interesting long essay on the nuremberg trials and individual versus collective responsibility at http://www.codoh.com/trials/triamprosnazis.html . Anyway found this on th e extermination squads
“The Tribunal noted that a Commando leader who declared that he was constitutionally incapable of engaging in mass exterminations, likely would have been assigned to other duties, sent back to Berlin or dismissed. 274 The defendants, thus, could not credibly contend that it was futile to request a release from their responsibilities. In the end, the panel dismissed the defense of duress and determined that the defendants had been driven by ambition and animus to engage in mass executions.”
I wouldn’t put too much weight on the Nuremberg trials in a discussion on whether Holocaust was legal or not from a judicial point of view. Nuremberg was still a victor’s trial (though less so than other WWII trials), provisions were applied retroactively and ‘crimes against humanity’ was a new concept. International was not very well developed. The killing of the German Jews was certainly not illegal under internatinal law, no international convention forbids a state to kill its own citizens.
I don’t know which international treaties Germany still was a signatory to at the outbreak of the war, they withdrew from the League before the war and rejected the Versailles treaty. (on preview, Yales’s Avalon project comes to mind, and this sheds some light. I also have an Athlantic Monthly article from 1946 on my disk which is available here.
One of the theories on why Nuremberg happened is that the Allied insisted on unconditional surrender, also new at that time. In earlier wars leaders on the losing side would negotiate conditions which allowed them to escape justice, or they were just run over and ended up summarily executed.
But that’s done under a law that forbade bank robbery at the time the bank robber robbed the bank.
it’s a general principle of criminal law that an action can’t be made illegal retroactively. If the law didn’t forbid a certain act at the time, it can’t be made an offence and punished retroactively.
This point is dealt with in the U.S. Constitution by the ban on ex post facto laws in Article I, s. 9
Otherwise known as the “some guy made some shit up” formula.
So as I understand it, to avoid a suggestion they were applying law retroactively, the court retroactively applied a principle that said that said the laws under which the troops acted were never valid?
It is very good, but that statement is possibly a bit debatable ?.
This is the copy of the Wannsee transcript that survived :-
It’s fairly euphemistic (made so on Heydrich’s orders), and not a line by line recording of who said what.( And Holocaust deniers like to argue that it proves the Wannsee conference was only about forced emigration).
My point is that the actual dialog in “Conspiracy” is a fictional dramatisation. For example, there’s a key moment in it where Heydrich confirms, explicitly, that they’re talking about murdering the Jews. That’s not in the transcript. Similarly the film has a discussion about the mechanics and logistics of the death camps (using gas,X number dead per day, bodies disposed of by a “process of combustion”), which isn’t in the transcript.
As a matter of curiousity what do Holocause deniers say about Eichmann’s minutes, linked by Crowmanyclouds at post #14 above? They are fairly explicit. No doubt they have some rationalisation
At a quick glance,Crowmanyclouds 's link and mine are to different translations of the same document, they’re substantially the same text.
Well, Eichmann said at his trial that he’d been told by Heydrich to make the minutes seem innocent. If you read them with a certain mindset,I suppose it’s possible to argue that they don’t explicitly mention killing people, or mass murder. Broadly,the deniers claim that the Wannsee meeting was about resettling Jews in the East, to do forced labour.
These are people whose idea of a major historical insight is that Heydrich spelt his first name without a trailing T [Reinhard], and therefore Aktion Reinhardt [with a t] couldn’t have been named after him. The fact that there are a number of official German documents referencing Reinhardt (with a t) Heydrich,and indeed documents referring to Atkion Reinhard,doesn’t seem to impinge on them.
I think it’s rather more accurate to say that the courts chose to apply the principle that had been articulated forty-some years earlier. It’s not something that’s without precedent in many legal systems.
Any number of principles are articulated. Many of them centuries old. Is it your suggestion that if a court decides to convict you under a principle today, that is not retrospective even though when you did what you did yesterday the court had never before applied that principle, just because some theorist had espoused the principle previously?
The crucial point would appear to be that the court first started applying the principle ie it became in a practical sense the law, after the events in question.
In a similar more recent situation, I believe Saddam Hussein based his defense on the principle that he had never broken any Iraqi laws and therefore could not be convicted by an Iraqi court. His statement was technically correct - during his regime, the Iraqi constitution explicitly gave him the power to do anything he wanted, including ordering mass murders.
WRT to the Nuremberg Laws (i.e. anti-Jewish discrimination in many domains, but not extending to murder), yes. WRT to certain acts, yes (e.g. the Staatsnotwehrgesetz legalizing the murders of the Night of Long Knives in 1934). WRT to murder by the state in general, no - rather the problem was solved by denying the victims access to the courts (which were complicit or complacent anyway).
So what would have happened if in World Wars One or Two, Germany had refused to explicitly surrender? Would the Allies have maintained that a "state of war’ continued and simply shot any German they wanted to?
The occupying forces would establish “martial law” in the areas that they control.
They would post notices and have interpreters instructing the civilian population on what was expected of them (dusk to dawn curfew, for example), and the penalties. (Which may range from incarceration for curfew violations to execution for partisan/sabotage activities.)
Eventually, administrators would be brought in (if no locals want the job) to handle running the local infrastructure. (Electricity, water, sewage, hospitals, telephones, fire fighting, and other services.)
Not in World War 1, since the fighting ended with an armistice rather than a German surrender; though it was clear that Germany had lost. The war didn’t formally end until the Treaty of Versailles in 1919. So for several months a “state of war” indeed continued, but despite that, the Allies weren’t shooting Germans any more.
Without a surrender, a state of war would indeed still exist. This does not mean that the Allies could shoot “any German they wanted to.” Allied forces would continue to fight against Germans that were engaged in hostilities, but POWs would be covered by the Geneva Convention (1929), the governing international agreement in effect at the time.
Without a general surrender, surrenders would have taken place piecemeal, at the unit and individual level until there were no forces left in the field.
To expand what I wrote on German legal discussions before.
German constitutional law contains an explicit prohibition of punishing people for crimes which were not defined as punishable until after it was committed (Article 103 section 2 of the Basic Law). This was a serious issue during the trials of former East German border troops - again, East German legislation had legalized the use of guns against GDR citizens trying to cross the border illegally. Several of them were convicted and filed appeals against these judgments with the Federal Court of Justice. The Court upheld the convictions, arguing that East German legislation legalizing the shootings was void due to their obvious and intolerable violation of elementary commandments of justice and of human rights protected by international law (to cite it in German: “[…] wegen offensichtlichen unerträglichen Verstoßes gegen elementare Gebote der Gerechtigkeit und gegen völkerrechtlich geschützte Menschenrechte unwirksam”). In cases of conflicts between these basic principles common to all nations, the unwritten rules must have priority over statutory law (“in einem solchen Fall muss das positive Recht der Gerechtigkeit weichen,” explicitly citing Radbruch). The entire judgment can be found here (German only).
The convicts again filed constitutional complaints against this to the Federal Constitutional Court, invoking a violation of Article 103 (Germany does not have an American-style judiciary culminating in one single supreme court but has a constitutional court separate from the regular judiciary solely for the interpretation of the constitution). The Constitutional Court rejected this argumentation, again citing Radbruch’s formula (judgment, again German only).
Neither court gave precise criteria for determining the applicability of these rules, and of course it needs to be interpreted very, very narrowly as an exception in extreme cases of violations of human rights. This case-law was also criticized for the reasons mentioned by *Princhester - that a rule was introduced retroactively in order to circumvent a prohibition of punishing retroactively. But that’s the way the courts decided.