The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc/tgmwc-19/tgmwc-19-182.07


Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-182.07
Last-Modified: 2000/10/11

Lastly, in a third point which is of importance here, the
views again agree. Every serious crime must be intentional,
although the intent need not be linked with the
consciousness of doing something criminal, but with the
consciousness that it is not right to act in this manner.

  "To constitute a criminal act there must, as a general
  rule, be a criminal intent. The general doctrine is
  stated in Hale's 'Pleas of the Crown,' that 'where there
  is no will to commit an offence, there can be no
  transgression'."

In German law it has been argued for a long time whether the
perpetrator must know that he is acting in direct
contravention of the law, or whether it is sufficient for
him to know that he is doing something contrary to his duty.
The prevailing opinion, which has also been adopted in
drafting our German Criminal Code, states: "The perpetrator
must be conscious of acting against the law, or of acting
wrongly in some other way, in a natural sense." It was very
interesting to me to find the same idea, expressed in almost
the same words, in a British decision (Green v. Tolson):

  "It must at least be the intention to do something wrong.
  That intention may belong to one or other of two classes.
  It may be to do a thing wrong in itself and apart from
  positive law, or it may be to do a thing merely
  prohibited.

                                                  [Page 152]

  by statute or by common law, or both elements of
  intention may co-exist with respect to the same deed."

Thus, according to English law, knowledge that it is not
allowed to act thus is one of the constituents of intent:

  "There is a presumption that 'mens rea', an evil
  intention or a knowledge of the wrongfulness of the act,
  is an essential factor in every offence."

This decision quotes some exceptions to this principle,
which do not interest us here. They concern bigamy and
seduction, where positive provisions of the Statute Law are
involved, as well as certain offences against public order,
etc.

Our question now is: Was Jodl aware of wrong-doing when he
prepared and passed on the various plans and orders of which
he is accused today? According to my innermost conviction:
No.

The only evidence which the prosecution has produced is the
reproach, why, if he had a clear conscience, was he in so
many cases so intent on observing strict secrecy? There is
an answer to this: in military questions there are manifold
reasons for not allowing certain things to become known.
This was so before the war and all the more so during the
war, and even now, after the war, deep secrecy shrouds the
atom bomb, to quote an example. Such observance of secrecy
need not be connected with a guilty conscience. And if Jodl
says he had arranged that one of the two Commando Orders
should - apart from other reasons - be kept secret because
of its obnoxious final regulation, he did so, presumably,
for the sake of the honour of the German Wehrmacht, and
certainly not because he thought that he himself was doing
something wrong by passing on the order, an order which he
had after all not drafted himself and for which, he was
convinced, he was not responsible.

This last fact must be stressed. It is of general
importance. In all Jodl's military preparatory work, whether
he waste making plans for wars, or drafts of orders or
memoranda, the point is not only whether he knew that this
war or that decree were contrary to law, but whether he knew
that by his co-operation, by his actions, he was doing
something wrong. That Jodl did not have a bad conscience
seems to me to be clearly shown by the fact that before his
capture he had three weeks in which to burn most of these
documents, but did not do so, because he was convinced that
he had nothing to conceal.

When drawing up these orders, he was not conscious of wrong-
doing. He could not be if only for two reasons: on the one
hand, because he felt himself bound by the Fuehrer's orders,
on the other hand, because - apart from a concrete order -
he was convinced that in his position as Chief in the West
he was in duty bound to act in this way.

Let us look into this more closely:

I will not speak any further about the order and its legal
meaning. One point, however, appears to me to be in need of
elucidation: Mr. Justice Jackson quoted paragraph 47 of the
German Military Penal Code to prove that, according to
German law, an order by a superior officer does not excuse
the subordinate.

Incidentally, it is remarkable that in the case of the
conspiracy British-American law is brought in, whereas in
the case of this order German law is drawn on - in each case
according to whichever is the less favourable to the
defendant. I do not know, however, whether Mr. Jackson would
have referred to paragraph 47 of the Military Penal Code, if
he had known how it was interpreted by the Supreme Military
Courts, and what the real legal position in Germany was.

It is first of all necessary to note that at the beginning
of paragraph 47 there stands the principle: "Should, by the
execution of an order in the course of duty, a criminal law
be infringed, the superior officer issuing the order is
alone responsible." And now comes the exception which
practice has cut down to the absolute minimum for the sake
of maintaining military discipline. It is based on the point
of view that a subordinate is subject to punishment as a
participant only if the order was not binding on him - if,
for instance, because owing to its nature it did

                                                  [Page 153]

not come within the framework of Wehrmacht tasks - and if
the subordinate was aware that the action ordered had a
crime or an offence as its aim. The offence must thus be
directly intended by the person issuing the order and the.
subordinate must be aware of this. That he could and should
have realised this is not sufficient. And, even if the
subordinate is responsible, in a case of slight guilt
punishment may be waived.

The whole ruling is very much contested, but one can see how
the courts have limited its application in order to shield
the obedient soldier as much as possible. Actually, cases of
this kind were very rarely punished. Jodl does not remember
a single case in his 30 years of service.

I must insert something here, because a few days ago Mr.
Jackson presented a document subsequently, which concerns
this problem (PS-3881). These are statements made by Dr.
Freisler, as President of the People's Court, during the
trial of those who took part in the attempt on Hitler's life
on 20th July, 1944. Freisler was always considered in
Germany as a caricature of a judge. His undignified shouting
in that murder trial was reproduced here before us by the
prosecution a few months ago in a sound film. What this
legal expert meant to say - so far as the meaning of his
remarks, extracted from the general context, can be
understood - was: When an officer ordered a subordinate to
give assistance in murdering Hitler, this order did not
justify the one who obeyed.

Certainly, Freisler's "authority" is not required to
establish this. If ever a military order was issued which
was outside the competence of the Wehrmacht and was,
therefore, not binding, and did not exculpate, it was the
order to murder the head of this very Wehrmacht. But how an
order by some officer to murder the head of the State can be
compared with the order of the head of the State to commit
an act contrary to International Law, is incomprehensible to
me. However, I will not dwell any longer on this.

It will not be possible to understand Jodl's position or
form a correct judgement of his actions, if we do not
visualize clearly the two men who here confronted each
other.

It is very easy for the prosecution. Were Hitler still
alive, he, as the head of the major war criminals, would sit
in the first place on the defendants' bench and would be
considered as the prime agent and source of all the terrible
things that have happened. Now that he is dead, his person
is belittled when judging the other defendants, and their
conduct is treated almost as if he had never existed at all.
This despot, this infernal power, as Jodl called him, cannot
be passed over as a negligible quantity when the question is
to do justice to the commissions and omissions of his
immediate entourage. During these months, I have again and
again been faced with the combination of genius, madness and
crime which was once shown by the penetrating Cesare
Lombroso. In history it is success that has the last word on
the worth and worthlessness of men. Therefore, history's
verdict on Hitler will perhaps be a crushing one. But one
must not forget his beginnings; when one compares Germany's
position towards the end of 1932 with that at the end of
1938, one is not surprised at the incomparable prestige
which he had at the very time when Jodl came into close
contact with him.

Jodl now stood vis-a-vis this man. Jodl, an honest soldier,
extraordinarily gifted, but never striving to be anything
but a conscientious soldier; a sober, realistic mind, ill-
disposed towards all diplomacy, all political machinations,
brought up in the ideals. of the German officer corps -
bravery, faithfulness, obedience - trained according to the
100-year-old tradition of the German General Staff, who knew
only fulfilment of duty, selfless work and ever more work.

That this man, who was working by Adolf Hitler's side, was
bound to come under his influence is self-evident. One must
consider the time at which this took place. There could of
course be no relations of mutual trust, but Jodl was also
not the man to submit without opposition. There were clashes
and explosions enough. Jodl was regarded as the man who
dared to oppose the Fuehrer more than anybody

                                                  [Page 154]

else. He could, as Kesselring reported, stand up against him
with a curtness which at times reached the limits of what is
militarily permissible.

For this very reason I do not believe that it is merely the
receiving and obeying of commands which can make us
appreciate fully Jodl's behaviour during these years.

It was much more the wider conception of the fulfilment of
duty: complete devotion to that which had been allotted to
him as his task at a critical time. One should realize and
appreciate the situation in which Jodl found himself. His,
country's struggle for existence, the demands of the war
which were becoming increasingly horrible, and at the same
time the views of his Supreme Commander -who disregarded all
traditions - about what was permissible and not permissible
in a war. It was quite clear that Jodl was bound to come
into conflict, into conflict with Hitler and into conflict
with himself.

Permit me to make a comparison: You, your Honours, as you
have already informed us, feel yourselves bound by the
Charter of this Tribunal. Perhaps some of you have been
assailed by doubts as to whether all the conditions of this
Charter conform to International Law, as at present
understood, and to the generally recognized legal
principles. But you have rejected such doubts, since you, as
judges, consider yourselves bound by the rules which your
four governments have agreed upon.

Jodl, as a General Staff Officer, may have felt himself
bound in a similar way to support the orders of his Supreme
Commander, even if doubts regarding their admissibility in
International Law may have assailed him now and then. But he
considered himself bound by his office to draw up plans for
war, without examining whether and under what conditions
they were carried out; he had to formulate and issue
thousands of orders, even if he disagreed with some of them.
Where neither remonstrances nor delaying tactics had any
effect, he had to submit. As a General Staff Officer he had
a purely auxiliary function. That he might be doing wrong
while fulfilling this function according to the best of his
knowledge and conscience never even occurred to him.

It is said now: Jodl should under no circumstances have
taken any part in this or that affair. What should he have
done?

If one reproaches somebody with having acted in a certain
way, then one must be in a position to state what action
would have been right in that situation. It is now said that
he should have resigned. This, of course, would have been an
easy way out. That course could be taken in peace time, but
in war time it was quite different.

Jodl tried repeatedly to get out of the OKW and to get
posted to the front, but in vain. Requests to be relieved of
his post were altogether futile, unless the Fuehrer desired
it, as in the case of von Brauchitsch and von Leeb. In war
time he strictly forbade his generals to apply for release.
That was desertion, he said. The private in the front line
could not resign when he found things uncomfortable. The
general, too, had to remain at his post. In 1944 this order
was repeated in writing, it was still more peremptory and
the reasons more potent. If a general wanted to quit for
reasons of conscience, he was told that the Fuehrer himself
bore full and sole responsibility for his orders, all the
generals had to do was to be responsible for their strict
execution. Resignations on such grounds were not soldier-
like and were criminal.

Therefore, Jodl could not resign. Should he perhaps have
faked an illness? This also is desertion and, in war time, a
crime punishable by death. Is it possible seriously to
expect an officer, brought up in the good old traditions, to
betray his country in time of need like a coward - his
country, to which he had devoted his whole life - which
would mean that he would not be able to look any new recruit
in the face. I do not believe so.

Thus, there was only a third way out: Murder and revolution.
In peace time this would have meant civil war; in war time,
the immediate collapse of the front

                                                  [Page 155]

and the end of the Reich. Should he then have cried: "Fiat
Justitia pereat patria"?

It really appears that the prosecution holds the view that
such conduct could be demanded of the defendants. An
astonishing idea! Whether murder and treason can ever be
justified ethically had better be left to the moralists and
theologians. At all events, jurists cannot discuss such an
idea.

To be obliged on pain of punishment to murder the head of
the State? A soldier should do that? And in war time? Those
who have committed such crimes have always been punished,
but to punish them for not doing so would indeed be
something new.

Naturally there are limits to legal obligations for the
jurists too, but in a state of conflict which offers only
this kind of solution, the old saying applies: Ultra posse
nemo obligatur.

Jodl was no rebel. His conscience told him: The Fatherland
is in need. Every man to his post! Jodl's place was at the
head of the Armed Forces Operational Staff. He did not enter
this post of his own free will, he did not keep it of his
own free will. It was a hard duty. He fulfilled the task
which this post imposed on him according to the best of his
ability and conscience-up to the bitter end.

Your Honours:

Allow me in conclusion to, recall a personal reminiscence,
which throws more light on Jodl's personality.

I made his acquaintance about 20 years ago in the house of
his uncle, the philosopher Friedrich Jodl, in Vienna. There
I had a conversation with him on training for the career of
an officer. The young captain spoke with such moral
earnestness and what he said was so far from anything that
could be called militarism, that I have always retained it
in my memory. I then lost all contact with him until last
autumn, when I received the surprising summons to defend him
here. My first thought was: "This gallant soldier must be
helped." But I doubted whether I should undertake this, as I
am not a professional attorney. But when I met him in the
court-house for the first time, he said something to me
which swept away all my doubts: "Rest assured, Professor,"
he said, "if I felt a spark of guilt in me, I would not
choose you as my defence counsel."

Your Honours, I believe that these are the words of a
gentleman, not of a criminal. I ask that Colonel-General
Alfred Jodl be acquitted.

THE PRESIDENT: I call on Dr. Steinbauer for the defendant
Seyss-Inquart.

DR. STEINBAUER: Mr. President, members of the Tribunal:

Nuremberg the old august imperial city, which has given not
only to the German nation but also to the world one of its
most distinguished painters, Albrecht Durer, an unsurpassed
sculptor, Veit Stoss, and the mastersinger Hans Sachs, has,
among its ruins, become the stage for the greatest criminal
trial which legal history knows. Nuremberg has seen within
its walls not only the pomp of the old emperors, but the
rallies of the NSDAP which also took place there, year after
year; as a part of that propaganda machine which understood
how to stir into action millions of people by a gigantic but
also diabolical stage management, with flags and standards,
drums and fanfares under the slogan of German equality of
rights, in order finally, in the extravagance of its aims,
to lead a nation, which has given humanity so much that is
good and beautiful, to the verge of ruin.

We have heard the Indictment here which tries to prove in a
comprehensive way that some men had conspired to conquer the
peaceful world by waging wars of aggression. It was said
that the waging of these wars not only violated the treaties
which were supposed to prevent war, but furthermore the
rules for a humane conduct of the war, and had also trodden
under foot the basic rights of humanity in the most
contemptible way. We saw for months, how mountains of
documents and a long chain of witnesses were supposed to
confirm the Indictment, and, on

                                                  [Page 156]

the other hand, how the defence, as keeper and servant of
the law, was striving to help the Tribunal discover the
truth. In the gallery the representatives from all parts of
the world were seated, and only too often the whole world
held its breath, when there was a break in the dark fog
banks which again and again made possible a glimpse into the
depths of unsuspected crimes. But outside, before the gates
of the court-house, stand the deeply moved German people,
among whose former leaders the defendants after all belong.
But regardless of how the trials will end, the defence must
be given credit for one thing, namely that, with regard to
the question of the guilt of the German peoples one will
never again be able to talk about complicity or collective
guilt, perhaps rather about collective disgrace, because
they were German men under whose leadership crimes of the
most horrible kind were committed. The curtain now rises on
the final act of this world tragedy, in order to give
hearing once more to the defence, and then to pronounce a
sentence which must not only correspond to fundamental legal
principles but also ensure that crimes, such as the
prosecution describes, will for ever be prevented.


Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.