The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Second Day: Friday, 19th July, 1946
(Part 1 of 12)

[Page 125]

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.

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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

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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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