I think there were arguments made at the Wannsee Conference (the conference in which the final solution was planned in earnest) regarding the fact that the Holocaust was clearly a violation of German law. This argument was made by the very lawyer that drew up the Nuremberg Laws regarding the treatment of the Jews and that under German law, their murder was still obviously illegal (technically), and brought up a whole host of sticky questions regarding death certificates, inheritance, marriage laws (regarding gentile spouses), etc. I believe the Nazi regime also broke numerous international laws regarding their wars of aggression to which the German gov’t had previously been signatories too. Not only did Germany violate international law during WWII, they violated their own military justice system and simply ignored their own written laws to become a lawless state. Many of the crimes they were prosecuted under did in fact exist, although “crimes against humanity” was moralistically grandiose, it was meant to have a deterrent effect for future generations.
One could also argue that the scale of inhumanity that took place in the Second World War defied all precedent, and thus needed a specific address to such questions as genocide. I would also mention that the Nuremberg Trials as a method of determining culpability and command responsibility was in fact an alternative to the preferred Stalin method of packing up large segments of German society and either summarily executing them or sending them east. I believe that FDR thought Stalin was joking when he mentioned something along these lines at Yalta whereas Churchill was horrified…
Thus breaching the basic principle that criminal laws should not apply retrospectively, so that an act which is not illegal at the time it is committed cannot later be made illegal.
But many of their criminal acts WERE illegal at the time, as the Nazi regime and her allies simply ignored their own laws…
The laws, dealing with matters during the war, were so grossly retrospective that they were not even published until August 1945, several months after the end of the European war.
The laws offend the principle that everyone is equal under the law, because only Axis offenders could be tried under them.
To my knowledge, this was to set some sort of legal framework from where none such existed before, and to have a deterrent effect upon future transgressors. We can argue about “victor’s justice,” but that is another matter. The Allies could counter, at least the Western ones, that they did in fact try some of their officers and soldiers for war crimes (on occasion though I agree it was largely sporadic and imperfect at best) and attempted to enforce some form of military good order and discipline in regards to the capture and care of prisoners.
So, were the Nazis tried by the Allies under an inherently more ‘legal’ system than the people tried under the Nazi regime in their at times laughable Party oriented courts?
That would be a matter of subjective opinion. The problem I have is that the Nazi party courts were completely illegal monstrosities that had no bearing on the written code of the German criminal justice system and its precedents…
Were the post-war trials of the Nazis really all that much different to the ideas underlying herman’s strongly expressed position, which is that the law should be tailored to deal with people which the majority of the population; or those in power; or the victors, despise because of the enormity of their crimes?
IIRC- Wasn’t Nuremberg conducted under the premise that the Nazi regime essentially fostered a “lawless state” that completely ignored all of its own criminal codes and therefore could not be trusted to meet out justice to its own war criminals? The Nazi court trials had little in common with what one would call justice. Did the Jews ever get a trial? Did the (up to) 4.5 million Soviet POWs ever get a trial? The only people who got a trial were mainly the German opponents of the Nazi regime–such as the Rose Group and the July 17th coup plotters. But I think we can hardly compare a very selective series of trials of those in command responsibility to the paranoid, sadistic witch hunts that were the highlight of Nazi ‘justice.’ Foreign opponents of the regime were lucky to get a merciful guillotine after torture, and were clearly executed extra-judicially as they weren’t even given benefit of a mock, show trial or kangaroo court…
Even mature and supposedly democratic legal systems which enshrine human rights (whatever that means) always adapt themselves to extreme circumstances or circumstances which are seen to threaten the established order by doing exactly what herman suggests and depriving people accused of such crimes of their legal rights and protections and allowing a form of legally sanctioned vigilantism. As many countries have seen since 9/11 as evidenced by things such as US legal opinions allowing torture and rendition, and the execution of an innocent Brazilian by police in London with no criminal charges against the executioners. Or the legal system in Northern Ireland to deal with the IRA etc in the 1970s onwards, run by the British who pride themselves on having the best justice system in the world.
The US legal opinions allowing torture have been found to be irresponsibly dubious at best, and the US Attorney General here caused quite a stir when he mention prosecuting CIA and military officers for conducting such activities. I agree such efforts have been a bit piss-weak, and the real people that should be thrown in jail are the Bush lawyers who essentially ignored their laws out of convenience or who allowed illegal programs such as the “Copper Green” to result in the abortion that took place at Abu Ghraib (which was repeated in dozens of detention facilities after the Iraq War BTW, with full knowledge of the Sunnis–even without the fucking photos that everyone pissed themselves over the release of) which did nothing but inflame the Sunni insurgency and cause MORE terrorism and resistance to the occupation. Yet, if you’re going to indict the extremes of the previous administration, we also must acknowledge that the US military and civil authorities have tried and convicted their members (as well as civilian mercenaries working for security contractors such as Blackwater) of crimes at Haditha and other places–for murder, rape, summary executions of Iraqi insurgent suspects and regarding other illegal conduct…