Were Nazi atrocities legal according the German law of the time?

Question

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 to the 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 evidence 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, and even that only if the "following orders" defense is accepted.
• 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 to the German law, valid?

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

Answer 1

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.

Answer 2

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.

Answer 3

There is some argument to be made that "German law" consisted of whatever the Nazi Party said it was.

But that is irrelevant, as the Nuremberg trials were not conducted by the Nazi regime. They were conducted by the Allies, pursuant to the Allies' laws. If someone from Saudi Arabia comes into the US and kills a gay person, "Killing gay people is not illegal under Saudi Arabia law" would, regardless of whether it's accurate, not be a defense in a US court.

My understanding is that precisely to avoid questions such as these, the Nuremberg trials prosecuted Nazis exclusively based on conduct regarding their occupation of foreign countries. When Nazi Germany invaded other countries, took people from those countries, and killed those people, they put themselves under the jurisdiction of those countries.

Answer 4

The Nuremberg Trials tried for a combination of any of the four crimes listed below:

Participation in a common plan or conspiracy for the accomplishment of a crime against peace

Planning, initiating and waging wars of aggression and other crimes against peace

Participating in War crimes

Crimes against humanity

All defendants were in high positions of power in the government or flag officers in the military of Germany, though several industrialists were also tried. The crimes in the case were largely related to the war, though the crimes against humanity mostly stemming from slave labor.

The Trials tried 24 individuals and seven organizations for their role in the planning of and participation in a war of aggression and most of the specifics of the cases fell under treaty agreement or in accordance with the Leipzig War Crimes Tribunal held following World War I. The rules of the trial were agreed upon at the Yalta conference prior to the war's end and Germany had legally agreed to the trial in the signing of the Instruments of Surrender of Germany, which had ended the war in Europe.

The Instruments of Surrender effectively transferred all legal and political responsibilities of Germany to the Allied Control Council (ACC) and per rules, those indicted by the trial were only tried for crimes that were committed on or after September 1, 1939 (the start of the War, and thus the legal start of the laws enforced by ACC at the trial).

Additionally, there were several legal, practical, and symbolic reasons for Nuremberg being the location of the trial. Symbolically it was the birth place of the Nazi Party. Practically, it the palace of justice was intact, large enough, and had a jail on premisis, all difficult things to find in combination in a war torn nation. Legally, and perhaps most importantly, Nuremberg was on the American sector of Occupided Germany. This matters because American Law uses the Common law system instead of Civil Law systems found in Germany. Common Law requires the use of precedence (new trials should find in similar ways for similar circumstances) as a fundamental tennent, where as in Civil law systems use it as an advisement. Since there had already been a War Crimes Tribunal the last time Europe was at war, the decisions there set "Case Law" used by these courts.

And Germany wasn't about to protest this for a number of reasons. Even if they could get concessions on the trial venue that might have put the matter in their favor and ignoring the new laws of the land that said these were crimes from day one of the war, they'd have to argue for another of the allied nations as their trial place: The problem was, every option was worse.

The Soviets were feared by the surrendering Nazis as they were rather brutal following surrenders and were vindictive from the surprise war in violation of non-aggression pacts.

The French Civil law as quite close to German Law, but the French were just as vindictive over the little matter of the occupation and their reconstituted government was lead by Charles de Galle, who was a major French Resistance Leader famous for fighting with Allied Leaders as fiercely as they fought with the Germans. It was better than the Soviets... but that's not a high bar of praise.

Finally, the British were no good because they were probably in very close agreement to the American's position and it didn't help that the Americans used Common Law legal systems since before there was America... and while not invaded, the British were probably a little cross with Germany over the Battle of Britian. Oh... and they kinda owed one or two to the Americans over their better late than never save.

All the Americans were really concerned about was the fact that they had to go to Europe to fight one of their wars... again, which is still a bit of a prejudicial element that should be avoided in trials...but considering the others, they were far and away the closest to unbiased arbiters the Germans had.

And that's just The Neruemberg trials as there were actually a few that were conducted there, but the rest were conducted under American's authority over that sector of post-war Germany (this was the one that got to the meat and potatoes of the Holocaust related crimes. Its here where I need to remind you that Common Law need not have a codified law to declare something illegal (unlike German Law) and there are some places in the United States that don't have codified laws for murder because the case laws are so strong that Murder is illegal anyway (I know Maryland is one such state... It's got a lot to due with it being an original colony that had long said murder is wrong before it was a state... though I like to joke that the murder rate in Baltimore is so bad, that there is no way to kill a man that won't get Maryland courts to say "seen it all before"). Since most of the crimes in the death camps were murder under American jurisprudence... and since these trials followed military tribunal laws... well... it's not post ipso facto.

By the way, that common law vs. civil law thing is why "Just Following Orders" is a thing. It's not that the Nazis thought it was a defense against the charged crimes, but an argument for a lesser crime. Under German law, the severity of murder is determined by the reason for murder. A crime of passion is a stricter sentence then a dispassionate crime, like a military soldier killing someone because of an order. In Common Law, at trial, the severity of murder is determined by whether or not you planned to commit murder, not your reason for doing that. That stuff is brought up during sentencing which only happens if your found guilty. So while the Germans thought this would help, to the British and Americans, this just confirmed the worst severity... and the French and Soviets were perfectly fine with this because of obvious reasons.

Answer 5

The question about international law remains open, but according the German national law of the time the holocaust, involuntary euthanasia, lethal experiments and killing hostages to terrorise enemy civilians or prisoners into submission seem to be legal at least from 1941.

Thanks to the comments by @MarkJohnson, we know that the German Criminal Code makes no distinction between citizens and non-citizens. Yet, since September 8, 1941, according to the paragraph §211(2) Murder - German Criminal Code (Strafgesetzbuch – StGB): A murderer under this provision is someone who kills a person out of a lust to kill, to obtain sexual gratification, out of greed or otherwise primitive motives, perfidiously or cruelly or by means constituting a public danger or to facilitate or cover up another offence.

It is evident that killing for the national interest, biological doctrine, political views, conducting scientific experiments, killing infected by typhus to stop epidemic, or civilians to pacify them in occupied territory can not be considered lust to kill, greed, sexual motives or primitive motives under this paragraph.

In short, in Nazi views, killing for primitive or selfish motives is bad, for higher purpose is good.

It is interesting that the 1871 version of §211 reads as: Anyone who intentionally kills a human being, if he has carried out the killing with deliberation, is punished with death for murder.

So, it seems, those deeds would be considered crimes according to the 1871 version of the paragraph but not according to the 1941 version, which may indicate that the Nazis made the changes to exclude their crimes.

It is a known fact that the Nazis legally persecuted some camp personnel even for murder of Jewish prisoners, if those murders were made for personal greed, sexual pleasure or entertainment.

It seems that the corresponding paragraph in other jurisdictions is similar to the 1871 German version, and the code usually in the same paragraph or in another place makes exemption for self defense, combat, legal execution by a court, shooting fleeing prisoners, voluntary euthanasia and other cases.

It is a shame that modern Germany still retains this Nazi German paragraph from 1941 unchanged.