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?
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. The Hague Convention of Land Warfare with us was recast, and specifically—that cannot be doubted in my view—most of what is said in the Hague Convention should be considered as recast pursuant to article 4 of the constitution even if a specific recasting did not occur. That follows from the history preceding 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 such points which in any case were already international laws by customs 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 article 1 of the Convention, or the appendix? Article 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Article 1 is a particularly concise example for the fact that the states were conscious of the character of international law such as I described, 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 without mentioning the Hague Convention have passed a German law as to the behavior of the German army in wartime. It was technically easier to give the order to pay attention to the Hague Convention in the event of war. And thus, the points laid down in the treaty as international law, and which in the proper meaning do not affect the individual human being but only bind the state as a whole, were reinterpreted by the legislative authority to mean regulations applying to the conduct of the individual.
Q. Thank you, that answers the question.
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Q. Professor, 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 of 1899. This book—
Q. Excuse me, Professor. Is it the first edition? I have just been asked if there are several editions.