dtufail/nuremberg-trials-corpus huggingface dataset:
DR. EXNER: Let the transcript, the memorandum for his speech, or any other document be shown according to which Jodl at any time incited people to war, or even only recommended the decision to start a war. His Gauleiter speech is submitted against him. In it Jodl shows-looking back-how the events developed one out of the other. For instance, how the Austrian Anschluss facilitated action against Czechoslovakia, and how the occupation of Czechoslovakia facilitated the action against Poland. But it is bad psychology to deduce from this that a general plan for all this existed from the first. If I buy a book which draws my attention to another one, and I then buy the latter as well, does it follow that at the time of the first purchase I already had the intention of getting the second one as well? If Hitler had extensive plans right from the start, Jodl did not know of them, let alone consent to them. His purely defensive deployment plan of 1933 already proves that by itself alone. Every time a campaign had been resolved upon, he did indeed do his bit to carry it out successfully. It is this supporting activity which is the object of the second of the arguments mentioned earlier. It is true that without his generals Hitler could not have waged the wars. But only a layman can construct a responsibility on that basis. If the generals do not do their job, there is no war. But one must add: If the infantryman does not march, if his rifle does not fire, if he has nothing to clothe himself with and nothing to eat, there is no war. Is therefore the soldier, the gunsmith, the shoemaker, the farmer guilty of complicity in the war? The argument is based on a confusion between guilt and causation. All these persons, and many others too, effectively co-operated in the waging of the war. But can one therefore attribute any guilt to them? Does Henry Ford share in the responsibility for the thousands of accidents which his cars cause every year? If an affirmative answer is given to the question of causation, the question of guilt is still not answered.
DR. EXNER: The Prosecution even refrains from putting this question. The question of guilt will be discussed later. Here only the following is anticipated: Criminal participation in the planning and carrying out of a war of aggression presupposes two things: (1) That the person involved knew that this war was an illegal war of aggression; (2) that, by reason of this knowledge, it was his duty to refrain from co-operating in it. The latter links up with what has already been mentioned: By virtue of his position it was Jodl's duty to make plans. Whether they were used or remained unused did not depend on him; it is characteristic that Jodl made a whole series of deployment plans which were never carried out. All general staff plans are only drawn up for an eventuality in case the political leadership should "press the button." Often they did it; often they did not. That was no longer a matter for the general staff officer. The other presupposition for an accusation of guilt is that the person involved recognizes the war as a war of aggression. The question is, therefore, how these things appeared to him. How they were in reality interests the historian. The decisive question for the criminal lawyer is What reports were submitted to Jodl about the conduct of the enemy? Could it be taken from these reports that the enemy was acting contrary to his neutrality; that he was preparing an attack on Germany, et cetera? The decisive point is not whether these reports were true, but whether Jodl believed them to be true. I must stress this, because it has been said here at times: "The Tribunal will decide whether this was a war of aggression." That, of course, is true, because if the Court decides that it was not a war of aggression, no sentence for waging a war of aggression will be pronounced. But if the Court agrees that the war was, in fact, launched illegally, this does not in itself affirm the guilt of any person. Someone who takes someone else's watch in the belief that it is his own is no thief.
DR. EXNER: The guilt is lacking, for had it really been his own watch, he would not have been liable to punishment. So if Jodl believed that facts existed which, had they been true, would have made the war a legally admissible one, no sentence for breach of the peace can be pronounced. Now, the Prosecution have repeatedly asked the generals the ironical question how it conformed with the code of honor of an officer to assist in a war which they had recognized to be illegal. Let us assume that Jodl was sure that the war was illegal and that he had, for reasons of conscience, refused to collaborate. What difference would there then have been between him and a soldier who throws away his rifle in battle and retreats? Both of them would be liable to the death penalty for disobeying orders in war. I know that the United States is generous enough to respect a soldier who, for religious reasons, refuses to take up arms, and not treat them as we do. But that applies only to religious scruples, and doubtless does not apply to a man who, owing to objections based on international law, does not co-operate in the war decided on by the political leadership. One would object that it is not his affair, not an affair of his conscience to examine the admissibility of the war, but that this is the duty of the responsible state authorities. According to continental law, one would not even stop to consider such an excuse for refusing obedience. Furthermore, I regard that ironical question to the generals merely as an attempt to humiliate them morally, but not as an accusation touching the subject of this Trial. The International Military Tribunal is not a court of honor which decides about dishonorable actions of the accused, but a criminal tribunal which has to judge certain actions which have been declared criminal by the Charter. It appears to me that the Prosecution forgot this fact on several occasions.
DR. EXNER: Before I pass on to the last point, the 11th of the Anglo-American trial brief, regarding crimes against the laws of war and humanity, I must make a few preliminary remarks. First, a misunderstanding has to be cleared up. The Prosecution says that we wanted to wage a total war thereby meaning a war which is waged by all methods, regardless of whether legal or illegal in short, a war where the laws of war are ruthlessly violated. I was not a little surprised when I read this. We have indeed spoken enough about total war during the past 7 years, but we understood something quite different by it. We describe as total war a war waged with all the means of the spirit, of manpower, and of material, and mobilizing all the nation's forces; that is, a change-over of the entire economy to war needs, conscription at every single man capable of bearing arms, and of every single able-bodied woman, and if possible also of the young people. German soldiers from the East, who were familiar with Russia's example, jeered when we spoke of "total war"; had we not still three greengrocers on every street and tobacconists at every corner? That was no total war, they said, when so many workers were enrolled for nonmilitary purposes, when whole factories were still producing articles which had no connection with the war, and so forth. The war really had to be a total war, they said, if it was to be won, but that has nothing at all to do with contempt for the laws of war. I have never heard the word interpreted in this sense. In the Anglo-American trial brief, Jodl is charged altogether with three documents (They concern the Commando Order and the capitulation of Leningrad. A fourth, 886-PS, was subsequently withdrawn by the Prosecution). The French and Russian prosecutors have, however, made further additions. Again we must turn first to the question: Wherein lay Jodl's responsibility as Chief of the Armed Forces Operations Staff? As we know, Jodl was primarily the adviser of the Fuehrer with regard to the operational direction of the Armed Forces.
DR. EXNER: This staff, however, had still other departments in addition to the operations departments of the three branches of the Armed Forces. When the operational tasks increased tremendously during the winter of 1941-42, a division of work was arranged between the Chief of the OKW and Jodl, according to which Jodl was only responsible for the military operations and the drawing up of the Armed Forces report, while the Chief of the OKW worked on all other matters in connection with the Quartermaster Department and the Organizational Department of the Armed Forces Operations Staff. It follows from all this that Jodl had nothing to do with prisoners of war, for which a special department in the OKW was responsible, nor with the administration of the occupied territories, and therefore had nothing to do with the seizure of hostages and with deportations. I shall discuss UK-56 later. Jodl did not have anything to do with police tasks in the zone of operations or in the rear military zone. The Armed Forces Operations Staff had no authority to issue orders; nevertheless, there are many orders which Jodl signed either "by order" or with his own "J." We must now discuss these orders and the responsibility for them: (1) There are orders which commence with the words "The Fuehrer has ordered" and are signed by Jodl, or signed by Keitel and initialed by Jodl. These are orders which were given by the Fuehrer orally, with the order to Jodl to draft them or put them into writing. With regard to responsibility, the same applies here fundamentally as applies to the orders signed by Hitler. For, in order to determine the responsibility, one must ask the question: What was the task of the person to whom the order was communicated? To what was he entitled and what was he obliged to do? When the contents of the order were fixed in all their essential points, Jodl's task was only a formal one: he had to formulate what was already established, to give it the usual form of a military order, without being allowed to alter anything in its contents.
DR. EXNER: It must not be overlooked that the criminality of an order can only lie in its contents and that it was precisely the contents which a subordinate had no influence on here. In this case the reason for immunity from punishment for the subordinate does not lie in the fact that he was ordered by his superior officer to act thus or thus, but in his lack of competence to alter anything in the given facts. The Prosecution sees in the formulating of the order criminal assistance, but I find it impossible to agree with this: In the first place because it is an order of the Fuehrer's which creates law, so that criminal assistance is impossible; but even if this is not accepted, and a Fuehrer's order is, on the contrary, considered as illegal and as punishable, one can still not close one's eyes to the fact that it was not Jodl's business to examine the legality, but only to draw up the order in a technically correct manner, that is, in accordance with the will of the author of this order. If he did this and only this, he has no responsibility. Here the superior essentially gave the order himself, and the subordinate just put it into words. Naturally one will wish to make a difference between a clerk being given the job of writing down the order, and a senior general. Although the latter may not have the legal, he will however have the moral duty of expressing his scruples to his superior. Jodl actually always did this; this was the least of his various methods of preventing an illegal move, to which I shall refer later. (2) Another very frequent case is where Jodl signed his order "IA," that is, "Im Auftrag" (by order), or initialed with his "J" orders signed by Keitel. Where does the responsibility lie here? We shall have to differentiate here between military and legal responsibility. From the military point of view, the superior, by whose order the order is signed, is responsible for it. Criminal law, however, lays the emphasis on the guilt, that is, it desires to establish the real culprit, not the person responsible from the military point of view.
DR. EXNER: Since, however, the owner of the initial or the person signing "by order" is mostly the author of the document, it may happen that the latter is responsible from the point of view of criminal law, although he is not responsible in the military sense. For this reason it is necessary here to ascertain the actual share of both signatories in each case, and to determine culpability accordingly. (3) Where Jodl did not sign his initial on the right below the last word of the document, but in the top right-hand corner of the first page, this means merely that the document was submitted to him for his information. It does not say whether he actually read it or approved it. Initials affixed in this manner do not, therefore, in themselves connect the person initialing the order with the contents from the point of view of criminal law. (4) Jodl is also being charged with certain notes, partly so-called "memoranda," partly handwritten remarks which he wrote on drafts or other documents. What is the position with regard to the legal significance of such notes? The following statement has already been made in "Case Green" in connection with the tentative proposal to manufacture an incident. A memorandum contains the deliberations, statements of fact, and opinions of the author or of other authorities, et cetera. It is not an order, but the data on the basis of which the superior can decide whether he will issue an order and what order. As long as such a memorandum remains a memorandum, it is a purely internal affair without any significance in international law, and can never be a violation of the laws and customs of war. This was explicitly laid down as the prerequisite for punishment in Article 6(b) of the Charter. The same applies to marginal comments which so often occur in the files of the OKW: "Yes," "No," or "That is impossible," et cetera. Admittedly, such memoranda or marginal comment may obtain legal significance.
DR. EXNER: If a memorandum contains a proposal which is contrary to international law, and if it influences the superior in such a way that he issues an order with the same contents, this might possibly be regarded as participation in a violation of international law. If, however, no order is issued, or if an order is issued which is contrary to the proposal, then this proposal has remained without effect, a purely internal matter, and unpunishable under all circumstances. Furthermore, a memorandum or marginal comment may be a guide to the writer's sentiments. It may be gathered from it that he is inclined favorably toward international law or that he pays no heed whatsoever to considerations of international law. That may often be an important help in judging his character. But we do not punish sentiments. Murderous intentions throw a bad light on the subject, but are not punishable. Caution must, of course, be exercised in the evaluation of such remarks. They are often thrown in thoughtlessly, without much aforethought, intended only for the reader in question. If we take all this into account, several of the accusations which the prosecutors have raised against Jodl are eliminated in advance: (1) His behavior on the matter of the low-flying airmen (Documents 731-PS, 735-PS). It was proposed to leave low-flying airmen who attacked the civilian population in a truly criminal manner, as happened again and again, to the lynch law of the people. Jodl was opposed to this idea, since it was bound to lead to the mass murder of all airmen who parachuted. Jodl raised objections in the form of marginal comments. He succeeded in sabotaging the order and the Armed Forces never issued it. This should be counted to Jodl's credit, but it is apparently held against him that he did not use words of moral indignation in declining the proposal. Under the conditions existing at the time, that might even have had the opposite effect. In any case there is no crime here. (2) The Commissar Order-Document 884-PS.
DR. EXNER: On this horrifying draft order-it is only a draft-which had been drawn up already prior to the outbreak of the Russian war, Jodl made the comment that it would provoke reprisals against our soldiers and that the order should preferably be drawn up in the form of a retaliatory measure; that is, one should wait and see what action the commissary really took, and then perhaps take countermeasures. Again he is not given credit for the fact that he opposed it, but he is accused of the manner in which he opposed it. From a legal point of view that is meaningless. Later Jodl had nothing more to do with this matter. He did not even receive any communication regarding the success of his protests. (3) The Geneva Convention-Document D-606. In this case Jodl did not only submit a memorandum, but also a statement in great detail, to Hitler, as he wished under all circumstances to thwart the latter's plan of renouncing the Convention. There he mentions all the reasons against the renunciation, and reassures Hitler afterward by saying that it is possible to circumvent certain clauses even without a renunciation of the Convention. This again is not an action contrary to international law, but shows at the most sentiments opposed to international law. More correctly, it appears to do so. In truth this was nothing but accepted tactics for dissuading Hitler from his infamous plan: The renunciation did not take place. By taking offense at the unethical argumentation, one is overlooking the fact that Jodl, after 5 years' experience, knew better than we do with what arguments it was possible to persuade his chief. (4) The order regarding Leningrad-Document C-123. By letter of 7 October 1941 Jodl notified the Commander-in-Chief of the Army-and it is nothing but a notification-that Hitler had repeated an already previously issued order to the effect that an offer of capitulation was not to be accepted from either Leningrad or Moscow. Such an offer was, however, never made, and the order could not therefore have been carried out at all.
DR. EXNER: The whole matter remained on paper, and, if only for that reason, does not constitute a violation of international law. This also can at the most be regarded as a guide to the author's sentiments, but has no place in an indictment as a punishable action. The following should, however, be added in explanation of the matter. In this letter Jodl explained the indisputable dilemma which had caused Hitler to issue this order: (a) An offer of capitulation was expected to be simulated. Leningrad, in fact, was mined and would be defended to the last man, as the Russian radio had already announced. The bad experiences as a result of delayed-action mines, prepared according to plan, in Kiev, Odessa, and Kharkov, had taught the German Operations Staff what things they must beware of. (b) In addition there was the great risk of an epidemic, which would also arise in case of a genuine capitulation. Even if for that reason alone, German troops must not be allowed to enter the town. Acceptance of a capitulation was thus entirely impracticable. (c) Added to that was the utter impossibility that the German troops should feed a half-starved city population of millions. The railway tracks had not as yet been adapted to the width of the German gauge, and even supplies for the troops caused much worry. And finally there was the military danger to the German operations, of which Field Marshal Von Leeb had complained to the Defendant Keitel. All this required steps to be taken to prevent the population of the towns from fleeing westward and southward through the German lines, and rather to make escape to the East possible for them, indeed, even to encourage it. Hence the directive to leave gaps in the front lines in the East. The fact that Hitler let it be seen how he intended to utilize the military situation of constraint for the benefit of his Eastern plans lies outside the military considerations. That has nothing to do with the order itself.
DR. EXNER: The only question is whether the order was inevitable from a military point of view, and this in fact it was for the aforementioned reasons. Whether or not the order was given anew by Jodl could not alter the situation in any way. I shall now discuss individual war crimes of which Jodl has been accused: (a) The Commando Order. Two orders of 18 October 1942, which were drawn up word for word by Hitler and signed by him, have played a special part in this Trial: the so-called Commando Order to the troops, Document 498-PS, and the explanatory order pertaining thereto given to the commanders, Document 503-PS. According to their substance these orders lie outside Jodl's sphere. That Jodl had anything to do with the matter at all was due to a special reason: The orders are directives for the execution of an order which had been issued by Hitler 11 days previously, which had also been drawn up by him personally and attached to the Wehrmacht communiqué of 7 October 1942. Jodl composed this communiqué as usual, including the supplement regarding the previous history of the order which Hitler afterward ordered to be added at the end of the communiqué. Hitler therefore requested him to work out drafts for the executive order. Jodl did not do so, nor did he submit to Hitler a report which his staff had drawn up on their own initiative. On the contrary, he had Hitler, with whom his relations were very strained at that time, informed that he was not in a position to comply with the request. Hitler then drew up the two orders himself. Jodl is now accused of two things: He distributed the orders drawn up by Hitler through official channels, and he furnished the second, the explanatory order, to the commanders with a special directive for secrecy. The order arose from Hitler's excitement about two kinds of intensified warfare which made their appearance about the same time, in the autumn of 1942. One was the fatal efficiency of excellently equipped sabotage detachments which landed by sea or were 	dropped from the air.
DR. EXNER: The other one was exceptional savagery in the fighting methods of enemies who acted singly or in small groups. Jodl has described here how this savagery appeared from the messages and photographs of the troops. Experience showed that these methods, which violated all military ethics, were encountered especially among sabotage detachments. Hitler wished to counteract these unsoldierly methods and to stop the sabotage activity which was so dangerous to the German war effort, but he knew that sabotage could not be objected to on grounds of international law if carried out by regular soldiers. Hitler's first order, the one contained in the Wehrmacht communiqué of 7 October 1942, is therefore quite simply explained: No mercy will be shown to enemy soldiers who appear in sabotage detachments and behave "like bandits," that is, who place themselves outside the military code by their method of fighting. The implementing directives should have defined the standard of unsoldierly conduct; Hitler's implementing directive did not contain this definition; in the decisive points it was not definite at all, and this made it possible to apply the order in the sense of its undoubtedly justified fundamental idea, or not to apply it where there was the slightest doubt as to whether it was a case of "bandits." After all the reports which had been received about the enemy's behavior, Jodl considered the basic principles of Hitler's directive in the Wehrmacht communiqué of 7 October 1942 understandable, and thought that the directives given by Hitler in the Commando Order of 18 October 1942, which were in some points not clear, were in part admissible from the point of view of international law, and in part perhaps questionable from the same point of view. He says that he knows no more exactly now than he did then whether and to what extent these directives were contrary to international law.