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?