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 7 of 12)

[DR. EXNER continues.]

[Page 151]

Lastly, in a third point which is of importance here, the views again agree. Every serious crime must be intentional, although the intent need not be linked with the consciousness of doing something criminal, but with the consciousness that it is not right to act in this manner.
"To constitute a criminal act there must, as a general rule, be a criminal intent. The general doctrine is stated in Hale's 'Pleas of the Crown,' that 'where there is no will to commit an offence, there can be no transgression'."
In German law it has been argued for a long time whether the perpetrator must know that he is acting in direct contravention of the law, or whether it is sufficient for him to know that he is doing something contrary to his duty. The prevailing opinion, which has also been adopted in drafting our German Criminal Code, states: "The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense." It was very interesting to me to find the same idea, expressed in almost the same words, in a British decision (Green v. Tolson):
"It must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited

[Page 152]

by statute or by common law, or both elements of intention may co-exist with respect to the same deed."
Thus, according to English law, knowledge that it is not allowed to act thus is one of the constituents of intent:
"There is a presumption that 'mens rea', an evil intention or a knowledge of the wrongfulness of the act, is an essential factor in every offence."
This decision quotes some exceptions to this principle, which do not interest us here. They concern bigamy and seduction, where positive provisions of the Statute Law are involved, as well as certain offences against public order, etc.

Our question now is: Was Jodl aware of wrong-doing when he prepared and passed on the various plans and orders of which he is accused today? According to my innermost conviction: No.

The only evidence which the prosecution has produced is the reproach, why, if he had a clear conscience, was he in so many cases so intent on observing strict secrecy? There is an answer to this: in military questions there are manifold reasons for not allowing certain things to become known. This was so before the war and all the more so during the war, and even now, after the war, deep secrecy shrouds the atom bomb, to quote an example. Such observance of secrecy need not be connected with a guilty conscience. And if Jodl says he had arranged that one of the two Commando Orders should - apart from other reasons - be kept secret because of its obnoxious final regulation, he did so, presumably, for the sake of the honour of the German Wehrmacht, and certainly not because he thought that he himself was doing something wrong by passing on the order, an order which he had after all not drafted himself and for which, he was convinced, he was not responsible.

This last fact must be stressed. It is of general importance. In all Jodl's military preparatory work, whether he waste making plans for wars, or drafts of orders or memoranda, the point is not only whether he knew that this war or that decree were contrary to law, but whether he knew that by his co-operation, by his actions, he was doing something wrong. That Jodl did not have a bad conscience seems to me to be clearly shown by the fact that before his capture he had three weeks in which to burn most of these documents, but did not do so, because he was convinced that he had nothing to conceal.

When drawing up these orders, he was not conscious of wrong- doing. He could not be if only for two reasons: on the one hand, because he felt himself bound by the Fuehrer's orders, on the other hand, because - apart from a concrete order - he was convinced that in his position as Chief in the West he was in duty bound to act in this way.

Let us look into this more closely:

I will not speak any further about the order and its legal meaning. One point, however, appears to me to be in need of elucidation: Mr. Justice Jackson quoted paragraph 47 of the German Military Penal Code to prove that, according to German law, an order by a superior officer does not excuse the subordinate.

Incidentally, it is remarkable that in the case of the conspiracy British-American law is brought in, whereas in the case of this order German law is drawn on - in each case according to whichever is the less favourable to the defendant. I do not know, however, whether Mr. Jackson would have referred to paragraph 47 of the Military Penal Code, if he had known how it was interpreted by the Supreme Military Courts, and what the real legal position in Germany was.

It is first of all necessary to note that at the beginning of paragraph 47 there stands the principle: "Should, by the execution of an order in the course of duty, a criminal law be infringed, the superior officer issuing the order is alone responsible." And now comes the exception which practice has cut down to the absolute minimum for the sake of maintaining military discipline. It is based on the point of view that a subordinate is subject to punishment as a participant only if the order was not binding on him - if, for instance, because owing to its nature it did

[Page 153]

not come within the framework of Wehrmacht tasks - and if the subordinate was aware that the action ordered had a crime or an offence as its aim. The offence must thus be directly intended by the person issuing the order and the. subordinate must be aware of this. That he could and should have realised this is not sufficient. And, even if the subordinate is responsible, in a case of slight guilt punishment may be waived.

The whole ruling is very much contested, but one can see how the courts have limited its application in order to shield the obedient soldier as much as possible. Actually, cases of this kind were very rarely punished. Jodl does not remember a single case in his 30 years of service.

I must insert something here, because a few days ago Mr. Jackson presented a document subsequently, which concerns this problem (PS-3881). These are statements made by Dr. Freisler, as President of the People's Court, during the trial of those who took part in the attempt on Hitler's life on 20th July, 1944. Freisler was always considered in Germany as a caricature of a judge. His undignified shouting in that murder trial was reproduced here before us by the prosecution a few months ago in a sound film. What this legal expert meant to say - so far as the meaning of his remarks, extracted from the general context, can be understood - was: When an officer ordered a subordinate to give assistance in murdering Hitler, this order did not justify the one who obeyed.

Certainly, Freisler's "authority" is not required to establish this. If ever a military order was issued which was outside the competence of the Wehrmacht and was, therefore, not binding, and did not exculpate, it was the order to murder the head of this very Wehrmacht. But how an order by some officer to murder the head of the State can be compared with the order of the head of the State to commit an act contrary to International Law, is incomprehensible to me. However, I will not dwell any longer on this.

It will not be possible to understand Jodl's position or form a correct judgement of his actions, if we do not visualize clearly the two men who here confronted each other.

It is very easy for the prosecution. Were Hitler still alive, he, as the head of the major war criminals, would sit in the first place on the defendants' bench and would be considered as the prime agent and source of all the terrible things that have happened. Now that he is dead, his person is belittled when judging the other defendants, and their conduct is treated almost as if he had never existed at all. This despot, this infernal power, as Jodl called him, cannot be passed over as a negligible quantity when the question is to do justice to the commissions and omissions of his immediate entourage. During these months, I have again and again been faced with the combination of genius, madness and crime which was once shown by the penetrating Cesare Lombroso. In history it is success that has the last word on the worth and worthlessness of men. Therefore, history's verdict on Hitler will perhaps be a crushing one. But one must not forget his beginnings; when one compares Germany's position towards the end of 1932 with that at the end of 1938, one is not surprised at the incomparable prestige which he had at the very time when Jodl came into close contact with him.

Jodl now stood vis-a-vis this man. Jodl, an honest soldier, extraordinarily gifted, but never striving to be anything but a conscientious soldier; a sober, realistic mind, ill- disposed towards all diplomacy, all political machinations, brought up in the ideals. of the German officer corps - bravery, faithfulness, obedience - trained according to the 100-year-old tradition of the German General Staff, who knew only fulfilment of duty, selfless work and ever more work.

That this man, who was working by Adolf Hitler's side, was bound to come under his influence is self-evident. One must consider the time at which this took place. There could of course be no relations of mutual trust, but Jodl was also not the man to submit without opposition. There were clashes and explosions enough. Jodl was regarded as the man who dared to oppose the Fuehrer more than anybody

[Page 154]

else. He could, as Kesselring reported, stand up against him with a curtness which at times reached the limits of what is militarily permissible.

For this very reason I do not believe that it is merely the receiving and obeying of commands which can make us appreciate fully Jodl's behaviour during these years.

It was much more the wider conception of the fulfilment of duty: complete devotion to that which had been allotted to him as his task at a critical time. One should realize and appreciate the situation in which Jodl found himself. His, country's struggle for existence, the demands of the war which were becoming increasingly horrible, and at the same time the views of his Supreme Commander -who disregarded all traditions - about what was permissible and not permissible in a war. It was quite clear that Jodl was bound to come into conflict, into conflict with Hitler and into conflict with himself.

Permit me to make a comparison: You, your Honours, as you have already informed us, feel yourselves bound by the Charter of this Tribunal. Perhaps some of you have been assailed by doubts as to whether all the conditions of this Charter conform to International Law, as at present understood, and to the generally recognized legal principles. But you have rejected such doubts, since you, as judges, consider yourselves bound by the rules which your four governments have agreed upon.

Jodl, as a General Staff Officer, may have felt himself bound in a similar way to support the orders of his Supreme Commander, even if doubts regarding their admissibility in International Law may have assailed him now and then. But he considered himself bound by his office to draw up plans for war, without examining whether and under what conditions they were carried out; he had to formulate and issue thousands of orders, even if he disagreed with some of them. Where neither remonstrances nor delaying tactics had any effect, he had to submit. As a General Staff Officer he had a purely auxiliary function. That he might be doing wrong while fulfilling this function according to the best of his knowledge and conscience never even occurred to him.

It is said now: Jodl should under no circumstances have taken any part in this or that affair. What should he have done?

If one reproaches somebody with having acted in a certain way, then one must be in a position to state what action would have been right in that situation. It is now said that he should have resigned. This, of course, would have been an easy way out. That course could be taken in peace time, but in war time it was quite different.

Jodl tried repeatedly to get out of the OKW and to get posted to the front, but in vain. Requests to be relieved of his post were altogether futile, unless the Fuehrer desired it, as in the case of von Brauchitsch and von Leeb. In war time he strictly forbade his generals to apply for release. That was desertion, he said. The private in the front line could not resign when he found things uncomfortable. The general, too, had to remain at his post. In 1944 this order was repeated in writing, it was still more peremptory and the reasons more potent. If a general wanted to quit for reasons of conscience, he was told that the Fuehrer himself bore full and sole responsibility for his orders, all the generals had to do was to be responsible for their strict execution. Resignations on such grounds were not soldier- like and were criminal.

Therefore, Jodl could not resign. Should he perhaps have faked an illness? This also is desertion and, in war time, a crime punishable by death. Is it possible seriously to expect an officer, brought up in the good old traditions, to betray his country in time of need like a coward - his country, to which he had devoted his whole life - which would mean that he would not be able to look any new recruit in the face. I do not believe so.

Thus, there was only a third way out: Murder and revolution. In peace time this would have meant civil war; in war time, the immediate collapse of the front

[Page 155]

and the end of the Reich. Should he then have cried: "Fiat Justitia pereat patria"?

It really appears that the prosecution holds the view that such conduct could be demanded of the defendants. An astonishing idea! Whether murder and treason can ever be justified ethically had better be left to the moralists and theologians. At all events, jurists cannot discuss such an idea.

To be obliged on pain of punishment to murder the head of the State? A soldier should do that? And in war time? Those who have committed such crimes have always been punished, but to punish them for not doing so would indeed be something new.

Naturally there are limits to legal obligations for the jurists too, but in a state of conflict which offers only this kind of solution, the old saying applies: Ultra posse nemo obligatur.

Jodl was no rebel. His conscience told him: The Fatherland is in need. Every man to his post! Jodl's place was at the head of the Armed Forces Operational Staff. He did not enter this post of his own free will, he did not keep it of his own free will. It was a hard duty. He fulfilled the task which this post imposed on him according to the best of his ability and conscience-up to the bitter end.

Your Honours:

Allow me in conclusion to, recall a personal reminiscence, which throws more light on Jodl's personality.

I made his acquaintance about 20 years ago in the house of his uncle, the philosopher Friedrich Jodl, in Vienna. There I had a conversation with him on training for the career of an officer. The young captain spoke with such moral earnestness and what he said was so far from anything that could be called militarism, that I have always retained it in my memory. I then lost all contact with him until last autumn, when I received the surprising summons to defend him here. My first thought was: "This gallant soldier must be helped." But I doubted whether I should undertake this, as I am not a professional attorney. But when I met him in the court-house for the first time, he said something to me which swept away all my doubts: "Rest assured, Professor," he said, "if I felt a spark of guilt in me, I would not choose you as my defence counsel."

Your Honours, I believe that these are the words of a gentleman, not of a criminal. I ask that Colonel-General Alfred Jodl be acquitted.

THE PRESIDENT: I call on Dr. Steinbauer for the defendant Seyss-Inquart.

DR. STEINBAUER: Mr. President, members of the Tribunal:

Nuremberg the old august imperial city, which has given not only to the German nation but also to the world one of its most distinguished painters, Albrecht Durer, an unsurpassed sculptor, Veit Stoss, and the mastersinger Hans Sachs, has, among its ruins, become the stage for the greatest criminal trial which legal history knows. Nuremberg has seen within its walls not only the pomp of the old emperors, but the rallies of the NSDAP which also took place there, year after year; as a part of that propaganda machine which understood how to stir into action millions of people by a gigantic but also diabolical stage management, with flags and standards, drums and fanfares under the slogan of German equality of rights, in order finally, in the extravagance of its aims, to lead a nation, which has given humanity so much that is good and beautiful, to the verge of ruin.

We have heard the Indictment here which tries to prove in a comprehensive way that some men had conspired to conquer the peaceful world by waging wars of aggression. It was said that the waging of these wars not only violated the treaties which were supposed to prevent war, but furthermore the rules for a humane conduct of the war, and had also trodden under foot the basic rights of humanity in the most contemptible way. We saw for months, how mountains of documents and a long chain of witnesses were supposed to confirm the Indictment, and, on

[Page 156]

the other hand, how the defence, as keeper and servant of the law, was striving to help the Tribunal discover the truth. In the gallery the representatives from all parts of the world were seated, and only too often the whole world held its breath, when there was a break in the dark fog banks which again and again made possible a glimpse into the depths of unsuspected crimes. But outside, before the gates of the court-house, stand the deeply moved German people, among whose former leaders the defendants after all belong. But regardless of how the trials will end, the defence must be given credit for one thing, namely that, with regard to the question of the guilt of the German peoples one will never again be able to talk about complicity or collective guilt, perhaps rather about collective disgrace, because they were German men under whose leadership crimes of the most horrible kind were committed. The curtain now rises on the final act of this world tragedy, in order to give hearing once more to the defence, and then to pronounce a sentence which must not only correspond to fundamental legal principles but also ensure that crimes, such as the prosecution describes, will for ever be prevented.

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