dtufail/nuremberg-trials-corpus huggingface dataset:
DR. FRANZ EXNER: 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 intention 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 read in an English decision that intention and deed must coincide in order to constitute a crime, but we take a more precise view of this coincidence. According to German law, a person can be punished for intentional killing, only if he foresaw the fatal results and wished them. On the other hand in the decision already quoted in Regina v. Prince it is stated: "if a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk." According to German law this man could be punished only for aggravated bodily injury, never for intentional killing (Paragraph 226 of the German Penal Code). That the "result," which may rest on chance, should turn the act into murder-is rejected by us as unjust. I will not read what follows, in order to save time, and I wish to omit Paragraph 1, on Page 110. 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 such a manner. "To constitute a criminal act there must, as a general rule, be a criminal intent.
DR. FRANZ EXNER: The general doctrine is stated in Hale's Pleas of the Crown that 'where there is no will to commit an offense, 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 taken over in the drafting of our German Penal Code, states: "The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense." I was greatly interested 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 another 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 by statute or by common law, or both elements of intention may coexist with respect to the same deed." Thus, according to English law, knowledge that it is not allowed to act thus is one of the elements of intent: "There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offense." This decision quotes some exceptions to this principle, which do not interest us here. They concern bigamy and seduction, where positive provisions of statute law are involved, as well as certain offenses against public order, et cetera. Our question now is: Was Jodl aware of wrongdoing 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 have 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.
DR. FRANZ EXNER: 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 cite 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 honor of the German Armed Forces, 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 was making plans for wars, or drafts of orders, or memoranda, the point is not merely whether he knew that this war or that decree was contrary to law, 	but decisive is 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 3 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 wrongdoing. 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 of the Armed Forces Operations Staff 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.
DR. FRANZ EXNER: Incidentally, it is striking 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 favorable 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 highest courts, and what the real legal situation 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-for instance, because of its nature it did not come within the framework of Armed Forces' tasks-and if the subordinate was aware that the action ordered had a crime or an offense as its aim. The offense must thus be directly intended by the person issuing the order, and the subordinate must be certain of this. That he could and should have realized 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 made a late presentation of a document which concerns this problem (3881-PS). 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 the 20th of July 1944.
DR. FRANZ EXNER: 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-as far as the meaning of his remarks, torn 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 Armed Forces and was, therefore, not binding and did not exculpate, it was the order to murder the head of these very Armed Forces. 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 judgment 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 judge justly the commissions and omissions of his immediate entourage. During these months I have again and again been reminded of the combination of genius, madness, and crime which was once depicted by the discerning Cesaro Lombroso. In history it is success that has the last word on the worth and worthlessness of man. Therefore, history's verdict on Hitler will perhaps be a crushing one.
DR. FRANZ EXNER: But one must not forget his beginnings; when one compares Germany's position toward 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 before this man. Jodl, an honest soldier, extraordinarily gifted, but never striving to be anything but a conscientious soldier; a sober realistic mind, ill-disposed toward 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 fulfillment of duty, selfless work, and ever more and more work. That this man, working at 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 relationship of mutual confidence, 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 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 behavior during these years. It was much more the wider conception of the fulfillment of duty: Complete devotion to that which had been assigned 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 a war which was becoming increasingly horrible, and at the same time the views of his Supreme Commander which 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.
DR. FRANZ EXNER: Permit me to make a comparison: You, Your Honors, 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 principles of law. 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 here and there. 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 peacetime, but in wartime it was quite different. Jodl tried repeatedly to get out of the OKW and to be ordered 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 wartime 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.
DR. FRANZ EXNER: 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 that the generals had to do was to be responsible for their strict execution. Resignations on such grounds were not soldier-like and would be criminal. Therefore, Jodl could not resign. Should he perhaps have simulated illness? This also is desertion and in wartime 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 peacetime this would have meant civil war-in wartime, the immediate collapse of the front 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 moralists and theologians. At all events, jurists cannot even 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 wartime? 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 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 Operations 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.
DR. FRANZ EXNER: 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 Honors. 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 courthouse 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 defense counsel." Your Honors, I believe that these are the words of a gentleman, not of a criminal I ask that Generaloberst Alfred Jodl be acquitted.
THE PRESIDENT: I call on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): Mr. President, members of the Tribunal: Nuremberg, the old, venerable, imperial city, which has given not only to the German nation but also to the world one of its most significant painters, Albrecht Duerer, an unsurpassed sculptor, Veit Stoss, and the Meistersinger Hans Sachs, has, in its ruined state become the stage for the greatest criminal trial which legal history knows. Not only has Nuremberg seen within its walls the pomp of the old emperors, but the rallies of the NSDAP also took place there, year after year, as a part of that propaganda machine which knew how to put into motion millions of people by a gigantic, but also diabolical stage management, with flags and standards, drums and fanfares under the slogan of equality of rights for Germany in order finally in its extravagant 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 these 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 and, furthermore, the rules for a humane conduct of the war but had also trodden under foot the basic rights of humanity in the most contemptible way. We saw for months how mountains of documents and along chain of witnesses were supposed to confirm the Indictment and, on the other hand) how the Defense as keeper and servant of the law was striving to help the Tribunal discover the truth. But 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 gave us a glimpse into the depths of unsuspected crimes. But outside, before the gates of the courthouse, stands a deeply moved German people, whose former leaders the defendants were.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): But regardless of how the trials will end, the Defense must be given credit for one thing-namely, that with regard to the question of the guilt of the German people, 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, to give a hearing once more to the Defense and then to pronounce a sentence which must not only conform to fundamental legal principles but also insure that crimes such as the Prosecution describe will forever be prevented. On 20 November 1945, at the beginning of the Trial, the presiding judge stated that this Trial is of great importance for millions of people in the whole world. For this reason, he said, everybody participating in them has the solemn responsibility of fulfilling his duty without fear and without favor to anybody, and according to the principles of law and justice. This duty was often an almost too heavy burden for the Defense Counsel, not because of the extent of the material for the Trial, not because of the abundance of new legal questions, but because things were revealed here which are so monstrous and abysmally degrading that a normal brain would reject even the possibility of their existence. In so saying I am not thinking of the prepared human skin, of the pieces of soap made out of human fat which were shown to us; I am not thinking of the systematic way in which millions of innocent people were tormented, tortured, beaten, shot, hanged, or gassed. No, I am thinking of the many touching individual pictures which have made the deepest impression on me personally and probably also on everyone else. Once more, I hear the report of the village priest Mogon regarding the shooting of the hostages from Choisel Camp in Chateaubriant: "My father, we have not your religious conviction, but we are united in the love for our native country.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): We wish to die so that the French people will be happier." I visualize the march of the Jews from Dubno which slowly approaches the place of execution, how the individual victims help each other to undress, how the little boy persuades his parents to die bravely, and how they carry an old woman whose lameness prevents her from taking the few steps to the pit where the deadly bullet from the submachine gun awaits her. I once more hear the testimony of the French journalist, Marie Claude Vaillant-Couturier, who describes in deeply touching words how the sacred experiences of maternity and female honor were shamelessly trampled under foot in the extermination camp. Auschwitz alone has swallowed up 31/2 million people-men, women, and children. That is really the most terrible weapon of the Indictment, that the spirits of all these innocent victims stand beside the prosecutor, admonishing and demanding revenge. But I do not stand alone, either. The many innocent war victims on the German side, women and children who have fallen victim to the terror attacks which violated international law, in Freiburg, in Cologne, in Dresden, in Hamburg, Berlin, and Vienna, and in almost all other German cities, stand beside me. My comrades from the Armed Forces, who, as honest and decent soldiers, have sacrificed their lives for the fatherland by the hundred thousand, young and old, faithful to their Oath of allegiance, also stand by my side. But even if they did not exist, if the defendant stood quite alone before his judges, then even more is it my sworn duty as a lawyer to stand helpfully by his side and be his shield and defense, and, faced with the mass of the most terrible, incriminating documents, to call to you, Honorable Judges: Do not judge in wrath, but as our Austrian poet Wildgans, who was a judge himself, wrote in the album of a young judge: "Suche das Edelreis, das unter Dornen blueht..." (Seek the precious shoot which grows among the thorns).