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
A. I believe I understand your question to mean that among the laws or
ordinances which were valid in Germany at the time, there were some
which were contradictory to that which Hitler had decreed concerning
the treaty. That is not a particular problem. I have already pointed
out that that problem was merely the problem of collision, and if
Hitler, in contradiction to the treaty he had concluded later on,
issued an order in a general way or in a specific case contradicting
the former order, the later order, if the contents were the same,
was to apply and the old maxim applied--_lex posterior derogat
priori_--that was so concerning the relations of the laws under the
Weimar constitution, and it was the same under Hitler; but I think it
will be necessary for me to say a little more on that subject. It can
happen, and it does happen again and again, that a state knowingly,
in its legislation, gets itself involved in a contradiction with
international law. The last will of the state is decisive for the
official agencies. In that case, the nation until that collision has
been eliminated, lives under constitutional law which contradicts
international law. The settlement, which is bound to come, is brought
about by international law by the state being regarded as one which
has committed an offense under international law, and entails and
holds that responsibility to the provisions of international law, and
as quickly as possible that inconsistency has to be removed by later
legislation. As to whether further consequences arise, that we need
not discuss here. In the case of every state the following applies.
For the official agencies which have to apply the law to a certain
specific case, there are frequently, if one proceeds logically, several
laws--there are after all many situations in life which extend beyond
the frontiers from the human point of view or from the material point
of view.
One can bear in mind that instead of the state’s own law or side by
side with the law of that state, foreign law can be applied, or it may
be a case of church law possibly having to be applied. The question
as to the application of international law, therefore, belongs to a
wider scope of the great problem which is called the problem of the
norm concerning the application of law, or in other words in every
legal system there is, by the side of the system which regulates the
relations between human beings as such, a system which instructs the
authorities as to which law they are to apply in each case. I do not
know of any state nor do I know what law could be possible which does
not proceed in this way. The officials have to apply the law of the
state which is in force at the time except if the legislator admits or
orders another solution. Consequently, the provision of the status of
recast international law is, therefore, only one possibility of the
various possibilities of applying international law.
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