PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): May it please the Court, I take the liberty of adding something for the specific reason that there is danger that evidence may be refused which is of crucial importance for my client also. It concerns evidence which will show that War Crimes and violations of international law were committed by the other side too. The Prosecutor has said that this is irrelevant as far as we are concerned here in this Trial. The Defense certainly does not think of making defendants of the prosecutors, but this point is certainly not irrelevant, specifically because:
First, it has to do with the concept of retaliation in international law. Retaliation justifies an action, which under normal circumstances would be illegal. That is to say, retaliation then has this significance when the individual action is the answer to a violation of international law committed by the other side. If, therefore one wants to justify one’s own action from the point of view of retaliation—one can only do so by proving that violations of law have preceded it on the other side.
Secondly, I want to add an important point. It is well known that this war in the beginning was conducted relatively humanely and. . .
THE PRESIDENT: Dr. Exner, you will forgive me, the argument which you are presenting to us was fully developed by Dr. Stahmer and will, of course, be fully considered by the Tribunal.
[There was a pause in the proceedings while the Judges conferred.]
THE PRESIDENT: Would you continue then, Dr. Exner?
DR. EXNER: The second point is the following: It is well known that at the beginning of this war international law was respected on both sides and that the war was conducted humanely. It was only in the second phase of the war that a terrible bitterness among the fighting powers developed and on both sides things occurred which international law cannot sanction. In my opinion, it is entirely important in the judgment of a crime, whatever crime that may be, to consider the motive. If one does not know the motive of the action, one cannot judge the action itself. And the bitterness which was started, purely psychologically, by the manner in which the war was conducted on one side and on the other, was the motive for actions which normally cannot be justified.
I therefore ask the Tribunal to consider carefully before this evidence is declared irrelevant.
[There was a pause in the proceedings while the Judges conferred.]
DR. SIEMERS: I should like to mention a matter of principle with reference to the manner in which the relevancy of evidence is being discussed. If I understand the Tribunal correctly, then we should talk today about the relevancy of those witnesses and documents which are still to be brought here. That was exactly what was stated in the Tribunal’s decision of 18 February.