[Page 32]

A. At least I tried to do so, if only for the sake of maintaining the reputation of the German Armed Forces and the Armed Forces of our Italian allies. I therefore thought it expedient to deal severely with any German soldier who committed an offence. As I was mindful of the fact that war is a brutal business and the longer it lasts the more brutal it becomes, particularly if the leaders and sub-leaders are no longer able to cope with their tasks, I had recourse to preventive measures. The preventive regulations, which I am sure were seen at many places by the Allied Forces during their advance through Italy, my various announcements of the penalties imposed which became generally known - these are the best proof of what I have just said.

As a preventive measure I ordered whole towns, or, if this was not possible, their centres, to be cleared of headquarters, administrative offices, and soldiers, and sealed off. Furthermore, as far as air-raid precautions allowed, the soldiers were garrisoned and billeted in confined areas. I also ordered individual soldiers, for they are usually the cause of the trouble - soldiers, for instance, going on and returning from leave - to be grouped together and non-military vehicles to form convoys. For control purposes I had cordons thrown by military police, field police, gendarmes, with mobile courts and flying squads attached to them.

The buying-up of Italian goods, which was partly the cause of the trouble, was to be restricted by establishing stores, in co-operation with the Italian Government, along the return routes, and here the soldiers could buy something to take home. This was enforced by penalties. German offenders reported to me by the Italians, I had prosecuted, or I myself proceeded against them. Whenever local operations prevented my personal intervention, as, for instance at Siena, I notified the Armed Forces that I would have the case dealt with by court martial at a later date. In other cases, when the situation was critical, I declared a state of emergency and imposed the death penalty for looting, robbery, murder, etc. The death penalty was, however, rarely found to have a

[Page 33]

I understand all files are available here so that all details can be seen from the marginal notes on the reports sent in by the police gendarmes.

Q. Witness, do you also know of any violations of International Law by the other side?

A. During my many visits to the front I did, of course, come across a large number -

GENERAL RUDENKO: I protest against this question. From my viewpoint, the witness is not the person to make any statement as to whether Germany's enemies have violated International Law. I think this question should be omitted.

DR. LATERNSER: May I explain my point? I am interested in any answer to this question because I want to follow it with the further question to the witness, whether, after he heard of violations of International Law by his own men, he became more lenient because of violations of International Law by the other side. That is why I am anxious to have this question answered.

THE PRESIDENT: The Tribunal would like to know exactly what your question is and why you say it is competent.

DR. LATERNSER: The exact wording of the question is as follows:

I asked the witness: Do you also know of violations of International Law by the other side?

According to his answer I intend to put the further question to the witness, whether, in view of such violations of International Law by the other side, he either did not punish at all or dealt more leniently with violations of International Law by his own men.

From the answer to this latter question I want to ascertain the attitude of the witness as a member of the group, and that is why I consider the answer to the first question to be important.

THE PRESIDENT: The Tribunal would like to hear what counsel for the United States says about it.

MR. JUSTICE JACKSON: If your Honour please, I believe it is a well-established principle of International Law that a violation on one side does not excuse or warrant violations on the other side. There is, of course, a doctrine of reprisal, but it is clearly not applicable here, on any basis that has been shown.

In the second place, even if the treatment of the subject- matter were competent, I think it is being improperly gone into in this manner. Here is a broad question, "Did you hear of violations of International Law?" It would at least, even if the subject were proper, require that some particulars of a case be given. A broad conclusion of a charge - a violation of International Law would hardly be sufficient to inform this Tribunal as to the basis on which this witness may have acted.

If there were some specific instance, with credible information called to his attention, there might be some basis; but surely the question as asked by counsel does not afford a basis here.

It seems to me we are getting far afield from the charges here and that this is far afield from anything that is involved in the case. I do not know what particular atrocities or violations of International Law are to be excused by this method. There must have been atrocities committed, on the basis of which there are sought to be excused atrocities committed by somebody else. Who else committed them, or why they were committed, is a question we might have to try if we went into this subject. It seems to me that the enquiry is quite beside the point, and even if it were not, if there were any way that it is within the point, it is improperly put in this manner.

DR. STAHMER: This question, which is of fundamental importance, was argued before this Tribunal some time ago. This was when I applied for permission

[Page 34]

At that time Professor Exner defined his attitude to this question and the Tribunal then permitted me to produce these "White Books," with the proviso that I would still have to state what I intended to present from these books.

On that occasion attention was drawn to the importance of the question, whether atrocities were committed by the other side as well, because this very point may contribute to a more just and possibly to a more lenient judgement of the German behaviour. The motive of an act has always a decisive bearing on the findings and the view will be taken here that an act on the German part will be judged differently if the other side has really shown an entirely correct behaviour.

Furthermore, it is an important question whether measures taken may have been reprisals. On the strength of these considerations I hold that this important question should be admitted.

THE PRESIDENT: The Tribunal will adjourn for 10 minutes.

(A recess was taken.)

THE PRESIDENT: The Tribunal have considered the questions which Dr. Laternser proposed to put to the witness and have also considered the objections made by General Rudenko and Mr. Justice Jackson, and they hold the questions are inadmissible.

DR. LATERNSER: Mr. President, I assume that I am allowed to put the following question:

Q. Witness, did you either not punish at all or deal more leniently with violations of International Law by your own men when violations of this law by the other side were reported to you?

THE PRESIDENT: That seems to me to be putting in one question what before you put in two.

DR. LATERNSER: Mr. President, this question is not meant to cause the witness to give instances of violations of International Law by the other side. From the answer, I merely want to ascertain the fundamental attitude of the witness, namely, whether he as C.-in-C. dealt most severely with violations of International Law by his own men even if violations on the other side were reported to him. I withdraw the question.

THE PRESIDENT: The Tribunal would see no objection in your asking the witness whether he was anxious to avoid violations of International Law; if you wish to put that question to him there will be no objection. The question which you have suggested putting is really identical with the questions you put before.

BY DR. LATERNSER:

Q. Witness, during this trial severe accusations have been made because of atrocities committed by German soldiers. Was not every soldier sufficiently enlightened and instructed about the regulations of International Law?

A. I answer this question in the affirmative. The many talks given by me and the commanders under me always contained such admonitions and instructions.

Q. Did you, as C.-in-C. of an army group, spare art treasures and churches as far as possible?

A. I regarded it, of course, as my duty to spare centres of art and learning and churches. I gave orders to that effect.

Q. What do you know about the treatment of prisoners of war who had fallen into German hands?

[Page 35]

Q. I have still three more questions.

Were you, as Field-Marshal, informed that Italy would enter the war?

A. No, I had not been informed about that. As far as I know, the entry of Italy into the war was so spontaneous that even the political leaders were surprised.

Q. And were you informed that war would be declared upon America?

A. No. I am unable to say anything about this question.

Q. And now the last question, What was the position regarding the resignation of military leaders during the war?

A. Resignation from the Armed Forces of one's own free will or an application for permission to resign from the Armed Forces was not allowed. In 1944 there was an order prohibiting this under threat of the severest penalties. The Supreme Commander of the Armed Forces reserved for himself the exclusive right to make changes of personnel in the leading positions.

Q. Was there a written order to this effect?

A. Yes, I think so.

DR. LATERNSER: I have no further questions.

BY PROFESSOR DR. JAHRREISS (counsel for defendant Jodl):

Q. Witness, you said before that the Cs.-in-C. had, in military matters, the right and the opportunity to present their demands and views to Hitler, the Supreme Commander of the Armed Forces. Did I understand that correctly?

A. Yes.

Q. Did you personally have differences of opinion with Hitler about orders?

A. Considerable differences about operational and tactical questions.

Q. Did it come to a real clash?

A. "Clash" is perhaps putting it too strongly; rather, a divergence on either side.

Q. Shall we say disputes, were they frequent?

A. Yes.

Q. After all we have heard here, Adolf Hitler must have been a rather difficult customer.

A. That must be admitted. On the other hand, I found him - I do not know why - to show understanding in most of the matters I put to him.

Q. Did you yourself settle these differences of opinion with Hitler?

A . In critical cases, if he could not gain his point, General Jodl called me in.

Q. If you could not gain the point?

A. No, if Jodl could not gain his point.

Q. If Jodl could not gain his point, you were called in?

A. Yes.

Q. Did Jodl's opinions, too, differ from Hitler's?

A. On the various occasions when I attended for reporting I observed very definite differences of opinion between the two gentlemen, and that Jodl - who was our spokesman at the O.K.W. - put his point of view with remarkable energy and stuck to it right to the end.

Q. What do you mean, he was your spokesman at the High Command; whose spokesman?

A. My theatres of war, speaking as a General in the Armed Forces, were so-called O.K.W. theatres of war, and the East was an Army theatre of war.

Q. Had the O.K.W. no say regarding the Army theatres of war in the East?

A. No.

Q. And the Army had no say regarding the O.K.W. theatres of war?

A. No.

[Page 36]

A. It would be asking too much, because I myself cannot understand it.

Q. So, you were at a O.K.W. theatre of war.

A. Yes.

Q. What does O.K.W. mean in this connection?

A. Oberkommando der Wehrmacht - Supreme Command of the Armed Forces.

Q. Yes, I know that.

A. It meant that the C.-in-C. was directly responsible to Adolf Hitler, and the H.Q. to Jodl's operations staff.

Q. In a previous interrogation you spoke of orders from the O.K.W., did you not?

A. Yes.

Q. Who is the O.K.W., who gave those orders?

A. Orders of a fundamental nature were issued by one person only, and that was Adolf Hitler. All the others were only executive officers. This did not prevent these executive officers from holding views of their own or sharing the views of the army groups under them, and they presented these views energetically to Adolf Hitler.

Q. What you are saying now rather surprises me, since the opinion had been voiced that Jodl, who you say was a kind of spokesman for the Cs.-in-C., was a willing tool of Adolf Hitler?

A. I think the one does not exclude the other. I cannot imagine any marriage of six years standing without both partners having tried to understand each other. On the other hand, I can very well imagine that even in the happiest marriage serious quarrels occur.

Q. But in the average marriage the husband does not necessarily have to be a willing tool.

A. Here the situation is still a little bit different. As with all comparisons, this comparison with marriage does not go the whole way. In addition to this, in the Army there is the principle of unquestioning subordination.

Q. Yes, but what you just told us about Jodl's position as spokesman for the Cs.-in-C. sounds as if Jodl acted as an intermediary, does it not?

A. Jodl represented our interests in an outstanding way and thus acted as an intermediary for all of us.

Q. Did he also pit his opinions against those of Adolf Hitler when he, in one of his famous fits of rage, had issued an order?

A. I can only state that, on the occasion of my few visits to the H.Q., I saw General Jodl - if I may say so - grow red in the face, and in expressing his views he went very near the limit of what is permissible for a military man.

MR. PRESIDENT: The Tribunal will adjourn.

(The Tribunal adjourned until 13th March, 1946, at 10.00 hours.)

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