customs of it, as has been drastically represented to us here, was that, had a general raised objections to Hitler's political decisions, he would not actually have been shot, but his sanity would have been doubted. Thus, at the beginning of military undertakings, the chances of the plan were hardly over considered in general discussions. None of the important decisions since 1938 came as the result of advice. On the contrary, the decision often came as a total surprise to the military command. Thus it was for instance, with the march into Austria, of which Jodl learned two days before, or in the case of the attack on Jugeslavia, which was suddenly decided upon by Hitler and carried out without any preparations within a few days. The alleged "discussions" at the Fuehrer's quarters, the course of which the witness Field Marshal Milch described so clearly, were nothing else but the "issuing of orders". the individual departments were sharply divided, and the method which Hitler used in order to make these divisions as insurmountable as possible is of interest. This was achieved by the method of secrecy. Enough has been said about this, particularly about the so-called "Blinkers order", which forbade anybody to get an insight into anybody else's work. It thus happened that each department was isolated and strictly limited to its own sphere of tasks. Obviously what Hitler desired to achieve by this system was that he should retain the reins in his hands as the only fully informed person.
Indeed, even more: he strengthened this system still more by only too often playing individual personalities, groups and departments off one against the other to prevent any conspiracy amongst them.
DR. EXNER: Mr. President, I have concluded my paragraph.
THE PRESIDENT: We will adjourn now.
(A short recess was taken).
DR. EXNER: These methods of isolationism which I mentioned before, were interesting, because they often inevitably came into conflict with one of the basic ideas of National Socialism - the Fuehrer principle - but were carried through in spite of this. For instance, when the sphere of competence of two departments covered the same territory, such as perhaps the competence of a military commander and of Himmler in the same occupied territory. What was ordered by one did not concern the other, even though the carrying out of the order might encroach upon the arrangemen for which the other was responsible. Thus the military commander was in no way the master in his territory. Things were the same incidentally in the civil administration too: there was the duplication of the Landrat (prefect) as a state functionary and the Kreisleiter (district leader) as a Party functionary of the Reich Governor, and the Gauleiter. Everywhere there was a dualism of powers and therefore a dissipation of Power. There was method in this: it prevented lower organs becoming too strong and secured the power of supreme leadership. It may be said epigrammatically that the Fuehrer principle was realized only in the Fuehrer.
What then was the position of Jodl's sphere of competence within all this machinery? was a department of the OKW coming under Keitel. Jodl's main task was, as the name of the departmentimplies, to assist the Supreme Commander in the operational leadership of the armed forces. He was the Fuehrer's advisor on all operational questions - in a certain sense the Chief of General Staff of the armed forces. The task of this chief of general staff in all countries in which this arrangement is known, is not that of giving orders but of advising, assisting and carrying out. Even if from this alone, it follows that Jodl's position has frequently been misunderstood during the course of this trial.
1.) He was not Keitel's chief of staff, but the chief of the most important department of the OKW, though he had nothing to do with the other departments and sections of the OKW.
ment.
He was not Keitel's deputy. Keitel in Berlin was represented by the senior departmental chief and that was Admiral Canaris. At the Fuehrer Headquarters there was only the Operational Staff of the Armed Froces for which Jodl was reporting directly to the Fuehrer. The other sections of the OKW he had to do with.
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 army.
3.) It was also wrong when it was repeatedly said that Warlimont was present at the meeting of the 23 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 Werlimont in May 1939.
What results from 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 whereas one should not do it, and for what one has criminally failed to do whereas one ought to have done it. What an officer or an official had do or not do in a question of competence. So this is where the problem of competence assumes its importance for us. Let us look at it more closely: broaches 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 difinitely 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 can not be waged at a particular season, but the final decision rests with the politicians.
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 war in eventu, i.e. in case the political leadership decide on war he does nothing else but his evident duty. from a contrary conception: the competent authority declares war, and the Chief of General Staff, who regards this war as contrary to International Law, does not co-operate. Of the Chief of 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 ever first. Can a war be waged at all in this case, be it a war of defense or a war of aggression could not be vindicated at all. The Security Council of the Allied 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 this punitive war. Now let us imagine that the Security Council decides on a punitive war and the Chief of 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 rish being put on trial for crimes against the peace in case of defeat?
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 completelv uncleared 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 examination? the really tragic position in which, this general would find himself. On one side is his evident duty towards his own state, which he particularly took an oath to fulfil as a soldier, 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 superstate authority which impartially establishes whether, in a concrete case, such a duty does exist for the individual and as long as there is no superstate authority which will protect people who fulfil this duty against punishment for high treason and desertion, an officer cannot be held criminally responsible for a breach of the peace. the prosecution has fallen into: on one hand it reproaches the generals with not having been solely soldiers, but also politicians;on the other hand it demands of them that they should remonstrate against the pol itical leadership and sabotage its resolutions -- in short, that they should not solely be solders, but politicians..
The prosecution do actually acknowledge this up to a certain point. They say that it is not intended to punish the generals for having wages war -for this is their task -- but they are reproached with having caused the war.
And the second argument, which often recurs, is that without the general: as helpers, Hitler could not have waged these wars, and that makes them coresponsible.
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 accused. 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 the polish campaign. And it was this very campaign which, with strategic necessity, brought about all the further happenings. to be able to say, according to what we know now, that in this assertion there lies an enormous over-estimation of Jodl's power in the Hitler state. The resolution to start the war was far removed from his influence. Advice from the generals was not heard on this very point. At most, purely military considerations for and against 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 the latter, the assertion that he caused wars would be founded on nothing. Lot the protocol, the memorandum, or any other document be shown according to which Jodl at any time incited people to war, or even only recommended the resolution to start a war. His Gauleiter speach is producer 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 Czecho-Slovakia, 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. It I buy a book which draws my attention to another one, and I then buy the latte 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 conset to them.
His purely defensive deployment plan of 1938 already proves that by itself alone. to carry it out successfully. It is this supporting activity which is the object of the second of the arguments mentioned earlier. wars. But only a layman can build up a responsibility on that. 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 ear, 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 can one 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 question.
The question of guilt will be discussed later. Here only the following is anticipated: A guilty participation in the planning and carrying out of a war of aggression presupposes 2 things:
1.) That the culprit 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 tasks 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. 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 thes reports, that the enemy was acting contrary to his neutrality; that he was preparing an attack on us, etc. Jodl believed them to be true. I must stress this, because it has been said here at times: "the Court will decide whether this was a war of aggression." That, of course, is true, because if the Court decides that it was not a war of aggression, any sen tencing for a war of aggression will fall out from the start. But if the court agrees that the war was, in fact, launched illegally, this does not in itself affirm the guilt of any person.
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 have been liable to punishment. So if Jodl believed that facts existed which, had they been true, would have made the war a legally admissible one, a sentence for breach of the peace would not arise.
question how if conformed with the ethical code of an officer to assist in a war which they had recognized to be illegal. 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. who, for religious reasons, refuses to take up arms and not treat them as we do. But that, 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 affair, not an affair of his conscience, to examine the admissibility of the war, but that this is the duty of the responsible state authorities. According to continent al law, one would not even begin to consider such an excuse for refusing obedience. an attempt to lower them morally but not as an accusation touching the subject of these legal proceedings. The international Military Tribunal is not a court of honour which decides about 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. trial brief, regarding crimes against the laws of war and humanity, I must make a few preliminary remarks. 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?
Chief in the Operational leadership 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 Hodl 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 organizational 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 administration of the occupied territories, and therefore, nothing with the seizure of hostages and with deportations (I shall discuss UK 56 later.) operations or in the rear military zone. orders; nevertheless, there are many orders which Hodl signed either "by order" or with his own "J". them:
l). There are orders which commence with the words "The fuehrer has ordered" and are signed by Jodl, or signed by Keitel and initialed 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 that responsibility, the same applies here fundamentally as for the orders signed by Hitler. For, in order to determine the responsibility, one must ask the questions: What was the task of the person to whom the order was communicated? What was it his right and his duty to do? Jodl's task was only a formal one: he had to word 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 on 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 impunity of the subordinate does not lie in the order of his superior officer to act thus or thus, 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 this is not accepted, and a Fuehrer's order is, on the contrary considered as contrary to law 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 technically correctly, 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. that some page. the job of writing down the order and a senior general. 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 illegality, to which I shall refer later.
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 owner of the initial or the person signing "by order" is mostly the author of the document, it may happen that the latter is responsible for purposes 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 *---* 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 he actually read it or approved it. Initials affixed in this manner do not, therefore, by themselves bring the initialer into any connection with the order for criminal purposes.
4.) Jodl is also being charged now with certain notes, partly so-called "memoranda", partly handwritten 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 the "Fall-Gruen" 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, as was explicitly laid down as the presupposition for punishment in article 6b of the Charter. files of the OK*: "Yes"', "No", or "That is impossible" etc. 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, thismight 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 unpunishable under all circumstances. writer's sentiments. It may be gathered from it that he is inclined favourably towards international law or that he takes no account whatsoever of 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. the prosecutors have raised against Jodl, are eliminated in advance:
1. His behavious on the matter of the low-flying airmen-PS 731, PS 735. It has been proposed to leave low-flying airmen who attacked the civilpopulation in a truly criminal manner, as it happened again and again, to the lynchlaw of thepeople. Jodl was opposed to this proposal, as it was bound to lead to the mass murder of all airmen who parachuted down. 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 placed to Jodl's credit, but it is apparently held against him that he did not use wordsof moral indignation in declining the proposal. Under the conditions existing at the time, such a cause 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 which had been drawn up already prior to the outbreak of the Russian war, Jodl made the comment that it would provide 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 take counter measures perhaps.
Again he is not given credit for the fact that he opposed it, but he is accused of how he opposed it. From a legal point of view that is meaningless. 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 circumstances to cross 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 offense at the unethical argumentation, one over-looks the fact that Jodl, after five years' experience, knew better then we do with what arguments it was possible to persuade his chief.
4. Order regarding Leningrad - C-123. Chief of the Army -- and it's 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, doesnot 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 on 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 orders:
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 wireless had already announced. The bad experiences as a result of the delayed action mines, prepared according to plan, in Kiev, Odessa, and Charkov, had taught the German Operational Staff what things they must beware of.
b) In addition there was the great danger of an epidemic which would exist also 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 urban population of millions as well. The railway tracks had not as yet been altered to the width of theGerman tracks, and even the supplies for our own troops caused much worry. And finally there was the military danger for the German operations, of which Field Marshal Leeb had complained to the defendant Keitel. towns from fleeing westwards and southwards through the German lines, but to male escape to the East possible for them, indeed, even to encourage it. Hence the directive to leave gaps in the front in the East. 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 it was inevitable froma military point of view, and this it was in fact, for the above-mentioned reasons. Whether renewed notification of the order was given by Jodl or not could not alter the situation in any way.
I shall discuss now individual war crimes of which Jodl has been accused, a) The Commando order. Two orders of the 18 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, PS 498, and the explanatory order connected therewith to the commanders, PS 503.
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 executive directives to an order which had been issued by Hitler 15 days previously which had also been drawn up by him personally and attached to the Armed Forces Report of the 7 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 had 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 a report which his staff had drawn up on their own initiative to Hitler. On the contrarym he had Hitler - with whom his re lations were very strained at that time - informed that he was incapable of conforming to the request, Hitler then drew up the two criers himself.
Jodl is now accused of two things: He distributed the orders drawn up by Hit1 through official channels, and he furnished the second, the mandatory 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 lan by sea or were dropped from the air. The other one was a special running wild in the fighting methods of enemies who acted singly or in small groups.
and photographs of the troops. Experience showed that those methods, which violated all military ethics, were met with especially amongst the sabotage detachments. Hitler wished to counteract these unsoldierly methods, and to stop the sabotage activity which was so dangerous for the *---* of the war, but he knew, that sabotage cannot be objected be on grounds of *---* ternational law if it is carried out by ordinary soldiers. Hitler's first or*---* the one contained in the Armed Forces report of the 7 October 1942, *---* fore quite simply explained: no mercy will be shown to enemy soldiers who app*---* in sabotage detachments and behave "like bandits", i.e. who lace themselves outside the military code by their method of fighting.
The executive directives should have defined the standard of unsold*---* conduct; Hitler's executive directive did not contain this definition; in the decisive points it is not definate, 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 were even doubts 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 tendency of Hitler's directive in the Armed Forces report of the 7 October 1942understandable, and thought that the directives given by Hitler in the Commando Order of the 18 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 theses outside the bounds of soldierly behaviour. could -- he permitted it, as is proved by evidence taken. He used all his powers to help ensure that the practical application of the Command 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 (PS 551).
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 their sabotage detachments which were operating in a bandit-like manner were causing. Hence the special directive for secrecy only in the order PS 503, which gives information about the damage, while the main order was known to the whole world trough the Armed Forces Report. There was actually also a second reason for Jodl's imposition of special secrecy on the explanatory order. He did not wish see the final decree, according to which captured Commando personnel were to be shot after interrogation, circulated. It revolted him as a human being to exclude unsoldierly fighters from the sphere of the Geneva Convention, whether such a course was admissible or otherwise according to international law.
He hoped, and was justified in hoping, that the commanders would find ways of preventing inhumanities in individual cases by means of a healthy interpretation, And unauthorized persons were not to have knowledge of the decree. 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 articles of war, which presuppose a chivalrous battle. 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 who fought in a soldierly way. The enemy had only to desist from those methods which were in radical contradiction to international law.
Tge 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 told draw it up. He merely distributed it, as instructed, through the ordinary official channels. However, 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, is he guiltless. 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 consult the Hague convention for land warfare first to see if I am allowed to do it"? The most grotesque consequences would ensue! And in this case the Colonel 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 "
GEN. RUDENKO: Mr. President, the defense counsel names 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 offensive against the partisans which participated largely in defeating the Hitlerite invaders, and I protest against it.
THE PRESIDENT: The object seems to be based upon some question of a Russian word which, of course, I don't understand. I understand that there is no objection to the English word "partisan." I don't know what the German word is. But there doesn't seem to be anything for the Tribunal to do about it
DR. EXNER: Mr. President, the point is still that hundreds of thousands and millions of patriots were among the so-called "bandits." I am using the word "bandits" because it was the expression used officially in official German orders. They speak about "partisan orders." We do not use the word "bandits" or "Partisanen" in any bad sense. It isn't an evaluation of the activities the character of those partisans, and it isn't meant to be any type of judgment when I am using that word.
THE PRESIDENT: Is there a different German word for the English word "Bandit" and the English word "partisan"?
DR. EXNER: Yes. We, too, use the word "partisan", "partisanen." For us that is a foreign word, but we also use it. And then we speak of "bandits", not necessarily in a bad sense. And then we speak of "Banditen," and these, of course, are criminals.
THE PRESIDENT: Why don't you confine yourself to the use of the word "partisan".?
DR. EXNER: I can certainly just as well use the word "partisan", "Partisanen." I have merely used "bandits" because we have the bandit order. 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 the partisan warfare.