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for those which are explicitly named in the Charter. Article 6 a specifies the crimes against peace, paragraph b crimes against the laws and usages of war. Other actions, even if they are contrary to international law, do not belong here.

Quite a few court sessions could have been saved if the Prosecution had taken these two points into account right from the beginning. Because as is to be shown yet-there is a tendency to accuse the defendants beyond these limits of actions contrary to international law which are not specified in the Charter; but this is not all, they are to be called to account also for deeds which are not at all contrary to law, but which can at most be considered as inethical.

In the following points I stick to the clear arrangement of the Anglo-American trial brief and add to it what was brought up against Jodl by the two other prosecutors.


Point 1, the collaboration in the seizure and consolidation of power by the National-Socialists has-as already pointed outbeen dropped.

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Points 2 and 3 concern rearmament and the reoccupation of the Rhineland. Jodl had nothing to do with the introduction of general compulsory military service nor with rearmament.

Jodl's diary contains not a single word about rearmament. He was a member of the Reich Defense Committee, which was not, however, concerned with rearmament questions. He was here concerned with the measures which were to be taken by the civil authorities in case of mobilization. There was nothing illegal in that. We were not forbidden to mobilize, for instance, in case of an enemy attack. The preparations in the demilitarized zone which were proposed to the committee by Jodl limited themselves also to the civil authorities and consisted only of preparation for the evacuation of the territory west of the Rhine in order to defend the line of the river Rhine in case of a French occupation. The preparations were purely of a defensive nature.

If, in spite of that, Jodl recommended that these defensive measures be kept very strictly secret this is not evidence of any criminal plans, but only the natural thing to do. As a matter of fact, particular caution was imperative, for the French occupation of the Ruhr was still fresh in peoples' memory.

-Neither had Jodl anything to do with the occupation of the Rhineland. He learned about it only five days before the execution of this decision of the Fuehrer's. Further statements are superfluous for according to the Charter neither rearmament nor the occupation of the Rhineland-whether they were contrary to in


nigg so that he should comply with the Obersalzberg agreements. There is nothing illegal in this, even if the prosecutor speaks about "criminal methods."

Jodl was completely surprised 2 days before its execution by the Fuehrer's decision to march in. The Fuehrer gave this order to march in by telephone. Jodl's written order served only to file it. If this had been the authoritative order, it would after all have come much too late. It was issued at 0900 hours on 11 March and the march in took place on the following morning. Its course was described to us. The troops had purely peacetime equipment. The Austrians crossed the border to meet and welcome them. Austrian troops joined the columns and marched with the German troops to Vienna. It was a triumphal procession with cheers and flowers.

b. The case of Czechoslovakia follows:

As late as the spring of 1938 Hitler stated that he did not intend "to attack Czechoslovakia in the near future" (388-PS of 30 May 1938). After the partial Czech mobilization, which was unprovoked, he changed his view and decided to solve the Czech problem after 1 October 1938, and not on 1 October 1938, as long as there was no interference to be expected from the Western Powers. Jodl was therefore to make the preparations concerning the General Staff. He did it in the conviction that his work would remain theoretical because as the Fuehrer wanted under all circumstances to avoid a conflict with the Western Powers a peaceful settlement was to be expected. Jodl tried to achieve only one thing that the plan should not be interfered with by Czech provocation. And really things happened as he expected they would. After the examination by Lord Runciman had shown the untenableness of the racial conditions in Czechoslovakia and the justification of the German national point of view, the Munich arrangement with the Western Powers took place.

Jodl is reproached with having proposed in a memorandum that an incident might be "organized" as a motive for marching in. He has given us the reasons for it. But the incident did not take place. This memorandum is not a breach of international law, even if only because it is a question of internal considerations which never achieved importance outside. And even if this idea had been put into execution, such guiles have always been used, ever since the Greeks built their Trojan Horse. Ulysses the initiator of this idea is praised for this by the ancient poets as "a man of great cunning" and not branded as a "criminal." I do not see anything unethical in Jodl's behavior either, for, after all, in the


relations between states somewhat different ethical principles are applied from those in boarding schools for young Christian girls.

c. The occupation of the Sudetenland itself was carried out just as peacefully as that of Austria. Greeted enthusiastically by the liberated population, the troops entered the German areas, which had been evacuated to the agreed line by the Czech troops. Both these marchings in are not crimes according to the Charter. They were not attacks (this presupposes the use of force) still less wars (they presuppose armed fighting), let alone aggressive wars. To consider such peaceful invasions as "aggressive wars" would be to exceed even the notorious conclusion based on analogies of National-Socialist criminal legislation. The four signatory powers could have included these invasions, which were still a recent memory, in Article 6, but this was not done because it was obviously intended to restrict the completely new kind of punishment of individual persons to wars, but not to penalize such unwarlike actions. Generally speaking, it must be said, any interpretation of the penal rules of the Charter which extends them is inadmissible. The old saying applies "privilegia stricte interpretenda sunt." Here we have an example of privilegium odiosum. Indeed there has probably never been a more striking example of a privilegium odiosum than the unilateral prosecution of members of the Axis Powers only.

Now one could also get the idea of making Jodl responsible for having drafted an invasion plan against Czechoslovakia at a time when a peaceful settlement was not yet ensured. But Jodl reckoned with a peaceful settlement and had good reason to expect it. He therefore lacked the intention of preparing an aggressive war. To this statement of facts which exclude Jodl's guilt must be added a legal consideration. We have decided-and there should be no doubt about it-there is no punishment for crimes against the peace without a violation of international law. Now if the Charter makes preparations for aggressive war subject to punishment, it clearly means that a person who prepared an aggressive war which actually took place should be punished. On the contrary, war plans which remained nothing but plans do not belong here. They are not contrary to international law. International law is not concerned with what goes on in peoples' heads and in offices. Things which are immaterial from the international point of view are not contrary to international law. Aggressive plans which are not executed in the same way as mere aggressive intentions may be unethical, but they are not contrary to law and do not come under the Charter. It is here a question of plans which were not carried out because the peaceful occupation of the

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