Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume IIIVarious
History
Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III
Various
Nuremberg Trial of Major German War Criminals, Nuremberg, Germany, 1945-1946; War crime trials -- Germany -- Nuremberg
In this commentary--would you kindly wait a moment--it’s a long time
since I looked at it last, but I think I can remember where it is.
[Reading] Anschuetz says in his commentary on article 10, under figure
7, “International law too, places an obligation on the German judge
within the meaning of article 102 and according to article 4, but only
insofar as it is generally recognized; in particular, also recognized
by the German Reich and does not contradict the Reich laws. Whether
that is the case, that the judge has to examine but he does not have
to examine Reich laws, for the fact whether they are or are not in
accordance with international law, and even if they don’t pass this
examination, he cannot deny their application.” That means if the
Reichstag, let us say, with a majority that can change the constitution
had passed a law which was contradicting international law, that law
was binding for all German official agencies. The Reich had to act
as a sovereign State under the international law governing offenses
against international law.
I return to Hitler. What applied to the democratic set-up applied all
the more to the set-up under a “leader,” and everybody knows that who
knew about the conditions surrounding Hitler’s decisions. If Hitler
issued an order which was faulty from the legal point of view, that did
not give the German official agencies any reason to refuse obedience,
for in every state there has to be an authority beyond whom there is no
appeal.
In the case of Hitler something else, something special applies. He
who sees things differently and believes that the German official
agencies were not merely entitled but perhaps even under an obligation
to examine Hitler’s orders as to their legality not from the scientific
point of view, but merely with the practical purpose of possibly
refusing obedience, claims no more, no less than that Germany had no
dictatorship at all. Then it would not be comprehensible what was the
sense of a fight of the whole world against that regime.
Public-domain text, read in full here on John Shaqi.
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