DR. EXNER: In this connection I want to draw the Tribunal's attention to an entry in Jodl's diary, 1807. The date is the 25th of May and it can be found on page 119 of the second volume. There, under the 25th of May, it says that, "General Raider draws the attention of the Fuehrer" -
THE PRESIDENT: The Defendant stated, I think, that in this directive of his on the 6th of May, 1944, there was an order that guerillas should be treated as prisoners of war. Will you refer us to the passage? BY DR. EXNER:
Q. Please, will you state that, Defendant?
A. This appears under figure 163, on page 131, of the Document Book. And if I may read it to you, I quote:
"All bandits captured in enemy uniform or civilian clothing or who surrender during combat are to be treated, on principle, as prisoners of war. The same applies to all persons encountered in the immediate fighting area and are to be considered as guerilla accomplices, even when no acts of combat can be proved against them. Bandits in German uniform or in the uniform of an allied armed force are to be shot after careful interrogation if captured in combat. Deserters, no matter how they are dressed, on principle are to be well treated. The guerillas must learn of this."
THE PRESIDENT: Well, since it is one o'clock, perhaps you might break off now.
(The Tribunal adjourned until 1490 hours.)
(The hearing reconvened at *00 hours, 4 June 1946.)
Q I have one further question concerning the guerilla regulations. The Prosecution charges that you, through Number 161 of the Guerilla regulations, which concerns itself with the document we submitted and used last, F-665, page 130 of volume 2, were responsible for the Instruction of whole villages and even of the populations of the villages, in France. Will you please comment on this?
A. I believe the opposite is true, through Number 116, I decreased collective measures and collective punishments that the Fuehrer had decreed, so that everything would apply under Article 50 or the Hague Landwarfare Rules. In this article collective punishment is prohibited unless the entire population is equally guild. In these terror measures, therefore, with this Number 161, I did not order the burning down of villages or the destruction of populations, but, on the other hand, I said that such collective measures may only be used in very exceptional cases and then only with the approval ed a division commander. for he was the one who had a Tribunal at his disposal and he could carry through a juridical invest gation.
this regulation, in this document. I discussed the good treatment of the population and to leave them the necessities of life, and I do believe, in any event, of that this document actually is a model example to bring this sort of war into the limits of International Law. I did take this, I was of the conviction that at the period of time the French Maquis movement and revolt had begun to turn into a regular war.
that I caused through 161. I can say only that the behaviour of the SS Panzer Division is the responsibility of its comman or. Only months afterward did I have I am grateful also for the statement that the Maquis movement the beginning was nothing else than a Franctireur warfare, whose heroism I do not dispute.
of volume 11 of my document book. sals for the treatment of hostile low flying fliers who had made emergency landings. Can you tell us, first of all, what was the reason for this and what was your position of attitude toward these proposals?
A I shall try to be as brief as possible. The reason was the reports on the hunting of people by several hostile aircraft. The Fuehrer demanded countermeasures, and in this way the report-notice came into being, 731-PS. RF 1407. It is not a draft for an order and it is not an order. It is only a note. This note contains proposals given by the Luftwaffe in this manner. There was no talk about lynching. The fact that I concerned myself with this problem at all was based on the reason which I have previously mentioned, the problem of responsibility which, since 1 May, I believed I had as far as problems of International Law were concerned. The comment which I made in this matter has already been read. I objected to a figure which I considered inadmissable according to International Law, and this was later crossed out and replaced. soldier landing with a parachute was shot at. This objection I entered, document 735, PS. The concept of lynching -
DR. EXNER: I should like to state where this passage is, for the assistance of the Tribunal. This remark is found on page 144 of my document book, and in this handwritten addition, various proposals are made, and then Jodl adds number 3, and this is his addition. BY DR. EXNER:
A. My notation was: Is the Foreign Office in agreement with Point 3-B; namely, is the shooting of aviators who have been shot down and are parachuting to earth to be considered a terrorist act?
Q. Will you please continue.
A. And I should like to say that the concept of lynching was added by an article by Goebbels, published in the Voelkischer Beobachter. that nothing at all could be done with measures of this kind, for one could never apprehend a guilty low-flying aviator, for he would either escape or he would be dashed to the ground and die. This would only lead to a general murder of aviators. Field Marshal Keitel on this point -- to bring about the failure of this entire action. the 21st of May and Document 735-P3, 16 days had elapsed wherein nothing had been done. If, when on the 6th of June I received a rather length report, I noted on it, "This is not efficient; we have to start all over again. How can we determine that we will not act like this against enemy aviators? Should some legal procedure be arranged or not?" then, My Lord Justices, this is absolute proof that I had not other intention except to stall until the matter had solved itself. And I was successful in doing that in this case. No military office issued an order. We did not even go so far as to have a draft of an order. The only thing we had was the scraps of paper. It has been proved and will be proved further that many months afterwards the Fuehrer made the gravest accusations against us and against the Luftwaffe for our action in regard to the order at the time involved.
Q. Now we shall turn to something entirely different. The Chief of the OKW, in a letter, designated you and Warlimont to collaborate with the Eastern ministry of Rosenberg. That is Document PS-865, USA-143. How did that work out in practice?
A. Not at all. As far as the ministry of Rosenberg was concerned, apart from one conference in the year 1943, I had no connection with Rosenberg's ministry at all.
The only collaboration which went on constantly was carried on by my propaganda division, for all pamphlets which it compiled and which were distributed over Russia had been discussed first with the Eastern Ministry.
Q. Then why were you appointed at all? Why was that necessary?
A. That was purely a matter of form, since Minister Dr. Lammers wrote generaly to each higher Reich office, asking that a deputy be designated. Then Field marshal Keitel designated a deputy.
Q. We shall now turn to something new. We have been shown the rather remarkable document C-2, USA-90, which is not contained in my document bock, but I believe in all probability the Court will recall that this is a compilation in tabular form in which certain incidents of significance in international law are cited. In the second column there are examples; in the third and fourth, examples.
MR. ROBERTS: It is page 163 in the big document book.
Q. (Continuing): This is a diagramatic compilation which sets down on one side a certain incident, and on the other side is set down the attitude of international law, Voelkerrecht. That is, the judgement of international law and the propaganda explanation or other reasons in regard to this incident are set forth.
This is really a truly remarkable document. What are the atecedents of it? Twelve infringements of internationa law by our side are set down, and, I believe, 13 infractions of international law by the enemy.
A. I do not believe that this document is so remarkable after all. It come about at the end of September 1938, shortly before the Munich conference, since I did not know for certain in my division whether we would have an armed conflict or not, and since at that time the stipulations of internation law were not clear to us. I wanted, through a wealth of examples, to have the Voelkerrecht Gruppe, the International Law Staff, tell me what the attitude at that time would be against infractions of international law.
Every office in my division then wracked his brain for examples, and we tried to cover every branch of international law through a specific example.
cerned ourselves with the concept of international law. There can be no doubt whatsoever that I carry responsibility only for the fact that I searched out these examples. But if one were to object to the answers to the problems or examples, as far as the background of war is concerned, I can only say that this doesn't even originate with me; this emanated from the office of Canaris. to international law, specifically concerning air warfare. In any event, it is on a much higher level than that which was carried out in practice.
Q. Therefore, was it the intention to commit these infractions of international law?
A. Not at all, but as someone who knew the history of war, I knew that never in this world has there been a war which did not produce infractions of international law. Propaganda ministry, which is the paragraph at the end, I should like to point out that the judgements as far as international law were concerned were to be taken into consideration. Admiral Buerckner, who answered of his own initiative, pointed out that propaganda could be used only after the points of international law had been cleared. first the Foreign Office and the various branch chiefs of the Wehrmacht would have to be listened to.
DR. EXNER: I asked for Admiral Buerckner as a witness to answer these questions, but it seems to be a more or less insignificant matter, and I shall therefore forego the calling of this witness. BY DR. EXNER:
Q. Now, I should like to put a rather general question in this connection. In general, what was your attitude as to the limitations of the conduct of war by international law?
A. I considered international law as the absolute prerequisite for the decent and moral carrying on of the war, and I know international law very well, and I observed it.
The Hague Land Warfare Regulations and the Geneval Convention were always found on my desk. towards mob justice, and my attitude toward the intention to leave the Geneva Convention, which all commanders in chief and all branches of the Wehrmacht and of the Foreign Office rejected very, very abruptly, I have proven that I tried, as far as it was possible for me, to observe international law.
themselves will probably be mentioned by my defense counsel. I should like to point out rather generally and cite the behaviour of the German Wehrmacht in Norway, a matter which I worked out and dealt with myself. I should like to point out the matter of guerilla regulations. Volume I. These are special directives for conduct and personal relationships at the occupation of Norway and Denmark, a directive which was issued in connection with the occupation of these countries. There are some very charateristic sentences contained in this document, sentences which I would like to read, If you will please turn to page 98, point I "The military occupation of Denmark and Norway is taking place for the purpose of insuring the neutrality of these countries. At the same time the objective must be to execute the same peacefully Then on page 99, at the top it says:
"Directive for conduct in personal relations with the Norwegian population.
"Every member of the army must be aware that he is not entering enemy country, but the troops are entering Norway for the protection of the country and for the safety of its inhabitants.
"Therefore, the following is to be observed:
"I. The Norwegian has a strongly developed national consciousness. Moreover the Norwegian people feel themselves closely related to other Nordic people.
"Therefore: avoid anything that might wound national honor."
Point 2 is rather characteristic as well. Then I shall turn to point 4. It is found on the top of page 100.
"The home of the Norwegian is holy according to the Old-Germanic conception. Hospitality is willingly practiced."
THE PRESIDENT: It is not necessary to read all of this. One paragraph is enough to show the nature of the document, isn't it?
DR. EXNER: Then I should like to point to the remainder of the document which I shall not read, and ask that the High Tribunal take official notice of this document.
THE PRESIDENT: That last document doesn't appear to have been signed by the defendant, does it?
DR. EXNER: It isn't signed by the defendant. BY DR. EXNER:
Q And what is the connection this document has with you, defendant? section of the Wehrmacht Operational Staff, and the staff of von Falkenhorst were a unit and I participated in the drawing up of this document and I submitted it t the Fuehrer and the Fuehrer approved of it, and there is an entry to that effect in my diary.
Q Then AJ-16, which I should like to submit herewith. These are special regulations for the administration of the occupied countries of Holland, Belgium and Luxembourg. This is page 161, volume 11 of my document book. I shall quote only from page 162 in order to save time. I shall read perhaps the last sentence.
"The International Law is to be strictly observed in every case" them take judicial notice of it. document book 11, page 164. Those are directions. No. 6 is the conduct of war, dated 21 November, 1939. It concerns itself with the tasks of the air force. Perhaps I can read just one paragraph:
"Localities, especially large open cities and industries are not to be attacked without a compelling military reason, either in the Dutchm nor Belgium or Luxembourg areas." Signed Keitel.
Did you also draft that? been discussed here also? that immediately I ordered an investigation of the case Malmedy. the basis of International Law as that applied to my orders. I do not wish to detain the court with the insight I gathered from these regulations. I should like to conclude with that and say that through the fact that there were no regulations in air warfare, this rather deplorable situation arose and confusion in the conception arose, that is, between rebellion and legal war, between Franctireur and informant, between spies and informant, between demolition crews and saboteurs, and many times with the help of air craft a rebellion could be changed or would be changed into a legal war, and a legal war could be reduced to the state of rebellion, and that is the significance in International Law of parachutists and supplies by way of air.
AJ 10. This document has not been submitted to the Court since the Prosecutor declared yesterday he would agree to the use of this affidavit. I believe it originates with Colonel General Dr. Lehmann. If the High Tribunal will declare this affidavit admissable I perhaps can refer to it, be would like to submit it, although it has not been translated as yet, since we only received permission yesterday, or yesterday the granting took place in Court.
MR. ROBERTS: we said yesterday we had no objection to the affidavit, although there was no actual order granting the affidavit of Lehmann, My Lord, it is very short, especially the copy I had, and I think there is no reason to object to it.
DR. EXNER: Then in order to save time, I shall just cite passages or refer to it and ask that the High Tribunal take judicial notice and read the testimony of Dr. Lehmann. It seemed to be significant to me, and in any event he was the highest jurist in the German Wehrmacht General Staff.
THE PRESIDENT: You had better give it an exhibit number.
DR. EXNER: Yes, AJ-10 was the exhibit number 1 gave it, Your Honor: BY DR. EXNER: occasion to carry on with Jodl and he gave us Jodl's attitude toward legal questions, and now, Colonel General, in connection with the legal war crimes, there is one last question which comes to out attention. Frequent orders in the war diary entries arecharged against you. Did you have occasion or opportunity before you were captured to destroy this material? every piece of paper, but I had given instructions to my staff not to destroy a single file, for I felt I had nothing to conceal, but the complete files, and also all, the especially vital and important ones and originals from the Fuehrer, beginning back with 1940, I submitted them to the American officer when I was being captured.
Q And now, I shall turn over to the following war crimes against peace. First of all we have to make clear which offices and ranks you held during this critical period. Perhaps you can deal with 1933.
A From '32 to '35 I was in the division which later was called the Operational Division of the Army. From the middle of '35 until October '38 I was Chief of the Division of the Office for Defense and in the Wehrmacht office which was later called OKW.
Q Then the Wehrmacht AMT was later christened OKW?
A Yes. From October '38 until shortly before the Polish campaign I was artillery commander at Vienna and in Bruenn, in Moravia; and beginning with the 27th October 1939.
Q Just a moment please. 27th of September?
A No -- August, rather. 27th of August 1939 I took over the management and task of the Chief of the Operational section.
Q Now, we shall begin at this time in the years 1932 to '35 when you were in the so-called Operational Office. Did you concern yourself with war plans? only a directive for the improvised border protection in the east. This was a rather sudden organization and there were preparations for evacuation measures along the whole German border in case of hostile occupation; that is, in the case of so-called sanctions. There was nothing else beyond that. conscription?
A No, I had nothing to do with that. I believe I heard about this the day before. national defense from June '35 to Octber '38? directive according to the instruction of my chiefs, Keitel and Blomberg. I had to concern myself with these matters and I had to study and to clarify the problem of the leadership of the Wehrmacht, to set down studies and maneuvers. There was an extensive Wehrmacht maneuver in '37. I had to take care of the Wehrmacht Academy; I had to work out drafts for laws which were connected with the general conscription order; and with the unified preparation for mobilization in the civilian sector, that is, of state and people; and the so-called Secretariat of the Reich Defence Committee belonged to me and my office.
Q Can you tell us, what were you at that time? What was your military rank?
A I came into this as "Obertslieutenant" I believe; in the year '36 I was promoted to "Oberst", which was Colonel.
Q Did you participate in the "Reichsverteidigungsgesetz," Reich defense law? of a supplement which you made to the Document 2261, USA 24. That is the document to be found in volume I, page 9. In this document it says "in the enclosures I will send you a copy of the Reich Defense Law of the 21st of May 1935. Signed by Blomberg."
This is dated the 24th of June. Then there is a supplement paragraph 3d of September '35 to the Defense economic group 1-A, copy transmitted and signed Jodl. Want can you tell us about that? transmit the copy to the other offices, and I do not have to say any more than that. participate in?
Q Were you a member of the Defense Council Executive?
Q Member of the Defense Council? ship, the direction of the experts council, and in the tenth session of this meeting of exports on the 26th of June 1935 General von Reichenau designated me and introduced me as his deputy.
Q And what was the purpose of this committee? We have already discussed this matter, therefore be as brief as possible. the mobilization of state and people, in agreement with the military mobilization, was prepared, and this mobilization was laid down in the mobilization books.
Q. What were these various graduated steps which were set down?
A. We had learned these matters from France and we had copied them. The French followed the procedure that mobilization was carried through in five degrees.
THE PRESIDENT: Do we need the detail about this?
DR. EXNER: Very well. BY DR. EXNER:
Q. Perhaps you can tell us what this sense was, why these lines were taken over. What was the reason?
A. Thepurpose was so that they would have a means, as was customary all over Europe at this time, so that an intensified readiness for war could be set up before the public order for mobilization was issued.
Q. Did the Reich Defense committee concern itself with armament?
A. No. It did not concern itself with armament at all.
Q. Did the Reich Defense committee concern itself with political plans or intentions?
A. Political problems were in no manner the concern of this body but in event of a war only was the case of mobilization. But no certain war, but all mobilization for any and all war which was possible.
Q. In this committee you concerned yourself with mobilization books. Is that correct?
A. Yes. I believe I already said that.
Q. How about these books?
A. In these books the details of all the chief Reich offices were set down and with figures so they could be recognized.
Q. What do you mean by that?
A. I mean the various ministries.
Q. You mean the civilian authorities?
A. Yes, the civilian authorities.
Q. And the preparation taken by them had to coincide with the preparations by the military; and what were the preparations in the demilitarized zone?
A. The preparations in the demilitarized zones concerned themselves solely and alone with the evacuation, that is, the surrendering, of the areas West of the Rhine in case of a French occupation.
Q. I believe we have discussed that at length already, and in this connection I should like to refer to 405 E.C., GB-460, page 11 of my document book, where in the first volume the 10th session of the Executive Council is mentioned. You are accused that you had decreed the topmost secrecy concerning all of these preparations, which according to your picture just now were of a purely defense nature. Why was this decree of secrecy?
A. The keeping secret of measures of that kind is taken for granted in the entire world, but with us in Germany it was especially important, for the civilian authorities for years were not customary to concern themselves with things military, and it seemed to me especially important that in foreign countries there would not arise a misinterpretation or, say, the capture of an order like this so a misunderstanding -- misunderstanding which have been shown characteristically in this proceeding when we talked about the "Freimachung," the clearing of the Rhine.
Q. And why did you decree secrecy so that foreign countries would not be stirred up?
A. At that time we were in a position of much greater weakness than at the time when we had an army of 100,000 men only. This army of 100,000 men had been dispersed into hundreds of small groups. It was the time of our very, very greatest impotence, and at that period we had to be very, very careful in order to avoid any and all tension abroad with foreign countries.
Q What were the military plans of those days? protect the borders. And at that time, I also worked on instructions for the commanders in the east, because, in case of a sudden attack by Poland, it would be cut off from the Reich. intentions of attack -- at that time? like to quote one sentence, Page 14 of Volume 1 Of my document book, EC-407, GB-247. At that meeting was Oberstleutnant Wagner of the OKH. Who was that?
Q Lieutenant Colonel Wagner said:
"The outcome of the war" -- that is, of the last war -- "has left a completely changed military, political situation in the event of a future war, namely the necessity for waging it in one's own country."
He said that on the 14th of May, 1936. What would you gather from this sentence?
THE PRESIDENT: (interposing) Dr. Exner, surely it is a statement by somebody else, and this statement speaks for itself. It is not a matter that this witness can interpret to us.
DR. EXNER: Very well. BY DR. EXNER: division for the defense of the country,did you concern yourself with armament? real sense. That was a matter for the various branches of the Wehrmacht, the army, the navy, the Luftwaffe; and it was dealt with and handled by their organizational staff. The commanders-in-chief discussed these matters with the Fuehrer directly. But there is the fact that my General Staff work contributed to the reconstruction of the German Wehrmacht. That I know, and do not wish to dispute.
and it seams obvious that at that time you did not concern yourself with those problems. What were your thougths and ideas on this problem of armament? Was yours an attitude that was positive? it was characteristic -- that on the day before the declaration, 36 divisions would be set up. Blomberg as well as Fritsch suggested to the Fuehrer to set up only 24 divisions. They were afraid that there would be a dilution of the entire army, and perhaps they were afraid of rather stormy foreign politics, and politics which would be based on strength and forces which were set down only on paper. as far as armament was concerned, in the year 1935? What deadline did you set?
A Various graduations were set. The first deadline set was 194243, and the West Wall was to be completed by 1945. The construction of the Navy concerned itself with the year 1944-45. what was the objective of armament? establish military parity between Germany and her neighboring countries.
Q At this point, in this connection. I should like to refer to a document which has already been submitted, the report of General George Marshall, a two-year report. This has already been submitted as Raeder No.19. I have a part here before me, a part which I wanted to use as AJ-3. I submitted it under AJ-3, Page 168. This deals with the problem of rearmament, tending to be some sentences which in reality to me seem to hit the nail righton the head. there, we see:
"The world does not seriously regard the desire of the weak. Weakness presents too great a temptation to the strong, particularly to the bully who schemes for wealth and power."
Then on the next page there is another sentence:
"We must start, I think, with a correction of the tragic misunderstanding that a security policy is a war policy".ratio as compared with the foreign countries, our military strength ratio?
and Czechoslovakia possessed 90 peace divisions, and 190 divisions in war. We had almost no heavy artillery, and the armored weapons were in the most primitive stage of their beginning. cussed on various occasions. However, it would lead us too far afiels to enter into this discussion. But I should like to say only that as far as Germany was concerned, with her geographical position, this concept did not apply, this disarmament concept. The disarmament concept, after months of discussion, failed because of the difference in the conception of this idea. George Marshall, Page 168 of my document book, the document out of which I have just quoted, and again just one more sentence in the first paragraph:
"The only effective defense a nation can now maintain is the power of attack". that such a tremendous rearmament as the German rearmament could serve only for an agressive. Will you comment on this please? non-knowledge. Up until the year 1939, we were, of course, in a position to destroy Poland alone. But we were never, either in 1937 or 1938, actually in a position to withstand a concentrated attack by these states together. And if we did not already collapse in the year 1939, that was traceable only to the fact that roughly 110 French and British divisions in the west during the Polish campaign, as against 23 German divisions, were completely inactive. come about? beginning of the war. We entered into this world war with perhaps 75 divisions. 600/0 of our total population had not been trained. The peace time army amounted to perhaps400,000 men, as against 800,000 men in the year 1914. The witness Milch has already testified on supplies, stores, amunition, and bombs.
These supplies ware ridiculously low.
yours, Page 16 of Volume 1 of my document book, which is 1780 PS.U.S.A.72. There, on the 13th December you said:
"The General Field Marshall after having described the situation reports on the status of the war potential of the Wehrmacht, whose greatest difficulty lies in the insufficient supply of amunition of the army -- 10-25 days of combat -- 6 weeks' supply." land.
THE PRESIDENT: Let us break off now.
(A recess was taken) land?
A On the 1st or 2nd of March, 1936; that is to say about six days before the actual occupation. I could not have heard earlier because before that the Fuehrer had not yet made the decision himself.
Q Did you, as a General, have military objections against that occupation? putting his entire fortune on.
Q Did you have legal objections?
A No; I was neither an International Law expert nor a politician and, politically speaking, that agreement between Czechoslovakia, Russia and France seemed to have made the Locarno Pact entirely superfluous; and that was something which I accepted as a fact at the time.
Q How strong were our forces in the Rhineland after the occupation? battalions of that went into the territory West of the Rhine; one battalion were to Aachen, one to Frier, and one to Saarbruecken.
Q Three battalions. That is really a symbolic occupation, isn't it? London at the time. I could not fail to be impressed by them. We suggested to Field Marshal von Blomberg at that time that perhaps he ought to discuss the withdrawing of these three battalions west of the Rhine if the French would with
Q Was that suggestion ever made?
A Yes, it was made to the Fuehrer but he turned it down. What he refused quite definitely was General Beck's suggestion that we should declare that we would not fortify the territory west of the Rhine. This suggestion came from General Beck and the Fuehrer refused it.
A No, there couldn't be any mention of aggressive intentions because the French Army alone could have blown us off the earth, considering the situation we were in.