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2. Another very frequent case is where Jodl signed his order
"I.A.", i.e., "Im Auftrag" (by order) or also initialled
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, i.e., it wants to find the real
culprit, not the person responsible from the military point
of view. As, however, the person initialling a document or
signing it "by order" in most cases is its author, 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 the culpability accordingly.

3. Where Jodl did not affix his initial on the right below
the last word of the document, but on the top right-hand
corner of the first page, it means merely that the document
was submitted to him for his information. It does not say
whether be actually read it or approved it. Initials affixed
in this manner do not, therefore,

                                                  [Page 143]

by themselves bring the person who initials into any
connection with the order from the point of view of criminal
law.

4. Jodl is also being charged now with certain notes, partly
so-called "memoranda", partly hand-written 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 "Fall Grun"
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, etc. 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 is explicitly
laid down as the prerequisite for punishment in Article 6b
of the Charter.

The same applies to the marginal comment which so often
occurs in the files of the OKW: "Yes", "No", or "That is
impossible", etc.

Admittedly, such memoranda or marginal comment may obtain
legal significance. 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 not punishable
under any 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 favourably towards 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 the 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. deliberation, intended only for the reader in
question, etc.

If we take all this into account, several of the accusations
which the prosecutors have raised against Jodl are
eliminated in advance:

His behaviour on the matter of the low-flying airmen (PS-
731, PS-735). It was proposed to leave low-flying airmen who
attacked the civilian population in a truly criminal manner,
as it happened again and again, to the lynch justice of the
people. Jodl was opposed to this idea, as it was bound to
lead to the mass murder of all airmen who parachuted. Jodl
raised objections and more objections in the form of
marginal comments. He succeeded in sabotaging the order
thereby. The armed forces never issued such an order. 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 would probably have had even the
opposite effect. In any case there is no crime here.

2. The Commissar Order - PS-884. 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. The order should preferably be drawn up in the
form of a retaliatory measure; that is, one should wait and
see what action the commissars really took, and then perhaps
take counter-measures. 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 news regarding the success
of his protests.

3. Geneva Convention - 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

                                                  [Page 144]

circumstances to thwart the latter's plan of renouncing the
Convention. There he mentions all the reasons against the
renunciation, and reassures Hitler afterwards 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 proven
tactics for dissuading Hitler from his infamous plan. The
renunciation did not take place. If one takes offence at the
unethical argumentation, one overlooks the fact that Jodl,
after five years' experience, knew better than we do with
what arguments it was possible to persuade his chief.

4. Order regarding Leningrad - C-123.

On 7th October, 1941, Jodl notified by letter 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. 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 for the suspicion of a punishable
action. The following should, however, be added in
explanation of the matter; in this letter Jodl explained the
indisputable situation of constraint which had caused Hitler
to issue this order:

(a) An offer of capitulation would only 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 the delayed action mines,
prepared according to plan, in Kiev, Odessa, and Kharkov,
had taught the German Operational Staff what things they
must beware of.

(b) In addition there was also the great danger of an
epidemic breaking out 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 not practical at all.

(c) Added to that was the sheer impossibility of the German
troops feeding a half-starved city population of millions.
The railway tracks had not as yet been altered to the gauge
of the German tracks, and even the supplies for our own
troops caused much worry. And finally there was the military
danger to the German operations, of which Field-Marshal Leeb
had complained to the defendant Keitel.

All this compelled steps to be taken to prevent the
population of the towns from fleeing westwards and
southwards through the German lines, but 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 understood how he intended to
utilize the militarily technical situation of constraint
within the framework of his Eastern plans lies outside the
military considerations. It has nothing to do with the order
itself. The only question is whether the order was
inevitable from a military point of view, aid this it was in
fact, for the above-mentioned 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 18th 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, 498-PS, and the explanatory order pertaining thereto
given to the commanders, 503-PS.

According to their substance these orders lie outside Jodl's
sphere. If Jodl had anything to do with the matter at all,
then it was for a special reason: the orders are directives
for the execution of an order which had been issued by
Hitler 115

                                                  [Page 145]

days previously, which had also been drawn up by him
personally and attached to the Armed Forces Report of 7th
October, 1942. Jodl composed this Armed Forces Report as
usual, and therefore also the supplement regarding the
previous history of the order which Hitler afterwards
ordered to be added at the end of the Armed Forces Report.
Hitler requested him therefore 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. The other
one was an extraordinary return to savagery in the fighting
methods of enemies who acted singly or in small groups.

Jodl has described here how this return to savagery was
shown by messages and photographs from the troops.
Experience showed that these methods, which violated all
military ethics, were encountered especially amongst
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 cannot be objected to on grounds of International
Law if it is carried out by regular soldiers. Hitler's first
order, the one contained in the Armed Forces Report of 7th
October, 1942, is therefore quite simply explained: No mercy
will be shown to enemy soldiers who appear in sabotage
detachments and behave "like bandits", i.e., 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, and not to apply it where there was as much as a doubt
as to whether one had been dealing with "bandits".

After all the reports which had been received about the
enemy's behaviour, Jodl considered the basic principles of
Hitler's directive in the Armed Forces Report of 7th
October, 1942, understandable, and thought that the
directives given by Hitler in the Commando Order of 18th
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 still knows no more exactly now than
he did then whether and, to what extent these directives
were contrary to International Law. 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 simply placed themselves outside
the bounds of soldierly behaviour.

Jodl hoped that this would be the method of application 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 ensure,
further, that the order was not applied in large areas,
i.e., in the greater part of Italy, as soon as it was at all
possible to wrest a local limitation from Hitler.

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 503-PS, which gives information

                                                  [Page 146]

about the damage, while the main order was known to the
whole world through the Armed Forces Report. There was
actually also a second reason for Jodl's imposition of
special secrecy regarding 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 was revolting to him as a human being to
exclude unsoldierly fighters from the protection of the
Geneva Convention, whether or not such a course was
admissible according to International Law. He hoped that the
commanders would find ways of preventing inhumanities in
individual cases by means of a sound interpretation. And
unauthorised 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. 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 the ordinary
official channels. However, he is guiltless not because - or
better, 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 afterwards: "I will not
do this", or "I shall have to refer to 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 also nothing but 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 removed
immediately - and rightly so!"

With regard to the war against partisan bands one could
place charges against Jodl in only two cases -

GENERAL RUDENKO: Mr. President, the defence counsel
designates as "bandits" a patriotic movement comprising
millions of patriots fighting against 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 do not
understand. I understand that there is no objection to the
English word "partisan". I do not know what the German word
is. But there does not 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 not
an evaluation when we speak of a "band" or there need not be
any evaluation in speaking of a "band".

                                                  [Page 147]

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" not necessarily in a bad sense, and also of
bandits ("Bandits"), and these, of course, are criminals.

THE PRESIDENT: Why do you not 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 "rule 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.


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