Did the Nazis break the law? Did the Nazis follow illegal orders?

I’ve always thought the Nuremberg trials make for an interesting part of history, particularly the charges of “crimes against humanity”. I am much underread on this topic, but my impression is that Nazi crimes against humanity were, for the most part, legal at the time and in the jurisdiction where they were committed.

This stems from my strong theory of national sovereignty. The Nazis were very thorough in their transformation of the German state; they appear to have gone through all the motions with domestic law. The theory of crimes against humanity, from what I can tell, was an invention of the military tribunal, ex post facto; and not a very good one, seeing as their definition did not extend to acts committed before Germany was at war. There were precursors, I’m sure, but nothing like a treaty. WWII was the war that established crimes against humanity as part of international law, by inspiring the United Nations, since a nation signing the charter explicitly surrenders that part of its sovereignty.

There were, of course, violations of existing domestic and international law in Nazi Germany. If you can point to a then-existing treaty, such as the Geneva Convention of 1929, I will agree that those actions were illegal even at the time. And surely there were Nazis who violated domestic statutes without authorization from the chain of command.

I also want to stress the difference between lawful and moral. I have tried to frame this topic so as to discourage debate over the latter, except as it may be necessary in determining the former.

Inspired by arguments of reductio ad Hitlerum, and also a recent post from k9bfriender.

~Max

How about occupied France, occupied Holland, occupied Poland, Russia, etc.? Do you think Nazi laws applied there because of right of conquest, or what?

What does your “strong theory of national sovereignty” have to say about that?

Um, yeah?

Until after WWII, the right of conquest was a thing. And it’s just about the only possible legal justification I can come up with for the fourth charge (crimes against humanity) of the Nuremberg trials.

~Max

Okay, so by that logic, the Allies conquered Germany, so their laws applied and the Nuremberg trials were legal.

Right. As I said, it’s pretty much the only justification I have for that.

~Max

I looked up the trials on Wikipedia (as I was curious myself). The charges were as follows:

  1. Participation in a common plan or conspiracy for the accomplishment of a crime against peace
  2. Planning, initiating and waging wars of aggression and other crimes against peace
  3. Participating in war crimes
  4. Crimes against humanity

The definition of many of these charges were, in fact, defined in the Nuremberg Principals. So to a certain extent, the Nuremberg Trials did establish the legal precedent.

Also complicating the matters was that in some cases, the Allies were doing many of the things the Axis countries were doing with respect to occupations, destroying cities, and treatment of prisoners of war.

Either way, you can’t start a war against the world that kills 80 million people and not expect legal repercussions if you lose.

The Allies weren’t systematically murdering millions of civilians in concentration camps.

See the wiki on Crimes against Humanity:

defined as

  • Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.[11][12]

Under this definition, crimes against humanity could be punished only insofar as they could be connected somehow to war crimes or crimes against peace.[13] The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it “has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business”. Thus, “it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war”.[13]

The judgement of the first Nuremberg trial found that “the policy of persecution, repression and murder of civilians” and persecution of Jews within Germany before the outbreak of war in 1939 were not crimes against humanity, because as “revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with,” war crimes or crimes against peace.[14]

The subsequent Nuremberg trials were conducted under Control Council Law No. 10 which included a revised definition of crimes against humanity with a wider scope.[15]

Remember that though the sovereign nation can make rules and laws and impose them on it’s conquered territory, another nation can conquer that nation and do the same with he same justification. That’s the problem with that sovereign nation theory. In war it was generally accepted to slaughter the losing side, enslave them, oppress them, disfigure them, take their pretty women and leave them with only the ugly ones. Basically whatever you want. That was the basics of war, if you win you do as you will. Some countries came up with basic rules to stop atrocities, but it was not until guerrilla warfare came about when it seems like a good idea to treat those who you conquered fairly.

The Soviets were murdering both in camps and on the ground. They killed 8 million Ukrainians in the 30’s.

https://en.wikipedia.org/wiki/Holodomor

The Soviets also violated Nuremberg charges 1, 2 and 3 in their invasion of Poland in 1939.

While the top Nazi officials should have been tried, allowing the Soviets to participate in the proceedings makes the process appear to be victors justice.

Victors’ justice is better than no justice at all.

The whole Nuremberg trial was more or less ex post facto justice.

Not that it wasn’t justice. But certainly ex post facto.

The Soviets had more troops in Europe than the other Allies. They had revenge on Germany and kept the countries they “liberated”.

I’m curious: are you deliberately disregarding the Hague Conventions and the Kellogg-Briand Pact? Germany was a signatory of both, after all, and they provided the legal basis, however tenuous you might think it was, of the Nuremberg Trials.

I meant to cover those two particular documents when I made the blanket statement about existing treaties, with the Geneva Conventions as my principal example:

I believe, and you may correct me, these treaties established a legal basis for charges of crimes against peace and various war crimes. The charter for the League of Nations would also have been justification for the former charges had Germany not properly withdrawn. I am not aware of any basis for crimes against humanity in any treaty extant and binding upon Germany in 1945.

~Max

I think this is a good, succinct response. If “we won, so our laws apply” was good enough to make the German murder of civilians, prisoners, and yes, even soldiers in the field who were fighting against an internationally condemned invasion of their homeland in occupied territories somehow “not murder” for the duration of their occupation, then it seems the same ought to apply to the allied occupation of Germany. Other than minimalizing German war crimes (yes, crimes as defined by the allies, irrespective of the laws of Germany), I’m not really sure what else is to be gained here.

When it comes to international law, such as it is, consensus among the bulk of nations, even an at times hypocritical consensus, is enough to satisfy the question of whether something constitutes lawful or unlawful behavior. That’s how customary international law works, and it’s why appeals to international treaties as if they are the sole basis for international law or interactions between nations is bunk.

Just because it’s not in a treaty, signed and ratified by a party or not, doesn’t mean it’s not international law.

It seems that the Night of the Long Knives, and Kristallnacht were not legal, unless political murder by the State is legal.

For example, Hitler had his cabinet, which had the appropriate authority due to the Enabling Acts, declare “The measures taken on June 30, July 1 and 2 to suppress treasonous assaults are legal as acts of self-defence by the State”. Hitler himself broadcast to the public that all those murdered were treasonous, and Franz Gürtner (who drafted that amnesty statute) stated that the statute only confirmed existing law.

~Max

Do you think that sort of retroactive proclamation is somehow any more legitimate than the proclamation by allied powers that actions of Nazi leaders and functionaries were illegal?

I don’t.

~Max

Then you’ve answered your own question. Either the rule of law matters, in which case the answer is, “Yes, the Nazis broke the law and followed illegal orders,” or it doesn’t, in which case the answers is, “Non sequitur, there is no law, ever, of any kind, except the law we say you’ve broken.” Or something like that climactic scene in Catch-22 where the reply is always, “Catch-22.”