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
Q. Professor Jahrreiss, for the purpose of this trial we are interested
in establishing whether an official himself was confronted with the
question that international law deviated from the state law. If he
himself was confronted with that situation, I want to ask you in what
direction did he have the choice, or did he have any choice at all? Was
he restricted to one norm according to the general view or to the view
of the Reich constitution as far as it was still in force under the
Hitler regime? Was he bound by that?
A. First of all, I have to explain the underlying facts of your
question. Apparently you have in mind the case where a law or an
individual decision exists which, in the view of the official, is
inconsistent with international law.
Q. Inconsistent with international law, but which unilaterally is
the law of his country, and this official now is confronted with the
question to what norm is he to adhere?
A. I have already said that under the Weimar system which on that point
was not changed under the Hitler regime the official had to apply the
recast international law as an ordinary Reich law, and now he had to
solve that problem of collision which you have mentioned, in the same
way in which he solved the problem of collision between two ordinary
Reich laws which were contradicting each other. In effect if the law
under Hitler had been issued and afterwards the Reich assumed a new
obligation under international law which was recast, then that had to
be applied and not the former law, and vice versa. Have I answered your
question?
Q. Yes, but there was one more possibility for the imaginary
official. If the law of a country perhaps intentionally deviated from
international law, what norm did the official then have to apply?
A. I have already said that in the Weimar era already the moral
background or the background of international law of a legislative act
was removed from the scrutiny of the official and even removed from the
scrutiny of the judge and of the Reich Supreme Court. The background of
international law could not even be examined by the Staatsgerichtshof,
[supreme constitutional court]. The supreme constitutional court was
only allowed to examine whether it was constitutional, but it was not
allowed to examine it from the point of view of international law. To
express it differently, whether the law had been passed by the State in
such a way that it was inconsistent with international law on purpose
or not, that could not play any part at all; and that was the legal
state of affairs, regrettable as it may be.
Q. For the purpose of our trial we are particularly interested in the
norm of the Hague Convention of Land Warfare. May I ask you to explain
to the Tribunal with special reference to whether the principles of
transformation which you have explained apply to the Hague Convention
of Land Warfare as well?
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