Then it says under the date of 10 February:

Then perhaps one other passage; from the next document, on Page 4 of the document book, again the same diary, Document Number 1809-PS, the entry of 25 May 1940:

Did you, even at that time, have misgivings about the dangers of this dualism that you just mentioned?

JODL: As a man very well versed in history, I had many misgivings about this. Not only did I have misgivings, but even during the war I quite openly expressed these misgivings to Himmler and Bormann.

DR. EXNER: How did it come about that Himmler acquired more and more influence in military spheres?

JODL: That can be explained by the fact that the Führer had the feeling—which perhaps on the whole was right—that a large section of the officer corps opposed his ideas. He saw in this attitude not only an inner political danger but also saw in it a danger to victory, which he believed was to be attained only through ruthless methods.

DR. EXNER: And what practical results came about through this?

JODL: The practical results were these: The SS units were multiplied tremendously; the Police received authority which extended even into the operational sphere of the Army, and later, the Higher SS and Police Leaders were created; the intelligence service was transferred to the SS—where, by the way, it was organized by Kaltenbrunner far better than before—the reserve army was put under the jurisdiction of Himmler, and, in the end, also the entire Prisoners of War Organization.

DR. EXNER: In your diary you express satisfaction at the appointment by the Führer of General Von Brauchitsch as the Commander-in-Chief of the Army. At that time there was a choice between him and General Reichenau. Why were you glad that Brauchitsch was chosen?

JODL: General Von Reichenau was known as a truly political general, and I was afraid that he might perhaps have no scruples in sacrificing all the good old tradition of the Army to the new regime.

DR. EXNER: I should like to refer in this connection to Jodl’s diary, Document Number 1780-PS, Page 6, first volume, with the entry of 2 February 1938, second paragraph, and again to the entry of 3 February 1938 to be found on Page 7, where he appears particularly happy:

THE PRESIDENT: I do not think you need read this. It simply says that he is in favor of Von Brauchitsch.

DR. EXNER: You thought about the particular consequences for the generals concerned in case Von Reichenau were appointed?

JODL: Yes. There was no doubt that the senior generals, such as Rundstedt, Bock, Adam, List, Halder, and so on, would never have subordinated themselves to Von Reichenau.

DR. EXNER: After this introduction, let us turn to the crimes against the laws of war and humanity which have been charged against you. There is very little time left. Therefore, I should like to clarify your participation in the Commissar Decree. A draft by the High Command of the Army on the treatment of Soviet commissars was submitted to you, and you put a notation in the margin of this draft on the grounds of which the Prosecution has accused you...

THE PRESIDENT: What is the number of the document?

DR. EXNER: The number of the document is 884-PS, Exhibit Number USSR-351, Page 152, second volume of my document book. The whole is a set of notes on a report.

[Turning to the defendant.] Perhaps you can tell us this first of all: What connection did you have with this matter, that is, with the treatment of commissars?

JODL: I did not participate in preparing this draft. I was not concerned with prisoners of war nor with questions of martial law at that time. But the draft was submitted to me before it was transmitted to Field Marshal Keitel.

DR. EXNER: All right. Now you added: “We must count on retaliation against German fliers. It is best, therefore, to brand the entire action as retaliation.”

What do you mean by this statement?

JODL: The intention of the Führer which was set forth in this draft was rejected unanimously by all soldiers. Very heated discussions took place about this also with the Commander-in-Chief of the Army. This resistance ended with the characteristic sentence by the Führer: “I cannot demand that my generals should understand my orders, but I do demand that they follow them.” Now, in this case, by my notation I wanted to indicate to Field Marshal Keitel a new way by which one might possibly still circumvent this order which had been demanded.

DR. EXNER: The Prosecution, as you probably remember, have made this order the subject of such a serious charge against the German military authorities because it was drafted before the beginning of the war. These notes are dated 12 May 1941, and there you say: “It is best to brand the entire action as retaliation.” What did you mean by that?

JODL: It is correct that, because of his ideological opposition to Bolshevism, the Führer counted on the possible authorization of the commissars (decree) as a certainty. He was confirmed in this belief, and gave his reasons by saying: “I have carried on the war against Communism for 20 years. I know Communism, but you do not know it.” I must add that we as well were, of course, to a certain extent under the influence of what had been written in the literature of the entire world about Bolshevism since 1917. We also had had some experiences, for example, the Räte Republic in Munich. Despite that, I was of the opinion that first of all we should wait and see whether the commissars would actually act as the Führer expected them to act; and if his suspicions were confirmed, we could then make use of reprisals. That was what I meant by my notation in the margin.

DR. EXNER: That is to say, you wanted to wait until the beginning of the war; then you wanted to wait until you had had experiences in this war; and then you wanted to propose measures which, if necessary, could be considered as reprisals against the methods of fighting used by the enemy. Was that what you meant when you said: “It is best, therefore, to brand the entire action as retaliation”? What do you mean by “Man zieht auf”? These words were translated by the Prosecution as...

MR. G. D. ROBERTS (Leading Counsel for the United Kingdom): My Lord, in the examination of my learned friend, Dr. Exner, he has for several minutes now been asking the defendant very long leading questions as to what was the meaning of the passage in that letter. In my submission, that is not evidence at all by the witness; it is a speech by Dr. Exner, and I would ask him not to make another one now.

DR. EXNER: I still think that it is necessary in the presentation of evidence to determine what the defendant thought when he wrote those words.

THE PRESIDENT: You have heard me say on several occasions that when counsel ask leading questions, which put the answer into the mouth of the witness, it carries very little weight with the Tribunal. It is perfectly obvious that if you wanted to ask what the witness meant by his note he could have answered; and that is the proper way to put the question, and not to suggest the answer to him.

DR. EXNER: First of all I put the question, and then I believe I was summarizing the main points of what the witness said.

There is also a difficulty here with translation which I should like to overcome; that is, I am not sure about it. “Es wird aufgezogen” or “man zieht es am besten auf als Repressalie” is translated as, “It is best therefore to brand” in English, and in French as stigmatiser. It seems to me as though this were not quite correct, and as though one should say, “It is best to handle it as a reprisal,” and in French to say traiter.

[Turning to the defendant.] Then what happened?

JODL: I believe one should further explain the expression “aufziehen.” The German word “aufziehen” also has something doubtful about it. It has been said that that was a typical military expression used by the Defendant Jodl at that time. That does not mean, as is assumed by the Prosecution, “to camouflage.” Rather, I would say literally: “I believe we must handle this operation quite differently,” that is, tackle it in a different way. We would say that we would handle the demonstration to the Führer of new weapons in a different way; that means, for instance, “in a different sequence; in a different manner.” Among us soldiers “aufziehen,” to handle, meant exactly the same as “to tackle” or “to arrange” something. But it did not mean “to deceive.”

DR. EXNER: You mean that the word “aufziehen” has no secondary meaning indicating deception?

JODL: No.

THE PRESIDENT: We will adjourn now.

[The Tribunal adjourned until 4 June 1946 at 1000 hours.]

Morning Session

[The Defendant Jodl resumed the stand.]

DR. EXNER: General, yesterday afternoon we started dealing with war crimes, but today I should like first of all to put a few preliminary questions to you. What position and what tasks were yours during the period of the war?

JODL: I had to deal with the entire general staff work concerning the strategic operational conduct of the war. Then, subordinate to me was the military propaganda department, whose duty it was to co-operate with the press; and thirdly, I was head of an office which, speaking broadly, had to distribute means of communication to the various branches of the Wehrmacht. The whole of this sphere of work took up my time to such an extent that as a rule I worked night after night, until 3 o’clock in the morning. I had no time at all to concern myself with other things. I already had to delegate to my personal adjutant almost all my work with the press, which had to receive daily information.

DR. EXNER: These tasks, which you have just named, were all tasks connected with your office, and that was the Armed Forces Operations Staff, of which you were chief, is that not so?

JODL: Yes, of which I was chief.

DR. EXNER: And one department of the Operations Staff, the main and most important one, was the operations department?

JODL: Yes, operations.

DR. EXNER: And most of your tasks were concerned with this department. The Prosecution say you were Chief of Staff to Field Marshal Keitel. Do you agree?

JODL: That is not correct as has already been shown by the organization which was explained here during Field Marshal Keitel’s case. There is a great difference. As Chief of Staff, I would have been Field Marshal Keitel’s assistant, concerned with all of his duties. I was, however, only the chief of one of the many departments subordinate to Field Marshal Keitel.

Beginning with the year 1941 it became the practice for me and my operational branch to report to the Führer direct on all matters concerned with strategics, while Field Marshal Keitel, using my quartermaster department as a sort of personal working staff, took over all other tasks.

DR. EXNER: Did you, as Chief of the Armed Forces Operations Staff, have authority to issue orders?

JODL: No—or rather only through my working staff. I was subordinate to Field Marshal Keitel, and even Keitel himself was not a commander but only the chief of a staff. But in the course of this war I naturally decided many operational details myself and signed them myself. There was no disagreement of any sort in these matters with the commanders-in-chief for I had their confidence, and I worked on the best possible terms with them.

DR. EXNER: For someone on the outside it is not quite easy to understand that even though you had no authority to issue orders, so many orders have been submitted here which were, in fact, signed by you, and signed in different ways—sometimes with your full name, sometimes with a “J,” the first letter of your name. Please explain these differences.

JODL: One must differentiate as follows: The decrees which the Führer himself signed, if they were of an operational nature, bear my initial at the end, on the lower right; and that means that I at least assisted in the formulation of that order. Then there were orders which also came from the Führer, though they were not signed by him personally, but were signed “by order, Jodl”; but they always had at the beginning the sentence, “The Führer has decreed,” or that sentence was found somewhere in the course of the order. There would be a preamble, usually giving reasons for the order, and then, it would read: “The Führer has therefore decreed.”

DR. EXNER: And what was the difference between these two groups of orders? Why was one group of orders signed by the Führer, and the other only by you?

JODL: The difference was merely that the orders signed by me were of less importance.

DR. EXNER: Now, there were other orders which did not begin with “The Führer has decreed,” but were signed by you nevertheless. What about these?

JODL: These orders were as a rule signed: “The Chief of the High Command of the Armed Forces, by order, Jodl.” These were orders which emanated from me, that is, I or my staff formulated them. The Führer himself and Field Marshal Keitel had perhaps been informed of these orders, but not in every case.

Then there were other orders, which bear my initial on the first page, in the upper right-hand corner. Those were orders issued by other departments. My initial “J” on the first page was merely an office notation to show that the order had been submitted to me. But it did not mean that I had read it for if, on perusing the first page, I saw that the decree dealt with a matter not connected with my sphere of work, then I initialed it and put it aside, because I had to save time.

DR. EXNER: Now, there is another large volume of documents, of which some are being used as very incriminating evidence against you; they are not orders but summarized notes. Can you comment on these?

JODL: These summarized notes were an arrangement used on higher staff levels for the convenience of people who had not time to study enormous files. The summarized notes contained, in a short condensed form, a description of some matter or other, frequently the views taken by other departments and sometimes even a proposal. The important point, however, is that it was not an order; it was not a draft of an order, but it formed the basis for an order.

DR. EXNER: Perhaps the situation will best be clarified if you can explain this to the Tribunal in connection with the draft notes concerning the commissars, which were touched on yesterday. It is 884-PS, Exhibit USSR-351; Volume II of my document book, Page 152.

Before you start I should like to call the attention of the Tribunal to an error in the translation. On Page 152, under Figure I, it says:

The English translation says: “The Army High Command presents a statement...”; but it is a draft. And I cannot quite follow the French; it says: Confirmation des instructions. It should obviously be projet.

In any case the German original says:

And these are the commissars. The whole of this is a condensed draft. Will you please explain what it means?

JODL: This document is a typical example. First of all it contains the draft by another department of the Army High Command, not verbatim, but in a brief, condensed form. Then, secondly, under Figure II, on Page 153, the views of another department—that of Reichsleiter Rosenberg’s—are set forth. Then, under Figure III, it contains a proposal of my own staff.

The whole matter, therefore, is far from being an order; it is to become one. And on a summarized draft like that, I naturally made very many, I might say, cursory marginal notes to serve as a guide for the further treatment and discussion or disposal of the whole question. Therefore one cannot apply to this the same criteria as would be applied to the well-considered words contained in an actual order.

DR. EXNER: All right. So much for the summarized draft and your notes.

Now we turn to the very delicate topic of the Commando Order. This matter has been dealt with here on various occasions; and indeed, it goes beyond this Court in its importance and its repercussions, as we know from the newspapers.

I should like to hear from you something about the factors that led to this order. This order is Document 498-PS, Exhibit Number USA-501. I do not have it in my document book, but I asked the General Secretary to have it put at the disposal of the Tribunal in the various languages. I hope this has been done.

Then there is an explanatory decree in addition to the main order; both are signed by the Führer. That is Document 503-PS, Exhibit Number USA-542.

MR. ROBERTS: It is 498-PS. It is in the Keitel and Jodl Document Book, Number 7, Page 64.

DR. EXNER: The first order is addressed to the troops; the second is an explanatory order addressed to the commanders-in-chief. The first order threatens enemy soldiers with death if they engage in bandit-like warfare; and it refers to the Wehrmacht communiqué in this connection.

Can you first explain the connection between the Commando Order and the Wehrmacht communiqué of 7 October ’42?

JODL: May I ask the Tribunal to permit me, as an exception, to go into greater detail. Very much depends on this order; not my person, my own person does not matter in this Trial, but the honor of German soldiers and German officers whom I represent here is in question.

The Commando Order is inseparably linked with the announcement in the Wehrmacht communiqué of 7 October 1942, for this announcement in the Wehrmacht communiqué heralded the actual Commando Order.

DR. EXNER: And who was responsible for this announcement in the Wehrmacht communiqué? Who wrote it?

JODL: This Wehrmacht communiqué of 7 October 1942—it was really a supplement to the communiqué—emanated in the main from me. It deals with the denial of a report by the British Ministry of War, a matter which I will not discuss further, for it is a very delicate point. The Prosecution especially does not wish it to be brought up.

DR. EXNER: But this supplement...

THE PRESIDENT: Dr. Exner, we do not know—at least I have not seen the document of 7 October 1942, and the Prosecution has made no objection to any answer to any English documents as far as we know.

DR. EXNER: I wished to submit this document but objections were raised.

THE PRESIDENT: What does the defendant mean by saying that the Prosecution does not wish him to present it or to answer it?

DR. EXNER: He probably refers to the fact that we were not allowed to present this Wehrmacht communiqué; but he can give us the contents of it briefly.

THE PRESIDENT: Well, it may be a question of translation, but if he means simply that no evidence has been given by the Prosecution on the subject, of course, there is no objection to his saying that; but when he says that the Prosecution does not want him to put forward or does not want him to answer the document, that is a most improper statement to make.

DR. EXNER: Yes, I understand.

[Turning to the defendant.] Perhaps you can tell us briefly the contents of this Wehrmacht communiqué of 7 October 1942. I believe you have it in your own document book.

THE PRESIDENT: No, but, Dr. Exner, that is not quite what I mean. What the defendant has said was that the Prosecution does not want him to deal with this subject.

DR. EXNER: Yes.

THE PRESIDENT: Now, if that is the remark that is made, that is an improper remark to make. The Prosecution have no communication with the Defense upon this subject, presumably, except that they have put it forward in the evidence in this case.

DR. EXNER: [Turning to the defendant.] Did you understand? You must not say that you are not allowed to touch upon this subject. Perhaps you will give us an explanation of what you meant?

JODL: This communiqué is in direct connection with the Commando Order. Only the last paragraph of this Wehrmacht communiqué is important. It was written by the Führer himself, as Field Marshal Keitel has already stated, and Professor Jahrreiss read it here before the Tribunal. It is the sentence which reads:

This sentence was written, word for word, by the Führer himself.

DR. EXNER: And then you were instructed to issue a detailed order to that effect...

THE PRESIDENT: Wait a minute. Wait a minute.

Defendant, what the Tribunal wants to know is this: You said that the Commando Order appeared originally in a Wehrmacht report of the 7th of October 1942 which, in the main, emanated from you, and that that report refuted an English statement by the Ministry of War which the Prosecution did not want you to deal with. What do you mean by that?

JODL: By that I meant that my defense counsel intended to submit the entire Wehrmacht communiqué of 7 October 1942 as a document in evidence. But he refrained from doing so when the Prosecution objected to the document.

SIR DAVID MAXWELL-FYFE: My Lord, I have certainly never objected to this document. I have asked Mr. Roberts and he tells me that he has never objected to it; and, as far as we know, no one on behalf of the Prosecution has ever objected to it. I certainly have no objection to it at all myself; as a member of the English Government at the time when this matter was issued, I have never heard anything about it before; but I have no objection to it at all.

DR. EXNER: May I say something?

THE PRESIDENT: Yes.

DR. EXNER: If there has been a misunderstanding here, we shall be all the more pleased, and we shall submit this Wehrmacht communiqué either this afternoon or tomorrow.

I should like to clarify one point regarding the question which Mr. President put to the defendant. The defendant said that the Wehrmacht communiqué, in the main, emanated from him, but that the Führer wrote the supplementary sentence...

THE PRESIDENT: Dr. Exner, if you want to correct anything that I have said you must do it through the witness and not through yourself. You are not entitled to give evidence. You only give evidence through the witness.

DR. EXNER: Yes.

[Turning to the defendant.] Please, state once more which part of the Wehrmacht communiqué you wrote and which part was added by the Führer.

JODL: The entire first part of this Wehrmacht communiqué has nothing whatever to do with Commando troops, but is concerned with the well-known affair of the shackling of German prisoners of war on the beach of Dieppe. I shall refer to that again later.

THE PRESIDENT: You mean that I was correct in saying that in the main it emanated from you?

JODL: Yes, absolutely. The first part of this Wehrmacht communiqué was formulated by me and contains an authentic refutation of a statement of the British Ministry of War broadcast by the British radio.

This statement of the British Ministry of War was false, and I established the reasons why it was false on the basis of records, photographs, and affidavits which we possessed. Initially this affair had nothing to do with Commandos and reprisals. That was only introduced into the Wehrmacht communiqué through the supplement by the Führer, which begins with the sentence: “The High Command of the Wehrmacht is therefore compelled to decree the following.”

DR. EXNER: And it was considered necessary to make this announcement known in the Wehrmacht communiqué in an executive order. Did the Führer demand from you drafts for an executive order?

JODL: When the Führer had written this last supplementary sentence, he turned to Field Marshal Keitel and to me and demanded an executive order to follow this general announcement in the Wehrmacht communiqué. And he added: “But I do not want any military courts.”

DR. EXNER: Did you make a draft?

JODL: I had very many doubts which a careful study of the Hague rules of warfare could not dispel. Neither Field Marshal Keitel nor I prepared such a draft; but members of my staff, on their own initiative, asked for drafts and for the views of various departments. Thus Document 1263-PS came into being, to which I shall return later.

THE PRESIDENT: That is Document 1263-PS?

DR. EXNER: 1263. It is Page 104, Volume II of my document book, 1263-PS, RF-365; but we shall deal with that later.

THE PRESIDENT: Did you say Page 204?

DR. EXNER: No, Page 104, Volume II.

[Turning to the defendant.] Please continue.

JODL: My wish was an entirely different one. It was my intention to avoid an order altogether, and I rather expected that as a result of the announcement in the Wehrmacht communiqué—an announcement which was certainly not kept secret but which was broadcast over the air to the entire world—the British Ministry of War would approach us again, either directly or via Geneva, as it had done on several previous occasions. And I hoped that in this way the whole matter would be shifted to the sphere of the Foreign Office. However, that did not happen. The British War Ministry remained silent.

In the meantime 10 days had passed and nothing had been done. Then on 17 October General Schmundt, the Chief Adjutant of the Führer, came to me and said that the Führer was demanding an executive order. I gave him the following answer, word for word:

And with that he left. I hoped now that I would be asked to come to the Führer, so that at last, after many months, I should again be able to speak to him personally.

DR. EXNER: And this coincided with the Vinnitza crisis?

JODL: Yes. I wanted an opportunity either of telling him my misgivings or else being thrown out altogether. Either eventuality would have helped me but neither occurred. A few minutes later Schmundt called me on the telephone and informed me that the Führer was going to draw up the orders himself. On 18 October Schmundt again came in person and brought with him these two orders of the Führer—the order to the troops, and an explanation for the commanders.

THE PRESIDENT: Are you referring to two documents which are before us?

JODL: These are the two documents, 498-PS and 503-PS. The papers submitted to the Tribunal as documents are not the originals of the Führer; I personally handed over the originals at Flensburg. The documents which are in the hands of the Tribunal are copies of the originals, or mimeographed copies of my staff.

DR. EXNER: Now, I should like to interpolate a question. You mentioned that your staff worked out something in detail, and you referred to 1263-PS, which has been submitted to the Tribunal—Page 104 of Volume II. In this document you wrote two remarks on Page 106. The first remark on that page is “No.” In the French translation this non is missing, and should be added. On the same page a little further down, it says in your own handwriting, “That will not do either,” and your initial “J” for Jodl.

Can you explain in general what this means?

JODL: As I have already said, the members of my staff—as may be seen under the first figure on Page 104—on their own initiative asked for proposals, firstly, from the foreign intelligence department, Canaris, because he had a group of experts on international law and, secondly, from the Wehrmacht legal department, since, after all, we were concerned with a legal problem.

On Page 106, under paragraph “a,” there is the proposal which the foreign division of the intelligence department made:

That was quite impossible, for if one came across a soldier in civilian clothing, without uniform, no one could know just who he was. He might be a spy or an escaped prisoner-of-war or an enemy airman who had saved his life by jumping from his plane and now hoped to escape in civilian clothing. That had to be determined by an experienced interrogating officer and not by a summary court martial consisting of a lieutenant, two noncommissioned officers, and two soldiers. In paragraph “b”...

DR. EXNER: And for that reason you wrote “No”?

JODL: For that reason I wrote “No.”

In paragraph “b” it was suggested that if such sabotage groups were captured wearing uniforms, a report should be made to the Armed Forces Operations Staff, which should then decide what should be done. But in that case the Armed Forces Operations Staff would have assumed the function of a military court, and that it could never be.

I really must claim for myself that, thanks to my wider experience, I saw these problems a little more clearly than some of my subordinates.

DR. EXNER: And so you rejected this proposal. You said that you also had grave misgivings about the Führer Order. Will you tell the Court now what misgivings you had?

JODL: First of all I had a number of doubts as to its legality. Secondly, the order was ambiguous, and also it was not sufficiently clear for practical application. Particularly in this case I considered military courts absolutely necessary. I know well that even judges may on occasion, consciously or not, be under coercion and may pass judgment not strictly in accordance with the law; but at least they provide some safeguard against a miscarriage of justice.

DR. EXNER: Therefore, if I understand you rightly, you wanted to install some legal procedure. What did you mean by unclear and ambiguous?

JODL: The theory was that soldiers, who by their actions put themselves outside the laws of war, cannot claim to be treated in accordance with the laws of war. This is a basic principle definitely recognized in international law, for instance in the case of a spy or a franc-tireur.

The aim of this order was to intimidate British Commando troops who were using such methods of warfare. But the order of the Führer went further and said that all Commando troops were to be massacred. This was the point on which I had grave misgivings.

DR. EXNER: What legal doubts did you have?

JODL: Just this doubt—that on the basis of this order, soldiers also would be massacred...

THE PRESIDENT: Defendant, it is not necessary to speak so slowly, if you can speak a little bit more fast.

JODL: I was afraid that not only enemy soldiers who, to use the Führer’s expression, really behaved like bandits, but also decent enemy soldiers, would be wiped out. In addition—and this was especially repugnant to me—at the very end of Document 503-PS it was ordered that soldiers were to be shot after they had been captured and had been interrogated. What was totally unclear to me was the general legal position, namely, whether a soldier who had acted like a bandit would upon capture enjoy the legal status of a prisoner-of-war, or whether on account of his earlier behavior he had already placed himself outside this legal status.

DR. EXNER: By that you mean the Geneva Convention?

JODL: Yes, I mean the Geneva Convention.

DR. EXNER: Could you understand the idea that enemy soldiers who had acted in an unsoldierly manner should not be treated as soldiers?

JODL: Yes, I could quite understand that, and so could others, for the Führer had received very bitter reports. We had captured all the orders of the Canadian brigade which had landed at Dieppe, and these orders were put before me in the original. These orders said that, wherever possible, German prisoners were to have their hands shackled. But after some time, through the Commander, West, I received authentic reports and testimony of witnesses, with photographs, which definitely convinced me that numerous men of the Todt Organization, fathers of families, unarmed, old people, who were wearing an arm band with a swastika—that was their badge—had been shackled with a loop around their necks and the end of the rope fastened around their bent-back legs in such a way that they had strangled themselves.

I may add that I kept these photographs from the Führer, and I did not tell him of these aggravating incidents which to me had been proved. I concealed them from the German people and from the Propaganda Ministry. Then came the English radio report denying emphatically that any German soldier had been shackled at Dieppe.

Some time later, a Commando troop made an attack on the island of Saercq. Again we received official reports that German prisoners had been shackled.

Finally we captured the so-called British order for close combat. That was the last straw for the Führer; I also studied it very carefully. These close-combat instructions showed by pictures how men could be shackled in such a way that they would strangle themselves through the shackling, and it was stated exactly within what time death would occur.

DR. EXNER: Therefore, the reasons which Hitler gave for his Order 498 were actually based on reliably reported facts. I remark that Hitler referred to prisoners who had been shackled, prisoners who had been killed, and that criminals, as Commandos...

THE PRESIDENT: You are paraphrasing the evidence in a way that is inaccurate, because the defendant has just said that he kept these things from Hitler. You are now saying that Hitler knew about them. That is not what the witness said.

DR. EXNER: Then, I must ask you whether the facts upon which this order is based were reported to you.

JODL: I believe the Tribunal has Document 498-PS. In it the Führer first makes the general statement that for some time our opponents in their conduct of the war have been using methods which violate the international Geneva Convention. I must support this statement as true on the basis of reports which, regrettably, we had been receiving since the summer of 1941. I do not wish to go into individual cases. There was an outrageous incident with a British U-boat in the Aegean Sea. There was the order in North Africa that German prisoners of war should not be given water before they were interrogated. There were a large number of such reports.

THE PRESIDENT: Defendant, the Tribunal thinks that it is very difficult to go into individual incidents which occurred long before this order was drafted, and you have told us what you said the order was drafted in respect of, namely the shackling; and you are now referring to other things which you allege happened long before that. It does not seem that it is possible for the Tribunal to investigate all those matters which happened long before.

JODL: And I do not want to speak about these matters any longer. I only want to point out, as I think I must, that generally speaking the reasons given by the Führer for this order did not spring from a diseased imagination but were based on actual proof in his and in our possession. For it is certainly very different whether I, in my own mind, had to admit there was some justification for this order or whether I considered the whole order an open scandal. That is a vital point for my own conduct. But I shall try to be very brief. The fact that many previously convicted persons and criminals were included in the Commandos, who were of course reckless people, was proved by the testimony of prisoners; and the fact that prisoners were shackled was obvious from captured orders and the testimony of witnesses.

THE PRESIDENT: You have told us that already. We have heard that more than once—that you had evidence before you that prisoners were shackled and that you had the Canadian orders before you.

DR. EXNER: Perhaps you can just say a few words on the subject of killing prisoners.

JODL: In conclusion, I want to say that I did not see any order, any captured order, which decreed death for German prisoners of war, though this was also contained as a reason in the Führer Order. But I must explain that the British Ministry of War advised us—I cannot recall exactly whether it was via Geneva or through the radio—that situations might very well arise in which prisoners of war would have to be killed—no, rather, in which prisoners of war would have to be shackled because otherwise one would be forced to kill them. And so, if at the end here the Führer says orders have been found according to which the Commandos were on principle to kill prisoners, then I think he is referring to the British close-combat instructions which described a method of shackling which would cause death.

DR. EXNER: And that was your own part in this Commando Order?

JODL: My part consisted only in distributing this order, or having it distributed, in accordance with express instructions.

DR. EXNER: The Prosecution said once that you also signed this order—one of these two orders, I do not know which one. That is not correct?

JODL: No, I signed only a general decree to have one of the orders kept secret.

DR. EXNER: Yes, we will deal with that in a moment. Could you have refused to transmit this order?

JODL: No, if I had refused to transmit an order of the Führer, I would have been arrested immediately; and I must say, with justification. But as I said, I was not at all sure whether this decree, either in its entirety or in part, actually violated the law; and I still do not know that today. I am convinced that if one were to convene here a conference of experts on international law, each one of them would probably have a different opinion on the subject.

DR. EXNER: General, you can speak a little faster.

Could you have made counterproposals?

JODL: At any other time, probably yes. At that time, however—a time of conflict with the Führer—it was not possible for me to speak to him personally at all. To broach the subject during the general conference on the situation was quite out of the question. Therefore I intended in the execution of this order to adopt a very magnanimous attitude, and I was certain that the commanders-in-chief would do the same.

DR. EXNER: And what do you mean by magnanimous? Could this order have been interpreted in different ways?

JODL: Yes. The order offered two ways of avoiding the treatment of really decent soldiers like criminals. If a Commando troop, mostly encountered in fights at night, was not wiped out but captured, as was the rule in almost all cases, that was already certain proof that our troops did not consider these men as bandits. It was then the task of the commanders-in-chief to make an investigation. If it was purely a reconnaissance operation, the entire action did not fall within the sphere of the Commando Order at all and would not be reported as a Commando raid. However, if the operation was really carried out by a sabotage and demolition unit, its equipment had to be examined. It had to be investigated whether the men were wearing civilian clothing under their uniforms; whether they were carrying the famous armpit guns, which go off automatically when the arms are lifted in the act of surrender; or whether they used other despicable methods during the fighting. The commanders-in-chief could then act in accordance with the outcome of such an investigation. I believe that in that way it was quite possible—and in fact it happened many times, I might almost say in the bulk of cases—that the shooting of brave, decent soldiers was avoided.

DR. EXNER: Could you yourself exert any influence on the practices followed by the troops?

JODL: I tried to exert my influence on various occasions. When it was reported to me that a Commando unit had been captured—which according to the Führer decree was not allowed—then I raised no questions or objections. I made no report at all to the Führer on Commando operations which met with only minor success. And finally, I often dissuaded him from taking too drastic views, as in the Pescara case, which Field Marshal Kesselring has already described here, when I succeeded in convincing the Führer that only a reconnaissance unit was involved.

DR. EXNER: Were many units actually wiped out?

JODL: Commando operations decreased considerably as a result of the public announcements in the Wehrmacht communiqué. I believe that not more than 8 or 10 cases occurred in all.

For a time, during the months of July and August 1944, increasingly large numbers of terrorists were reported killed in the Wehrmacht communiqué; these, however, were not Commando troops, but insurgents who were killed in the fighting in France. That may be proved if the Tribunal will read Document 551-PS, Figure 4. There the order is given—it is USA-551, on Page 117.

MR. ROBERTS: My Lord, it is Page 70 of Book 7.

JODL: Or Page 117 of our Volume II. There it is ordered...

DR. EXNER: What is ordered? I should like to deal now with another document, Document 532-PS.

THE PRESIDENT: It is time to break off.

[A recess was taken.]

DR. EXNER: With reference to the Commando Order, I want to mention Document 532-PS, Exhibit Number RF-368, which is in our Document Book 2, Page 113.

This document was offered on a previous occasion, and I objected to it because it was not signed, or rather because it was crossed out.

Will you explain why you crossed out the draft order which is contained in this document?

JODL: Immediately before this draft order was written, the Commander, West requested that now, after the invasion, the Commando Order should be rescinded altogether. I approved that proposal. A draft was submitted to me here which rescinded the order only partially, namely in regard to the immediate area of the beachhead and that part of Brittany, a little further from the beachhead, where landings by parachutists were taking place daily at that time.

THE PRESIDENT: At the time of your objection was this document not rejected? You told us that you objected to the document. What I am asking you is, what did the Tribunal do upon your objection? Did they maintain it, or did they deny it?

DR. EXNER: The objection was allowed, and I think the document was struck off. I do not think that I am mistaken.

THE PRESIDENT: Well, why are you putting it in now?

DR. EXNER: I did not ask at the time to have the document struck off. I merely raised the objection that no mention was made of the facts that the draft order in the document was crossed out, and that it clearly bore a handwritten marginal note by Jodl rejecting it.

THE PRESIDENT: Just a minute. Either the document was offered in evidence or it was not; and either it has got an exhibit number or it has not; and, as I understand, your objection was rejected.

MR. ROBERTS: It was in fact objected to by Dr. Exner, after having been given the French Exhibit Number RF-368; and after discussing it, it was then stricken from the record, the English shorthand note reference being Page 3631 (Volume VI, Page 360). My Lord, I think in fact both the Prosecution and the Defense agreed it has Jodl’s writing upon it; and, therefore, I feel certain that there can be no question as to its admissibility, either on behalf of the Prosecution or the Defense. My Lord, I certainly intend, with the permission of the Tribunal, to cross-examine him about it; and I have not the slightest objection to my friend Dr. Exner putting it in.

THE PRESIDENT: Very well. It may, therefore, be left in as RF-368.

DR. EXNER: Will you continue?

JODL: At that time it was my intention to get rid of the Commando Order entirely. For that reason I wrote, next to the sentence under Figure 4: “That is just what they should not”—the entire first page. That was of no use, however, because on that very day the Führer made a different decision with regard to the request of the Commander, West, and his decision is contained in Document 551-PS.

DR. EXNER: 551-PS, Exhibit Number USA-551. That is contained in the second volume on Page 115; it is an order on the treatment of men belonging to Commandos. This order contains the following handwritten remark of yours: “Similar action should be taken in the Italian theater of war.” This is on Page 117.

Will you briefly explain the contents of that order and the reason for your remark.

JODL: That can be quickly explained. In that order territorial limits were set restricting the use of the Commando Order, which henceforth was to apply only to enemy operations behind the corps command posts but not to the battle area of the beachhead. These were territorial limitations which had not so far been fixed or ordered; and I immediately accepted this order for the Italian theater of war, because in Italy also there existed a fighting front on land. If this order were put into practice in Italy, it would mean that no Commando operation which began with a landing on the coast need be regarded as a Commando operation, because all these landings took place in front of the lines of the corps command posts. Therefore I was very anxious to have the same lighter conditions applied to the whole Italian theater of war.

DR. EXNER: I just want to read one paragraph on Page 116. It is the second paragraph under Number 1. In the first paragraph it says: “...the order remains in force....” But the second paragraph reads: