Jewish Political Studies Review 19:1-2 (Spring 2007)
Sixty years after the Nuremberg Trials, the “Nuremberg legacy” is part of modern international law. An important aim of the Western judges and prosecutors at Nuremberg was to spotlight the wholesale corruption of the German legal system during the Nazi period. At the “Justice Trial” in Nuremberg, the defendants argued that their actions conformed with German law. Although this defense was rejected, legal scholars still grapple with the jurisprudential conundrum that the Holocaust could simultaneously have been both legal and criminal. The failure of German legal actors to oppose the Nazi transformation of German law into legal barbarism has implications for the current dilemma faced by liberal democracies on how to maintain civil liberties while simultaneously enacting laws to protect against terrorism. Although judges in the United States, United Kingdom, and Israel so far have maintained a balance, it is too early to make a final evaluation. Remembering the behavior of German judges and lawyers during the Nazi era can help ensure that today’s democracies, faced with the threat of terrorism, do not transform themselves into legal tyrannies.
More than sixty years have passed since the end of World War II, and interest in the Holocaust remains greater than ever. News stories about the Holocaust abound. In the educational field, courses on the Holocaust are oversubscribed, and student enrollment is diverse.
In fall 2006, the most important legal legacy of the Holocaust was commemorated: the sixtieth anniversary of the conclusion of the trial of twenty-two Nazi leaders before the International Military Tribunal (IMT) at Nuremberg. On 30 September and 1 October 1946, the four-judge tribunal found nineteen of the twenty-two defendants guilty on one or more counts. Twelve defendants, including Hermann Göring, were sentenced to death by hanging; three were acquitted. In the early hours of 16 October 1946, the condemned Nazi leaders were led one by one to the dusty old prison gymnasium and hanged (Göring managed to commit suicide shortly before the sentence was carried out).
The Nuremberg Legacy
In the aftermath of the IMT trial and the later zonal trials, much criticism was leveled at how these were conducted, with accusations that they were nothing more than victor’s justice. Nevertheless, the prestige of the Nuremberg proceedings has risen with time. Today, the so-called “Nuremberg legacy” forms an important part of modern international law and the trials, on their sixtieth anniversary, are celebrated as triumphs of justice. Imperfect as they were, when compared with the debacles of the Milosevic trial at The Hague and the Saddam Hussein trials in Baghdad, the prosecutors and judges at Nuremberg appear to have done a rather good job of delivering justice to the defendants.
A critical component in creating the success of the Nuremberg trials was the independence of the American, British, and French judges and prosecutors in handling the proceedings. Unlike the Soviet judicial actors at Nuremberg, who took their marching orders from Stalin and his subordinates in Moscow, the Western legal actors at the IMT proceedings and the subsequent zonal trials did not do the bidding of their respective governments but acted according to their own conscience.
The tone of judicial independence was firmly set at the first and most important trial at Nuremberg, the prosecution of the twenty-two high-ranking Nazis before the IMT. During those proceedings, the Western prosecutors knew that they had to prove their case for each defendant, with no assurances of a verdict of guilty. The Western judges, likewise, saw their role as impartial arbitrators.
This was in contrast to I. T. Nikitchenko, the Soviet judge at the IMT. To the chagrin of Chief Prosecutor Robert Jackson, a U.S. Supreme Court justice who took a leave at the behest of President Truman to head the prosecution, Nikitchenko announced before the start of the trials: “We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [i.e., Yalta] declarations by the heads of the governments…. The whole idea is to secure quick and just punishment for the crime.”1 He then famously added: “If…the judge is supposed to be impartial [at Nuremberg], it would only lead to unnecessary delays.”2
A major pedagogical goal of the Western prosecutors and judges at Nuremberg was to demonstrate their judicial independence-in contrast to the wholesale corruption of the German legal system during the Nazi era. Legal scholars still have difficulty explaining how such a highly developed and sophisticated system-German law and jurisprudence under the Weimar Republic-became so readily corrupted, and how legal actors-German judges and other judicial officials, lawyers, and law professors-could so easily become willing accomplices in this process.
The sad fact is that legal sophistication did not inoculate German law and German legal actors from actively participating in the perverse transformation of the German legal system during the Nazi era. This included the legal exclusion of German Jews from the concept of “citizen,” and the Nuremberg Race Laws that gradually transformed the noncitizen Jew into a subhuman not worthy of life. By the time the gas vans came and the human slaughter factories were built in Auschwitz and the other death camps, the murder of the six million Jews and other persecuted minorities was done completely within the framework of German law.
The Question of Legal Barbarism
The so-called system of legal barbarism instituted by the Nazis and the many forms of legal injustice perpetrated under the Nazi regime have been examined previously in both general studies of the Holocaust and specific analyses of the Nazi legal system. Raul Hilberg and Saul Friedlander in their various works discuss how the law was used as an important tool to effectuate the Final Solution.3 Lucy Dawidowicz in The War against the Jews catalogs the various laws targeting Jews.4 German scholars helped shatter the postwar myth of the legal profession in West Germany that the bench and bar resisted the Nazi onslaught on the legal system and German civil liberties.
Especially notable works in this regard are Ingo Müller’s landmark study, Hitler’s Justice: The Courts of the Third Reich,5 and Diemut Majer’s exhaustive examination of the numerous “special laws” applied against the Fremdvölkische (ethnic foreigners) in “Non-Germans” under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Europe.6 Müller, in particular, demonstrated how German jurists were more than willing, using his term, to “coordinate” themselves into the new reality created by the Nazis and even to profit from it.
The first postwar examination of Nazi Germany’s legal system took place during the so-called “Justice Trial” at Nuremberg, one of a series of trials conducted in the American zone after the conclusion of the IMT trial in 1946. The defendants, German judges and Justice Ministry officials, offered as their lead defense the point that they were now being prosecuted for acts that were perfectly legal under German law. The American judges hearing the case rejected that argument, finding that Nazi Germany was a criminal state whose laws could not be given the label of legality.
This jurisprudential conundrum-that everything done by lawyers, governmental officials, and judges was in accordance with existing German law and procedure and so could not be criminal-was not put to rest, however, by the “Justice Trial.” It still poses a dilemma for each generation of legal scholars trying to reconcile how the Holocaust could simultaneously have been both legal and criminal.
The subject was directly confronted during the famous Hart-Fuller debates of the 1950s and 1960s. British legal scholar H. L. A. Hart and his American counterpart, Lon Fuller of Harvard, were among the foremost legal theorists of the twentieth century. In a series of law-review articles and later in their individual books, Hart and Fuller used the Nazi legal conundrum as the background to argue their opposing views of the meaning of law.7
Hart was a positivist par excellence who argued that Nazi laws, though wicked, were like any other laws that must be obeyed. Fuller, a proponent of natural law, contended that every law must be examined through the filter of “inner morality.” For Fuller, since Nazi laws were immoral, they could not be granted the status of law. Hart disagreed, conceding that laws may be immoral but maintaining that this does not disqualify them from becoming law.
The debate about whether to label what came out of the Nazi legal system as “law” or “not-law” has limited practical importance. It is a discourse between legal theorists, offering few lessons for modern-day legal controversies. Roger Cotterel, in his The Politics of Jurisprudence, incisively describes the theoretical nature of this dispute:
There is often a sense that in the battle of arguments no one ever wins, and further that there are no reliable criteria by which one could recognize victory anyway. The disputes seem timeless, the issues never resolved. Decade after decade positivists and natural lawyers face one another in the final of the World Cup. Victory goes now to one side, now to the other. The legal theorist can only cheer or jeer, label his opponent a moral leper or a disingenuous romantic.8
Lessons for Today
After the events of September 11, 2001, an examination of the legal system of Nazi Germany can no longer be limited to a theoretical discussion about the nature of law. Instead, the focus must now return to the task taken up during the “Justice Trial”: examining and explaining the behavior of the German legal actors during the Nazi era.
In his 2005 study, Law after Auschwitz: Towards a Jurisprudence of the Holocaust,9 David Fraser correctly notes that the tools and techniques of judges and lawyers during the Nazi era were little different from how judges and lawyers behave in modern liberal democracies. Fraser sees the Holocaust as “the culmination of the acts of ordinary people in the ordinary course of events within ordinary governmental and legal structures. . . . Throughout the Nazi period, German lawyers continued to act as lawyers…. judges judged, even while Auschwitz spewed its smoke and ash. . . . Law continued while six million died.”10 Bernhard Lössner, the expert on Jewish affairs in the German Interior Ministry, saw himself as a good lawyer who conscientiously both drafted and applied laws having to do with his job of legally persecuting Jews.11
If German legal actors could have been so easily corrupted, should that not be taken as a warning to other nations whose political structure is also based on the rule of law? A major impetus for the willingness of the German elite, including its legal elite, to first acquiesce and then participate in the Nazi atrocities was the perception that Germany was being threatened both internally and externally. This precondition is especially relevant to the current predicament being faced by democratic societies living in the Age of Terrorism.
In the aftermath of 9/11 and with the subsequent bombings in Bali, Madrid, and London and the foiled plot to blow up planes flying out of Heathrow Airport in London, one of the major legal and political dilemmas facing all liberal democracies is how to balance the new necessity to protect national security by enacting antiterrorist legal measures with the need to maintain the essential civil liberties of a democratic society. Israel and its judicial system faced this dilemma long before the Twin Towers fell. Today, however, it is Europe, North America (Canada also appears to be a terrorism target), and Australia that confront such issues as whether unlimited or long-term detention of terrorism suspects without trial, secret wiretapping, harsh interrogation methods, and closed-door judicial proceedings are so odious that they are unacceptable in a civilized society despite the government’s assertion that such measures are necessary to prevent another terrorist attack.
Former U.S. Supreme Court chief justice William Rehnquist’s historical study, All the Laws but One,12 was published in 2000 before the United States began to fight the so-called War on Terror. Yet it anticipated the current debate on how to balance civil liberties and national security. Rehnquist cited examples of President Abraham Lincoln’s suspension of habeas corpus during the Civil War, the strict World War I censorship laws under President Woodrow Wilson, and the U.S. Supreme Court’s willingness to uphold President Franklin Roosevelt’s order to intern Japanese Americans and the secret military trial of eight Nazi saboteurs during World War II. Rehnquist explained:
In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order-in favor of the government’s ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail.13
Exhibiting prescience about the behavior of the current administration of George W. Bush, which coined the term War on Terror and views the current situation as equivalent to a war, Rehnquist noted:
There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently from their predecessors. . . . [T]here’s every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.14
Former president (chief justice) of the Israeli Supreme Court Aharon Barak makes a similar point: “We, the judges in modern democracies, are responsible for protecting democracy both from terrorism and from the means the state wants to use to fight terrorism. . . . We need laws most in times of terror.”15
Examining Nazi legal barbarism and the role of German legal actors during the Nazi era to seek lessons for today is not the same, however, as making sweeping analogies between Bush and Hitler or, as one U.S. senator did in June 2006, likening the U.S. military’s Guantanamo prison facility to a Nazi concentration camp. The question, instead, is how the German legal system and its actors, especially the judiciary, allowed the Hitler dictatorship to take place and subvert the entire system of laws to the Führer’s will. The critical period was 1933-1939, when there was still a possibility of legal resistance. It is this period that can provide the greatest lessons for today. Moreover, the extreme situation of legal barbarism represented by Nazi Germany offers lessons for how (and how not) to maintain the rule of law in times of threat.
One other major distinction between Germany in 1933-1939 and the contemporary situation is that the perceived “threat from within” in the early Hitler years was not real, but manufactured by the Nazis to justify legal emergency measures to the populace. The Jews of Germany and other persecuted groups did not pose a threat to Germany as a nation. Today, however, the internal threat in the United States, the United Kingdom, Continental Europe, Israel, and other liberal democracies from both homegrown and foreign terrorists is real and calls for legal measures. Nevertheless, the perception of a hidden fifth column within the ranks of society in post-1933 Germany and in these present-day democracies is the same.
Preserving the Rule of Law
Although Rehnquist’s prediction that individual liberty will almost always take a back seat to national security in times of conflict has proved correct, the actual threat of terrorism to date has not led to a significant deterioration of the rule of law in the liberal democracies that face the danger. Almost all the credit must be given to the judges, showing that maintaining the independence of the judiciary is a critical component of preventing legal barbarism. Perhaps heeding the lessons from the sorry behavior of their German counterparts in World War II, today’s judges in Western liberal democracies have led the fight to preserve civil liberties when these have been attacked by other branches of government in the name of national security.
Three countries provide good examples.
In the United States, the Supreme Court in the post-9/11 era has issued a number of critical rulings striking down as unconstitutional a series of national-security laws first proposed by the Bush administration and then enacted by Congress to protect the nation against the terrorist threat. The majority of Supreme Court justices held that even in the face of a national- security threat, the president and Congress cannot take away critical liberties of citizens.16
Likewise, in the United Kingdom, the Law Lords have struck down several laws passed by Parliament in response to the threat of domestic terrorism, finding such laws incompatible with the civil liberties enjoyed by UK residents. The most dramatic example took place in 2004 when the House of Lords invalidated portions of the British antiterrorist legislation that allowed the indefinite detention of suspects.17 “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law,”18 announced Lord Nicholls in one of the opinions nullifying the law. In December 2005, in a further reaffirmation of the rule of law even in the face of the increased terrorism threat after the London bombings, the Law Lords ruled that evidence obtained by torture cannot be used against terror suspects in UK courts.
Finally, in Israel, the Supreme Court (sitting as High Court of Justice) has played a critical role in balancing the need for laws and other measures to protect the nation against terrorism with the need to maintain fundamental civil rights. For example, in 1999 the Supreme Court banned the use of torture in interrogations. In the decision, President Barak noted that Israel-because it adheres to the rule of law-has to fight terrorism with one hand tied behind its back.19 In 2005, in a case of Palestinian petitioners against the Israeli government, the Supreme Court determined that the government had to find an alternative route to the West Bank security barrier to lessen the impact on Palestinian civilians’ rights.20
With the threat of future 9/11-type attacks still looming large, a final evaluation cannot be made about whether legal actors in today’s liberal democracies will continue to handle themselves more responsibly than German legal actors did during 1933-1945. It is a truism that democracies are precarious institutions and constant vigilance is necessary to protect them from undue government encroachment. Remembering the behavior of German judges and lawyers during the Nazi era can play an important role in ensuring that today’s democracies, faced with the threat of terrorism, do not transform themselves into legal tyrannies.
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* Based on presentations at the JCPA, 27 November 2006, and at Pepperdine University School of Law, 12 February 2007.
1. Whitney R. Harris, Tyranny on Trial: The Evidence at the Nuremberg Trials (Dallas: SMU Press, 1954), 16-17. See also Robert E. Conot, Justice at Nuremberg (New York: Harper & Row, 1994), 18.
2. Harris, Tyranny on Trial. Nikitchenko’s views were also rooted in a different understanding of the role that a judge plays in a criminal proceeding. The Soviet legal system was modeled on Continental Europe’s view of criminal procedure. As Conot explains, Unlike procedure in Anglo-American law, where the prosecutor and defense counsel are adversaries, with the judge sitting as arbiter, in continental law[,] prosecutor, defense counsel and judge are all charged with the task of arriving at the truth. Thus, Nikitchenko did not really understand what Jackson meant when he emphasized that the judges must be independent and impartial…. (ibid., 18)
3. See, e.g., Raul Hilberg, The Destruction of the European Jews, 3rd ed. (New Haven: Yale University Press, 2003); Saul Friedlander, Nazi Germany and the Jews: The Years of Persecution, 1933-1939, Vol. 1 (New York: HarperCollins, 1998).
4. Lucy S. Dawidowicz, The War against the Jews, 1933-1945 (New York: Bantam Books, 1986).
5. Ingo Müller, Hitler’ s Justice: The Courts of the Third Reich (Cambridge: Harvard University Press, 1991).
6. Diemut Majer, “Non-Germans” under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Europe (Washington, DC: Johns Hopkins University Press, 2002).
7. H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review, Vol. 71 (1958): 593 (followed by Hart’s The Concept of Law ); Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review, Vol. 71 (1958): 630 (followed by Fuller’s The Morality of Law ).
8. Markandey Katju, “The Hart-Fuller Debate,” PL WebJournal, No. 1 (2001), available at www.ebc-india.com/lawyer/articles/496_1.htm>.
9. David Fraser, Law after Auschwitz: Towards a Jurisprudence of the Holocaust (Durham, NC: Carolina Academic Press, 2005).
10. Ibid., 36.
12. William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Knopf, 2000).
13. Ibid., 277.
14. Ibid., 288.
15. Aharon Barak, The Judge in a Democracy (Princeton: Princeton University Press, 2006), 285, 288.
16. See Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. (2006).
17. FC v. Secretary of State for the Home Department, UKHL 56 (2004), available at .
19. H.C. 5100/94, Pub. Comm. against Torture in Israel v. Gov’t. of Israel, 53(4) P.D. 817, 845; [1998-9] Israel L. Rep. 567. Justice Barak discusses the opinion in The Judge in a Democracy, 285.
20. HCJ 2056/04, Beit Sourik Village Council v. the Government of Israel58(5) P.D. 807 .
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PROF. MICHAEL J. BAZYLER is professor of law at Whittier Law School, California, and currently Distinguished Visiting Professor at Pepperdine University School of Law, California. In Fall 2006, he was the holder of the Baron Friedrich Carl von Oppenheim Chair for the Study of Racism, Antisemitism and the Holocaust, a research fellowship at Yad Vashem. He is the author of over fifty articles dealing with the international law of human rights and of the book Holocaust Justice: The Battle for Restitution in America’s Courts (New York: New York University Press, 2003; ppbk., 2005).