# The Nuremberg Trials and ex post facto justice **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2015, 4:23pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980 "2015-02-06T16:23:21Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 6, 2015, 4:23pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/1 "2015-02-06T16:23:21Z")
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?”) ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [February 6, 2015, 4:38pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/2 "2015-02-06T16:38:01Z")
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. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 6, 2015, 4:41pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/3 "2015-02-06T16:41:29Z")
> [@Smapti](#): > > 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? ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [February 6, 2015, 5:00pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/4 "2015-02-06T17:00:50Z")
> [@Smapti](#): > > 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. Are you certain? Wiki says otherwise: [Nuremberg Laws - Wikipedia](http://en.wikipedia.org/wiki/Nuremberg_Laws#Defining_the_Nuremberg_Laws) > [@wiki](#): > > The measures were unanimously adopted by the Reichstag. In 12 years of Nazi rule, the Reichstag only passed four laws: the Nuremberg laws were two of them. 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](http://en.wikipedia.org/wiki/Enabling_Act_of_1933), allowing him to bypass the Reichstag as desired. ---
**Author:** ![storyteller0910](https://avatars.discourse-cdn.com/v4/letter/s/ecae2f/32.png) [@storyteller0910](https://boards.straightdope.com/u/storyteller0910)\ **Post date:** [February 6, 2015, 5:08pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/5 "2015-02-06T17:08:27Z")
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). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 6, 2015, 5:41pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/6 "2015-02-06T17:41:56Z")
> [@Velocity](#): > > 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.)”_ Consider this oft-quoted story: > [@](#): > > In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In I949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige freikeitsberaubung). > > This was punishable as a crime under the German Criminal Code of I87I which had remained in force continuously since its enactment. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she > had committed no crime. The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court > for having violated a statute, since, to quote the words of the court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.” > > H.L.A. Hart, _Positivism and the Separation of Law and Morals_ Oddly, Hart didn’t provide any citations for the story and all the references to it lead back to him. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 6, 2015, 6:27pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/7 "2015-02-06T18:27:22Z")
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. Regards, Shodan PS - [cite.](http://en.wikipedia.org/wiki/London_Charter_of_the_International_Military_Tribunal) ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [February 6, 2015, 7:46pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/8 "2015-02-06T19:46:27Z")
> [@mlees](#): > > Are you certain? Wiki says otherwise: [Nuremberg Laws - Wikipedia](http://en.wikipedia.org/wiki/Nuremberg_Laws#Defining_the_Nuremberg_Laws) :smack: 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. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 7, 2015, 3:25am UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/9 "2015-02-07T03:25:42Z")
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](http://en.wikipedia.org/wiki/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. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 7, 2015, 2:22pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/10 "2015-02-07T14:22:55Z")
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. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 7, 2015, 4:20pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/11 "2015-02-07T16:20:26Z")
> [@Velocity](#): > > 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. People who automatically take an uninformed preconceived view, such as cynicism, are usually going to be badly wrong. Three of 24 defendants (12.5%) at the initial and most famous round of trials at Nuremberg were acquitted: Fritzsche, Schacht and Von Papen. 46 of 185 (25%) defendants at subsequent Nuremberg trials were acquitted. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 7, 2015, 4:28pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/12 "2015-02-07T16:28:09Z")
> [@Lumpy](#): > > 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](http://en.wikipedia.org/wiki/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. 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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 7, 2015, 4:37pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/13 "2015-02-07T16:37:32Z")
> [@Nelson\_Pike](#): > > Three of 24 defendants (12.5%) at the initial and most famous round of trials at Nuremberg were acquitted: Fritzsche, Schacht and Von Papen. 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. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 7, 2015, 4:56pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/14 "2015-02-07T16:56:12Z")
> [@storyteller0910](#): > > 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). 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?”_ ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [February 7, 2015, 5:40pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/15 "2015-02-07T17:40:02Z")
> [@Velocity](#): > > 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. 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. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 7, 2015, 5:42pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/16 "2015-02-07T17:42:54Z")
> [@Velocity](#): > > 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. 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. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 7, 2015, 6:14pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/17 "2015-02-07T18:14:56Z")
> [@Captain\_Amazing](#): > > 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. 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. > [@Captain\_Amazing](#): > > 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. 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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 7, 2015, 6:56pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/18 "2015-02-07T18:56:44Z")
> [@Nelson\_Pike](#): > > 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. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 7, 2015, 7:10pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/19 "2015-02-07T19:10:29Z")
> [@Captain\_Amazing](#): > > 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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 7, 2015, 7:22pm UTC](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980/20 "2015-02-07T19:22:20Z")
> [@Nelson\_Pike](#): > > 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. [Next page](https://boards.straightdope.com/t/the-nuremberg-trials-and-ex-post-facto-justice/711980.md?page=2)