Morning Session (continued 2)

On 20 September 1943 Keitel and Jodl had received the first intimation of the discussions between Hitler, the Foreign Office, and Himmler, in a teletype message from the German commander. Jodl had only one wish—to keep the Armed Forces out of this affair. His temperamental note on General Von Hanneken’s teletype of 3 October 1943 (Document D-647) also shows this. There he wrote: “...is a matter of complete indifference to us,” namely, whether the Reichsführer SS published the figure of the Jews arrested or not. It shows only too well that this has nothing at all to do with moral considerations, either in a positive or a negative sense.

The whole thing had nothing to do with the Armed Forces. But difficulties could arise as a result of Himmler’s action, as the Armed Forces were after all responsible for peace and order in Denmark. Such difficulties had to be headed off. The Wehrmacht could not alter the decision taken by Hitler in this police matter, and could not have altered it even if it had been competent to deal with this question.

Jodl simply informed the commander by the teletype message (Document UK-56) of the decision Hitler had taken in this police matter. And the Reichsführer SS, the Foreign Office, and the Commander-in-Chief of the Reserve Army were simultaneously informed by Jodl that he had let the commander in Denmark know. Now it was a clear case and all friction between German offices was excluded. That was all the OKW had to see to.

One cannot say that the information which Jodl gave made the execution of the order, which Hitler had decided upon apart from the Wehrmacht, any easier. It is clear to anyone who knows but a little of Hitler’s position of power that friction between German offices would in no way have prevented the thing being carried out, but would at most only have delayed it, and would certainly not have made it pleasanter for the persons affected.

May it please the Tribunal, there is an old saying in criminal law, a saying which I always find cited in foreign decisions too, that actus non facit reum nisi mens sit rea. Two things go to make a crime; the actus, the objective side of the crime, the deed, and the mens rea, the subjective side or guilt. The Prosecution is involved in an odd contradiction there; in some cases they stress the mens rea and fail to see that the criminal actus is lacking: I have shown this in the case of the above-mentioned marginal comments, which do not represent any illegal actions, but at most could allow one to infer an illegal frame of mind. In other cases the Prosecution look only at the actus, but does not ask whether a mens rea is also present. This second mistake is more dangerous, as here the outside of the crime is visible to everyone and it is often only a delicate psychological examination that can lead to the conclusion that there is no mens rea which corresponds to the actus. We will come to speak of this further on.

With regard to the action, what is meant is behavior declared criminal by the Charter. This behavior can consist of positive action or of omission. If a father sees his child drowning while bathing and does nothing to save him although he could have done so, we declare him guilty either of murder or of killing by negligence, according to the degree of his guilt. This commission of a crime by omission is important in this Trial too, for the Prosecution repeatedly stress that Jodl was present at this or that meeting, at this or that speech. On one single page of the Anglo-American trial brief the phrase “Jodl was present at...” occurs six times. What does this mean legally? Being present at and listening to things can be of great importance with regard to the evaluation of a later deed, for the doer cannot excuse himself by saying “I didn’t know” if he participated in the discussion of a plan. But mere presence does not in itself make one an accomplice. According to British law, even actual presence when a crime is committed makes one an accomplice only if encouragement is added. The same applies in German law. But where this is not involved, to lay stress on a person’s presence when a criminal intention was discussed can only amount to a reproach that “he knew about and tolerated it.”

Today we often hear this reproach of having tolerated crimes. Not only in this court. The whole German people are reproached for having tolerated a criminal regime and the annihilation of millions of Jews. Undoubtedly a crime can also be committed by tolerating things. But to make it a serious criminal charge, that is, one of intentional killing, two prerequisites must be fulfilled: 1) The subjective side: The perpetrator must have known that the victim would meet his death if he did not intervene; 2) he must have been in duty bound and able to prevent this death.

Mr. President, would this not be a convenient time to adjourn?

THE PRESIDENT: Yes.

[The Tribunal recessed until 1400 hours.]