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.
against Jodl only in two cases:
1.) If he had permitted the warfare to take place in a disorderly and "chaotic" manner, as one witness has asserted, or
2.) if he had issued battle directions, but if these had been contrary to international law.
But neither of the two is the case; Jodl was not personally responsible for this matter, but he had to take some interest in the partisan activity when it reached an extent which was beginning to interfere with the military operations. He issued a directive in 1942, a bandit order, which was replaced by a second one in 1944. It is therefore out of the question that no rules existed for the combatting of partisans.
Not can Jodl be reproached on the second point. Although Hitler wished to have a type of warfare waged against these dangerous opponents which had no consideration for ethics and internation law, Jodl -- without his knowledge -- issued a pamphlet about the combatting of partisans which cannot be attacked legally. He went as far as to have partisans in civilian clothing treated as prisoners of war, and to permit the burning down of villages to be carried out only on the orders of a divisional commander; this was intended to, and could prevent violations of Article 50 of the Hague Convention for Land Warfare (RF 665, Document book 11, Jo 44.). theless degenerated badly. It is not a matter for the Chief of the Operational Staff of the Armed Forces to supervise the observance of his directions in four theatres of war.
c.) Burning down of houses in Norway (PS 754) ordered the destruction of Norwegian villages. This accusation refers to the teleprint of 28-10-1944 to the High Command of the 20th Mountain Army.
The Prosecution have a false idea of the role which fell to Jodl's lot he The military position was then as follows:
the Germans were retreating to the not yet completed Lyngen line. And there was a danger thatthe Red Army would continue to follow up during the winter and would destroy the much weaker German units, if, whilst advancing along the Reich road #50, the only one that could be used at this time of the year, they found the homes and the population with their local knowledge available. Without these billets and the support from the population., the Russian advance was impossible. The evacuation of the population and the destruction of the houses would exercise the danger and, over and above this, it would make partisan warfare against the German troops impossible. But the evacuation of the population was also necessary in the interests of the population itself. that of the Reich Commissar for the occupied Norwegian territories--the decre which Jodl reported, by order, to the High Command of the 20th Mountain Army through the proper channels with all Hitler's military and ethical considerati One can really hear Hitler's radical way of speaking. General Rendulic, that the mountain troops did not need such a far-reaching order military and therefore did not want it, was against this order and-- wh he could not prevent it--sought for a solution which in practice led to the correct result. He wanted the order to be carried out by the troops only in so far as was absolutely essential military and in accordance with what was permissable under the Hague Convention for Land Warfare (Art. 23 g). He knew that his brother who was in command in the North, thought exactly like him; he knew the soldierly spirit of the mountain troops in general, and he knew in this particular case in advance that this order went too far for the troops so that it should be understood correctly by everyone right from the start, in the introduction to the teleprint he not only explained clearly that it was a "Fuehrer order"--the second paragraph expressly uses these words--but he let the soldiers know that the Fuehrer had issued this order on the suggestion of the Reich Commissar, and not on the suggestion of the military. Then they knew, and they acted accordingly. No military unjustified demolitions occurred. Thus, among others, the 3 towns of Kirkenes, Hammerfest and Alta were not destroyed.
According to the literal application of the order, they had to be destroyed. d.) Deportation of the Jews from Denmark (UK 56): Jews from Denmark. The Prosecution bases this accusation on a teleprint which Jodl sent "by order" (I.A.) to the Commander of the German troops in Denmark. It is particularly difficult to understand this accusation by the Prosecution; for the different documents submitted by the Prosecution unequivocally prove that the deportation of the Jews from Denmark was decided upon by Hitler on a suggestion from Dr. Best, therefore on a suggestion from the civil authorities and against the objections for the Commander of the German troops, and that this task was assigned to the Reichsfuehrer SS. The OKW was concerned with the whole affair only because at that time the military state of emergency existed in Denmark, so that the Commander of the German troops, as the highest executive authority in the country, had to be informed by his superior authority of the action ordered by Hitler and assigned to Himmler, in order to prevent friction between the German authorities in Denmark. of the discussions between Hitler, the Foreign Office and Himmler, in a teleprint from the German commander. Jodl had only one wish -- to keep the Armed Forces out of this affair. His temperamental remark on General von Hanneken's teleprint of the 3 October 1943 (D 647)-- also a matter of complete indifference to us" (namely: whether the Reichsfuehrer SS publishes the figure of the Jews arrested or not) --shows only too will this has nothing at all to do with ethical considerations, either positively or negatively.
The whole thing had nothing to do with the armed forces. But difficulties could arise as a result of Himmler's action, as the armed forces were after all responsible for quiet and order in Denmark. The armed forces could not alter the decision taken by Hitler in this police matter, and could not have altered it even if they had been competent for this question. Hitler had taken in the field of the police. And the Reichsfuehrer SS, the Foreign Office, and the Commander-in-Chief of the Reserve Army were simultaneously informed by Jodl that he had let the Commander in Denmark know, Now there was a clear line, and friction between German offices was excluded. And the OKW had only to see to this.
the execution of the order, which Hitler had decided on apart from the Wehrmacht, easier. It is clear to anyone who knows even a little about Hitler's position of power that friction between German offices would in no way have prevented the thing being carried out, but would it must only have delayed it, and would certainly not have made it pleasanter for the persons affected. which I always find cited in foreign decisions too, that "actus no facit reum nisi mens sit rea". Two things go to made a crime; the "actus", the objective side of the crime, the deed, and the "mens rea", the subjective side, the guilt. there; in some cases it stresses the "mens rea" and fails to see that the criminal "actus" is lacking: I have shown this in the case of the above-mentioned marginal comments, which do not represent any illegal actions, but at must could allow one to infer an illegal frame of mind. In other cases the prosecution looks only at the "actus", but does not ask whether a "mens rea" is also present. This second mistake is more dangerous, as here the outside of the crime is visible to everyone and it is often only a delicate psychological examination that comes to the conclusion that there is no "mens rea" which corresponds to the "actus". We will come to speak of this further on. criminal by the Charter. This behavior can consist of positive action or of omission. If a father sees his child drowning while bathing and does nothing to save it although he could have done so, we declare him guilty either of murder or of killing by negligence, according to the degree of his guilt. This commission of a crime by omission is important in this trail too, for the Prosecution repeatedly stresses that Jodl was present at this or that meeting, at this or that speech. On one single page of the Anglo-American trail brief the sentence "Jodl was present at" occurs 6 times. What does this mean legally?
Being present at and listening to things can be of great importance for the evaluation of a later deed, for the doer cannot excuse himself by saying "I didn't know" if he participated in the discussion of a plan. But mere presence does not in itself make one co-guilty. According to British law, even presence actually when a crime is committed makes one coguilty only if encouragement is added. The same applied in German law. But where such does not come into the question, to lay stress on a person's presence when a criminal intention was discussed can only be a reproach that he knew about and tolerated it. Not only in this court. The whole German people are reproached with having tolerated a criminal regime and the annihilation of millions of Jews, Undoubtedly a crime can also be committed by tolerating things. But to make it a serious criminal indictment, e.g. one for intentional killing, two prerequisites must be fulfilled: 1) the subjective side, he must have known that the victim would meet his death if he did not intervene; 2) he must have been, in duty bound, and able, to prevent this death.
Mr. President, would this not be a convenient time to adjourn?
THE PRESIDENT: Yes.
(A recess was taken until 1400 hours.)
(The Tribunal reconvened at 1400 hours.)
THE MARSHAL: May it please the Tribunal, the defendant Hess is absent.
DR. EXNER: We were dealing with crimes committed because such crimes were tolerated. As far as Jodl is concerned, the following applies: What an officer or official is legally bound to do or prevent depends on the regulations governing competence, and we knew how strictly Hitler insisted on their being adhered to, how sharply he managed to divide up the political and military leadership and the military and the SS in their spheres of tasks. This was indeed the reason why Jodl took every opportunity to oppose the plan for extending the SS, for one thing was clear: once something had become the sphere of the SS, the armed forces had lot the right to have any say in it. It does not therefore mean much, for instance, that Jodl was present at a discussion between Hitler and Dr. Best, at which one of the things discussed was terrorism in Denmark and the way to fight it (RF 90). The mention of so-called "counter-murders", if such were really discussed, was not heard by Jodl (he was not present at parts of the session). His presence at this session does not mean much if only because the whole matter concerned occupied territory and did not concern the chief of the Operational Staff of the armed forces, who was brought into this meeting because of other things which were discussed at it. So even if Jodl had heard more drastic things at that time than he actually did, any interference would have been out of the question and would have been rejected at once. existed of preventing the crime. In the case of Jodl, only orders by the Fuehrer come into the question primarily; these orders he should -- as peopl say -- have prevented. But enough has already been said here about how thin stood with regard to influence on Hitler's decisions. As long as his decision had not yet been made, arguments could, under favourable circumstances, still impress him; but once his decision was made, it was irreversible. Any contrary opinion is simply based on ignorance of the fact In course of time Jodl did actually develop other methods for influencing decisions of the Fuehrer, or at least for influencing their practical effects.
He used delaying tactics; either he waited so as to let the matter be forgotten if possible, or else he made difficulties and raised objections, the type of counter-arguments having actually to be adapted to Hitler's way of thinking -- the order regarding Commissars is a case in point -- or he sent for opinions from various departments in order to gain time. This is the case of low-flying airmen. If the order had to be published, he often inserted into it on whose application the order had been issued, in order to show the Commanders in Chief that he did not identify himself with this matter such as in the case of the Norwegian villages. Or he tried to influence the practical application by not objection to behaviour contrary to the order, su as in the case of the Commando order, etc. But if one thinks that he could simply have refused to draft an unethical order, one has only to look at the Commando order, where this method had exactly the opposite effect to what was intended.
I now come to the second part of the Latin saying I quoted: "The deed * itself is no crime, "nisi sit mens rea". difficult and the most important in a modern criminal trial .
"No guilt, no punishment": this principle has been accepted in all civilized states since the Renaissance, even though different views as to the nature of guilt may exist in some places. view and that of the Continent, e.*. of Germany. It is important when jud i some cases. when discussing the aggressive wars. If one wishes to make Jodl, the General Staff Officer, responsible for waging those wars at all, it is at any rate of decisive importance how he viewed the whole state of affairs. If he believed on the basis of the reports he received, that facts existed which -- if they were true -- justified the waging of war, Jodl can not be reproached with havi knowingly waged a wrongful war. This applies even if his assumption rested mistakes. Such mistakes exclude design. In a decision, Regina v. Tolson, is stated:
"at common law a reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defense". In another decision Regina v. Prince it is stated: It seems to me to follow that the maxim as to "mens rea" applies whenever the facts which are present to the prisoner's min* and which he has reasonable ground to believe, and does believe to be the fac would, if true, make his acts no criminal offence at all." In a third case, Commonwealth v. Pressby in an American sentence, a good example is given: a sentry shoots at his commanding officer who is approaching him, in the belief that he is an enemy. This last example is closely related to the wars of aggression which are to be judged here.
However, one finds the noteworthy principle: "If,however, there is a doubt as to a question of law, a person cannot be convicted and subjected to imprisonment if he has merely acted on a mistaken view as to the law." Naturally a mistake about preliminary questions in civil law can also exclude criminal intention: "If a person takes what he believes to be his own, it is impossible to say that he is guilty of felony." This rule could also be significant in our field too for mistakes regarding the regulations of international law. law for in German law any mistake, even if resulting from negligence, excludes intention. In British law this seems to apply only to "reasonable" mistakes "Unaccompanied by negligence." If that sentry had shot too soon without sufficient investigation, he would, under German law indisputably only have to be sentenced for killing by negligence. In England and America, if I understand it correctly, this careless mistake would not be taken into consideration at all, and this soldier would have to expect a sentence of intentional killing. But this difference in the conceptions of law should not play any part in our case. For one can hardly reproach Jodl with having come to his conception of the situatuation on the basis of a hurried and careless examination of his reports. to omit paragraph one on page 110. Starting with the second paragraph, I shall continue. again agree. Every serious crime must be deliberate, thorugh, for deliberate ness, one need not have the consciousness of doing something criminal, but one must be aware that it is not right to act in this manner. To constitute a criminal act there must, as a general rule, be acriminal intent. The general doctrine is stated in Hales Pleas of the Crown, that "where there is no will to commit an offense, there can be notransgression." must know that he is acting in direct contravention of the law, or whether it is sufficient for him to know that he is in general committing something contrary to his duty. And the prevailing opinion which has also been taken over by the plan of our German Criminal Code states:
"The perpetrator must be conscious of acting against the law, or of acting wrongly in some other way, in a natural sense." I was greatly interested to find the same idea, expressed in almost the same words, in a British decision of Green v. Tolson "it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to some deed." Thus, according to British law, knowledge of not being allowed to act thus is one of the constitutents of intent: "There is a presumption that 'men's rea', an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offense." This decision quotes some exceptions to this principle, which do not interest us here. They concern Bigamy and seduction, where positive definition of the statute intervene, as well as certain offenses against public order, etc.
Our question now is: Was Jodl aware of wrongdoing during the preparation and passing on of the various plans and orders of which he is accused of today? According to my innermost conviction: No. question: why if he had a clear conscience was he in some cases so intent on observing strict secrecy? There is an answer to this: in military question there are the most manifold reasons for not allowing certain things to become known. This was so before the war and all the more so during the war, and even now, after the war, deep secrecy shrouds the atom bomb to quote an example. This kind of observance of secrecy need not be connected with a guilty conscience. And if Jodl says he hed arranged that one of the two Commando orders should -- irrespective of other reasons bekept secret because of its repulsive final regulation, he did so, presumably, for the sake of the honour of the German Wehrmacht, and truly not because he thought that he himself was doing something wrong by passing on the order, an order which he had after all not drafted himself and for which as he was convinced, he was not responsible.