[Page 138]

3. It was also wrong when it was repeatedly said that Warlimont was present at the meeting of 23rd 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 Warlimont in May, 1939.

What is indicated by 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 when one should not do it, and for what one has criminally failed to do when one ought to have done it. What an officer or an official has to do or not do is a question of competence. So this is where the problem of competence assumes its importance for us. Let us look at it more closely:

Jodl is accused of having planned and prepared certain wars which were breaches 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 definitely 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 cannot be waged at a particular season, but the final decision rests with the politicians.

I could, to be sure, imagine that the Chief of the Operational Staff of the 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 a possible war, i.e., in case the political leadership decide on war, he does nothing else but his evident duty.

[Page 139]

Such a conception of law would, in the future, lead to results which could not be vindicated at all. The Security Council of the United 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 a punitive war. Now let us imagine that the Security Council decides on a punitive war and the Chief of the 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 risk being put on trial for crimes against the peace in case of defeat?

It is, for that matter, wrong, even if only for practical reasons, to 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 completely unclarified 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 investigation.

But even if he had recognized the war as illegal, just let us imagine the really tragic position in which this general would find himself. On one side is his evident duty towards his own country, which he particularly took an oath as a soldier to fulfil, 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 overriding authority which impartially establishes whether, in a concrete case, such a duty does exist for the individual and as long as there is no overriding authority which will protect against punishment for high treason and desertion people who fulfil this duty, an officer cannot be held criminally responsible for a breach of the peace.

Under all circumstances a contradiction must here be pointed out: on the one hand the prosecution reproaches the generals for not having been solely soldiers but also politicians; on the other hand it demands of them that they should remonstrate against the political leadership and sabotage its resolutions - in short, that they should not solely be soldiers, but politicians.

The prosecution does actually acknowledge this up to a certain point. It says that it is not intended to punish the generals for having waged war - for this is their task - but they are reproached for having caused war.

And the second argument, which often recurs, is that without the generals' help Hitler could not have waged these wars, and that makes them co-responsible.

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 charged. 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

[Page 140]

Actually one need not examine the origins of the individual wars at all to be able to say, in view of all that we know now, that in this assertion there lies an enormous over- estimation of Jodl's power in the Hitler State. The decision to start the war was far removed. from his influence. On this very point advice from the generals was not heard. At most, purely military considerations 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 him, the assertion that he caused wars would be founded on nothing. Let the transcript, the memorandum for his speech, or any other document be shown according to which Jodl at any time incited people to war, or even only recommended the decision to start a war. His Gauleiter speech is submitted 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 Czechoslovakia, 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. If I buy a book which draws my attention to another one, and I then buy the latter 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 consent to them. His purely defensive plan of 1938 already proves that by itself alone.

Every time a campaign had been resolved upon, he did indeed do his bit to carry it out successfully. It is this supporting activity which is the object of the second of the arguments mentioned earlier.

It is true that without his generals Hitler could not have waged the wars. But only a layman can construct a responsibility on that basis. 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 eat, 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 one can 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 submitted: Criminal participation in the planning and carrying out of a war of aggression presupposes two things:

1. That the person involved 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 plans 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.

The other presupposition for an accusation of guilt is that the person involved 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 these reports that the

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The decisive point is not whether these reports were true but whether Jodl believed them to be true. I must stress this, because it has been said here at times: "The Tribunal will decide whether this was a war of aggression." That, of course, is true, because if the Tribunal decides that it was not a war of aggression, any punishment for waging a war of aggression will not apply from the start. But if the Tribunal 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 be liable to punishment. So if Jodl believed that facts existed which, had they been true, would have made the war a legally admissible one, he could not be convicted of a breach of the peace.

Now, the prosecution has repeatedly asked the generals the ironical question how it conformed with the ethical code of an officer to assist in a war which they had recognized to be illegal.

Let us assume that Jodl was sure that the war was illegal and that he 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.

I know that the United States are generous enough to respect a soldier who, for religious reasons, refuses to take up arms and not to treat him as we do. But that applies only to religious scruples, and 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 business, not a matter for his conscience, to examine the admissibility of the war, but that this is the duty of the responsible State authorities. According to continental legal conceptions, one would not even begin to consider such an excuse for refusing obedience.

Furthermore, I regard that ironical question to the generals merely as an attempt to lower them morally but not as an accusation touching the subject of this trial. The International Military Tribunal is not a court of honour which decides 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.

Before I pass on to the last point, the eleventh of the Anglo-American Trial Brief, regarding crimes against the laws of war and humanity, I must make a few preliminary remarks.

I shall now leave out what is contained in paragraph 2 on Page 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?

As we know, Jodl was primarily the adviser of the Fuehrer with regard to the operational direction 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 Jodl 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 Organisational 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

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Jodl did not have anything to do with police tasks in the zone of operations or in the rear military zone.

The Operational Staff of the Armed Forces had no authority to issue orders; nevertheless, there are many orders which Jodl signed either "by order" or with his own "J."

We must now discuss these orders and the responsibility for them:

1. There are orders which commence with the words "The Fuehrer has ordered" and are signed by Jodl, or signed by Keitel and initialled 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 responsibility, the same applies here fundamentally as applies to the orders signed by Hitler. For, in order to determine the responsibility, one must ask the question: What was the task of the person to whom the order was communicated? What was his right and his duty?

When the contents of the order were fixed in all their essential points, Jodl's task was only a formal one: he had to formulate 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 an 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 immunity of the subordinate does not lie in the order of his superior officer to act this or that way, 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 if this is not accepted, and a Fuehrer order is, on the contrary, considered as illegal 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 in a technically correct manner, 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.

I shall leave out the following and begin with the last but one line on that same page.

One naturally wants to make a difference between a clerk being given the job of writing down the order and a senior general.

The latter too will not have the legal, but perhaps he will have the 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 illegal move, to which I shall refer later.

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