# Was the Holocaust actually illegal? **URL:** \ **Category:** Factual Questions\ **Created:** [March 1, 2007, 7:12pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195 "2007-03-01T19:12:22Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [March 1, 2007, 7:12pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/1 "2007-03-01T19:12:22Z")
At least under German law at that time? I mean every country has laws against murder, but did Adolf Hitler actually change the German penal code to formally legalize the killing of Jews, Roma, etc? ---
**Author:** ![robby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robby/32/11048_2.png) [@robby](https://boards.straightdope.com/u/robby)\ **Post date:** [March 1, 2007, 7:25pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/2 "2007-03-01T19:25:19Z")
Whether German law was changed or not is irrelevant. From the wiki entry for the [Nuremberg Trials](http://en.wikipedia.org/wiki/Nuremberg_Trials) and the [London Charter](http://en.wikipedia.org/wiki/London_Charter_of_the_International_Military_Tribunal): > [@](#): > > The legal basis for the trial was established by the London Charter, issued on August 8, 1945, which restricted the trial to “punishment of the major war criminals of the European Axis countries”. > > …The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939. > [@](#): > > Three categories of crimes were defined: war crimes, crimes against peace, and crimes against humanity. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [March 1, 2007, 7:27pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/3 "2007-03-01T19:27:54Z")
[QUOTE=robby] Whether German law was changed or not is irrelevant… [/QUOTE] I know that, but did Hitler ever bother to change German law? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [March 1, 2007, 7:31pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/4 "2007-03-01T19:31:49Z")
[QUOTE=robby] Whether German law was changed or not is irrelevant. [/QUOTE] Clearly it is relevant, because that’s what the OP asked about. ---
**Author:** ![scm1001](https://avatars.discourse-cdn.com/v4/letter/s/c4cdca/32.png) [@scm1001](https://boards.straightdope.com/u/scm1001)\ **Post date:** [March 1, 2007, 7:37pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/5 "2007-03-01T19:37:09Z")
my WAG is that it would have been against the law at the time. I remember cases (sorry no cites) of german military officers refusing to help with civilian massacres. They were not court marshalled, but quietly reassigned. ---
**Author:** ![robby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robby/32/11048_2.png) [@robby](https://boards.straightdope.com/u/robby)\ **Post date:** [March 1, 2007, 7:39pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/6 "2007-03-01T19:39:59Z")
It’s clear that Hitler did in fact change German law, starting with the [Nuremberg Laws](http://en.wikipedia.org/wiki/Nuremberg_Laws), which led directly to the [Kristallnacht](http://en.wikipedia.org/wiki/Kristallnacht) massacre and mass deportation in 1938. In any event, the London Charter defined [Crimes against humanity](http://en.wikipedia.org/wiki/Crimes_against_humanity) as: > [@](#): > > Crimes Against Humanity: namely, 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** _[emphasis added]_. ---
**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:** [March 1, 2007, 7:47pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/7 "2007-03-01T19:47:53Z")
That’s the thing about totalitarian states - it’s legal if the government says it’s legal. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 1, 2007, 7:54pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/8 "2007-03-01T19:54:02Z")
There’s a film about the Meeting of top Nazi officials where they discuss the “Final Solution” and one lawyer dude keeps harping on how what they are proposing isn’t legal. Damn if I can remember the title. The OP has asked about _German_ law. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 1, 2007, 7:56pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/9 "2007-03-01T19:56:01Z")
[QUOTE=DrDeth] There’s a film about the Meeting of top Nazi officials where they discuss the “Final Solution” and one lawyer dude keeps harping on how what they are proposing isn’t legal. Damn if I can remember the title. The OP has asked about _German_ law. [/QUOTE] I bet you’re talking about the film “Conspiracy.” It’s near the top of my Netflix list. I hear its good. -FrL- ---
**Author:** ![robby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robby/32/11048_2.png) [@robby](https://boards.straightdope.com/u/robby)\ **Post date:** [March 1, 2007, 7:56pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/10 "2007-03-01T19:56:30Z")
[QUOTE=DrDeth] …The OP has asked about _German_ law. [/QUOTE] The Nuremberg Laws were German law. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [March 1, 2007, 7:59pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/11 "2007-03-01T19:59:40Z")
However, I believe it is pretty rare for totalitarian states to have written laws that explicitly allow the murder of ethnic minorities. Sure, there are laws against treason, there are laws against disrespecting the leader. But there also aren’t written laws that say the secret police have the right to rape prisoners in their custody. Of course the secret police can rape and murder with impunity, but that’s not because the law says the secret police can rape and murder with impunity, it’s because no one has the power to stop them. Of course, people are also killed by totalitarian states according to the written laws of the totalitarian state. So the law says it is treason to criticize the leader, and the penalty for treason is death, and you hold a trial that establishes that such and such a person criticized the leader, and this person is taken out and shot. But it also happens that a person who criticized the leader gets a visit from the secret police, and the police just pull out their guns and summarily shoot them. In the first instance the killing was legal according to the written law of the totalitarian state, in the second instance it wasn’t. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 1, 2007, 8:01pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/12 "2007-03-01T20:01:06Z")
To answer the OP, the Reichstag (the German parliament building) was burned by an arsonist on February 27, 1933. As a response to this, the “Order of the Reich President for the Protection of People and State” (commonly known as the Reichstag Fire Decree) was issued on February 28. It gave the German Chancellor (Hitler) special powers to protect Germany. This included the power to overrule existing laws. On March 23, this power was expanded by the “Law to Remedy the Distress of the People and the Nation” (commonly known as the Enabling Act) which gave Hitler and his officials the power to create new laws by decree. So from that point on, Hitler’s orders had the authority of law. ---
**Author:** ![Si\_Amigo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/si_amigo/32/2877_2.png) [@Si\_Amigo](https://boards.straightdope.com/u/Si_Amigo)\ **Post date:** [March 1, 2007, 9:05pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/13 "2007-03-01T21:05:11Z")
[QUOTE=Little Nemo] To answer the OP, the Reichstag (the German parliament building) was burned by an arsonist on February 27, 1933. As a response to this, the “Order of the Reich President for the Protection of People and State” (commonly known as the Reichstag Fire Decree) was issued on February 28. It gave the German Chancellor (Hitler) special powers to protect Germany. This included the power to overrule existing laws. On March 23, this power was expanded by the “Law to Remedy the Distress of the People and the Nation” (commonly known as the Enabling Act) which gave Hitler and his officials the power to create new laws by decree. So from that point on, Hitler’s orders had the authority of law. [/QUOTE] Must . . . fight . . . the urge . . . to compare this too . . . :smack: Stop now! :eek: Don’t bring politics into GQ :o pretend to respond to OP :dubious: Yes, it was allowable under German law at the time. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 1, 2007, 9:07pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/14 "2007-03-01T21:07:00Z")
[QUOTE=Frylock] I bet you’re talking about the film “Conspiracy.” [/QUOTE] Excellent film! Here’s a little about the meeting. > [@](#): > > [House of the Wannsee Conference](http://www.ghwk.de/engl/kopfengl.htm) > On January 20th, 1942 Reinhard Heydrich, Head of the Reich Security Main Office (Reichssicherheitshauptamt - RSHA), chaired a meeting of fourteen high-ranking civil servants and SS-officers… > As the decision to murder the European Jews had been made earlier the Wannsee Conference was concerned with the organisation and implementation of “The Final Solution”, the decision to deport the Jews of Europe to the East and to murder them. The meeting has become known as the Wannsee Conference. In 1947 the [minutes](http://www.ghwk.de/engl/protengl.htm) of the Conference recorded by Adolf Eichmann were found in the files of the German Foreign Office. CMC fnord! ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [March 1, 2007, 9:33pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/15 "2007-03-01T21:33:09Z")
When did the Reichstag pass the Act that essentially said that Hitlers will was basically the law? Everything after that is _technically_ legal, assuming the legality of the Nazi state in general. ---
**Author:** ![Alien](https://avatars.discourse-cdn.com/v4/letter/a/57b2e6/32.png) [@Alien](https://boards.straightdope.com/u/Alien)\ **Post date:** [March 1, 2007, 10:07pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/16 "2007-03-01T22:07:02Z")
[QUOTE=Si Amigo] Must . . . fight . . . the urge . . . to compare this too . . . :smack: Stop now! :eek: Don’t bring politics into GQ :o pretend to respond to OP :dubious: Yes, it was allowable under German law at the time. [/QUOTE] **Little Nemo** is spot on. After all, it’s the politicians who make laws. I just want to amend **Little Nemo** ’s answer by mentioning that the Enabling Act required a two third majority, which was achievable only after the Communist delegates and several Social Democrats had been arrested or were in hiding. I think you can say that Hitler’s rule by decree was unconstitutional. So any laws passed by his cabinet was not legal. And while Germany never passed any laws sanctioning mass murder, byt they did pass a bunch of anti-Jewish laws over the years. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [March 1, 2007, 10:55pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/17 "2007-03-01T22:55:11Z")
> [@](#): > > Must . . . fight . . . the urge . . . to compare this too . . . Let me guess… You were about to compare the situation under discussion to the Nazis? I don’t think Godwin’s law really applies here. 😉 ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [March 1, 2007, 11:17pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/18 "2007-03-01T23:17:02Z")
[QUOTE=Chronos] Let me guess… You were about to compare the situation under discussion to the Nazis? [/QUOTE] Hugo Chavez, surely. ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [March 1, 2007, 11:49pm UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/19 "2007-03-01T23:49:14Z")
[QUOTE=Ludovic] When did the Reichstag pass the Act that essentially said that Hitlers will was basically the law? Everything after that is _technically_ legal, assuming the legality of the Nazi state in general. [/QUOTE] You are referring to the _Ermächtigungsgesetz_ (Enabling Act) of 23 March 1933. Its wording was rather short - it merely stated that acts could not only be passed by the Reichstag but also by the Cabinet. Originally, the period of this was limited until 1937, but the act was prolonged after four years. It is a much debated question among German lawyers whether the holocaust was technically legal. The consensus is that it wasn’t. Legislation which the Nazis passed in order to legalize it is considered void according to a doctrine (called “Radbruch’s formula,” named after the legal scholar Gustav Radbruch who developed it in 1946) that statutes which contradict the basic rules of humanity must not be obeyed, even if they are formally correct. Sadly enough, the German courts started underpinning and applying this doctrine more precisely not after 1945, but after the failure of communist East Germany in 1989. Specifically, it has been invoked to punish East German border troops which shot citizens trying to cross the border to the West illegally. This was formally legalized by East German legislation, so Radbruch’s formula was applied as a reaction to criticism that punishing these troops would violate the prohibition of retroactive punishment. ---
**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:** [March 2, 2007, 12:17am UTC](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195/20 "2007-03-02T00:17:54Z")
[QUOTE=Schnitte] It is a much debated question among German lawyers whether the holocaust was technically legal. The consensus is that it wasn’t. Legislation which the Nazis passed in order to legalize it is considered void according to a doctrine (called “Radbruch’s formula,” named after the legal scholar Gustav Radbruch who developed it in 1946) that statutes which contradict the basic rules of humanity must not be obeyed, even if they are formally correct. [/QUOTE] Doesn’t this presuppose, though, that there are basic rules of humanity, and also that they’re somehow self evident? [Next page](https://boards.straightdope.com/t/was-the-holocaust-actually-illegal/394195.md?page=2)