# Was it legal to arrest the Nazis? **URL:** \ **Category:** Factual Questions\ **Created:** [December 6, 2000, 7:07pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347 "2000-12-06T19:07:42Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![stkelly52](https://avatars.discourse-cdn.com/v4/letter/s/f14d63/32.png) [@stkelly52](https://boards.straightdope.com/u/stkelly52)\ **Post date:** [December 6, 2000, 7:07pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/1 "2000-12-06T19:07:42Z")
With my understanding of the way laws are supposed to work, you cannot charge someone with commiting a crime that was legal. Now while what occurred durring WWII was inhumaine and destestible, they were tried for violations of the Geniva Convention, which didn’t happen until after WWII. Prior to that there was no such thing as a war crime. What was the legal basis for convicting them? ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [December 6, 2000, 7:15pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/2 "2000-12-06T19:15:59Z")
Well, there are a lot of books written on the Nuremberg Trials. I’m sure you can find a lot of theories about the legal underpinnings of the trial. I’m not an expert on international law, but I’ve been lead to believe that if you win a war, it’s not that hard to punish the losers. ---
**Author:** ![Danimal](https://avatars.discourse-cdn.com/v4/letter/d/bb73d2/32.png) [@Danimal](https://boards.straightdope.com/u/Danimal)\ **Post date:** [December 6, 2000, 7:23pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/3 "2000-12-06T19:23:33Z")
There was more than one Geneva Convention, including the 1929 Geneva Convention on the treatment of POWs. Germany was signatory to this, and also to the Hague Regulations. See [http://motlc.wiesenthal.com/resources/books/annual5/chap11.html](http://motlc.wiesenthal.com/resources/books/annual5/chap11.html) I believe that some of the defendants were also tried for violating German law, rather than international law, on the theory that the Allied government of occupation had sort of inherited the responsibility for enforcing German laws until democracy was re-established. Many of the acts of the Nazis and their co-conspirators were blatantly illegal under German law, or had been legalized by methods not in line with the Weimar Constitution. ---
**Author:** ![sewalk](https://avatars.discourse-cdn.com/v4/letter/s/b3f665/32.png) [@sewalk](https://boards.straightdope.com/u/sewalk)\ **Post date:** [December 6, 2000, 7:23pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/4 "2000-12-06T19:23:47Z")
The _United States Constitution_ prevents Congress from passing _ex post facto_ laws. There was no corresponding charter governing international law, as such, when the Allied powers convened to declare certain Nazi activities “crimes against humanity”. IIRC, Nazi war criminals attempted to use _ex post facto_ as a defense, but the US, UK, France and USSR simply ignored the arguments, whatever merit they may or may not have had. The atrocities committed were considered so heinous, no one had any desire to provoke public outrage by dimissing any charges on this basis, although I seriously doubt that Truman, Churchill, De Gaul and Stalin gave one iota of consideration to do this anyway. The Geneva accords predated WWII, anyway (1926 ,IIRC). The real legal basis for Nuremburg was “To the victor the spoils”. ---
**Author:** ![Saltire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saltire/32/553_2.png) [@Saltire](https://boards.straightdope.com/u/Saltire)\ **Post date:** [December 6, 2000, 7:24pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/5 "2000-12-06T19:24:32Z")
It’s true that the **last** Geneva Convention was in 1949, but there were previous conventions (going back to 1864) that had codified those rules it was determined that the Nazis had broken. See [this article](http://www.britannica.com/bcom/eb/article/5/0,5716,37105+1+36404,00.html?query=geneva%20convention) in the online Encyclopedia Britannica for more info. ---
**Author:** ![Alessan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alessan/32/465_2.png) [@Alessan](https://boards.straightdope.com/u/Alessan)\ **Post date:** [December 6, 2000, 7:24pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/6 "2000-12-06T19:24:58Z")
The Neuremberg Trials were a matter of _justice_, not law. Those creatures needed to be destroyed, and were. Legalities are irrelevant. ---
**Author:** ![stkelly52](https://avatars.discourse-cdn.com/v4/letter/s/f14d63/32.png) [@stkelly52](https://boards.straightdope.com/u/stkelly52)\ **Post date:** [December 6, 2000, 7:30pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/7 "2000-12-06T19:30:07Z")
> [@](#): > > \*Originally posted by Alessan \* > \*\*The Neuremberg Trials were a matter of _justice_, not law. Those creatures needed to be destroyed, and were. Legalities are irrelevant. \*\* On one hand I agree with you, They did deserve their punishment, BUT to say that “legahlities are irrelevant” is a dangerous concept. ---
**Author:** ![Alessan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alessan/32/465_2.png) [@Alessan](https://boards.straightdope.com/u/Alessan)\ **Post date:** [December 6, 2000, 7:43pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/8 "2000-12-06T19:43:17Z")
True. Bear in mind, though, that this was no normal criminal case. If the prosecutors had not found some laws to use against the Nazis, they would have written some. ---
**Author:** ![Chas.E](https://avatars.discourse-cdn.com/v4/letter/c/e99b99/32.png) [@Chas.E](https://boards.straightdope.com/u/Chas.E)\ **Post date:** [December 6, 2000, 7:53pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/9 "2000-12-06T19:53:12Z")
> [@](#): > > \*Originally posted by Alessan \* > \*\*The Neuremberg Trials were a matter of _justice_, not law. Those creatures needed to be destroyed, and were. Legalities are irrelevant. \*\* Yeah right. Do you know what happened at the Japanese war crimes trials? ---
**Author:** ![peace](https://avatars.discourse-cdn.com/v4/letter/p/c68b51/32.png) [@peace](https://boards.straightdope.com/u/peace)\ **Post date:** [December 6, 2000, 8:08pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/10 "2000-12-06T20:08:27Z")
History is written by the victors To the victors go the spoils ---
**Author:** ![stkelly52](https://avatars.discourse-cdn.com/v4/letter/s/f14d63/32.png) [@stkelly52](https://boards.straightdope.com/u/stkelly52)\ **Post date:** [December 6, 2000, 8:09pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/11 "2000-12-06T20:09:44Z")
> [@](#): > > \*Originally posted by Chas.E \* > Yeah right. Do you know what happened at the Japanese war crimes trials? > \*\* Good point, The Japanese committed some horrendous acts as well, but little is ever said about them. Probably because they were so far removed from Europe. ---
**Author:** ![Amok](https://avatars.discourse-cdn.com/v4/letter/a/f17d59/32.png) [@Amok](https://boards.straightdope.com/u/Amok)\ **Post date:** [December 6, 2000, 8:41pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/12 "2000-12-06T20:41:53Z")
> [@](#): > > _Danimal wrote:_ > There was more than one Geneva Convention, including the 1929 Geneva Convention on the treatment of POWs. Germany was signatory to this, and also to the Hague Regulations. See > [http://motlc.wiesenthal.com/resources/books/annual5/chap11.html](http://motlc.wiesenthal.com/resources/books/annual5/chap11.html) Oddly enough, I was reading about this a bit today before I saw this thread. [This page](http://www.spectacle.org/596/nurem.html) says the following: > [@](#): > > War crimes jurisprudence was based on the Hague and Geneva conventions, and narrowly governed the treatment of foreign soldiers and noncombatants during wartime. Technically, the only war crimes committed by the Germans involved the treatment of Allied prisoners of war and of the populations of conquered countries. (There was an additional legal wrinkle in that Germany had repudiated the Geneva and Hague conventions; but at least at one time it had been a party to them.) I don’t consider the site an authoritative source, so I’ve looked around a little bit to try and find out if Germany actually did repudiate the treaties, but without luck. Technically, if they did, any actions outlawed by the treaties after the repudiation would not have been illegal, as I understand it, unless the repudiations themselves were not legal. I skimmed over the link you provided, but if repudations occured, it isn’t mentioned there. Though I did find this interesting passage: > [@](#): > > As a jurist and Senior State Attorney, Streim discusses in greater detail the rules of international law that applied to the treatment of their respective POWs by Germany and the Soviet Union, and his study throughout emphasizes the legal dimensions of his subject. The legal situation was complicated by the fact that pre-Nazi Germany had ratified the 1907 Hague Regulations (and also the 1929 Geneva Convention) that contain basic rules, inter alia, for the treatment of POWs and provide, inter alia, for visits by the International Red Cross to investigate compliance. In contrast, the Soviet Union, which had not signed the 1929 Geneva Convention, considered itself not bound by the Tsarist regime’s ratification of the 1907 Hague Regulations because, Streirn argues, it opposed the interference of the Red Cross, and not because it intended to mistreat German POWs. It may be, therefore, that mistreatement of Soviet POWs was not illegal, as treaties are only binding between signing parties. Though I don’t suppose the judges at Nuremberg lacked for cases of the mistreatement of US, British, French et al POWS to examine. > [@](#): > > _Alessan wrote:_ > If the prosecutors had not found some laws to use against the Nazis, they would have written some. I believe that, to a certain extent, was done. As far as I know (and I’m sure someone will correct me, if I’m wrong) the charge of “crimes against peace” that certain officals were charged with was an entirely new crime that was more or less invented by the Allies and applied ex post facto. The other charge of “crimes against humanity” (which is along the lines of genocide and oppression of civilian populations) has a stronger standing. This [site](http://www.tourolaw.edu/Publications/internationallawrev/vol6/part5.html), for instance, says: > [@](#): > > Following World War I, the Allied Powers’ plan to prosecute alleged German war criminals was abandoned in the interests of preserving stability within the politically precarious Weimar Republic. Germany compromised and agreed to conduct a limited number of trials before the Penal Senate of the Reichsgericht. However, the Germans possessed little enthusiasm for prosecuting their own combatants. Some were acquitted, others received lenient sentences and the vast majority of the charges were quashed. Those convicted eventually had their verdicts annulled. The most significant development was the Reichsgericht’s recognition in the Llandovery Castle Case that the international humanitarian law of war was binding upon German belligerents. But even then, the “international humanitarian law of war” only applied to citizens of occupied or invaded countries, not to the citizens of one’s own country. The massacre of Armenians by the Ottoman Empire wasn’t considered illegal at the end of WWI, even though the Ottomans lost that war. So, Nazis who were prosecuted for violence against citizens of Germany were being tried under a new law (or a new application of an existing law). > [@](#): > > _Alessan wrote:_ > The Neuremberg Trials were a matter of justice, not law. Those creatures needed to be destroyed, and were. Legalities are irrelevant. I can appreciate that line of thought, and I suspect that the Allies thought fairly similarly (though I don’t know for sure). However, if that was the case, then I wish they had simply said something along the lines of “We won, they lost, and we found the way they fought morally repugnant so we’re putting them to the sword, for vengence and as an example for others” rather than creating new crimes, charging people with them, and then going through the process of trials. I realize this is getting quite GDish, but the former approach seems more honest to me than the latter. Especially since one of the countries involved in the trials was guilty of commiting comparable crimes during the same time frame (that being the Soviet Union). ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [December 6, 2000, 8:48pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/13 "2000-12-06T20:48:23Z")
The Tokyo War trials just don’t have the same historical resonance because they weren’t the subject of a popular movie I imagine. ---
**Author:** ![Chas.E](https://avatars.discourse-cdn.com/v4/letter/c/e99b99/32.png) [@Chas.E](https://boards.straightdope.com/u/Chas.E)\ **Post date:** [December 6, 2000, 9:20pm UTC](https://boards.straightdope.com/t/was-it-legal-to-arrest-the-nazis/44347/14 "2000-12-06T21:20:28Z")
> [@](#): > > \*Originally posted by BobT \* > \*\*The Tokyo War trials just don’t have the same historical resonance because they weren’t the subject of a popular movie I imagine. > \*\* Um… no. The Tokyo Trials came far after Nuremburg, and people were already sick of the endless war trials, they didn’t get nearly the press that Nuremburg die. But that wasn’t really what screwed things up. There was much more international involvement in the Tokyo tribunal, and the legal issues (and mistakes) of Nuremburg were a lot clearer. Some factions (primarily the Dutch, IIRC) had moral objections to the whole process and let off a higher proportion of defendants. But mostly, the Allied occupation forces decided that it was necessary to keep highly placed but not 1st-rank war criminals in place, in order to keep the country organized against Socialism. Some of these war criminals are still in high positions of power today. For example, one notorious doctor, who was basically the Japanese equivalent of Dr. Mengele was in charge of a medical products company until about 2 years ago, when he was convicted of deliberately allowing AIDS-contaminated blood products into Japan, just to make an extra buck.