dtufail/nuremberg-trials-corpus huggingface dataset:
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): It says in the document that this plan was not to be worked out, but merely to be "contemplated." But since there was no indication whatsoever of such an attempt by the Hapsburgs, nothing at all was prepared for this eventuality. Jodl did not attend the meeting on 12 February 1938 at Obersalzberg. Two days later came the order to submit plans for certain deceptive maneuvers, obviously in order to put pressure on Schuschnigg so that he should abide by the Obersalzberg agreements. There is nothing illegal in this, although the prosecutor speaks of "criminal methods." Jodl was completely surprised by the Fuehrer's decision to march in, made 2 days before it was carried out, and transmitted by telephone. Jodl's written order served only for the files. If this had been the original order, it would after all have come much too late. It was issued at 2100 hours on 11 March and the troops marched in on the following morning. Developments were described to us here. The troops had purely peacetime equipment; the Austrians crossed the border to meet and welcome them; Austrian troops joined the columns and marched with the German troops to Vienna. It was a triumphal procession with cheers and flowers. Then followed the case of Czechoslovakia. As late as the spring of 1938 Hitler stated that he did not intend "to attack Czechoslovakia in the near future." After the unprovoked Czech mobilization he changed his view and decided to solve the Czech problem after 1 October 1938-not on 1 October 1938-as long as no interference was to be expected from the Western Powers. Jodl therefore had to make the necessary preparations in the General Staff. He did this in the conviction that his work would remain theoretical because-since the Fuehrer desired under all circumstances to avoid a conflict with the Western Powers-a peaceful settlement was to be expected. Jodl tried to make certain that his plan should not be interfered with by Czech provocation. And things really did turn out as he expected they would.
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): After the examination by Lord Runciman had revealed that minority conditions in Czechoslovakia could not continue as they were and showed the correctness of the German point of view, the Munich Agreement with the Western Powers took place. Jodl is charged with having suggested in a memorandum that an incident might be created as a motive for marching in. He has given us the reasons for it. But no incident took place. This memorandum is not a breach of international law, if only because it is a question of internal considerations which never achieved importance outside. And even if this idea had been put into execution, such ruses have been used ever since the Greeks built their Trojan Horse. Ulysses, the initiator of this idea, is praised for this by the ancient poets as "a man of great cunning," and not branded as a criminal. I do not see anything unethical in Jodl's behavior either, for after all in the relations between states somewhat different ethical principles obtain than are taught in Sunday schools. The occupation of the Sudetenland itself was effected just as peacefully as that of Austria. Greeted enthusiastically by the liberated population, the troops entered the German areas which had been evacuated to the agreed line by the Czech troops. Both these "invasions" are not crimes according to the Charter. They were not attacks, which would presuppose the use of force; still less are they wars, which would presuppose armed fighting; least of all are they aggressive wars. To consider such peaceful invasions as "aggressive wars" would be to exceed even the notorious analogies evolved by National Socialist criminal legislation. The four signatory powers could have included these invasions, which were still a recent memory, in Article 6, but this was not done because it was obviously intended to limit to acts of war the completely novel punishment of individual persons, but not to penalize such unwarlike actions. Generally speaking, any interpretation of the penal rules of the Charter tending toward an extension is inadmissible.
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): The old saying applies: "Privilegia stricte interpretenda sent." Here we have an example of privilegium odiosum. Indeed there has probably never been a more striking example of a privileging odiosum than the unilateral prosecution of members of the Axis Powers only. Now it might also be attempted to make Jodl responsible for having drafted an invasion plan against Czechoslovakia at a time when a peaceful settlement was not yet insured. Jodl, however, counted on a peaceful settlement and had good reason to expect it. He therefore lacked the intention of preparing an aggressive war. To this statement of facts, which excludes the question of guilt, must be added a legal consideration: We have established beyond any doubt that there is no punishment for crimes against the peace without previous violation of international law. Now if the Charter makes preparations for aggressive war subject to punishment, it clearly means that a person who prepared an aggressive war which actually took place should be punished. War plans, however, which remained nothing but plans, are not affected. They are not contrary to international law. International law is not concerned with what goes on in people's heads and in offices. Things which are immaterial from an international angle are not contrary to international law. Aggressive plans which are not executed-including aggressive intentions-may be unethical, but they are not contrary to law and do not come under the Charter. Here we are concerned with plans which were not carried out because the peaceful occupation of the Sudetenland based on international agreement was not an aggressive war, and the occupation of the rest of the country, which incidentally was also accomplished without resistance and without war, no longer had any connection with Jodl's plans. This occupation of the rest of Czechoslovak territory in March 1939 need not be discussed in greater detail here, for Jodl was in Vienna at the time and did not take part in this action.
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Neither did he have anything to do with its planning, for that has no connection whatsoever with Jodl's earlier work in the General Staff. In the meantime the military situation had changed completely; the Sudetenland with its frontier fortifications was now in German hands. The unopposed entry which then took place therefore followed totally different plans, if such plans existed at all. Jodl did not take part in the actual invasion. Point (7) of the trial brief deals with war plans against Poland. The essential things have already been said on this subject: At the moment when Jodl left Berlin, no deployment plan against Poland existed. When he returned on 23 August 1939 the intention was to enter Poland on the 25th. The plan for this was naturally ready; Jodl had no share in it. The Prosecution stresses further that Jodl was present in Poland in the Fuehrer's train on 3 September and that this was proof that he took part in the war. Is this, too, a reproach against a soldier? Point (8) of the trial brief concerns attacks on the seven countries from Norway to Greece. The trial brief gathers these seven wars together into one point, and quite rightly too. They form one unit, because all of them resulted from military necessity and with logical consequence from the Polish war and from Britain's intervention. It is for this very reason that the fact that Jodl had nothing to do with the unleashing of the war against Poland is so important when judging him. The historians will have to do a lot more research work before it is known how everything really came about. The only criterion for the judgment of Jodl's behavior is how he saw the situation at its various stages; whether, according to what he saw and knew, he considered Hitler's various decisions to wage war justified; and to what extent he influenced developments. That is all that we are concerned with here. In connection with Norway and Denmark, may it please the Tribunal, I should like to refer to the statements made by Dr.
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Siemers the day before yesterday, and therefore I shall omit what comes next, but I should like to insert a statement at this point, namely, a statement regarding international law which is not contained in my manuscript. With reference to the statements made by Dr. Siemers in this regard the day before yesterday, in order to avoid any misunderstanding, I should like to add the following: (1) There is not the slightest doubt that merchant ships of a state at war may pass through the neutral coastal waters. If its enemy, in order to prevent any traffic of that sort, mines the coastal waters, such action is a clear breach of neutrality. Even warships have the right to pass through, insofar as they adhere to the rules which have been stipulated and do not participate in any combat action in the coastal waters. And if this applies even to warships, it applies all the more to ships which are transporting prisoners of war. (2) The fact that a war is a war of aggression does not in any way influence the validity and application of the normal war and neutrality rights. A contrasting opinion would lead to absurd results and would serve only to deal a deathblow to all the laws of war. There would be no neutral states, and the relations between the belligerents would be dominated by the principle of brute force. Each shot would be murder, each instance of capture would be punishable deprivation of liberty, each bombardment would be criminal material damage. This war, in any event, was not conducted along such principles by either side, and even the Prosecution does not uphold this point of view . . .
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): [Interposing.] One moment, Dr. Exner. [There was a pause in the proceedings while the judges conferred.]
THE PRESIDENT: Go on.
DR. EXNER: Nor does the Prosecution maintain this point of view, otherwise they would not have charged the defendant with certain deeds as being crimes against the laws of war and the rights of neutrals. The entire charge under Count Three would not be understandable. And apart from that, Professor Jahrreiss has dealt with this question on Pages 32 to 35 of his final argument. Jodl heard for the first time in November 1939-and this from Hitler himself-about the fears of the Navy that Britain was intending to land in Norway. He then received information which left no doubt that these fears were basically right. Furthermore, he had regular reports according to which the Norwegian coastal waters were coming more and more into the English sphere of domination, so that Norway was no longer actually neutral. Jodl was firmly convinced-and still is today-that the German troops prevented the British landing at the last minute. No matter how Hitler's decision may be judged legally, Jodl did not influence it; he considered the decision justified and was bound to consider it as such. So, even if Hitler's decision were to be regarded as a breach of neutrality, Jodl did not give criminal help by his work on the General Staff. Like every military expert, Jodl knew that if Germany had to fight out the war in the West, there was no other course but a military offensive. In view of the inadequacy of German equipment at the time and the strength of the Maginot Line, there was, however, from a military point of view, no other possibility for an offensive than through Belgium. Thus Hitler was, for purely military reasons, faced by the necessity of operating through Belgium. But Jodl also fully knew, as did every German who had lived through August 1914, how difficult such a political decision was as long as Belgium was neutral, that is, willing and able to keep out of the war.
DR. EXNER: The reports which Jodl received, and of the accuracy of which no justified doubts could be entertained, showed that the Belgian Government was already co-operating, in violation of her neutrality, with the general staffs of Germany's enemies. This, however, can be waived here in the defense of Jodl. It suffices to know-and this is indisputable-that part of Belgium's territory, that is, the air over it, was being continually used by Germany's Western enemies for their military purposes. And this applies perhaps even more strongly to the Netherlands. Since the very first days of the war, British planes flew over Dutch and Belgian territory as and when they pleased. Only in some of the numerous cases did the Reich Government protest, and these were 127 cases.
THE PRESIDENT: Dr. Exner, will you refer the Tribunal to the evidence which you have for that statement?
DR. EXNER: I beg your pardon?
THE PRESIDENT: Will you refer me to the evidence that you have for that statement?
DR. EXNER: What statement, Mr. President?
THE PRESIDENT: That protests were made in 127 cases.
DR. EXNER: I am referring to the statements made by the witness Von Ribbentrop. He said that 127 protests were made.
THE PRESIDENT: Go on.
DR. EXNER: The Prosecution does not put the legal question correctly. Before air warfare gained its present importance, conditions were such that a state wishing to remain neutral could prevent its territory from being continually used at will by one of the belligerents, or else its neutrality was clearly terminated. After air warfare became possible, a state might relinquish or be forced to relinquish to one of the belligerents the air over its territory, and yet remain outwardly and diplomatically neutral. But by the very nature of the idea, the defense of its neutrality can be claimed only by a state whose whole territory lies de facto outside the theater of war. The Netherlands and Belgium, long before 10 May 1940, were no longer de facto neutral, for the air over them was in practice, with or against their will, freely at the disposal of Germany's enemies. What contribution they thus made toward Britain's military potential, that is, toward the strength of one of the belligerents, is known to everybody. One need only think of Germany's most vulnerable point, the Ruhr. Our adversaries obviously maintained the point of view that insofar as the barrier constituted by Holland and Belgium protected Germany's industrial areas against air attacks, their neutrality was immaterial; but with regard to the protection afforded to France and England, any violation was a crime. Jodl naturally realized the situation. His opinion on the legal aspect, was, of course, a matter of complete indifference to Hitler. Here, too, his activity remained the normal activity of a General Staff officer.
THE PRESIDENT: One moment, please. Dr. Exner, is it your contention that it is in accordance with international law that if the air over a particular neutral state is made use of by one of the warring nations, the other warring nation can invade that neutral state without giving any warning to the neutral state?
DR. EXNER: In this respect I should like to maintain that this continual use of the air space over a neutral state-that is, for purposes of attack, for these planes flew over such territory in order to attack Germany-was a breach of neutrality. This breach of neutrality justified Germany's no longer regarding Belgium as a neutral country. Therefore, from the standpoint of the Kellogg Pact, or any previous assurance given with respect to neutrality, no charge can be made against Germany in this regard. Whether one can reproach Germany for the fact that she did not declare war in advance is something I leave open to discussion. Incidentally, it may be presumed that the flights made by the British planes were not announced in advance either.
THE PRESIDENT: Well then, you are not prepared to answer the question I put to you?
DR. EXNER: Yes. The question was to the effect, Mr. President, whether a prior declaration was necessary; that was the question, Mr. President, was it not?
THE PRESIDENT: Whether you can attack a neutral state without giving any prior warning, that is, whether, in accordance with international law, you can attack a neutral state in such circumstances without giving any prior warning. That is the question.
DR. EXNER: My contention is that it was no longer a neutral state when it was attacked.
THE PRESIDENT: Then your answer is in the affirmative; you say that you can attack without giving any warnings, is that right?
DR. EXNER: There is an agreement in international law that war must always be declared in advance. In that sense Germany would have been bound to declare war beforehand. However, above and beyond that, because of the fact that this was not a neutral state, I do not believe that any other obligation still existed. I cannot see just why there should have been any obligation toward this state because it had been neutral at one time.
THE PRESIDENT: Well then, you say that there is a general obligation to declare war before you actually invade. You don't say, do you, that the fact that Holland was a neutral state prevented that obligation attaching?
DR. EXNER: That I am not prepared to assume. A general obligation I admit, but I do not believe there was a special obligation because of the former neutrality of Holland and Belgium. I fail to see what justification could be given for that.
THE PRESIDENT: Go on.
DR. EXNER: Now I shall turn to Greece. Hitler wanted to keep the Balkans out of the war, but Italy had attacked Greece against his will at the beginning of October 1940. When the Italians got into trouble, a request was made for German help. Jodl advised against it, since British intervention in the Balkans would then have to be reckoned with and every hope of localizing the Italo-Greek conflict would thus be lost. Hitler then ordered everything to be prepared in case of need for German aid to Italy against Greece. These are the orders of 12 November and 13 December 1940. If the attempt to localize the Italo-Greek conflict did not succeed, it was clear that Greece would be involved in the great Anglo-German struggle. The question was now whether Greece would come within the war zone controlled by the British or the Germans. In the case of Norway, Belgium, and Holland, part of the territory of these countries was already at Britain's disposal before the beginning of open hostilities, and they were, therefore, objectively at least, not neutral, which possibly they could no longer be. It was the same with Greece now. The Indictment referring to Greece established that British troops were landed on the Greek mainland on 3 March 1941, after Crete had for some time before that come within the area controlled by the British. Hitler did not give permission for aerial warfare on Crete until 24 March 1941, and began the mainland attack only on 6 April. Here, too, Jodl had no influence on Hitler's decisions. He could have no doubt that Hitler's decision was inevitable in view of the way in which the war between the world powers was now developing. There was no choice; ever-increasing parts of Greek territory would have been drawn into the sphere of British power and would have become the jumping-off points for bombing squadrons against the Romanian oil fields unless Germany stopped this process. Moreover, the experiences of the first World War were disquieting; the coup de grâce had at that time been made from Salonika. Hitler wanted to keep Yugoslavia out of the war, too.
DR. EXNER: The German troops in the Balkans had the strictest orders to respect her neutrality rigorously. Hitler even rejected the proposal by the Chief of the Army General Staff to ask the Yugoslav Government for permission to allow sealed trains with German supplies to pass through its territory. The Simovic Putsch in Belgrade on the night after Yugoslavia joined the Tripartite Pact was considered by Hitler to be a malicious betrayal. He was of the opinion that the change of government at Belgrade, which reversed the course of its foreign policy, was only possible if Britain or the Soviet Union or both had provided cover from the rear. He was now certain that the Balkans would be fully drawn into the war tangle. He was certain that the German troops in Bulgaria were severely threatened, and also the German supply line which ran close to the Yugoslav frontier. Under these conditions Hitler on the morning following the Belgrade Putsch took the decision for war, any preparation for which was absolutely lacking. Jodl's suggestions, and later Ribbentrop's too, to make things unambiguous by means of an ultimatum, were never considered. He wanted to make sure that Yugoslavia and Greece should not come into the sphere of influence of Britain but into that of Germany. The next day's news concerning Moscow's telegram of friendship to the Belgrade Putsch government and about the Yugoslav deployment then already in progress, as confirmed by the statement of the witness Greiffenberg (Document Book 3, Document Number Jodl-65, Exhibit AJ-12), and lastly the Russo-Yugoslav Friendship Pact, were for Jodl irrefutable signs that Hitler had correctly foreseen the connection of events. The decision to fight was taken by Hitler, and by Hitler alone. Point (9) concerns the war against the Soviet Union. What each of the two Governments in Berlin and Moscow actually wished to achieve by the agreement of 23 August 1939 is not certain. One thing, however, is certain, and that is that these partners who were until then enemies had not arranged a love marriage.
DR. EXNER: The Soviet Union was for the German partner a completely mysterious quantity, and remained so. Anyone who fails to consider this fact can in no way judge Hitler's decision to make a military attack on the Soviet Union, least of all the question of guilt. If anywhere, it was in the Russian question that Hitler came to a decision without even listening to the slightest advice from anyone, to say nothing of taking it: He wavered for many months in his opinion about the intentions of the Soviet Union. The relations of the armies on both sides of the demarcation line from the very beginning were full of incidents. The Soviets at once occupied the territories of the Baltic States and of Poland with disproportionately strong forces. In May and June 1940, when there were only 5 or 6 German covering divisions in the East, the Russian deployment against Bessarabia with at least 30 divisions, reported by Canaris, and the deployment into the Baltic territory caused great anxiety. On 30 June 1940 apprehensions were again allayed, so that Jodl-as Document 1776-PS has shown-even thought that Russia could be counted on as an aid in the fight against the British Empire. But in July there were renewed worries. Russian influence was progressing energetically in the Balkans and the Baltic territories. Hitler began to fear Russian aggressive intentions, as he told Jodl on 29 July. The transfer of several divisions from the West, where they were no longer required, actually had nothing to do with this. This occurred at the request of the commander in the East who could not fulfill his security task with his weak forces. Hitler's worry above all concerned the Romanian oil fields. He would have preferred to eliminate this threat back in 1940 by a surprise action. Jodl replied that owing to the bad deployment possibilities in the German Eastern Territories this could not be considered before winter.