I have recently had a discussion with a German who claims that Nuremberg trials were entirely based on ex-post-facto laws, and all the atrocities Nazis did were legal according Germany's and international laws of the time. His arguments are quite erratic and self-contradictory. They are as follows:

  • Only citizens are protected by criminal laws, killing non-citizens is permitted. From my point of view, this is not the case in the majority of jurisdictions and there is no evidence Nazi Germany was an exception. Also this does not explain legality of killing euthanasia program victims who were German citizens.
  • German law declared Jews non-humans, look at Nuremberg laws. I found no evidece that these or any other German laws declared Jews non-humans. Also this does not explain how killing non-Jews, such as hostages was legal.
  • Killing by the order of state is not murder. Okay, but in majority of cases of Nazi atrocities there were no written orders. Even if they were, how they could overrule the law? I think, an order only switches the responsibility from the perpetrator to those who gave the order.
  • There was no international law before the establishment of the UN. Again, doubtful, because there were international conventions on treatment of POWs and rules of war.

So, my question is, whether these or other arguments to the effect that Nazi atrocities were legal according the German law, valid?

I am not asking whether the laws were enforceable or whether the victims could charge the perpetrators under Nazi regime.

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    Are you asking if it is factually correct that German law at the time claimed these things? The answer there is no: German law did not say that there is no international law, that killing non-citizens is permitted etc. Or are you asking there were any laws that might somehow be related to these claims, e.g. "what is the text of the Nuremberg Laws"? – user6726 Nov 16 '16 at 2:07
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    @user6726 I am asking whether the atrocities were legal according all the relevant German laws. – Anixx Nov 16 '16 at 2:12
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    International Law and the Laws of War go back to Roman Law and quite possibly predate Rome. Grotius was writing about International Law in 17th century. The Hague and Geneva Conventions, predating the Third Reich, codified law which would have covered the Nazi atrocities even if those atrocities had been sanctioned as "law" [sic] by Hitler's personal 'diktat'. – Peter Point Nov 16 '16 at 8:05
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    Nuremberg trials are often used as textbook examples of natural law given positive value, since nazis actions weren't illegal under positive (German) law but they were universally seen as evil crimes. – Pere Jan 27 '17 at 17:37

It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders).

  1. Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally.
  2. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness).
  3. Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474.
  4. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others.

In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law.

  • You said that some trials had better foundation than others. You mean those based on international conventions had better foundation? Do you mean killing civilians in cases not covered by international treaties was legal under German law of the time (Nazi laws)? – Anixx Nov 16 '16 at 14:24
  • @Anixx I do not know what "German law" was throughout the entire 13 years of Nazi rule. I do not know if any laws allowed extra-judicial killing or, if any did, they were legitimate German law. Questions of the type "is X legal" are basically unanswerable unless you give us some idea of why you think "X" might be legal or illegal. – Dale M Nov 17 '16 at 1:41
  • @DaleM The Enabling Act wasn't illegal, although some minor formal issues could have been challenged. Therefore most Nazi actions were legal under German law. – Pere Jan 30 '17 at 11:34
  • Point 3: Have superior orders been a recognized defence under military laws? – Martin Bonner supports Monica Jul 3 '18 at 8:06

There have been plenty of cases that were obviously illegal, for example prisoners who had been given a (legally debatable) death sentence being murdered in their cell, shortly before they were due to be executed.

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