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 6 of 12)

[DR. EXNER continues.]

[Page 147]

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?


(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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