Q. Professor, to supplement your explanations, may I ask you to read out to the Tribunal article 4 and also article 45, paragraph 3, so that the passages you mentioned become quite clear.
A. Article 4 says: “The generally recognized rules of international law are valid as binding constituent parts of the law of the German Reich law.” Article 45 says: “Alliances and treaties with foreign states which refer to matters in which the Reich has legislative power 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 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.
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?