intended only for the reader in question, etc.

If we take all this into account, several of the accusations which the prosecutors have raised against Jodl are eliminated in advance:

His behaviour on the matter of the low-flying airmen (PS- 731, PS-735). It was proposed to leave low-flying airmen who attacked the civilian population in a truly criminal manner, as it happened again and again, to the lynch justice of the people. Jodl was opposed to this idea, as it was bound to lead to the mass murder of all airmen who parachuted. Jodl raised objections and more objections in the form of marginal comments. He succeeded in sabotaging the order thereby. The armed forces never issued such an order. This should be counted to Jodl's credit, but it is apparently held against him that he did not use words of moral indignation in declining the proposal. Under the conditions existing at the time, that would probably have had even the opposite effect. In any case there is no crime here.

2. The Commissar Order - PS-884. On this horrifying draft order, it is only a draft, which had been drawn up already prior to the outbreak of the Russian war, Jodl made the comment that it would provoke reprisals against our soldiers. The order should preferably be drawn up in the form of a retaliatory measure; that is, one should wait and see what action the commissars really took, and then perhaps take counter-measures. Again he is not given credit for the fact that he opposed it, but he is accused of the manner in which he opposed it. From a legal point of view that is meaningless. Later Jodl had nothing more to do with this matter. He did not even receive news regarding the success of his protests.

3. Geneva Convention - D-606. In this case Jodl did not only submit a memorandum but also a statement in great detail to Hitler, as he wished under all

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circumstances to thwart the latter's plan of renouncing the Convention. There he mentions all the reasons against the renunciation, and reassures Hitler afterwards by saying that it is possible to circumvent certain clauses even without a renunciation of the convention. This again is not an action contrary to International Law, but shows at the most sentiments opposed to International Law. More correctly, it appears to do so. In truth this was nothing but proven tactics for dissuading Hitler from his infamous plan. The renunciation did not take place. If one takes offence at the unethical argumentation, one overlooks the fact that Jodl, after five years' experience, knew better than we do with what arguments it was possible to persuade his chief.

4. Order regarding Leningrad - C-123.

On 7th October, 1941, Jodl notified by letter the Commander- in-Chief of the Army - and it is nothing but a notification - that Hitler had repeated an already previously issued order to the effect that an offer of capitulation was not to be accepted from either Leningrad or Moscow. Such an offer was, however, never made, and the order could not therefore have been carried out at all. The whole matter remained on paper, and, if only for that reason, does not constitute a violation of International Law. This also can at the most be regarded as a guide to the author's sentiments, but has no place in an indictment for the suspicion of a punishable action. The following should, however, be added in explanation of the matter; in this letter Jodl explained the indisputable situation of constraint which had caused Hitler to issue this order:

(a) An offer of capitulation would only be simulated. Leningrad, in fact, was mined and would be defended to the last man, as the Russian radio had already announced. The bad experiences as a result of the delayed action mines, prepared according to plan, in Kiev, Odessa, and Kharkov, had taught the German Operational Staff what things they must beware of.

(b) In addition there was also the great danger of an epidemic breaking out in case of a genuine capitulation. Even if for that reason alone, German troops must not be allowed to enter the town. Acceptance of a capitulation was thus not practical at all.

(c) Added to that was the sheer impossibility of the German troops feeding a half-starved city population of millions. The railway tracks had not as yet been altered to the gauge of the German tracks, and even the supplies for our own troops caused much worry. And finally there was the military danger to the German operations, of which Field-Marshal Leeb had complained to the defendant Keitel.

All this compelled steps to be taken to prevent the population of the towns from fleeing westwards and southwards through the German lines, but to make escape to the East possible for them, indeed, even to encourage it. Hence the directive to leave gaps in the front lines in the East.

The fact that Hitler let it be understood how he intended to utilize the militarily technical situation of constraint within the framework of his Eastern plans lies outside the military considerations. It has nothing to do with the order itself. The only question is whether the order was inevitable from a military point of view, aid this it was in fact, for the above-mentioned reasons. Whether or not the order was given anew by Jodl could not alter the situation in any way. I shall now discuss individual war crimes of which Jodl has been accused.

(a) The Commando Order.

Two orders of 18th October, 1942, which were drawn up word for word by Hitler and signed by him, have played a special part in this trial: the so-called Commando Order to the troops, 498-PS, and the explanatory order pertaining thereto given to the commanders, 503-PS.

According to their substance these orders lie outside Jodl's sphere. If Jodl had anything to do with the matter at all, then it was for a special reason: the orders are directives for the execution of an order which had been issued by Hitler 115

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days previously, which had also been drawn up by him personally and attached to the Armed Forces Report of 7th October, 1942. Jodl composed this Armed Forces Report as usual, and therefore also the supplement regarding the previous history of the order which Hitler afterwards ordered to be added at the end of the Armed Forces Report. Hitler requested him therefore to work out drafts for the executive order. Jodl did not do so, nor did he submit to Hitler a report which his staff had drawn up on their own initiative. On the contrary, he had Hitler, with whom his relations were very strained at that time, informed that he was not in a position to comply with the request. Hitler then drew up the two orders himself.

Jodl is now accused of two things: He distributed the orders drawn up by Hitler through official channels, and he furnished the second, the explanatory order, to the commanders, with a special directive for secrecy.

The order arose from Hitler's excitement about two kinds of intensified warfare which made their appearance about the same time in the autumn of 1942. One was the fatal efficiency of excellently equipped sabotage detachments which landed by sea or were dropped from the air. The other one was an extraordinary return to savagery in the fighting methods of enemies who acted singly or in small groups.

Jodl has described here how this return to savagery was shown by messages and photographs from the troops. Experience showed that these methods, which violated all military ethics, were encountered especially amongst sabotage detachments. Hitler wished to counteract these unsoldierly methods and to stop the sabotage activity which was so dangerous to the German war effort, but he knew that sabotage cannot be objected to on grounds of International Law if it is carried out by regular soldiers. Hitler's first order, the one contained in the Armed Forces Report of 7th October, 1942, is therefore quite simply explained: No mercy will be shown to enemy soldiers who appear in sabotage detachments and behave "like bandits", i.e., who place themselves outside the military code by their method of fighting.

The implementing directives should have defined the standard of unsoldierly conduct; Hitler's implementing directive did not contain this definition; in the decisive points it was not definite at all, and this made it possible to apply the order in the sense of its undoubtedly justified fundamental idea, and not to apply it where there was as much as a doubt as to whether one had been dealing with "bandits".

After all the reports which had been received about the enemy's behaviour, Jodl considered the basic principles of Hitler's directive in the Armed Forces Report of 7th October, 1942, understandable, and thought that the directives given by Hitler in the Commando Order of 18th October, 1942, which were in some points not clear, were in part admissible from the point of view of International Law and in part perhaps questionable from the same point of view. He says that he still knows no more exactly now than he did then whether and, to what extent these directives were contrary to International Law. He says that one thing only was certain, namely, that the indefinite wording of the order made it possible for the commanders to apply the order only against people who had simply placed themselves outside the bounds of soldierly behaviour.

Jodl hoped that this would be the method of application and, as far as he could, he promoted it as is proved by the evidence. He used all his power to help ensure that the practical application of the Commando Order was restricted to what was undoubtedly admissible. He took steps to ensure, further, that the order was not applied in large areas, i.e., in the greater part of Italy, as soon as it was at all possible to wrest a local limitation from Hitler.

The directive for secrecy is interpreted as a sign of Jodl's consciousness of guilt. But this secrecy had cogent reasons of a different nature. The enemy had to be prevented, as far as possible, from learning what serious damage was caused by the sabotage detachments which were operating in a bandit- like manner. Hence the special directive for secrecy only in the order 503-PS, which gives information

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about the damage, while the main order was known to the whole world through the Armed Forces Report. There was actually also a second reason for Jodl's imposition of special secrecy regarding the explanatory order. He did not wish to see circulated the final decree, according to which captured Commando personnel were to be shot after interrogation. It was revolting to him as a human being to exclude unsoldierly fighters from the protection of the Geneva Convention, whether or not such a course was admissible according to International Law. He hoped that the commanders would find ways of preventing inhumanities in individual cases by means of a sound interpretation. And unauthorised persons were not to have knowledge of the decree.

The fundamental idea, which it was not necessary to exceed in practice, conformed to International Law, which is only intended to protect men who are fighting as soldiers. This is, after all, the tendency of all the rules of war, which presuppose chivalrous combat. Something had indeed to be done to turn the use of such wild methods into a hazardous operation for the enemy. Nothing could be said against sabotage detachments which fought in a soldierly way. The enemy had only to desist from those methods which were in radical contradiction to International Law.

The following must also be stressed: the transmission of this order does not prove responsibility for its contents. This is not like other cases where Jodl advised or drew up the order. On the contrary, he refused to draw it up. He merely distributed it, as instructed, through the ordinary official channels. However, he is guiltless not because - or better, not only because - he was ordered to pass it on, but because he had no right to interfere with the order which was to be passed on. It was outside his jurisdiction, outside his rights, to examine it. His activity was purely technical, independent of the contents of the document. In theory he was not even obliged to read it. Let us assume that, after drawing up the order, Hitler told some lieutenant to telephone it to the Commander-in-Chief. Would it then have been the lieutenant's right and duty also to examine the contents of the document with regard to its legal admissibility and to announce afterwards: "I will not do this", or "I shall have to refer to the Hague Convention on Land Warfare first to see if I am allowed to do it"? The most grotesque consequences would ensue! And in this case the general is also nothing but a messenger who passes on what has been handed to him. Jodl's answer to my question as to what would have happened if he had refused to pass it on is characteristic of the military interpretation of the situation: "In that case I would have been removed immediately - and rightly so!"

With regard to the war against partisan bands one could place charges against Jodl in only two cases -

GENERAL RUDENKO: Mr. President, the defence counsel designates as "bandits" a patriotic movement comprising millions of patriots fighting against German Fascist invaders. I consider that such an expression used by the lawyer should be considered as an insult to the partisans who took a large part in defeating the Hitlerite invaders, and I protest against it.

THE PRESIDENT: The objection seems to be based upon some question of a Russian word which, of course, I do not understand. I understand that there is no objection to the English word "partisan". I do not know what the German word is. But there does not seem to be anything for the Tribunal to do about it.

DR. EXNER: Mr. President, no one on our side doubts that hundreds of thousands or millions of true patriots were among the so-called "bands". I am using the word because it was the expression used officially in German orders. They mention "rules regarding bands" (Bandenvorschriften). We do not use the word "bands" in any derogatory sense. It is not an evaluation when we speak of a "band" or there need not be any evaluation in speaking of a "band".

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THE PRESIDENT: Is there a different German word for the English "bandit" and the English word "partisan"?

DR. EXNER: Yes. We, too, use the word "partisan". For us that is a foreign word, but we also use it. And then we speak of "bands" not necessarily in a bad sense, and also of bandits ("Bandits"), and these, of course, are criminals.

THE PRESIDENT: Why do you not confine yourself to the use of the word "partisan"?

DR. EXNER: I can certainly just as well use the word "partisan", Mr. President. I have merely used "band" because we have the "rule regarding bands". That is the official expression which had been used, but I have no objection to using the word "partisan".

THE PRESIDENT: If you are quoting an order, you must quote the order in the words of the order, no doubt.

DR. EXNER: Very well, then; partisan warfare.

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