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1. FINAL ARGUMENT by Dr. Franz Exner, Defense Counsel Mr. President, may it please the Tribunal!


In this unique trial the finding out of the truth is faced by unique difficulties. At a time when the wounds of the war are still bleeding, when the excitement at the events of the last few years is still to be felt, at a time when the archives of one side are still shut, a just verdict is to be given with dispassionate neutrality. Material for the trial has been spread out before us which covers a quarter of a century of world history and events from the four quarters of the globe. And on the basis of this gigantic material we see 22 men being accused simultaneously. That makes it terribly difficult to keep one's eyes clear for the guilt and responsibility of each individual. For inhumanities of an almost unimaginable vastness have come to light here, and the danger exists that the deep shadow which falls on some of the defendants may also darken the others. Some of them, I fear, appear in a different light, owing to the company in which they are here, than if they were alone on the defendants' bench.

The prosecutors have increased this danger still more by repeatedly making communal accusations, mixing legal and moral reproaches. They said that all the defendants had enriched themselves from the occupied territories, that there was not one who did not shout "die Juda," etc. No attempt to prove this in the case of each individual was made but the statement alone already creates an inimical atmosphere to all of them.

One of the things that comes under these actions by the Prosecution which make the clearing up of the question of individual guilt more difficult is the fact that the defendants Keitel and Jodl are treated as inseparable twins, one common plea against them by the British prosecutor, one common trial brief by the French prosecution. And finally the Russian prosecution spoke very little about the individual defendants, but heaped reproach after reproach upon all the defendants. All this is clearly intended to shorten the trial, but hardly serves to clear up the question of individual responsibility.

Indeed, the Indictment goes still further. It stretches beyond these 22 defendants and affects the fate of millions. This through the prosecution of the organizations, which, taken in conjunction with law No. 10, has as its result that one can be punished for the guilt of other persons. Finally, a thing that is more important at the moment is a further form of the summary treatment of the


defendants. The Prosecution is bringing in the conception of a "conspiracy" to reach the result again that persons can be made individually responsible for something wrong that others did. I must go into this point in greater detail, as it concerns my client too. It is actually clear, I think from the previous speaker's statements that a conspiracy to commit crimes against the peace, the laws of war and humanity did not in fact exist, so I shall only show one thing, if such a conspiracy did actually exist, Jodl at least did not belong to it.

The prosecutor admitted that Jodl's participation in the conspiracy before 1933 could not be proved. And, in fact, anyone whose attitude toward the whole National-Socialist movement was so mistrustful and who spoke with such sceptical reserve about its seizure of power (witness General v. Vermann) did not conspire to help Hitler into the saddle.

But the prosecution seems to think that Jodl joined the alleged conspiracy in the period before 1939. In fact, during this time too nothing essential changed for him.

Actually his attitude toward Hitler was now a lawfully loyal one, for it was Jodl's respected Field Marshal von Hindenburg, who had called Hitler to the government, and the German people confirmed this decision with over 90 percent of its votes. Added to this was the fact that in Jodl's eyes, and not only Jodl's, Hitler's authority was bound to rise powerfully in view of his marvelous successes at home and abroad, which now followed one another in quick succession. But personally Jodl remained without any connection with Hitler. He did not participate in any of the big meetings at which Hitler developed his program. His book "Mein Kampf," the Bible of National Socialism, he only read parts of. Jodl just remained an unpolitical man in accordance with his personal inclinations, which lay fár from party politics, and in accordance with the traditions of the old family of officers from which he sprang. Inwardly of liberal leanings, he had little sympathy for National Socialism, outwardly he was forbidden, as an officer, to belong to the party and he was forbidden all rights to vote and all political activity.

If, as the Prosecution says, the party held the conspiracy together and was the "Instrument of Cohesion" between the defendants, then one asks in vain what cohesion existed between Jodl and let us say-Sauckel, or between Jodl and Streicher. Of all the defendants, except the officers, the only one he knew before the war was Frick from one or two official conferences in the Ministry of the Interior.

He kept out of the NSDAP and his attitude toward its organiza

tions was even in some sense inimical. His greatest worry during those years as later right to the end-was the danger of party influences in the armed forces. Jodl did what was in his power to prevent the SS being "puffed up" into a subsidiary Wehrmacht to prevent the handing over of the customs frontier guards to Himmler, and he notes triumphantly in his diary that, after the withdrawal of Col. Gen. Baron von Fritsch, Hitler did not, as was feared, make Gen. von Reichenau, who had party ties, commander-in-chief of the army, but the unpolitical Gen. von Brauchitsch, etc. If Jodl had conspired for National-Socialism in any way, he would have behaved in the opposite manner on each of these points.

Jodl was also not present at any of the so-called "meetings of conspirators." Neither on the 5 November 1937 (Hitler's testament remained unknown to him) nor at the Obersalzberg in February 1938, nor at the meeting on the 23 May 1939, or the 22 August 1939. No wonder! Jodl was, after all, at that time still much too small a man to be brought in on occasions which were of such decisive importance to the state. People don't conspire with lieutenant colonels or colonels on the general staff; they are simply told what they are to do, and that settles the matter as far as they are concerned.

However the most incontrovertible proof that Jodl can have belonged to no conspiracy to wage aggressive war is his 10 months' absence just before the war began. Jodl had left the OKW in October 1938 and was sent to Vienna as an artillery commander. At that time there was, in his view, so little probability of a war that before leaving Berlin he drafted, on his own initiative, a covering deployment in all directions. In this he moved the mass of the German forces to the center of the Reich, because he could not see any, in any way, definite opponent against whom a deployment plan would have had to be prepared. Exactly a year before the beginning of the attack, this alleged conspirator for aggressive wars drew up a purely defensive general staff job. And although he knew definitely that in case of war he would have to return to Berlin, this possibility seemed to him to be so distant that he transferred to Vienna with all his furniture. And still further, as he wished to get away from office work again at last, he had the mountain division at Reichenhall promised him for the 1 October 1939. And lastly, as late as July he got himself shipping tickets for a sea trip planned to last several weeks, which was to have begun in September. So sure was he of a peaceful further development.

During these 10 months up to the time he was called to Berlin


Jodl was not introduced to the Fuehrer until 3 September 1939, i.e., only after the war had begun, at a time when what had to be decided had already been decided.

From then on his official position brought him close to Adolf Hitler. One must actually add, close to him physically only. He was never really close to him. Now, too, he did not learn Hitler's plans and intentions, and was only let into them as the occasion arose to the extent that his work absolutely demanded. Jodl never became Hitler's confidant and never had cordial relations with him. It remained a purely official relationship and often enough one of conflict.

In other ways too, Jodl had remained a stranger to the party. There is no idea of his having sought contact in Vienna, for instance, with the party leaders there, although this would have been natural enough.

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Most of the party leaders and most of the defendants he came to know only when they visited the Fuehrer's headquarters from time to time. With the exception of the officers, he continued to have no relations with them. The party clique in the headquarters he hated and considered it an unpleasant foreign body in the military framework. He never ceased to fight against party influences in the armed forces.

He still did not participate in party functions. He did not participate in Reich party rallies, apart from the fact that he once watched the Wehrmachts' exhibition there, having been ordered to officially. He avoided every one of the Munich anniversaries on 9 November.

The prosecutor repeatedly brought in his Gauleiter speech to prove that, in spite of all this, Jodl identified himself with the party and its efforts, that he was after all not a soldier but a politician, and that he was an enthusiastic supporter of Hitler's.

Here one must first note, the document L-172 which is presented to us as this Gauleiter speech is not the manuscript but a collection of materials put together by his staff, on the basis of which Jodl then drafted his manuscript. Over and above this, the speech was made extemporaneously; not a single word of this document proves that Jodl really spoke it.

Also the occasion of the speech must be taken into account. After four hard years of war, after the breaking off of Italy which had just taken place and before the fresh, terrific burden which Hitler planned to impose on the population as the extreme effort at this critical moment everything depended on the peoples' will to continue remaining intact. For this reason, the party tried to get expert information upon the war situation so as to



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