One of the judges at the tribunal in the Hague at the time - I do not remember his name now - in stating his opinion vented his anger at the state of affairs being such. It is therefore not the case, and the Hague Tribunal did say that in view of Turkey, that international law prohibits the promulgation of penal laws which prosecute offenses committed by foreigners abroad. The problem which now arises is how far one can go and whether, since the verdict of the Hague Tribunal, international law has developed which imposes restrictions. I do not know any provisions of international law which could be invoked here, but I do not want to make this question a simple one.
Yesterday, when I spoke of the Constitution of the Weimar Republic, I mentioned certain basic principles of the legal system which are not laid down in any paragraphs, but which are more general principles which in fact constitute the nature of that system. Yesterday I said that the ruling dogma concerning the Weimar Constitution considered the Reichstag as the constitutional legislative body to replace even the very foundations of the Weimar Constitution and to have them replaced by an absolute monarchy with a police state. I said yesterday I could not understand it. I would not think it correct, but that was the opinion of the day. To a much wider extent than in an individual state these things make themselves felt in international one. If one remembers how the present international law came into existence as the international law of the Christian states of Europe and haw it was gradually extended to the rest of the world, which in the meantime was rather europeanized, one then knows that a certain homogenity is necessary among the members about the basic views of all international law and its communities.
We have lived for such a long time in a world of states, where a large part of the basic views were undisputed in their general application. Therefore, many people did not quite notice that that was necessary. When the league of nations was founded and when discussions were held about the provisions regulating the joining of new members, many of the participants were conscious of that important fact.
The jurists of the entire world later on - within the meaning of my statement - were rather alarmed when a Russian professor Korolin published a textbook on international law which he called "International Law, the Transitory Period". It was explained quite clearly there that the Soviet Union, which represented the world of tomorrow, did not fit into this system of a capitalistic world. For the transitory period, however, one would have to have a modus vivendi. The details are of no interest here, only the fundamental idea. It is possible that a basic change of the constitution in some states may upset the homogenity of the states to such an extent that the international law is endangered.
THE PRESIDENT: Have you finished your sentence, Doctor?
THE WITNESS: Yes.
THE PRESIDENT: The hour for our recess has arrived. We will take a fifteen minute recess at this time.
(Recess taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
THE WITNESS: Hay it please the Tribunal, I have tried to explain that international law cannot exist if the members do not have a certain measure of homogenity in their whole philosophy of life, especially in the theory of the necessity is for the existence of a state. I have stated this before. Now returning to our special case, in the verdict in the Lotus case it was laid down that in regard to acts committed abroad and committed by foreigners, they could be tried by the states in their own courts if these foreign actions were directed against the basis of existence of the state concerned. This rule that in such a case without doubt a state can punish acts committed abroad in peaceful times when homogenity of international law is secured does not create great difficulties, because at such times the individual states all alike view the necessities of existence of a state in the same manner. As Korowin's book demonstrates, this question looks quite different from the point of view of the Soviet Union, but this is only an example. Similarly, the problem exists for every state the basic conceptions of which have been changed from the normal point of view. If such a state applies the rule, it may, under certain circumstances, determine the acts which it will try in its own courts differently, mere broadly or loss broadly. This, in particular, would show that a change has taken place in the structure of the community of states. And this loads our problem into broader problems, namely, to the problem as to how far such changes can extend without having such a member excluded from the community. As long, however, as this member is allowed to remain within the community of states, for that amount of time the state has to have the right to determine what it will do in order to preserve its order of state. I have looked at this ordinance during the recess. I did not look only at the ordinance, but also at the introduction which is contained in the semi-official edition, in the edition Pfundtner-Neubert, and I came across tho sentence "The foreigner abroad can, of course, not be subjected to German law.
In exceptional cases, however, German law has to be able to prosecute the foreigner's deed committed abroad, namely if the foreigner has violated important German interests". That is on principle the recognized sentence. If that is the legislative motive of the decree, it has nothing to do with an imperialistic motive conquering tho world. However, the problem arises whether perhaps the German Reich with the new concept expressed in its legislation about the basis of constitutional law has removed itself so far from the homogenity of the world of states that the much more serious problem of exclusion arises. In the Lotus verdict it is stated repeatedly that in the world of states there is a movement, that the protective principle be extended more and more. This case occurred in 1927. Thus it had nothing to do with the constitutional changes in Germany. According to that it is obvious from the very beginning, that one can argue forever whether one or the other of the regulations which are laid down in Article 4 of this order, and as far as they do not concern other provisions of international law was against international law or not.
THE PRESIDENT: Dr. Jahrreis, for the convenience of readers of the record would you please identify the document to which you have been referring, the ordinance there, in some manner? Thank you.
TIE WITNESS: Yes, Your Honor. The defense counsel gave me Pages 155 to 168 from the collection of the Reich Laws by Pfundtner and Neubert. This is edition 103 of June 1940. Volume II Administration of Law c. Penal Law.
THE PRESIDENT: Thank you.
THE FITNESS: And Mr. President the place I quoted is on Page 157. I don't know whether the defense counsel expects me now to examine every individual regulation.
DR. SCHILF: No, I do not expect that.
THE WITNESS: I can only say from the point of view of international law one or the other point can be disputed. All of it, however, has nothing to do with the question whether even in the case that one or the other regulation should not have been in order from the point of view of international law, the German courts nevertheless had to apply them though.
I already spoke about that very extensively that the Weimar Constitution had made that point quite clear to the effect that the will of the state prevails even if it is contrary to international law, the state as a whole is responsible then under Hitler's point of view.
BY DR. SCHILF:
Q Professor, during the recess I had the opportunity to show you the book of Heinrich Triepel, International Law and State Law. I would like to submit to you Pages 153 and 154 and ask you to read, that part to the Tribunal and to explain whether that is in accordance with your opinion.
A I have in front of me the book of Heinrich Triepel, "International Law and State Law" from 1899. This book -
Q Excuse me, Professor, Is it the first edition? I have just been asked if there are several editions,
A No, there are not several. It is the first edition. This book at the time was a sensational book for the science of international law in the whole world, It was the first book which systematically treated the questions which I am supposed to supply information about here today, And what Heinrich Triepel laid down at that time basically been recognized in the entire science of international law has and only after the first World War a certain lack of security in theory, not in practice, developed because the so-called Vienna theory of law founded by Hans Kelsen, who was my predecessor in Cologne, and who is now teaching in the United States of America, with their so-called "pure theory of law" or "norm logic" conceived the things logistically. This did not affect the practice of international law at all, and thus the sentence is applicable which Triepel formulated on Page 153 of this book: "judges and subjects are under the obligation to apply the law of the state, even if contrary to international law and to follow it."
"It is up to then but up to the Government to take into consideration the differences and the divergencies with International Law which nay arise out of this."
Q. May it please the Tribunal, I have concluded my questions to Professor Jahrreiss.
THE PRESIDENT: Professor Jahrreiss, may I ask you to inform the Tribunal where the act was committed in the Lotus case for which a prosecution was held?
THE WITNESS: It happened in Turkey.
THE PRESIDENT: I mean the act for which a man was tried in Turkey.
THE WITNESS: The act happened on the high seas.
THE PRESIDENT: Outside of territorial waters?
THE WITNESS: Yes, in the Mediterranean and the Aegean; that is to say, outside of territorial waters.
DR. SCHUBERT: May it please the Tribunal, I have a few brief questions which concern the right of the judge to scruntinize the law.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q. Witness, yesterday and today you already told us certain things about the right to scrutinize on the part of a judge; especially you discussed the question as to whether the judge is authorized, in regard to the moral context of law or the contrariness to International Law or the opposite--to scrutinize it. If I understood you correctly, you said that in both cases the judge does not have the right to examine this. Now I would like to know what a judge is allowed to examine in a law and in a given case had to examine, and first I would like you to start with the conditions under the Weimar Constitution.
A. The question of the so-called right of a judge to scrutinize is one of the questions which, during the time of the Weimar Republic, burdened us most severely.
During the time of the Emperor, the question was regulated quite clearly. During the Weimar time, howover, a certain modification in the points of view began to take form; namely, until the end of the Weimar State there was no point of rest reached in regard to the entire question. Individual points, of course, were clear. First I shall describe the conditions as they were before the certainty started. According to those conditions, the judge had to examine the following and only the following. In the case of Reich laws, he had to examine only whether the law had been properly promulgated, nothing else. The question of the constitutionality, he was not allowed to ask. This question had to be clarified by the Reich President. He was not allowed to sign the law before he had not answered the question positively for himself. From my personal knowledge, I can tell the Tribunal that the first Reich President, as well as the second one, Von Hindenburg, repeatedly obtained several legal expert opinions from authoratative sources about the constitutionality before he decided to sign a law.
In the case of laws of the States, that is the individual States in the Reich---we call them Laender--in addition to the regular method of promulgation, the judge had to examine whether the law was in accordance with the Reich law--that is, with Reich laws and Reich decrees. In the case of decrees and ordinances, the judge had to examine, in as far as it was substantive law, whether the authority issuing the regulation had kept within the scope of their legislative authority. There was only one court which was allowed to examine in the case of Reich laws also the constitutionality, in spite of the promulgation by the Reich President which was not the Reich Supreme Court but the State Court for the German Reich. Even this Reich Supreme. Court was not allowed to test the constitutionality. And this is the very point where the uncertainty started.
I already indicated to the Tribunal that this happened when one of the attacks against the sovereignty of the legislature was felt by the radical democrates. In every country, the dangers of democracy lie in different spheres. With us in the Reich during the Weimar era, something which in other countries perhaps seems to be a guarantee of democracy was regarded as an attack against the soverignty of the democratic legislature. The starting point for this was Paragraph 109 of the Weimar Constitution. This Paragraph 109, the Gasic Law Article, is significant for all of German Constitutional Law. I explained conclusively at that time that in the Manual of State Law is the regulation in Section. 1, "All Germans are equal before the law." This sentence, when the Constitution was issued, was understood on the entire European continent ever since the French Revolution--all Frenchmen, all Belgians, all Italians, all Germans are equal before the law, That is to say, the judge and the administrative official are allowed to make only those personal characteristics of the individual criticism as the basis of their decision if the law points them out. Whether a citizen is poor or rich, young or old, has a Greek nose or any other nose--that has to be all the same to the judge, except if the law makes this difference decisive. That is nothing else but the sentence of the validity of jurisdiction and administration of the legality of law.
How during the Weimar era in certain fields of legislation there was a great deal of excitement here. Parts of the population believed that the legislature had made unjust differences and now the courts were supposed to supply the means to correct the legislator. Part of legal science was in favor of this and there were some outspoken democrats among than who said that the courts should be given the authority to examine also Reich laws as to their constitutionality. The majority of the legal scientists were opposed to it.
In 1925, the Reich Supreme Court, since some administrative courts had done so before them, insisted upon this right of examination on the part of the judges, and thus the dam was broken in effect. Now every simple Reich law was threateded to be reviewed by the ordinary courts and especially by the Reich Supreme Court in regard to its constitutionality.
The most fanatical followers of the Weimar Constitution in particular fought against this to the very end a bitter fight. Great practical significance, however, it did not attain. Is that sufficient?
Q. Thank you very much, Professor. In your statements you used two expressions which perhaps could be explained again briefly. You spoke of the regular promulgation and the signing of the law. Would you please explain this to the Court again?
A. Yes. I may add to what I explained yesterday by referring to chart 4. According to the German Reich Constitution, the Weimar Constitution, it was as follows: If the Reichstag had passed the law it was given to the Reich President for signature, for issuance. "Ausfertigung meant he should examine whether the law had been massed in accordance with the constitution, that is if the law had been massed only by simple majority, and the president became convinced that the law interfered with the constitution, thus a special majority under Article 76, paragraph 76 was required. Then, in accordance with his duty he refused to issue it. On the other hand, if he convinced himself that the Reichstag had acted in accordance with the constitution, thou he signed the document, that is, he issued it, and then his signature needed the counter-signature of one or several ministers, who then took over the responsibility before the Reichstag. We differentiate between promulgation and the issuance. Promulgation may occur much later, because in between there may be one of those subsequent procedures which I could only sketch briefly yesterday.
A promulgation was published in the Reichsgesetzblatt, the Reich German Law; it is nothing but the making it public for the people; that is the promulgation.
Q. Professor, if the judge thus had to examine the ordinary promulgation, then he had, if I understood you correctly, to find out that this law had been published in the Reichsgesetzblatt, and that it bore the signature of the Reich president and of at least one minister?
A. Yes.
Q. This right of the judge to review which you have just described to us, for era of the Weimar Republic, did anything basically change in this after 1933?
A. No, because no matter how much the most zealous followers of the Weimar Constitution had been against the material right of review by the judge just as much -- and I don't even need to explain this -as much as the state under Hitler was against this. The only change consisted in the following: That the point under dispute did not exist any longer. I would like to indicate to the Tribunal that in Germany after 1933 there was a great deal of arguments as to whether the Weimar Constitution was still valid or not. This question has been misunderstood very much. That does it mean -- is the constitution valid? The validity, the applicability of the Weimar Constitution was secured by Article 76, if that article did not exist any more, and under Hitler it eliminated, then, the Weimar Constitution, or parts thereof, which were not withdrawn could have only the force of a simple law. We apply the word "constitution" in German in different meanings. Sometimes we mean by constitution the basic order of the state -- whether it is written or unwritten law. England has a constitution, and a very stable constitution. Sometimes, however, we mean by the term constiutional documents or the Constitution of the U.S. of 1787 is; and here again we distinguish between two types. There are two types of constitutional documents; one is a constitution which differs from the rest of the laws only by the title, and through the increased validity given by the public opinion; and, secondly, constitutions which have a special protection of their validity of a legal nature for their regulations by having special requisites attached to the changes or modification of the regulations, or amendments of the regulations, as for example, increased majority of the parliament, or a plebiscite or both possibilities. In that sense there was no longer a constitution during Hitler's time, since the enabling act. For all cases, even in the "reconstruction law", regulations of Paragraph 76 were still observed; however, that was -- if you will pardon me for using the expression -- that was play, because since November, 1933; I described that yesterday, the Reichstag was no longer a parliament so that it was certain from the very beginning that much more difficult obstacles would have to be overcome than this Paragraph 76.
Q. Professor, if I understood you correctly, however, even in the time after 1933 the right and the duty of the judge to examine the ordinary promulgation of the law remained and likewise the right and duty of review of legal delegation of the authority, and so-called provisions and ordinances pertaining to substantive law.
A. Yes.
Q. Professor , I was asked to ask you also whether under German point of view a prosecutor has the right to review a law.
A. Does that mean more extensively than a judge?
Q. At all?
A. No.
Q. Since we have now discussed the right of the judge to examine a law, and with that the attitude of the position of a judge in regard to the law, I would like to hear you say something about the relationship of the judge to the jurisdiction of the highest courts. Precedence is very important in Anglo-American legal life, as is well known. Now, was there in the German legal life also a power of precedence in consequence of a decision of the Supreme Court?
A. That is probably one of the lost interesting questions which could be out to me here at all. From the sociological point of view first, I would like to say the following: No court and no agency or authority existed in Germany without having a collection of highest legal decisions, and without having a smaller or larger numbers of commentaries. We do not have case books in Germany, but we have something similar. Who ever should in Germany, for example, want to apply something from the Reich Penal Code, for example Paragraph 242, that is the theft article, if he should want to apply it in the manner in which he is reading it in the penal code, apply it freely, this person would in many cases simply overlook those things which are definitely law in Germany for decades.
He will have to make the effort to look into one of the big commentaries, possibly one of the Reich Supreme Councilors, and since those compilations go on for pages and pages about the judicature of the courts, in practice what is the validity oF formal decisions known, it is only questionable to what extent this information is legally extended, for, may it please the Court, in Germany the agencies and authorities find a consideration of former decisions not only due to convenience, commentaries can of course save one thinking for one's self, but the decisive matter is quite a different one.
In a state which like all other large, modern, populated and highly technically organized States has to have a large number of laws. It has to be seen to it somehow that there is an equal application of the laws. Law as such never means order, but it may become order if it is applied in a regular manner and practice, and the people must have a desire for this because otherwise it cannot rely on anything.
In Germany in the administration of justice and the jurisdiction of the ordinary courts as well as of the administrative courts -- I am thinking especially of the effects of the jurisdiction of the Prussian chief administrative court or the jurisdiction of the Reich financial court -- I think that I can there see a very highly binding force of the highest judicial decisions; and I now go over to the legal question: were the judges obliged to apply the highest legal decisions? I mean that this question occurs only in cases where the judge would otherwise like to make a different decision. And I would like to put at the top something which has been always overlooked in the discussion of this question even in Germany. We have a very large number of decisions by high courts, by supreme courts which arc binding simply because they have become part of the common law through long uniform practice. There also were many decisions which did not yet have the opportunity to become common law because not many cases occurred which could have been decided in that manner. In those cases thero was not a duty to follow previous decisions, but this does not mean that in such cases the judge, if he is of a different opinion regarding the interpretation of the law, may decide any way he feels like, but the judge must be aware of the fact that every deviation from former Supreme Court decisions means a burden for the citizens who are taking part -- certainly the danger that the trial will last longer, perhaps only for the reason that a judge wants to be in the right. Thus, in the individual case the judge has to consider very carefully whether the opinion of the Supreme Court judges is not also in his opinion at least possible, and then he will have to ask him-
self whether he can assume the responsibility because he is of a different opinion to introduce an element of insecurity into the existing order.
Q Professor, you just mentioned that the observance of the Supreme Court decision was in the interest of the security of the law. Did you or one of your colleagues ever do any research as to what extent tho jurisdiction of the lower courts was different?
A I cannot affirm this in such a general way. Of course, such research may have been done on a broad basis. I heard about very interesting research which my Munich colleague; Professor Exner, had done by his students when we were colleagues in Leipzig. That was in the Weimar era. It is so that our penal law for most criminal facts puts at the disposal of the judge a framework of penalties within which he has to determine the penalty. This is a question which cannot be answered by commentaries and Supreme Court decisions.
At that time I was a criminal judge in Leipzig simultaneously and had in part very unpleasant experiences as to the manner in which the decisions within this scope of penalties were -- on what opinions they were based. I discussed this with Exner from the criminal point of view, and he told me that for years he had studied thousands of German criminal decisions because of this framework of penalty in order to find out whether in this field, in the most difficult field; one may expect some kind of an order which developed through practice; example; and so forth. The result of his research was surprising; and extraordinarily interesting. I don't know whether the details are relevant here.
Q Professor; in this point in regard to the application within this framework of penalties; especially the conditions within the different German territories; can you tell us something briefly about this?
A The research as was conducted at that time took as its starting point the fact that our Reich penal code for certain crimes of a different nature, crimes against property or health; provides the same framework of sentence, for example, simply one day to five years imprisonment, and now they examined how those articles were applied in Germany from north to south and east to west.
The result was, first, that the evaluation which the legislator had applied to these crimes because he regarded them all as alike by the penal courts in the issuance of a sentence was not kept. The criminal courts made differences. One crime was basically treated as more serious and another as basically less serious while the legislator treated them all the same, or the some crime was in one part of Germany basically evaluated more seriously and in another lighter.
THE PRESIDENT: I didn't intend to interrupt you, but since you paused, you are really discussing the bearing of precedent not upon questions of the construction of law but upon questions as to the measure of punishment, are you not?
A Yes.
THE PRESIDENT: And your research relates to the period considerably before '33?
A Yes.
THE PRESIDENT: All right, go ahead.
A This research was all done before 1933, and the result of the research was surprising because so far one had not counted upon it at all in this field that there would be any uniformity. For example, between the city and the country and the treatment of the different ag groups of the defendants, etc., etc., I cannot tell you the details. I would have to have the material here. A number of books were written at the time about this.
DR. SCHUBERT: I have concluded my questions, Your Honor.
THE PRESIDENT: I take it that this concludes the direct examination of this witness, does it?
MR. LAFOLETTE: Your Honor, I would appreciate it if we could adjourn this fifteen minutes earlier rather than to start new just before the noon recess.
THE PRESIDENT: Very well, we will take a recess now until onethirty this afternoon. Oh, just a moment. I constantly think of something new. The British subjects and the American citizens will understand why there will be no court on next Friday, July 4th.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
CROSS EXAMINATION
BY MR. LaFOLLETTE:
Q. Dr. Jahrreiss, just so we may complete the record, will you tell the Tribunal where you were teaching and living from 1933 up until the end of the war?
A. From 1932 until 1937, I taught at the University Greifswald; from 1937 on, University of Cologne. During the first semester of the war, that is in the fall, 1939, the University of Cologne was closed. At that time, I taught at the University of Goettingen. During the last semester of the military part of the war, during the winter 1944-1945, I taught at the University of Insbruck. Ay activity as judge had been concluded since 1927.
Q. Thank you, Doctor. Also I believe that I am correct, and again just for the purpose of the record, that as counsel for the Defendant Jodl before the International Military Tribunal, by agreement of all defense counsel, on July 4, 1946, you argued certain phases of the legal questions in that case, Is that correct?
A. When the indictment against the main defendants had been served and a certain number of defense counsel were already in Nuernberg, it became apparent that certain basic international questions would probably have to be discussed to a large extent. Therefore, I was requested to make myself available in order to advise defense counsel. Since an appearance before the International Military Tribunal constantly was not possible in any other way, but by becoming a defense counsel, my colleague Exner, who was defense counsel for Jodl, asked me to assist him in the defense.
Defense counsel in that trial then suggested to the Tribunal that in place of an opening statement of the entire defense, which according to the procedure prevailing then, had not boon antecipated, I was to give an expert opinion on the question of aggressive warfare not in regard to crimes against international laws, or crimes against humanity. On the 4th of July, I gave an export opinion which was entered on the transcript.
Q. Dr. Jahrreiss, I have presumed you do read English; do you not?
A. I do not speak it, that is to say, I try occasionally, but I can read scientific English. Otherwise, my wife can help me if I am not able.
Q. I have here what I believe is correct, an English copy of the transcript of that testimony or statement of law which was made on that day. May I hand it to you? I believe you will find it possible to identify it as probably correct.
A. Yes. I suppose that is the correct text, but I am not able like the Reichs President to look through that page. But if you give it to me, it must be the correct one.
Q. I find that in the English transcript of the proceedings of the 4th of July, 1946, the mimeographed English transcript, your statement and enunciation of the laws as to the issue which you were then discussing covers from Page 12903 to Page 12950. I believe that we may assume that that is correct. Defense counsel have no objection to that assumption?
Beginning at page 12933 of the English transcript and continuing for roughly 10 to 15 pages of the transcript thereafter, you discussed as I recall it, the obligation under various systems of government, constitutional, monarchy, and monocratic of members of the hierarchy of government to obey superior orders.
I believe you have just been handed a German copy of that testimony. I do not know how the relationship is between the pages. What I have in the English reads in this way and maybe it is page 12935.
"Here we come to the fundamental question in this trial. What position did Hitler's orders occupy in the German constitution? Did they belong to the typos of orders which were set aside by the charter of this court as grounds for the exclusion of punishment?"
In the English, that is fifteen pages before the end, Dr. Jahrreiss, and some 30 pages from the beginning in the English text. It is underlined in the English text and may be in the German. Would it be beneficial if I again read the English and it were translated to you?
A. I found it.
Q. Oh, good. "Here we come to the fundamental question in this trial." Thank you. About a page beyond that, which is on page 12936 of the English, there is a paragraph beginning with this sentence, "All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective."
Have you found that?
A. Yes. Yes, I did.