dtufail/nuremberg-trials-corpus huggingface dataset:
DR. EXNER: He says that one thing only was certain, namely, that the indefinite wording of the order made it possible for the commanders to apply the order only against people who had clearly placed themselves outside the bounds of soldierly behavior. Jodl hoped that this would be the method applied and, as far as he could, he promoted it, as is proved by the evidence. He used all his power to help ensure that the practical application of the Commando Order was restricted to what was undoubtedly admissible. He took steps to insure, further, that the order would not be applied in large areas, that is, in the greater part of Italy, as soon as it was at all possible to wrest a local limitation from Hitler (Document 551-PS). The directive for secrecy is interpreted as a sign of Jodl's consciousness of guilt. But this secrecy had cogent reasons of a different nature. The enemy had to be prevented, as far as possible, from learning what serious damage was caused by the sabotage detachments which were operating in a bandit-like manner. Hence the special directive for secrecy only in the order (Document 503-PS) which gives information about the damage, while the main order was known to the whole world through the Wehrmacht communiqué. There was actually also a second reason for Jodl's imposition of special secrecy on the explanatory order. He did not wish to see circulated the final decree, according to which captured Commando personnel were to be shot after interrogation. It revolted him as a human being to exclude unsoldierly fighters from the protection of the Geneva Convention, whether such a course was admissible or not according to international law. He hoped that the commanders would find ways of preventing inhuman acts in individual cases by means of a sound interpretation, and unauthorized persons were not to have knowledge of the decree. The fundamental idea, which it was not necessary to exceed in practice, conformed to international law, which is only intended to protect men who are fighting as soldiers.
DR. EXNER: This is, after all, the tendency of all the rules of war, which presuppose chivalrous combat. Something had indeed to be done to turn the use of such wild methods into a hazardous operation for the enemy. Nothing could 	be said against sabotage detachments which fought in a soldierly way. The enemy had only to desist from those methods which were in radical contradiction to international law. The following must also be stressed: The transmission of this order does not prove responsibility for its contents. This is not like other cases where Jodl advised or drew up the order. On the contrary, he refused to draw it up. He merely distributed it, as instructed, through ordinary official channels. However, he is guiltless, not because-or rather, not only because-he was ordered to pass it on, but because he had no right to interfere with the order which was to be passed on. It was outside his jurisdiction, outside his rights, to examine it. His activity was purely technical, independent of the contents of the document. In theory he was not even obliged to read it. Let us assume that, after drawing up the order, Hitler told some lieutenant to telephone it to the commander-in-chief. Would it then have been the lieutenant's right and duty also to examine the contents of the document with regard to its legal admissibility and to announce afterward: "I will not do this," or "I shall have to consult the Hague Convention on Land Warfare first to see if I am allowed to do it"? The most grotesque consequences would ensue. And in this case the general is nothing more than a messenger who passes on what has been handed to him. Jodl's answer to my question as to what would have happened if he had refused to pass it on, is characteristic of the military interpretation of the situation: "In that case I would have been arrested immediately-and quite rightly so." (b) Antipartisan combat. With regard to the war against partisan bands one might place charges against Jodl in only two cases . . .
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. President, the defense counsel names "bands" a patriotic movement comprising millions of patriots fighting against the German Fascist invaders. I consider that such an expression used by the lawyer should be considered as an insult to the partisans, who took a large part in defeating the Hitlerite invaders, and I protest against it.
THE PRESIDENT: The objection seems to be based upon some question of a Russian word which, of course, I don't understand. I understand that there is no objection to the English word "partisan." I don't know what the German word is. But there doesn't seem to be anything for the Tribunal to do about it.
DR. EXNER: Mr. President, no one on our side doubts that hundreds of thousands or millions of true patriots were among the so-called "bands." I am using the word because it was the expression used officially in German orders. They mention "rules regarding bands" (Bandenvorschriften). We do not use the word "bands" in any derogatory sense. It is no discrimination when we speak of a "band," or there need be no discrimination in doing so.
THE PRESIDENT: Is there a different German word for the English "bandit" and the English word "partisan"?
DR. EXNER: Yes. We, too, use the word "partisan." For us that is a foreign word, but we also use it. And then we speak of "bands," but not necessarily in a bad sense; and also of bandits, and these, of course, are criminals.
THE PRESIDENT: Why don't you confine yourself to the use of the word "partisan"? ,
DR. EXNER: I can certainly just as well use the word "partisan," Mr. President. I have merely used "band" because we have the "rules regarding bands." That is the official expression which had been used, but I have no objection to using the word "partisan."
THE PRESIDENT: If you are quoting an order, you must quote the order in the words of the order, no doubt.
DR. EXNER: Very well; then partisan warfare. As far as partisan warfare is concerned, charges could be made against Jodl only in two cases: (1) If he had permitted this warfare to take place in a disorderly and "chaotic" manner, as one witness has asserted, or (2) if he had issued combat directions, and if these had been contrary to international law. But neither of the two is the case; Jodl was not personally responsible for this matter, but he was obliged to take an interest in the partisans when their number reached proportions which were beginning to interfere with the military operations. In 1942 he issued a directive regarding bands which was replaced by a second one in 1944. Therefore it cannot be said that no rules existed for this form of combat. Nor can Jodl be reproached on the grounds of the second point. Although Hitler wished to have a type of warfare waged against these dangerous opponents which hardly took ethics and international law into account, Jodl-without his knowledge-issued a pamphlet about the combating of partisans which cannot be attacked legally. He went so far as to have partisans in civilian clothing treated as prisoners of war and to permit the burning down of villages to be carried out only on the orders of a divisional commander; this was intended to, and successfully did, prevent violations of Article 50 of the Hague Convention on Land Warfare (I refer to Document RF-665, Document Book 2, Jodl - 4). Jodl cannot be reproached, however, if the combating of partisans nevertheless degenerated badly. It is not a matter for the Chief of the Armed Forces Operations Staff to supervise the observance of his directions in four theaters of war. (c) Burning down of houses in Norway (Document 754-PS). The Prosecution have accused Jodl during cross-examination of having ordered the destruction of Norwegian villages. This accusation refers to the teletype of 28 October 1944 to the command of the 20th Mountain Army. The Prosecution have a false idea of the role which Jodl had to play.
DR. EXNER: The military position then was as follows: The Germans were retreating to the not yet completed Lyngen line, and there was danger that the Red Army would continue to follow up during the winter and would destroy the much weaker German units if, while advancing along Reich Road 50, the only one that could be used at that time of the year, they found the homes and the population with their local knowledge available. Without these billets and the support from the population the Russian advance was impossible. The evacuation of the population and the destruction of the houses would eliminate the danger and, over and above this, it would make partisan warfare against the German troops impossible. The evacuation of the population was also necessary in the interests of the population itself. In this situation Hitler issued, not on the advice of the soldiers but on that of the Reich commissioner for the occupied Norwegian territories, the decree which Jodl reported, "by order," to the command of the 20th Mountain Army through the proper channels with all Hitler's military and ethical considerations. One can really hear Hitler's radical way of speaking. Jodl who, as a result of a telephone conversation with the staff of General Rendulic, knew that the mountain troops did not need such a far-reaching military order and therefore did not want it, was against this order and-when he could not prevent it-sought for a solution which in practice led to the desired result. He wanted the order to be carried out by the troops only insofar as was absolutely militarily essential and in accordance with what was permissible under the Hague Convention on Land Warfare (Article 23g). He knew that his brother, who was in command in the North, thought exactly as he did; he knew the soldierly spirit of the mountain troops as a whole, and he knew in advance in this particular case that this order went too far for the troops.
DR. EXNER: So that it should be understood correctly by everyone right from the start, he not only explained clearly that it was a "Fuehrer order" in the introduction to the teletype message-the second paragraph expressly uses these words-but he let the soldiers know that the Fuehrer had issued this order on the suggestion of the Reich commissioner and not on the suggestion of the military. Thus they were fully informed and they acted accordingly. No militarily unjustified demolitions occurred. Thus, among others, the three towns of Kirkenes, Hammerfest, and Alla were not destroyed. According to the literal application of the order they would have had to be destroyed. (d) Deportation of the Jews from Denmark (Document UK-56): The Prosecution wants to make Jodl responsible for the deportation of the Jews from Denmark. It bases this accusation on a teletype Message which Jodl sent "by order" to the commander of the German troops in Denmark. It is particularly difficult to understand this accusation by the Prosecution; for the different documents submitted by the Prosecution absolutely prove that the deportation of the Jews from Denmark was decided upon by Hitler on a suggestion from Dr. Best, therefore on a suggestion from the civil authorities and over the objections of the commander of the German troops, and that this task was assigned to the ReichsFuehrer SS. The OKW was concerned with the whole affair only because at that time a military state of emergency existed in Denmark, so that the commander of the German troops, as the highest executive authority in the country, had to be informed by his superior authority of the action ordered by Hitler and assigned to Himmler, in order to prevent friction between the German authorities in Denmark. On 20 September 1943 Keitel and Jodl had received the first intimation of the discussions between Hitler, the Foreign Office, and Himmler, in a teletype message from the German commander. Jodl had only one wish-to keep the Armed Forces out of this affair.
DR. EXNER: His temperamental note on General Von Hanneken's teletype of 3 October 1943 (Document D-647) also shows this. There he wrote: "...is a matter of complete indifference to us," namely, whether the ReichsFuehrer SS published the figure of the Jews arrested or not. It shows only too well that this has nothing at all to do with moral considerations, either in a positive or a negative sense. The whole thing had nothing to do with the Armed Forces. But difficulties could arise as a result of Himmler's action, as the Armed Forces were after all responsible for peace and order in Denmark. Such difficulties had to be headed off. The Wehrmacht could not alter the decision taken by Hitler in this police matter, and could not have altered it even if it had been competent to deal with this question. Jodl simply informed the commander by the teletype message (Document UK-56) of the decision Hitler had taken in this police matter. And the ReichsFuehrer SS, the Foreign Office, and the Commander-in-Chief of the Reserve Army were simultaneously informed by Jodl that he had let the commander in Denmark know. Now it was a clear case and all friction between German offices was excluded. That was all the OKW had to see to. One cannot say that the information which Jodl gave made the execution of the order, which Hitler had decided upon apart from the Wehrmacht, any easier. It is clear to anyone who knows but a little of Hitler's position of power that friction between German offices would in no way have prevented the thing being carried out, but would at most only have delayed it, and would certainly not have made it pleasanter for the persons affected. May it please the Tribunal, there is an old saying in criminal law, a saying which I always find cited in foreign decisions too, that actus non facit ream nisi mens sit rea. Two things go to make a crime; the actus, the objective side of the crime, the deed, and the mens rea, the subjective side or guilt.
DR. EXNER: The Prosecution is involved in an odd contradiction there; in some cases they stress the mens rea and fail to see that the criminal actus is lacking: I have shown this in the case of the above-mentioned marginal comments, which do not represent any illegal actions, but at most could allow one to infer an illegal frame of mind. In other cases the Prosecution look only at the actus, but does not ask whether a mens rea is also present. This second mistake is more dangerous, as here the outside of the crime is visible to everyone and it is often only a delicate psychological examination that can lead to the conclusion that there is no mens rea which corresponds to the actus. We will come to speak of this further on. With regard to the action, what is meant is behavior declared criminal by the Charter. This behavior can consist of positive action or of omission. If a father sees his child drowning while bathing and does nothing to save him although he could have done so, we declare him guilty either of murder or of killing by negligence, according to the degree of his guilt. This commission of a crime by omission is important in this Trial too, for the Prosecution repeatedly stress that Jodl was present at this or that meeting, at this or that speech. On one single page of the Anglo-American trial brief the phrase "Jodl was present at..." occurs six times. What does this mean legally? Being present at and listening to things can be of great importance with regard to the evaluation of a later deed, for the doer cannot excuse himself by saying "I didn't know" if he participated in the discussion of a plan. But mere presence does not in itself make one an accomplice. According to British law, even actual presence when a crime is committed makes one an accomplice only if encouragement is added. The same applies in German law.
DR. EXNER: But where this is not involved, to lay stress on a person's presence when a criminal intention was discussed can only amount to a reproach that "he knew about and tolerated it." Today we often hear this reproach of having tolerated crimes. Not only in this court. The whole German people are reproached for having tolerated a criminal regime and the annihilation of millions of Jews. Undoubtedly a crime can also be committed by tolerating things. But to make it a serious criminal charge, that is, one of intentional killing, two prerequisites must be fulfilled: 1) The subjective side: The perpetrator must have known that the victim would meet his death if he did not intervene; 2) he must have been in duty bound and able to prevent this death. Mr. President, would this not be a convenient time to adjourn?
THE PRESIDENT: Yes. [The Tribunal recessed until 1400 hours.] Afternoon Session
MARSHAL (Lieutenant Colonel James R. Clifford): May it please the Tribunal, the Defendant Hess is absent.
DR. FRANZ EXNER: We are dealing with crimes which were through toleration committed. As far as Jodl is concerned, the following applies: What an officer or official is legally bound to do or to prevent depends on the regulations governing his jurisdiction, and we know how strictly Hitler insisted on their being adhered to, how sharply he managed to demarcate the spheres of action of the political and military leadership, the military and the SS. This indeed was the reason why Jodl took every opportunity to oppose the plans for extending the SS. For one thing was clear: Once something fell into the sphere of the SS, the armed Forces lost their right to have any say in it. It does not therefore mean much, for instance, that Jodl was present at a discussion between Hitler and Dr. Best, at which one of the things discussed was terrorism in Denmark and the way to fight it (RF-90). The so-called "countermurders," if such were really discussed, were not heard by Jodl- he was not present throughout the session. His presence at this session does not mean much, for the whole matter concerned occupied territory and did not concern the Chief of the Armed Forces Operations Staff, who was brought into this meeting because of other matters discussed there. Thus, even if Jodl had heard more drastic things at that time than he actually did, any interference would have been out of the question and would have been rejected at once. The reproach of having tolerated things also assumes that the possibility existed of preventing the crime. In the case of Jodl we are mostly concerned with Fuehrer orders which it is said he should have prevented. But enough has already been said here about how matters stood with regard to influencing Hitler's decisions. As long as his decision had not yet been made, good arguments could, under favorable circumstances, still impress him; but once his decision was made, it was irrevocable. Any opinion to the contrary is simply based on ignorance of the facts.
DR. FRANZ EXNER: In the course of time Jodl did actually develop other methods for influencing decisions of the Fuehrer, or at least for influencing their practical effects. He used dilatory tactics; either he waited until the matter would perhaps be forgotten, or else he created difficulties and raised objections, using a type of counterargument adapted to Hitler's way of thinking-the order regarding commissars is a case in point-or he sent for opinions from various departments in order to gain time-as in the case of low-flying airmen. If the order had to be published, he often inserted in it on whose application the order had been issued, in order to show the commanders-in-chief that he did not identify himself with this matter-as in the case of the Norwegian villages. Or he tried to influence the practical application by overlooking failure to carry out the order-as in the case of the Commando Order, et cetera. But if one thinks that he could simply have refused to draft an order which was contrary to ethics, one has only to look at the Commando Order, where this method had exactly the opposite effect to what was intended. I now come to the second part of the Latin saying I quoted: The deed in itself is no crime-nisi sit mens rea. This is the last point in my statement and is at the same time the most difficult and the most important in a modern criminal trial. "No guilt, no punishment"; this principle has been accepted in all civilized states since the Renaissance, even though different views as to the nature of guilt may exist in some places. May I first make a short comparison between the Anglo-American legal view and that held on the Continent, for example in Germany. It is important when judging some cases. I have already had to touch on an important point of the question of guilt when discussing aggressive wars. If one really seeks to make Jodl, the General Staff officer, responsible for waging these wars, it is at any rate of decisive importance to know how he viewed the whole state of affairs.
DR. FRANZ EXNER: If he believed, on the basis of the reports he received, that facts existed which-if they were true-justified the waging of war, then Jodl cannot be reproached with having knowingly savaged an unlawful war. This applies even if his assumption was based on mistakes. Such mistakes exclude design. In a decision, Green v. Tolson, it is stated: "In common law a reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has always been held to be a good defense." In another decision Regina v. Prince it is stated: "It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present in the prisoner's mind and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his act no criminal offense at all." In a third case, Commonwealth v. Pressby (an American decision) a good example is given: A sentry shoots at his commanding officer who is approaching him, in the belief that he is an enemy. This last example is closely related to the wars of aggression which are to be judged here. As a rule, ignorance of criminal law is no excuse under British law. However, the following principle is worthy of note: "If, however, there is a doubt as to a question of law, a person cannot be convicted and subjected to imprisonment if he has merely acted on a mistaken view as to the law." Naturally a mistake about preliminary questions in civil law can also exclude criminal intention: "If a person takes what he believes to be his own, it is impossible to say that he is guilty of felony." This rule could also be significant in our field, too, for mistakes regarding the regulations of international law. Yet in this doctrine of mistakes I see a certain difference between it and German law, for in German law any mistake, even if resulting from negligence, excludes intention.