The Nizkor Project: Remembering the Holocaust (Shoah)

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2. It is also wrong when Jodl is designated by the
prosecution as the commander of one campaign or another. He
had no power of command, let alone being in command of an

3. It was also wrong when it was repeatedly said that
Warlimont was present at the meeting of 23rd May, 1939, as
Jodl's representative or assistant. Warlimont was in the OKW
at the time - Jodl had left the OKW in October, 1938, and
had nothing more to do with Warlimont in May, 1939.

What is indicated by all this with reference to Jodl's
responsibility for the real or alleged wars of aggression?
In general, one can only be made responsible for what one
does criminally when one should not do it, and for what one
has criminally failed to do when one ought to have done it.
What an officer or an official has to do or not do is a
question of competence. So this is where the problem of
competence assumes its importance for us. Let us look at it
more closely:

Jodl is accused of having planned and prepared certain wars
which were breaches of International Law. This reproach is
justified only if it was within his competence to examine,
before he carried out his task, the legality of the war
which might be waged and to make his co-operation dependent
on this decision.

This must be very definitely contested. Whether to wage a
war is a political question and is the politician's concern.
The question of how to wage war is the only question
concerning the armed forces. The armed forces can suggest
that the war is, in view of the opponent's strength, too
risky, or that the war cannot be waged at a particular
season, but the final decision rests with the politicians.

I could, to be sure, imagine that the Chief of the
Operational Staff of the Armed Forces would become at least
morally guilty of complicity in a war of aggression if he
had incited the decisive quarters to bring about a war, or
if, drawing attention to military superiority, he had
advised the political leadership to exploit the moment in
order to carry out extensive plans of conquest. In such
cases one could call him an accomplice, because he - over
and above his military task - intervened in politics and
provoked the decision for war. But if he plans and carries
out the plan of a possible war, i.e., in case the political
leadership decide on war, he does nothing else but his
evident duty.

                                                  [Page 139]

One should consider the extraordinary consequences which
would arise from a contrary conception: the competent
authority declares war, and the Chief of the General Staff,
who regards this war as contrary to International Law, does
not co-operate: Or the Chief of the General Staff is luckily
of the same opinion as the head of the State, but one of the
army commanders has objections and refuses to march, another
one has doubts and has to think it over first. Can a war be
waged at all in this case, be it a war of defence or a war
of aggression?

Such a conception of law would, in the future, lead to
results which could not be vindicated at all. The Security
Council of the United Nations has decided to set up a world
police with the task of protecting world peace against
aggression. And also the creation of a world general staff
has been considered which would have to plan and carry out a
punitive war. Now let us imagine that the Security Council
decides on a punitive war and the Chief of the General Staff
replies that, in his opinion, there is no aggression. Would
not the whole security apparatus in this case depend on the
subjective opinion of a single non-political person, i.e.,
would it not in fact become illusory?

I only add one more thing in passing: If this opinion should
prevail, what efficient man would still decide to become a
regular officer, if, on reaching a high position, he had to
risk being put on trial for crimes against the peace in case
of defeat?

It is, for that matter, wrong, even if only for practical
reasons, to impose on a general the duty of examining the
legality of a war. The general will only seldom be in a
position to judge whether the State to be attacked by him
has broken its neutrality or whether it threatens to attack
or not. And furthermore, the conception of a war of
aggression and of war contrary to law is, as Prof. Jahrreiss
has explained, still completely unclarified and contested
among the practitioners and theoreticians of International
Law. And, now, a general who lives far apart from all these
considerations is to recognize that it is his duty to carry
out a legal investigation.

But even if he had recognized the war as illegal, just let
us imagine the really tragic position in which this general
would find himself. On one side is his evident duty towards
his own country, which he particularly took an oath as a
soldier to fulfil, on the other side this duty not to
support any war of aggression, a duty which forces him to
commit high treason and desertion and to break his oath. One
way or the other he will have to be a martyr.

The truth is this: As long as there is no overriding
authority which impartially establishes whether, in a
concrete case, such a duty does exist for the individual and
as long as there is no overriding authority which will
protect against punishment for high treason and desertion
people who fulfil this duty, an officer cannot be held
criminally responsible for a breach of the peace.

Under all circumstances a contradiction must here be pointed
out: on the one hand the prosecution reproaches the generals
for not having been solely soldiers but also politicians; on
the other hand it demands of them that they should
remonstrate against the political leadership and sabotage
its resolutions - in short, that they should not solely be
soldiers, but politicians.

The prosecution does actually acknowledge this up to a
certain point. It says that it is not intended to punish the
generals for having waged war - for this is their task - but
they are reproached for having caused war.

And the second argument, which often recurs, is that without
the generals' help Hitler could not have waged these wars,
and that makes them co-responsible.

This argument contradicts itself. For the help which the
generals gave Hitler consisted in the planning and carrying
out of the military operations, i.e., in waging the war, for
which they can, in the opinion of the prosecution, too, not
be criminally charged. Let us look at this more closely.
Jodl is said to have caused wars. It has been sufficiently
proved that he played absolutely no part in the launching of

                                                  [Page 140]

the Polish campaign. And it was this very campaign which,
with strategic necessity, brought about all the further

Actually one need not examine the origins of the individual
wars at all to be able to say, in view of all that we know
now, that in this assertion there lies an enormous over-
estimation of Jodl's power in the Hitler State. The decision
to start the war was far removed. from his influence. On
this very point advice from the generals was not heard. At
most, purely military considerations could be submitted. And
the Norwegian campaign was the only one of all these
campaigns which a military man advised Hitler to carry out
for reasons of strategic necessity. But that was not Jodl.
As regards him, the assertion that he caused wars would be
founded on nothing. 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 out of one another. 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 plan of 1938 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 and 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 one
can therefore attribute any guilt to them? Is Henry Ford
partly responsible 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. The prosecution even refrain from putting this

The question of guilt will be discussed later. Here only the
following is submitted: 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 recognises 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

                                                  [Page 141]

enemy was acting contrary to his neutrality; that he was
preparing an attack on us, etc.?

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 Tribunal decides that it was
not a war of aggression, any punishment for waging a war of
aggression will not apply from the start. But if the
Tribunal agrees that the war was, in fact, launched
illegally, this does not in itself affirm the guilt of any

Someone who takes someone else's watch in the belief that it
is his own is no thief. The guilt is lacking, for had it
really been his own watch, he would not be liable to
punishment. So if Jodl believed that facts existed which,
had they been true, would have made the war a legally
admissible one, he could not be convicted of a breach of the

Now, the prosecution has repeatedly asked the generals the
ironical question how it conformed with the ethical code 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 have been then
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 are generous enough to respect
a soldier who, for religious reasons, refuses to take up
arms and not to treat him 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 business,
not a matter for his conscience, to examine the
admissibility of the war, but that this is the duty of the
responsible State authorities. According to continental
legal conceptions, one would not even begin to consider such
an excuse for refusing obedience.

Furthermore, I regard that ironical question to the generals
merely as an attempt to lower them morally but not as an
accusation touching the subject of this trial. The
International Military Tribunal is not a court of honour
which decides the actions of the accused as they concern
honour, 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.

Before I pass on to the last point, the eleventh of the
Anglo-American Trial Brief, regarding crimes against the
laws of war and humanity, I must make a few preliminary

I shall now leave out what is contained in paragraph 2 on
Page 70 and also the whole of Page 71 and begin again at the
top of Page 72.

Again we must turn first to the question: wherein lay Jodl's
responsibility as Chief of the Operational Staff of the
Armed Forces?

As we know, Jodl was primarily the adviser of the Fuehrer
with regard to the operational direction of the armed
forces. This staff, however, had still other departments in
addition to the Operational Departments of the three
branches of the armed forces. When the operational tasks
increased tremendously during the winter of 1941-1942, 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 Organisational Department of the
Operational Staff of the Armed Forces. 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

                                                  [Page 142]

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 Operational Staff of the Armed Forces 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

1. There are orders which commence with the words "The
Fuehrer has ordered" and are signed by Jodl, or signed by
Keitel and initialled 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? What was his right and his duty?

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 shape of a military order, without being allowed to
alter anything in its contents. 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. There the reason for
the immunity of the subordinate does not lie in the order of
his superior officer to act this or that way, but in the
lack of competence to alter anything in the given facts. If
the prosecution then sees in the formulating of the order
criminal assistance, it is impossible to agree with this; in
the first place, because it is an order of the Fuehrer's
which creates law and in the case of which criminal
assistance is impossible.

But even if this is not accepted, and a Fuehrer order is, on
the contrary, considered as illegal and as punishable, one
can still not get over 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, i.e., 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.

I shall leave out the following and begin with the last but
one line on that same page.

One naturally wants to make a difference between a clerk
being given the job of writing down the order and a senior

The latter too will not have the legal, but perhaps he will
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.

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