I have an ignorant layman question: Did the Nazis ever use the following logic/argument at the Nuremberg Trials ? “What we did technically wasn’t illegal at the time (the Holocaust was perfectly “legal” in Nazi Germany, etc.)”
(Along with, “We were just following orders,” and “you don’t have the legal jurisdiction to try us for these deeds,” but those are separate arguments.)
And did the Allied prosecution use this logic: “Yes, that may be true, but you just can’t Holocaust 12 million people and get away with it. One way or another, you have to be punished?”
If so, is there a legal term for this principle? (“We are using ex post facto justice, but it is ex post facto justice that must be done?”)
IANAL, but it was my understanding that the Holocaust was illegal under German law - the Nuremburg statutes deprived Jews of pretty much all their rights as citizens, but the Reichstag never enacted a law that would have made their genocide lawful.
OK, thanks, but even if the Holocaust were legal under German law, the Allies probably would still have hanged the culprits, saying, “Legal or not, your genocidal actions deserve hanging,” right?
Another potential problem with that theory that the Reichstag must vote on the law is that Adolf Hitler had got legislative powers granted to him, via The Enabling Act, allowing him to bypass the Reichstag as desired.
The state of German law at the time the acts were committed wasn’t relevant; nobody was being tried at Nuremberg for breaking German laws. They were being tried for breaking international law and the laws of war (ie, war crimes).
AFAIK the Nuremberg trials were held under the authority of the terms of surrender of Germany. I suppose that could be thought of as “international law”.
It’s not quite the same thing as “maybe it wasn’t against the law to kill millions of people but it should have been”, although it has sort of the same feel.
Those who were tried, were tried because the winners said they were going to try them. And they were the winners. It’s true that “the winner makes the rules”, but in this case, that brought about justice.
Sorry, I misread Smapti’s sentence regarding the Holocaust. I thought that he was referring to the illegitimacy of the Nuremburg Laws.
But anyway (in regards to the Holocaust), with the Enabling Act, Hitler could go around/ignore the Reichstag. His Will alone was sufficient. Hitler gave a lot of the Holocaust orders orally, then granted the various henchmen (like the heads of industry, the Gauleiter, the police, the Gestapo, and so on) carefully worded paper decrees that granted them the powers they needed to do what was orally ordered of them. Hitler would make clear orally what he meant when he used various euphemisms or indirect languange in his paper decrees.
If I recall correctly, Hitler did this because he knew that there would be domestic opposition to the death camps. (The various Catholic groups strongly objected to the euthanizing of the mentally ill, for example, and that program was “officially” terminated in 1941.)
Why would the Nazi police state care about placating opposition groups? IMO, the Nazi’s seemed to want to present the fiction that all of Germany was united behind the Fuhrer. Can’t do that when there are protest posters (or whatever) plastered on walls for all the world to see.
It wasn’t enough just to militarily defeat Germany- it was unthinkable to allow the Nazi party to continue to be Germany’s government. Given that the Nazis had thoroughly politicized almost all of German society, and that millions of German citizens were at least nominally supporters of the party, the Allies were deeply concerned about how to bring about the denazification of Germany. The Nuremberg trials may have been legally shaky but the alternative would have been the summary execution of all senior Nazi officials.
Thanks for the responses.
I get the impression that the Nuremberg Trials (and subsequent other such trials, such as the trial of Adolf Eichmann, Saddam Hussein, etc.) were sham trials in a certain sense; that is to say, they seemed like a formality that had to take place before the hangings could be carried out. Obviously, the condemned Nazis richly deserved their fate, but it still seems like the outcome was a foregone conclusion all along from the very beginning.
In the first volume of his autobiography George Kennan said he thought we should have done exactly that: execute all senior Nazi officials without trial.
Kennan did not suggest it, but I believe designating the perpetrators as outlaws would have provided legal ground for summary execution. I have heard but never been able to source that Churchill favored this approach.
Although, neither Schacht or von Papen were Nazis, and while Fritzsche was, he was also fairly insignificant (he was the head of Radio News in the Propaganda Bureau. Fritzsche and von Papen did serve time in West German prisons, though.
But I think some of the cynicism is justified, maybe. You’re putting the defendants on trial for genocide, planning aggressive war and war crimes, and one of the judges is a judge who’s most famous for show trials, and one of the prosecutors goes on to run a prison camp where a quarter of the prisoners starve to death.
Right, but if, hypothetically, the Nazis’ actions hadn’t been illegal even under international law, is there a legal term/principle of, “Sure, genocide wasn’t illegal under anyone’s laws at the time, but it’s so heinous that it demands punishment ex post facto anyway?”
Goering certainly thought they were show trials and the outcome pre-ordered. A complete review of the proceedings would indicate to me that the prosecutors, judges and defenders took their roles seriously in this instance.
It is in view of the aggressive war and atrocities (Ab-Grahib and others) that the lies to get us into the war for oil and revenge have gone and will go unprosecuted and that such trials are only for those who lose wars has become the prevailing view in countries outside the US, and inside the US for those who have given it some thought.
Some people will always think trials like this were shame trials. The Nuremberg trials were conducted in as reasonable, objective, and fair way possible, I think. Not everyone was convicted, and among those convicted not everyone was convicted of every charge, and not everyone convicted was executed.
Nazi Party membership was not part of any Nuremberg indictment. Perhaps was Schacht technically not a Nazi (per Wiki he was made an honorary party member) However, he was a several-year member of Hitler’s cabinet, and as a bonafide economic genius did more than any one person to enable Nazi Germany from a financial perspective. He was guilty enough, so to speak, to be sentenced to prison for lesser crimes at a later trial.
Vyshinsky’s (sp?) unpunished guilt applies to the entire Soviet Communist Party leadership, but that is not a mitigating factor for crimes committed by the Germans, nor is it ground for a cynical view of the trials. Those crimes were so atrocious that it would have a much greater injustice to let them go unpunished than to convict them under post hoc conditions, and such a position does not merit being viewed cynically.
Of course it does. Either committing genocide and invading your neighbors is criminal in international law or it’s not. If it is, it’s as criminal when you do it as when they do it. The significant difference between the Soviet Union under Stalin and Germany under Hitler was that one side won the war and one side lost the war. So having the Soviets judge the Germans for things similar to the things they themselves did might lead one to a little bit of cynicism.
Of course it does not follow as a matter of either deductive or inductive logic that the criminal condition of the judge has any bearing on the criminal condition of the defendant, or that it renders the judge incapable of reaching an accurate verdict.
It does speak to motivation, though, doesn’t it? If the judge and prosecutor are themselves habitual criminals of the same sort as the defendant, it suggests that they’re acting for reasons other than a concern for justice or revulsion at the defendant’s actions. It’s the same reason that we laugh in Casablanca when the croupier gives Captain Renault his winnings just after he announces he’s shutting down the nightclub because illegal gambling is going on there.