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 never heard that a court violated this principle so that there
was no need to force the judges to conform to it. Mr. President, I
never heard that a German court did not apply a Reich law because in
the opinion of the court it was contrary to international law. I never
heard of such a case. You see, it was entirely uncontested. The court,
just in such a case, couldn’t do anything but through official channels
call the attention of the government to this contradiction so that the
government, in accordance with its obligation under international law,
would see to it that the laws were changed. Let us assume the case that
the Reich Supreme Court, for example, in deciding a case had come to
the conclusion that a German Reich law was contrary to an obligation
of the Reich under international law. Then the Reich Supreme Court was
not able to say--the indictment is refused because the Reich law which
supports the indictment is contrary to international law. The Reich
Supreme Court could do nothing but either to postpone the trial and to
report to the government so that perhaps changes would be made in time,
but it was not even obliged to do that. It was obliged only if it did
make a decision to decide in accordance with national law if it was
contrary to the international law. That was the legal situation during
the Weimar republic.
Q. That answers my question. * * * The Reich Supreme Court would in
proper cases lay down the rule that the lower court judge should
enforce the German law even though it violated some principle of
international law for which Germany as a state might be diplomatically
held responsible, is that true?
A. No, that is not quite correct. I said that the Reich Supreme Court,
just the same as the other German courts, in regard to this question,
did not have any doubts at all, and therefore, it did not make any
rules with which the lower courts had to comply. That was not necessary
at all.
Q. Then the lower courts themselves recognized this rule of which
you speak that they must enforce the law of the State even though it
violates a principle of international law?
A. Yes, and they only had to look at the Anschuetz commentary; that
said so expressly.
Q. Well, at least prior to 1918, was there any tribunal other than the
court of the state which could punish the public officer or a judge,
for making a decision which was contrary to international law, if it
was made in compliance with the law of the state?
A. No.
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