The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 125]

HUNDRED AND EIGHTY-SECOND DAY

FRIDAY, 19th JULY, 1946

DR. EXNER (counsel for defendant Jodl): Mr. President, may
it please the Tribunal:

I shall proceed with the reading of my final argument,
continuing on Page 7 in the middle of the page.

I should like to recall the fact that yesterday I tried to
show that Jodl, in any event until the year 1939, could not
have been party to a conspiracy. I beg your pardon, Page 9.

But perhaps it is asserted that Jodl joined the conspiracy
only after 1939.

As a previous speaker has  already explained, an officer who
works with others in the place assigned to him in carrying
out a war plan can never be considered a conspirator. He
does, in fact, have a plan in common with his superior, but
he has not adopted it willingly, nor has he concluded an
agreement, but within the normal order of service he simply
does what the post he occupies demands.

Jodl in particular can be considered a typical example of
this. He did not go to Berlin of his own free will. It had
already been determined long before that he had to enter the
Fuehrer's staff in case of war. The orders for the current
mobilization year stipulated this. This mobilization year
ended on 30th September, 1939; for the following year
General von Sodenstern was already designated as Chief of
the Wehrmacht Operational Staff. Therefore, if the war had
broken out six weeks later, Jodl would have entered the war
as commander of his mountain division. He would then, in all
probability, not be in this defendants' dock today. One sees
that his whole activity in the war was fixed by a ruling
which was independent of his will and had been laid down in
advance long before. This fact is, in my opinion, in itself
already striking proof that he did not participate in a
conspiracy to wage wars of aggression.

When Jodl reached Berlin on 23rd August, 1939, the beginning
of the war had already been fixed for 25th August. For
reasons unknown to him it was then postponed another six
days. The plan for the campaign was ready. He did not need
to conspire to produce it. If a conspiracy against Poland
existed at that time, the conspirators were elsewhere, as we
now know from the secret German-Russian treaty.

Jodl was not introduced to the Fuehrer until 3rd September,
1939, i.e., only after the war had begun, at a time when
what had to be decided had already been decided.

From then on his official position brought him close to
Adolf Hitler; but one must add, close to him in locality
only. He was never really close to him. Even then he did not
learn Hitler's plans and intentions, and was only told of
them as the occasion arose, to the extent that his work
absolutely demanded. Jodl never became Hitler's confidant
and never had cordial relations with him. It remained a
purely official relationship - and often enough one of
conflict.

In other ways, too, Jodl had remained a stranger to the
Party. There is no suggestion of his having sought contact
in Vienna, for instance, with the Party leaders there,
although this would have been natural enough.

Most of the Party leaders and most of the defendants he came
to know only when they visited the Fuehrer's headquarters
from time to time. With the exception of the officers, he
continued to have no relations with them. The Party clique
in

                                                  [Page 126]

the headquarters he hated, and considered it an unpleasant
foreign body in the military framework. He never ceased to
fight against Party influences in the armed forces.

He still did not participate in Party functions. He did not
participate in Reich Party-day rallies, apart from the fact
that he once watched the Wehrmacht's exhibition there,
having been ordered to do so officially. He never
participated in the Munich memorial days on 9th November.

The prosecution has repeatedly referred to his Gauleiter
speech to prove that, in spite of all this, Jodl identified
himself with the Party and its efforts, and that he was,
after all, not a soldier but a politician and that he was an
enthusiastic supporter of Hitler.

Here one must first note that Document L-172, which is
presented to us as this Gauleiter speech, is not the
manuscript of this speech but a collection of material
compiled by his staff, on the basis of which Jodl then
drafted his manuscript. In addition, the speech was made
extempore. Not a single word of this document proves that
Jodl really spoke it.

Also the occasion of the speech must be taken into account.
After four hard years of war, after the defection of Italy
which had just taken place, before the fresh, terrific
burden which Hitler planned to impose on the population as
the extreme effort, at this critical moment everything
depended on upholding the people's will to carry on. For
this reason the Party tried to get expert information upon
the war situation so as to be able to buoy up sinking
courage again. For this task the Fuehrer chose General Jodl,
no doubt the only competent person. Some people would have
welcomed this opportunity to make themselves popular with
the Party leaders, but Jodl accepted the task against his
will. The title of the lecture is "The Strategic Military
Position at the Beginning of the Fifth Year of War." Its
contents are a purely military description of the war
situation on the various fronts and how this situation was
created. The beginning and the end is, at least according to
the document before us, a eulogy of the Fuehrer from which
the prosecution draws doubtful conclusions. When a lecturer
has first and foremost to win the confidence of his
listeners, these consisting of Party leaders, and when the
task is to instil confidence in the supreme military
leadership, then such rhetorical phrases are quite
understandable.

Besides, Jodl does not deny that he sincerely admired some
of the Fuehrer's qualities and talents. But he was never his
confidant or his fellow-conspirator and he remained in the
OKW the non-political man he always was.

Jodl was, therefore, not a member of a conspiracy. No
concept of a conspiracy can help to make him responsible for
criminal actions which he did not himself commit.

And now I will deal with these individual actions of which
Jodl is accused.

According to Article 6 of the Charter, the Tribunal is
competent to deal with certain crimes against the peace,
against the laws of war and against humanity, which crimes
are specified in the Charter and for which the personal
criminal responsibility of the guilty individual has been
established. If we disregard for the time being the crimes
against humanity, which come under a special heading, there
are two preliminary conditions under which the individual
punishment of the defendants can take place:

1. There must be a violation of International Law in which
they were guilty of complicity in some respect. The meaning
of this whole trial and the meaning of the Charter after all
lies in the fact that the force of the rules of
International Law is to be strengthened by penal sanctions.
If, therefore, some specific violation of International Law
is committed, not only the responsibility of the particular
country which violated the law will be established as
heretofore, but in addition guilty individuals are also to
be punished for it in the future. Therefore: There can be no
punishment without a breach of International Law.

                                                  [Page 127]

2. Provision, however, is not made for such a responsibility
of individuals it the case of all breaches of International
Law, but only for those which are explicitly named in the
Charter. Article 6 (a) specifies the crimes against peace,
Article 6 (b), crimes against the laws and customs of war.
Other actions, even if they are contrary to International
Law, do not belong here.

Quite a number of court sessions could have been saved if
the prosecution had taken these two points into account
right from the beginning because, as is to be shown, there
is a tendency to accuse the defendants, beyond these limits,
of acts contrary to International Law which are not
specified in the Charter; but this is not all: they are to
be called to account also for deeds which are not at all
contrary to law, but which can at most be considered as
unethical.

In the following points I shall adhere to the clear
arrangement of the Anglo-American trial brief and add to it
what has been brought up against Jodl by the two other
Prosecutors.

Point 1: Collaboration in the seizure and consolidation of
power by the National Socialists has, as has already been
pointed out, been dropped.

Points 2 and 3 concern rearmament and the reoccupation of
the Rhineland.

Jodl had nothing to do with the introduction of general
compulsory military service or with rearmament. Jodl's diary
contains not a single word about rearmament. He was a member
of the Reich Defence Committee, which was not, however,
concerned with the rearmament questions. He was here
concerned with the measures which were to be taken by the
civilian authorities in case of mobilization. There was
nothing illegal in that. We were not forbidden to mobilize,
for instance, in case of an enemy attack. The preparations
in the demilitarised zone, which were proposed to the
Committee by Jodl, limited themselves also to the civilian
authorities and consisted only of preparation for the
evacuation of the territory west of the Rhine in order to
defend the line of the river Rhine in case of a French
occupation. The preparations were of a purely defensive
nature.

If, in spite of that, Jodl recommended that these defensive
measures be kept strictly secret, this is not evidence of
any criminal plan, but was only the natural thing to do. As
a matter of fact, particular caution was imperative, for the
French occupation of the Ruhr was still fresh in people's
minds.

Neither did Jodl have anything to do with the occupation of
the Rhineland; he learned about this decision of the Fuehrer
only five days before its execution. Further statements on
my part are superfluous, for according to the Charter
neither rearmament nor the occupation of the Rhineland -
whether they were contrary to International Law or not -
belong to the criminal actions under Article 6.

These cases would come under the Charter only if a
preparation for aggressive war were seen in them. But who
would have thought of an aggressive war at that period? In
1938, owing to lack of trained troops, we could not have put
into the field one-sixth of the number of divisions our
probable enemies, France, Czechoslovakia and Poland, could
have produced. The first stage of rearmament was supposed to
be reached in 1942. The West Wall was to be completed by
1952. Heavy artillery was lacking entirely; tanks were at
the testing stage; the ammunition situation was
catastrophic. In 1937 we did not possess a single
battleship. As late as 1939 we did not have more than 26
seagoing U-boats, which was less than one-tenth of the
British and French figure. As far as war plans are concerned
there existed only a plan for the protection of the Eastern
frontier. The description of our situation in the Reich
Defence Committee is very typical. It was said that, as a
matter of course, a future war would be fought on our own
territory; hence that it could only be a defensive war. This
- please note - was a statement made during a secret session
of this Committee. The possibility of offensive action was
not mentioned at all. But we were then not capable of
serious defensive action either. For this very reason the
generals already thought of themselves as gamblers at the
time of the occupation of the Rhineland.

                                                  [Page 128]

But that any one, of them could have been sufficiently
utopian to think of an offensive - there is not even the
semblance of any evidence for such thinking.

As to Points 4 to 6 the Trial Brief mentions participation
in the planning and execution of the attacks on Austria and
Czechoslovakia.

A deployment plan against Austria did not exist at all. The
prosecution submitted Document C-175 as such. But this is a
misunderstanding. It is merely a programme for the
elaboration of the most various war plans; for instance, for
the war against England, against Lithuania, against Spain,
etc. Among those theoretical possibilities of war, "Case
Otto" is also mentioned; that is an intervention in Austria
in case of an attempt to restore the Hapsburgs. It says in
the document that this plan is not to be elaborated but
merely to be "thought out". But, as there was no indication
whatsoever of such an attempt by the Hapsburgs, nothing at
all was prepared for this eventuality.

Jodl did not attend the meeting on 12th February, 1938, at
Obersalzberg. Two days later came the order to propose
certain deceptive manoeuvres, obviously in order to put
pressure on Schuschnigg so that he should comply with the
Obersalzberg agreements. There is nothing illegal in this,
even if the Prosecutor speaks about "criminal methods".

Jodl was completely surprised by the Fuehrer's decision to
march in, made two days before it was carried out. The
Fuehrer gave this order to march in by telephone. Jodl's
written order served only for the files. If this had been
the authoritative order, it would after all have come much
too late. It was issued at 0900 hours on 11th March and the
troops marched in on the following morning. Developments
were described to us here. The troops had purely peace-time
equipment. The Austrians crossed the border to meet and
welcome them.

Austrian troops joined the columns and marched with the
German troops to  Vienna. It was a triumphal procession with
cheers and flowers.

The case of Czechoslovakia follows.

As late as the spring of 1938 Hitler stated that he did not
intend "to attack Czechoslovakia in the near future". After
the unprovoked Czech mobilization he changed his view and
decided to solve the Czech problem after 1st October, 1938 -
not on 1st October, 1938 - as long as there was no
interference to be expected from the Western Powers.

Jodl therefore had to make the necessary preparations in the
General Staff. He did it with the conviction that his work
would remain theoretical because - as the Fuehrer wanted
under all circumstances to avoid a conflict with the Western
Powers - a peaceful settlement was to be expected. Jodl
tried to achieve only one thing - that the plan should not
be interfered with by Czech provocation. And things really
happened as he expected they would. After the examination by
Lord Runciman had revealed that minority conditions in
Czechoslovakia could not continue as they were, and showed
the correctness of the German point of view, the Munich
agreement with the Western Powers took place.

Jodl is charged with having proposed in a memorandum that an
incident might be created as a motive for marching in. He
has given us the reasons for it. But no incident took place.
This memorandum is not a breach of International Law; if
only because it is a question of internal considerations
which never achieved importance outside. And even if this
idea had been put into execution, such guiles have been used
ever since the Greeks built their Trojan Horse. Ulysses, the
initiator of this idea, is praised for this by the ancient
poets as "a man of great cunning" and not branded as a
criminal. I do not see anything unethical in Jodl's
behaviour either, for, after all, in the relations between
States somewhat different ethical principles are applied
than those in boarding schools for young Christian girls.

The occupation of the Sudetenland itself was carried out
just as peacefully as that of Austria. Greeted
enthusiastically by the liberated population, the troops
entered the German areas which had been evacuated to the
agreed line by

                                                  [Page 129]

the Czech troops. Both these "invasions" are not crimes
according to the Charter. They were not attacks (which
presuppose the use of force), still less wars (which
presuppose armed fighting), let alone aggressive wars. To
consider such             peaceful invasions as "aggressive
wars" would be to exceed even the notorious conclusion based
on analogies of National Socialist criminal legislation. The
four signatory powers could have included these invasions,
which were still a recent memory, in Article 6, but this was
not done because it was obviously intended to limit to acts
of war the completely new punishment of individual persons,
but not to penalise such unwarlike actions. Quite generally
it must be said: any interpretation of the penal rules of
the Charter which extends them is inadmissible. The old
saying applies: "privilegia stricte interpretenda sunt".
Here we have an example of "privilegium odiosum". Indeed
there has probably never been a more striking example of a
"privilegium odiosum" than the unilateral prosecution of
members of the Axis Powers only.

Now one could also get the idea of making Jodl responsible
for having drafted an invasion plan against Czechoslovakia
at a time when a peaceful settlement was not yet ensured.
But Jodl reckoned with a peaceful settlement and had good
reason to expect it. He therefore lacked the intention of
preparing an aggressive war.

To this statement of facts which exclude the question of
guilt must be added a legal consideration: We have decided -
and there should be no doubt about it: there is no
punishment for crimes against the peace without a violation
of International Law. Now if the Charter makes preparations
for aggressive war subject to punishment, it clearly means
that a person who prepared an aggressive war which actually
took place should be punished. On the contrary, war plans
which remained nothing but plans do not
belong here. They are not contrary to International Law.
International Law is not concerned with what goes on in
people's heads and in offices. Things which are immaterial
from the international point of view are not contrary to
International Law. Aggressive plans which are not executed -
also aggressive intentions - may be unethical, but they are
not contrary to law and do not come under the Charter.
It is here a question of plans which were not carried out
because the peaceful occupation of the Sudetenland based on
international agreement was not an aggressive war, and the
occupation of the rest of the country, which incidentally
was  also accomplished without resistance and without war,
no longer had any connection with Jodl's plans.


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