The Reich had to act as a sovereign State under the International law governing offenses against International Law.
I return to Hitler. That applied to the democratic order by a leader, that applied all the more so and everybody knows that who knew about conditions for 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 which 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. This person 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. I believe I have now answered your question. I would like to say one more thing, so as to emphasize the gravity of the development. I had the permission to show the Tribunal the structure of the acts of the state. Naturally that structure can also be applied to Hitler's acts, but only one of those acts lost its meaning almost completely under Hitler. If Your Honors will kindly recall chart 1 to your memories, where on the left side we had the norms and then the authorization norms, the norms which authorized interference, I had differentiated between special end general relationship or subordination - pointing to the soldier and the citizen. Those differentiations under Hitler gradually lose meaning. Hitler exerted and overburdened the strength of the German people to such an extent that finally he no longer saw before him citizens and smaller groups of persons under special obligation among them, but for him the Germans, all Germans were always on duty, A private sphere of activity no longer existed for him. With him there is no meaning to differentiate between substantive laws and official instructions. It is all the same to him. The citizen is dead, because all have become officials. That is the final point of a development which, from a complicated state of affairs, was working towards simplicity, and that is the gruesome result.
THE PRESIDENT: Dr. Schilf, would you pardon a question directed to the witness at this time? Dr. Jahrreis
THE WITNESS: Yes?
THE PRESIDENT: If this question interferes with the orderly course of your presentation, I suggest that you ignore it. But you told us in your discussion of procedure your views as to decrees signed by Hitler and one or more ministers. Would you care to specify or to indicate to us a little the view you have with reference to the justification of authority decrees not signed by Hitler, but signed by one or more of the ministers? I think we have seen a good many of those in the record. In other words, decrees executed or signed only by various of the ministers, but not by Hitler. Do you understand what I was -
THE WITNESS: Yes, thank you. I have spoken so far only about orders by Hitler, but in German constitutional law dating back to the days of the monarchy and the Weimar Republic we have not only norms fixed by the Reichstag or the head of the state, but also many norms laid down by the government in the narrower sense by the minister. T he ordinance, Verordnung, of which I spoke in the beginning differentiating it from the legislatures, is normally the ordinance of a minister, and under German constitutional law the following is valid. That was not changed under the Weimar era. That was not changed in the Hitler era. Administrative ordinances, that is to spy, norms which are not legal principles in the narrower meaning, are issued by every minister within the framework of his own department, without any special basis. Other ordinances, that is to say, legal ordinances, can only be issued he can issue them, but he can only issue them if he has been authorized to do so by the constitution or by a legislative act. That was, in fact, what I described at the beginning, And so in the Weimar era we had many ministerial legal ordinances if the law empowered the minister to issue them. If I may add this, the result of that differentiation was this, if the courts had to apply an ordinance by a minister, or to be more precise, when it was doubtful whether it was to be applied, then the court had to examine whether the minister was empowered, was authorized. If the court denied that question, the ordinance did not exist.
May I ask whether this was in answer to your question, Your Honor?
THE PRESIDENT: I was interested especially in the source of authority, of decrees signed by various ministers after Hitler came into power. Would it be accurate to say that such decrees received their validity because of a delegation of power to the minister directly from Hitler?
THE WITNESS: For legal ordinances? Yes, for legal ordinances. Hitler was the legislator. He could issue the ordinances himself but he could delegate. As I said, he could delegate authority.
BY DR. SCHILF:
Q Professor, I should like to follow up your words. In the Hitler state, so to speak, all people were on duty. There were no longer any citizens. You said the citizen was dead. May I ask you, in our legal language we call an order by a phrase which is very concise and which might explain it better to the Tribunal, that the law also in the former meaning was a law that was the same as an order to a servant. May I ask you to tell me whether that general instruction to an official, a civil servant, to a servant was the same as the law which had been solemnly promulgated in the Reichsgesetzblatt, Reich Law Gazette.
A If I have understood your question properly, you want to know whether the obligation was the same?
Q Yes.
A Yes, no doubt. For those who were concerned, those to whom the order was addressed, the order issued by Hitler, whether it was concerned with an individual case or whether that was a. legal norm or whether it was an official instruction, it was binding.
Q Professor, perhaps there is a possibility to look at things in a different light. If I remind you that in July 1933 a law about a plebiscite was promulgated, that law which in July, 1933, according to your description was promulgated by Hitler stated that that the people had some say.
Perhaps there is a. contradiction of terms. May I ask you to tell the Tribunal whether that is only an apparent or a true contradiction?
A It is no contradiction. The law to which you refer is the law of 7 July 1933, the law about the plebiscite. That is a government law, that is to say, decree, on the basis of the enabling act, and it provides that the Reich government can submit to the people for its vote matters which it is planning, and among them, bills. That sounds very democratic. But one must not be misled. First of all, all that depends on the initiative of the government, that is to say, on Hitler. And on the other hand, please note the date. It is the same date as that of the prohibition of the political parties.
From there on, even formally, there are no longer any political parties within the German people; naturally there are sociological groups; they, of course, cannot be avoided, but there are no longer any political parties. The people are rather, if I may exaggerate a little, are a block of uniform acclamation. In truth, that law was never used. In the texts upon constitutional law, you will find, as I have always attacked it, you will find there some plebiscites which Adolf Hitler had ordered, they are alleged to have been ordered under that law, but that isn't true. First of all, there was the plebiscite as to whether the German nation approved Hitler's decision to leave the League of Nations; further, there was a plebiscite as to whether the German nation wanted Anschluss, incorporation of Austria; and thirdly, there was the plebiscite as to whether the German nation a greed that Hitler should become head of the state. In all three cases the measure about which the nation was to give its opinion had already been taken. Documents had been handed over in Geneva to the effect that Germany would leave the League of Nations and the Anscluss with Austria had been made and Hitler had become head of state. Where in the world could any one of these acts have been canceled? And that should have been possible if it was a true plebiscite. It was merely a case of getting acclamation in a solid form of which one could be certain? according to the whole structure of the electorate; it was at that time without any parties. Therefore, I understand your objection, but it doesn't change the picture.
DR. SCHILF: May it please the Court, concerning the examination, I have finished my last question concerning constitutional law, and I would now like to make a suggestion. On account of the exertion to which the Professor has been subjected, the second group of questions which cannot be dealt with either in a few minutes, I would like to have that postponed until tomorrow morning.
I still have to clear up the question as to the relationship of international law and of the individual states. If the Tribunal agrees, we could deal with that question at the beginning of tomorrow morning's session. Otherwise, there will again be a break. I believe in the interest of the material, it would be good to have the break now.
THE PRESIDENT: In the interest of avoiding what we call cruel and inhuman treatment to a witness, I think we should excuse the witness now until tomorrow morning at 9:30. You have had a long day, Doctor. We will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 26 June, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants sitting at Nurnberg, Germany, on 26 June 1947, 0930 - 1630, the Honorable James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mill you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom except the defendant Engert, who is sick in quarters.
THE PRESIDENT: The proper notation will be made, You may proceed.
DR. SCHILF: May it please the Court, before I continue I should like to say one word about the transcript. In the course of yesterday's statements by Professor Jahrreiss, four charts were shown. Charts 3 and 4 were submitted for the transcript in a smaller edition. I want to tell the Tribunal that Charts 1 and 2 will also be submitted for the transcript in the same smaller edition.
DR. HERMANN JAHRREISS - Resumed DIRECT EXAMINATION - Continued BY DR. SCHILF:Q.- Professor Jahrreiss, may I continue now?
Yesterday you spoke to us about the validity of the so-called Fuehrer Order and the Hitler Decree, and also as to the extent about which it was binding; and you told us all that you personally wish to tell us about it. Now I want to ask you, what in principle was the relation between International Law and the Law of the Individual State, and I would like to ask you whether that relationship was changed under the Hitler State.
A.- Counsel, I suppose I am right in assuming that by that question you refer mainly to Article 4 of the Weimar Constitution?
Q.- Yes, that is my intention.
A.- Among the methods by which human beings are directed in social intercourse, there is as one of several, the Order. That in itself, unsympathetic as it appears to people everywhere as a method, it has the one characteristic that it is unavoidable. Consequently, there is nowhere among human beings a sphere where there is no rule. On the other hand, all mankind in effect today stands in permanent relation of life with one another without, as a whole, being subject to one rule. Both together result in the situation which again and again worries people, which we call the situation referring to International Law. Only groups of mankind, smaller groups or larger groups, arc under a common rule. Therefore, if one life, in spite of being divided into various units of rule, is to be made secure, and that in a proper manner, then there must be norms which hold together in an entity those various units of rules.
Or to express it in a different way, the power of authority of the various units must be brought in line in such a way that a community life is possible. That means, however, the ruling authority of the individual units must be restricted by the whole. The central point of International Law is therefore constituted by those norms which lay down that limitation of the authority of the individual groups. Therefore, I suggested, and I was the first person to demonstrate that in science, that the law of an individual state, that is to say the Constitutional Law, should never be described without also describing the limitations under International Law. If we were to achieve the situation, if I may say so here, whereby everywhere in the world all young jurist from the very beginning would be accustomed to see the constitutional questions of their own country always in connection with those of International Law, then a great deal would have been done to strengthen International Law.
Summarizing, that means the individual state is placed under an obligation by International Law to arrange its own order by legislation in such a manner that the authorities in their decisions work in such a way as is demanded by International Law. In science, that is called the State is under an obligation to organize its law in accordance with International Law. How can that be done?
There are several methods available. The legislator can, from case to case in his own system, amend those provisions which need changing so as to comply with International Law. He does not need to mention International Law at all in doing so. That is the way States proceed again and again. A different method is the one which is called the method of Transformation. That is, the legislator does not trouble to bring into line the law of his country word and paragraph by paragraph with International Law, but he tells his official agencies, "Consider the norm of International Law which in itself only binds me, as if I had cast it into a law."
That method, which in German we also call the Method of Recasting or Remolding, can be applied specifically or generally. That is to say, the legislator, as soon as he has to consider a new treaty under International Law, can remold that treaty or he gives general instructions for the application of the International Law which is valid in the particular case. Both methods have been used among States.
Concerning this method of transformation, a difficult problem arises, In all States which have laws of different rank, as in the German Reich under the Weimar Constitution, -- that is to say laws which have the validity of the constitutional laws or ordinary laws, the legislator has to ask himself whether he intends to apply the re-cast the re-molded law to the highest group or not.
Under the Weimar Constitution, for example, it was undisputed that the re-cast international law paeeared and had merely the grade of an ordinary law. There might even be a state which would place the re-molded international law above constitutional law. What do we need that for? Every official agency in every state finds itself in the situation where it is confronted with several laws of its own state which appear to contradict one another, or in fact do contradict one another, which, however, all claim validity. I need not tell you jurists that since the days of Roman Law everywhere norms have developed concerning the elimination of such conditions; where state laws have varying status, further norms of collision have been constituted. If a state would have a general norm under which international law takes precedence over all domestic law, that would be the greatest safeguard which is possible at all, that the law of the country is handled in accordance with international law. I do not know Whether there is such a state. The German Reich at any rate was not one of those states. I think that with this background I can now answer your question.
The relation between international law and the law of the Reich has been regulated in the Weimar Constitution in Paragraph 4 and 45, Section 111. There have been many arguments about Paragraph 4, at the time when the National Assembly was sitting. After many arguments and after sufficient attention had been paid to Paragraph 45, Section 111, eventually this legal state of affairs evolved. As far as the German Reich by treaty, enters into obligations under international law, in such spheres of life which are subject to the legislative authority of the Reichstag, the president of the Reich may not ratify the treaty for Germany before the Reichstag has agreed by law. That is a transformation of a special nature, and anticipated transformation, for if the treaty is concluded, because the other partners ratify it also, then, at the moment the treaty becomes valid, the special re-molding has already been effected.
For the rest, all other international law, as far as it is generally recognized, but also acknowledged by Germany, is generally speaking re-molded by Article IV. Both forms of re-molding gave international law the status of an ordinary law of the Reich. Yesterday I had opportunity, that was concerning the question as to the moral limits of rule. I then had the opportunity to point out that under the Weimar Constitution the courts were not authorized to examine a law as for its validity under international law, and certainly not the administrative authorities. Under Hitler that attitude was not changed. The general method of transformation of Paragraph 4 was kept on, and the specifical one was needed even less frequently because the approval of the Reichstag was no longer required for the conclusion of treaties. Hitler could conclude every treaty under international law himself. As soon as the treaty had been concluded, as soon as it had come into force, it had already been re-molded, for Hitler's ratification was from the domestic point of view a Fuehrer order.
Q Professor, to supplement your explanations, may I ask you to read out to the Tribunal Paragraph 4 and also Paragraph 45, Section III, so that the passages you mentioned become quite clear.
A Paragraph 4 says: The rules of international law, which are generally recognized, are considered binding components of the German Reich Law. Paragraph 45 says: Alliances and treaties with foreign states which refers to subjects of the Reich legislation require the consent of the Reichstag.
Q Another supplementary question, Professor. You told us that treaties under international law were concluded by Hitler alone. I would like to ask you to explain to us how the question can be solved concerning the person who was subject to Hitler's order if there were contradictions?
A I believe I am understanding 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 what 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 Priorm; 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 s 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 is 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 are 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 remolded international law is, therefore, only one possibility of the various possibilities of applying international law.
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 that situation, I wanted 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 are having 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 Is 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 remolded 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 remolded, 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 are already 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 Supreme Reich Court. The background of international law could not even be examined by the Staatsgerichtshof, the State Court. The State 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 that whether the principles of transformation which you have explained apply to the Hague Convention of Land. Warfare as well?
A Counsel, with that question you have approached a particularly difficult problem. You know that the validity of the Hague Convention of Land Warfare also concerning the clause of general participation has very often been doubted, that the Hague Convention of Land Warfare with us was remolded, and that specifically - that cannot be doubted in my view, but most of what is said in the Hague Convention under paragraph 4 of the Constitution should be considered as remolded even if a specific remolding did not occur.
That is connected with the previous history of the Hague Convention of Land Warfare when the parties to the treaty, among them the German Reich, in 1907 signed the "Convention concerning land warfare". For the most part they only laid down in law these points which in any case were already international laws by custom and, therefore, assured. It would not always be easy to say whether a provision of the Hague Convention belongs to that group in part or not or as a whole. Have I answered your question correctly?
Q I would like you to refer to Article 1 of the Hague Convention and to read it to the Tribunal.
A Yes. You mean paragraph 1 of the Convention, or the appendix? Paragraph 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Paragraph 1 is a particularly concise example for the fact that the States were conscious of the character of international law such as I described it, because it places the States under an obligation to give instructions to their land armies which are in accordance with the enclosed Hague Convention. As to the methods they employ, they are left open to the various States. For example, the German Reich could have done without mentioning the Hague Convention passed a German law as to the behavior of the German Army in Wartime. It was technically just to give the order to pay attention to the Hague Convention in the event of war.
And then the point laid down in the treaty of international law, and which in the proper meaning does not effect the individual human being but only binds the state as a whole in the legislative authority was re-interpreted to mean regulations applying to the conduct of the individual.
Q. Thank you, that answers my question. Professor, now I have a very specific question, and again I would like you to state your opinion to the Tribunal. The prosecution in this case has quoted a German Reich law from the year 1940, and it is called "Ordinance on the Sphere of Application of Penal Law of 6 May 1940", it is printed in the ReichGesetzblatt, the Reichs Law Gazette, I, page 754. The prosecution has described that ordinance as an attempt of Germany to indulge a imperialistic way to extend German law to the entire world; that is to say as a symptom of an imperialistic aspiration to power. I should now like to discuss with you the question whether that ordinance concerning the application of penal law is compatible with international law, and that specifically concerning the following question: As to whether foreigners, concerning offenses committed by them abroad con be made subject to German jurisdiction; that in fact, was said in that ordinance concerning certain offenses, and I would like to know whether that ordinance is in accordance with international law?
A. Well, first of all I would have to see the ordinance.
Q. Well, I have the ordinance here with me.
A. Well, that is a whole group of whole batch of questions. May I first clear up the problem in general, that is to say the question: whether, under international law a state is authorized to prosecute foreigners for acts committed by them abroad. At first glance that appears somehow law in 1927, on the occasion of the Lotus case, to deal with it very extensively.
At that time a French steamer had collided with a Turkish steamer in the Agean. If I remember properly it was off Mytilene. The Turkish steamer had gone down; loss of life and loss of material had occurred. The maneuvering of the French steamer had been carried out under the orders of a Lieutenant, whose name I have forgotten, that Naval lieutenant later on landed in Turkey and was brought before the local Turkish court and under the Turkish penal law was sentenced to a prison term. France at the time sued Turkey before the Court of International Justice in the Hague, and asked the court to establish the fact that Turkey under international law had not boon authorized to sentence that lieutenant. I think that is the problem you have in mind, is it not?
Q. Yes, it is.
A. The verdict of that court where 12 jurists, ordinary judges, and one Turkish judge who had been appointed Ad Hoc wore sitting; that court passed a sentence which is particularly striking because it shows up the whole uncertainty of the legal situation. Of the 12 jurists, six, among them the presiding judge, a Swiss by the name of Huber, gave their opinion in favor of Turkey, that is to say that they accorded the state the right to punish foreigners for acts committed abroad. Six of the judges were against it, among them eminent experts on international law such as Muhr, Loder Reiss, and Altamira. The question which was put to the Tribunal was: is the state free in principle, as to what offenses he will judge before his courts so that only specific prohibitions under international law can restrict that liberty. Or the other way around is under international law the state in principle under restrictions in sentencing deeds committed abroad, so that it needs special permission under international law if ho wishes to punish foreigners for offenses they have committed abroad.
I have not got the verdict before me, but I believe to know this: The tribunal agreed in stating that all states are cautious if they do it at all, in punishing foreigners for offenses committed abroad; but that, on the other hand, many states do make such exceptions. It is very interesting, that apart from the verdict by the tribunal itself, there are six dissentions votes given by those judges who disagreed, that is to say, of the 12 jurists experts in international law, 7 different trains of thought were passed on to the world; and, therefore, I would like you to permit me to give you my, the eight train of thought. The word, "territorial principle", plays an unfortunate part in the whole of this argument. First of all the tribunal agreed, and that cannot be disputed, that the state is a territorial ruling unit; that is to say, all people in its own sphere and only those people arc subject to its sovereignty. Naturally, the state can direct people beyond its own boundries with other means than the normal moans, for example, the state can instruct its own nationals abroad, to do certain things but that is not the normal procedure of order. He has to appeal to the innerself in doing that. And, on the other hand, non-nationals which are in the country are subject to the sovereignty of that state. But, it is an entirely a different question where those facts have occurred, those events which led the state to take action. There can be no doubt that the essence of the state gives no indication that the state should base its decision on deeds of persons which have been committed abroad.
May I remind the Tribunal of a case which is beyond all discussion? In administrative law a state can grant its own nationality to a foreigner if a foreigner applies for naturalization. Without violating international law the state can refuse to grant that application, saying that that person at a former time had committed certain acts abroad. A certain decision is made against a foreigner on account of actions which he has committed previously abroad. In civil law and in administrative law such matters do not present any difficulty. Therefore, it has nothing to do whatsoever with the nature of the state as a territorial unit. It might be in the nature of penal law that the difference arises. It does not have to be so.
If we had reached such a point in the development of mankind, where everyone of us could travel anywhere with the same conscience, that is to say, in such a way that one can live everywhere under the same standards, because the same evaluations would apply and if the states did not segregate themselves from one another, but also in the sphere of penal law would make themselves part of one working community, then our problem would be no problem at all.
But neither applies. Therefore, the penal laws of the various states in principle have - because otherwise it would be nonsense - their sphere of application concerning offenses committed inside a country because inside that country one lives according to the standards of that country. In no legal field as much as in that of penal law do the states differ so much from one another. I will have to say according to the present state of valuation in this world one has to expect that considerable differences apply to the various systems of penal law in the countries. Therefore, it appears natural that the state in its penal legislation restricts itself to the prosecution of those offenses which have been committed inside its own territory.
But, the Hague Court also stated there is hardly one state - in any case, I do not know one - which does not make certain exceptions from the present situation. Those exceptions apply mainly to these countries' own nationals abroad, but many states also prosecute before their own courts certain offenses committed by foreigners abroad.