dtufail/nuremberg-trials-corpus huggingface dataset:
JODL: This document is a typical example. First of all it contains the draft by another department of the Army High Command, not verbatim, but in a brief, condensed form. Then, secondly, under Figure II, on Page 153, the views of another department-that of Reichsleiter Rosenberg's-are set forth. Then, under Figure III, it Contains a proposal of my own staff. The whole matter, therefore, is far from being an order; it is to become one. And on a summarized draft like that, I naturally made very many, I might say, cursory marginal notes to serve as a guide for the further treatment and discussion or disposal of the whole question. Therefore one cannot apply to this the same criteria as would be applied to the well-considered words contained in an actual order.
DR. EXNER: All right. So much for the summarized draft and your notes. Now we turn to the very delicate topic of the Commando Order. This matter has been dealt with here on various occasions; and indeed, it goes beyond this Court in its importance and its repercussions, as we know from the newspapers. I should like to hear from you something about the factors that led to this order. This order is Document 498-PS, Exhibit Number USA-501. I do not have it in my document book, but I asked the General Secretary to have it put at the disposal of the Tribunal in the various languages. I hope this has been done. Then there is an explanatory decree in addition to the main order; both are signed by the Fuehrer. That is Document 503-PS, Exhibit Number USA-542.
MR. ROBERTS: It is 498-PS. It is in the Keitel and Jodl Document Book, Number 7, Page 64.
DR. EXNER: The first order is addressed to the troops; the second is an explanatory order addressed to the commanders-in-chief. The first order threatens enemy soldiers with death if they engage in bandit-like warfare; and it refers to the Wehrmacht communiqué in this connection. Can you first explain the connection between the Commando Order and the Wehrmacht communiqué of 7 October '42?
JODL: May I ask the Tribunal to permit me, as an exception, to go into greater detail. Very much depends on this order; not my person, my own person does not matter in this Trial, but the honor of German soldiers and German officers whom I represent here is in question. The Commando Order is inseparably linked with the announcement in the Wehrmacht communiqué of 7 October 1942, for this announcement in the Wehrmacht communiqué heralded the actual Commando Order.
DR. EXNER: And who was responsible for this announcement in the Wehrmacht communiqué? Who wrote it?
JODL: This Wehrmacht communiqué of 7 October 1942-it was really a supplement to the communiqué-emanated in the main from me. It deals with the denial of a report by the British Ministry of War, a matter which I will not discuss further, for it is a very delicate point. The Prosecution especially does not wish it to be brought up.
DR. EXNER: But this supplement . . .
THE PRESIDENT: Dr. Exner, we do not know-at least I have not seen the document of 7 October 1942, and the Prosecution has made no objection to any answer to any English documents as far as we know.
DR. EXNER: I wished to submit this document but objections were raised. THE PRESIDENT What does the defendant mean by saying that the Prosecution does not wish him to present it or to answer it?
DR. EXNER: He probably refers to the fact that we were not allowed to present this Wehrmacht communiqué; but he can give us the contents of it briefly.
THE PRESIDENT: Well, it may be a question of translation, but if he means simply that no evidence has been given by the Prosecution on the subject, of course, there is no objection to his saying that; but when he says that the Prosecution does not want him to put forward or does not want him to answer the document, that is a most improper statement to make.
DR. EXNER: Yes, I understand. [Turning to the defendant.] Perhaps you can tell us briefly the contents of this Wehrmacht communiqué of 7 October 1942. I believe you have it in your own document book.
THE PRESIDENT: No, but, Dr. Exner, that is not quite what I mean. What the defendant has said was that the Prosecution does not want him to deal with this subject.
DR. EXNER: Yes.
THE PRESIDENT: Now, if that is the remark that is- made, that is an improper remark to make. The Prosecution have no communication with the Defense upon this subject, presumably, except that they have put it forward in the evidence in this case.
DR. EXNER: [Turning to the defendant.] Did you understand? You must not say that you are not allowed to touch upon this subject. Perhaps you will give us an explanation of what you meant?
JODL: This communiqué is in direct connection with the Commando Order. Only the last paragraph of this Wehrmacht communiqué is important. It was written by the Fuehrer himself, as Field Marshal Keitel has already stated, and Professor Jahrreiss read it here before the Tribunal. It is the sentence which reads: "..in future all terror and sabotage troops of the British and their accomplices who do not act like soldiers but like bandits will be treated as such by the German troops and will be ruthlessly eliminated in bathe wherever they appear." This sentence was written, word for word, by the Fuehrer himself.
DR. EXNER: And then you were instructed to issue a detailed order to that effect...
THE PRESIDENT: Wait a minute. Wait a minute. Defendant, what the Tribunal wants to know is this: You said that the Commando Order appeared originally in a Wehrmacht report of the 7th of October 1942 which, in the main, emanated from you, and that that report refuted an English statement by the Ministry of War which the Prosecution did not want you to deal with. What do you mean by that?
JODL: By that I meant that my defense counsel intended to submit the entire Wehrmacht communiqué of 7 October 1942 as a document in evidence. But he refrained from doing so when the Prosecution objected to the document.
SIR DAVID MAXWELL-FYFE: My Lord, I have certainly never objected to this document. I have asked Mr. Roberts and he tells me that he has never objected to it; and, as far as we know, no one on behalf of the Prosecution has ever objected to it. I certainly have no objection to it at all myself; as a member of the English Government at the time when this matter was issued, I have never heard anything about it before; but I have no objection to it at all.
DR. EXNER: May I say something?
THE PRESIDENT: Yes.
DR. EXNER: If there has been a misunderstanding here, we shall be all the more pleased, and we shall submit this Wehrmacht communiqué either this afternoon or tomorrow. I should like to clarify one point regarding the question which Mr. President put to the defendant. The defendant said that the Wehrmacht communiqué, in the main, emanated from him, but that the Fuehrer wrote the supplementary sentence...
THE PRESIDENT: Dr. Exner, if you want to correct anything that I have said you must do it through the witness and not through yourself. You are not entitled to give evidence. You only give evidence through the witness.
DR. EXNER: Yes. [Turning to the defendant.] Please, state once more which part of the Wehrmacht communiqué you wrote and which part was added by the Fuehrer.
JODL: The entire first part of this Wehrmacht communiqué has nothing whatever to do with Commando troops, but is concerned with the well-known affair of the shackling of German prisoners of war on the beach of Dieppe. I shall refer to that again later.
THE PRESIDENT: You mean that I was correct in saying that in the main it emanated from you?
JODL: Yes, absolutely. The first part of this Wehrmacht communiqué was formulated by me and contains an authentic refutation of a statement of the British Ministry of War broadcast by the British radio. This statement of the British Ministry of War was false, and I established the reasons why it was false on the basis of records, photographs, and affidavits which we possessed. initially this affair had nothing to do with Commandos and reprisals. That was only introduced into the Wehrmacht communiqué through the supplement by the Fuehrer, which begins t with the sentence: "The High Command of the Wehrmacht is therefore compelled to decree the following."
DR. EXNER: And it was considered necessary to make this announcement known in the Wehrmacht communiqué in an executive order. Did the Fuehrer demand from you drafts for an executive order?
JODL: When the Fuehrer had written this last supplementary sentence, he turned to Field Marshal Keitel and to me and demanded an executive order to follow this general announcement in the Wehrmacht communiqué. And he added: "But I do not want any military courts."
DR. EXNER: Did you make a draft?
JODL: I had very many doubts which a careful study of the Hague rules of warfare could not dispel Neither Field Marshal Keitel nor I prepared such a draft; but members of my staff, on their own initiative, asked for drafts and for the views of various departments. Thus Document 1263-PS came into being, to which I shall return later.
THE PRESIDENT: That is Document 1263-PS?
DR. EXNER: 1263. It is Page 104, Volume II of my document book, 1263-PS, RF-365; but we shall deal with that later.
HE PRESIDENT: Did you say Page 204?
DR. EXNER: No, Page 104, Volume II. [Turning to the defendants] Please continue.
JODL: My wish was an entirely different one. It was my intention to avoid an order altogether, and I rather expected that as a result of the announcement in the Wehrmacht communiqué- an announcement which was certainly not kept secret but which was broadcast over the air to the entire world-the British Ministry of War would approach us again, either directly or via Geneva, as it had done on several previous occasions. And I hoped that in this way the whole matter would be shifted to the sphere of the Foreign Office. However, that did not happen. The British War Ministry remained silent. In the meantime 10 days had passed and nothing had been done. Then on 17 October General Schmundt, the Chief Adjutant of the Fuehrer, came to me and said that the Fuehrer was demanding an executive order. I gave him the following answer, word for word: "Please give him my best regards, but I will not issue an order like that." Schmundt laughed and said, "Well, I cannot tell him that," and my reply was, "Very well, then, tell the Fuehrer that I do not see how a decree like that could be justified under international law." And with that he left. I hoped now that I would be asked to come to the Fuehrer, so that at last, after many months, I should again be able to speak to him personally.
DR. EXNER: And this coincided with the Vinnitza crisis?
JODL: Yes. I wanted an opportunity either of telling him my misgivings or else being thrown out altogether. Either eventuality would have helped me but neither occurred. A few minutes later Schmundt called me on the telephone and informed me that the Fuehrer was going to draw up the orders himself. On 18 October Schmundt again came in person and brought with him these two orders of the Fuehrer-the order to the troops, and an explanation for the commanders.
TH PRESIDENT: Are you referring to two documents which are before us?
JODL: These are the two documents, 498-PS and 503-PS. The papers submitted to the Tribunal as documents are not the originals of the Fuehrer; I personally handed over the originals at Flensburg. The documents which are in the hands of the Tribunal are copies of the originals, or mimeographed copies of my staff.
DR. EXNER: Now, I should like to interpolate a question. You mentioned that your staff worked out something in detail, and you referred to 1263-PS, which has been submitted to the Tribunal- Page 104 of Volume II. In this document you wrote two remarks on Page 106. The first remark on that page is "No." In the French translation this non is missing, and should be added. On the same page a little further down, it says in your own handwriting, "That win not do either," and your initial "J" for Jodl. Can you explain in general what this means?
JODL: As I have already said, the members of my staff-as may be seen under the first figure on Page 104-on their own initiative asked for proposals, firstly, from the foreign intelligence department, Canaris, because he had a group of experts on international law and, secondly, from the Wehrmacht legal department, since, after all, we were concerned with a legal problem. On Page 106, under paragraph "a," there is the proposal which the foreign division of the intelligence department made: "Members of terrorist and sabotage troops who are found.. . without uniform, or in German uniform, will be treated as bandits. . . or if they fall into German hands outside battle operations, they are to be taken at once to an officer for interrogation. Thereafter they are to be dealt with by summary court martial." That was quite impossible, for if one came across a soldier in civilian clothing, without uniform, no one could know just who he was. He might be a spy or an escaped prisoner of war or an enemy airman who had saved his life by jumping from his plane and now hoped to escape in civilian clothing. That had to be determined by an experienced interrogating officer and not by a summary court martial consisting of a lieutenant, two noncommissioned officers, and two soldiers. In paragraph "b"...
DR. EXNER: And for that reason you wrote "No"?
JODL: For that reason I wrote "No." In paragraph "b" it was suggested that if such sabotage groups were captured wearing uniforms, a report should be made to the Armed Forces Operations Staff, which should then decide what should be done. But in that case the Armed Forces Operations Staff would have assumed the function of a military court, and that it could never be. I really must claim for myself that, thanks to my wider experience, I saw these problems a little more clearly than some of my subordinates.
DR. EXNER: And so you rejected this proposal. You said that you also had grave misgivings about the Fuehrer Order. Will you tell the Court now what misgivings you had?
JODL: First of all I had a number of doubts as to its legality. Secondly, the order was ambiguous, and also it was not sufficiently clear for practical application. Particularly in this case I considered military courts absolutely necessary. I know well that even judges may on occasion, consciously or not, be under coercion and may pass judgment not strictly in accordance with the law; but at least they provide some safeguard against a miscarriage of justice.
DR. EXNER: Therefore, if I understand you rightly, you wanted to install some legal procedure. What did you mean by unclear and ambiguous?
JODL: The theory was that soldiers, who by, their actions put themselves outside the laws of war, cannot claim to be treated in accordance with the laws of war. This is a basic principle definitely recognized in international law, for instance in the case of a spy or a franc-tireur . The aim of this order was to intimidate British Commando troops who were using such methods of warfare. But the order of the Fuehrer went further and said that all Commando troops were to be massacred. This was the point on which I had grave misgivings.
DR. EXNER: What legal doubts did you have?
JODL: Just this doubt-that on the basis of this order, soldiers also would be massacred...
THE PRESIDENT: Defendant, it is not necessary to speak so slowly, if you can speak a little bit more fast.
JODL: I was afraid that not only enemy soldiers who, to use the Fuehrer's expression, really behaved like bandits, but also decent enemy soldiers, would be wiped out. In addition-and this was especially repugnant to me-at the very end of Document 503-PS it was ordered that soldiers were to be shot after they had been captured and had been interrogated. What was totally unclear to me was the general legal position, namely, whether a soldier who had acted like a bandit would upon capture enjoy the legal status of a prisoner of war, or whether on account of his earlier behavior he had already placed himself outside this legal status. DR. EXNER; By that you mean the Geneva Convention?
JODL: Yes, I mean the Geneva Convention.
DR. EXNER: Could you understand the idea that enemy soldiers who had acted in an unsoldierly manner should not be treated as soldiers?
JODL: Yes, I could quite understand that, and so could others, for the Fuehrer had received very bitter reports. We had captured all the orders of the Canadian brigade which had landed at Dieppe, and these orders were put before me in the original. These orders said that, wherever possible, German prisoners were to have their hands shackled. But after some time, through the Commander, West, I received authentic reports and testimony of witnesses, with photographs, which definitely convinced me that numerous men of the Todt Organization, fathers of families, unarmed, old people, who were wearing an arm band with a swastika-that was their badge-had been shackled with a loop around their necks and the end of the rope fastened around their bent-back legs in such a way that they had strangled themselves. I may add that I kept these photographs from the Fuehrer, and I did not tell him of these aggravating incidents which to me had been proved. I concealed them from the German people and from the Propaganda Ministry. Then came the English radio report denying emphatically that any German soldier had been shackled at Dieppe. Some time later, a Commando troop made an attack on the island of Saercq. Again we received official reports that German prisoners had been shackled. Finally we captured the so-called British order for close. combat. That was the last straw for the Fuehrer; I also studied it very carefully. These close combat instructions showed by pictures how men could be shackled in such a way that they would strangle themselves through the shackling, and it was stated exactly within what time death would occur.
DR. EXNER: Therefore, the reasons which Hitler gave for his Order 498 were actually based on reliably reported facts. I remark that Hitler referred to prisoners who had been shackled, prisoners who had been killed, and that criminals, as Commandos...
THE PRESIDENT: You are paraphrasing the evidence in a way that is inaccurate, because the defendant has just said that he kept these things from Hitler. You are now saying that Hitler knew about them. That is not what the witness said.
DR. EXNER: Then, I must ask you whether the facts upon which this order is based were reported to you.
JODL: I believe the Tribunal has Document 498-PS. In it the Fuehrer first makes the general statement that for some time our opponents in their conduct of the war have been using methods which violate the international Geneva Convention. I must support this statement as true on the basis of reports which, regrettably, we had been receiving since the summer of 1941. I do not wish to go into individual cases. There was an outrageous incident with a British U-boat in the Aegean Sea. There was the order in North Africa that German prisoners of war should not be given water before they were interrogated. There were a large number of such reports.
THE PRESIDENT: Defendant, the Tribunal thinks that it is very difficult to go into individual incidents which occurred long before this order was drafted, and you have told us what you said the order was drafted in respect of, namely the shackling; and you are now referring to other things which you allege happened long before that. It does not seem that it is possible for the Tribunal to investigate all those matters which happened long before.
JODL: And I do not want to speak about these matters any longer. I only want to point out, as I think I must, that generally speaking the reasons given by the Fuehrer for this order did not spring from a diseased imagination but were based on actual proof in his and in our possession. For it is certainly very different whether I, in my own mind, had to admit there was some justification for this order or whether I considered the whole order an open scandal. That is a vital point for my own conduct. But I shall try to be very brief. The fact that many previously convicted persons and criminals were included in the Commandos, who were of course reckless people, was proved by the testimony of prisoners; and the fact that prisoners were shackled was obvious from captured orders and the testimony of witnesses.
THE PRESIDENT: You have told us that already. We have heard that more than once-that you had evidence before you that prisoners were shackled and that you had the Canadian orders before you.
DR. EXNER: Perhaps you can just say a few words on the subject of killing prisoners.
JODL: In conclusion, I want to say that I did not see any order, any captured order, which decreed death for German prisoners of war, though this was also contained as a reason in the Fuehrer Order. But I must explain that the British Ministry of War advised us-I cannot recall exactly whether it was via Geneva or through the radio-that situations might very well arise in which prisoners of war would have to be killed-no, rather, in which prisoners of war would have to be shackled because otherwise one would be forced to kill them. And so, if 32Z at the end here the Fuehrer says orders have been found according to which the Commandos were on principle to kill prisoners, then I think he is referring to the British close-combat instructions which described a method of shackling which would cause death.
DR. EXNER: And that was your own part in this Commando Order?
JODL: My part consisted only in distributing this order, or having it distributed, in accordance with express instructions.
DR. EXNER: The Prosecution said once that you also signed this order-one of these two orders, I do not know which one. That is not correct?
JODL: No,I signed only a general decree to have one of the orders kept secret.
DR. EXNER: Yes, we will deal with that in a moment. Could you have refused to transmit this order?
JODL: No, if I had refused to transmit an order of the Fuehrer, I would have been arrested immediately; and I must say, with justification. But as I said, I was not at all sure whether this decree, either in its entirety or in part, actually violated the law; and I still do not know that today. I am convinced that if one were to convene here a conference of experts on international law, each one of them would probably have a different opinion on the subject.
DR. EXNER: General, you can speak a little faster. Could you have made counterproposals?
JODL: At any other time, probably yes. At that time, however-a time of conflict with the Fuehrer-it was not possible for me to speak to him personally at all. To broach the subject during the general conference on the situation was quite out of the question. Therefore I intended in the execution of this order to adopt a very magnanimous attitude, and I was certain that the commanders-in-chief would do the same.
DR. EXNER: And what do you mean by magnanimous? Could this order have been interpreted in different ways?