THE PRESIDENT: The Tribunal does not propose to hear an unlimited number of the defendants’ counsel, but I observe that Dr. Exner is there, and they are prepared to hear one other counsel—if counsel wish, Dr. Exner—upon the subject.
DR. FRANZ EXNER (Counsel for Defendant Jodl): May it please the Tribunal. We are indeed, all interested in the question of reprisals, and I would like to say a few words.
For 10 years I have lectured on international law at the university and I believe I understand a little about it. Reprisals are among the most disputed terms of international law. One can say that only on one point there is absolute certainty, namely that point, which Mr. Justice Jackson mentioned first—“measures of reprisals against prisoners of war are prohibited.” Everything else is matter of dispute and not at all valid as international law. It is not correct that it is the general practice in all states, and therefore valid international law, that a protest is a prerequisite for taking reprisals. Neither is it correct that there has to be a so-called reasonable connection. It was asserted that there must be a relation as regards time, and above all a proportionality between the impending and the actually committed violation of international law. There are scholars of international law who assert, and it is indeed so, that it would be desirable that there be proportionality in every case. But in existing international law, in the sense that some agreement has been made to that effect or that it has become international legal usage, this is not the case. It will have to be said therefore, on the basis of violations of international law by the other side, that we under no circumstances make a war of reprisals against prisoners of war, every other form of reprisals is, however, admissible.
I just wanted to state that in general terms; and perhaps I still might say that it has been asserted that we may not speak about reasons for mitigation now. I would like to remind the Tribunal that we are permitted to make only one address, and if in this speech, which takes place before the decision has been reached on the question of guilt, we are not permitted to speak about mitigation, then we would not have any opportunity to speak about it at all.
THE PRESIDENT: The Tribunal will adjourn now.
[A recess was taken.]
THE PRESIDENT: The Tribunal rules that the evidence is admissible on the question of reprisals, and the weight that should be given this or similar evidence will be reserved for future consideration.
DR. STAHMER: Will you please continue?
GÖRING: I believe that the statement which I am about to make will fulfill those conditions which Justice Jackson has requested; namely, I do not in any way deny that things happened which may be hotly debatable as far as international law is concerned. Also other things occurred which under any circumstances must be considered as excesses. I wanted only to explain how it happened, not from the point of view of international law as regards reprisals, but considering it only from the feeling of the threatened soldier, who was constantly hindered in the execution of his task, not by regular troops in open combat, but by partisans at his back.
Out of all those things which I need not go into any further, this animosity arose which led spontaneously—or in certain cases was ordered as a necessity in a national emergency—to these partial excesses committed here and there by the troops. One must go back to that period of stormy battles. Today, after the lapse of years, in a quiet discussion of the legal basis, these things sound very difficult and even incomprehensible. Expressions made at the moment of embitterment, today, without an understanding of that situation, sound quite different. It was solely my intention to depict to the Tribunal for just one moment that atmosphere in which and out of which such actions, even if they could not always be excused, would appear understandable, and in a like situation were also carried out by others. That was and is my answer to the question why the conditions in France necessitated two entirely different phases of war—the first, that of the regular fighting, with which I have finished; the second, that of the fighting which was not carried out by regular troops, but by those coming out of hiding, from the underground, which always will and at all times has entailed cruelties and excesses quite different to those of regular military fighting. It often happens here that single actions occur, be it by individuals or by troop units, which the Supreme Command cannot always control or possibly keep in hand.