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More than a half-century has passed
since the end of World War II, and interest in the Holocaust remains
greater than ever. More news stories about the Holocaust have been
published in the last ten years than in the previous fifty. In the
educational field, courses on the Holocaust are oversubscribed, and
student enrollment is diverse.
Despite widespread interest and an abundance of courses on the
subject, there is one glaring gap: the subject is little studied in
law schools or examined in undergraduate or graduate courses through
the prism of the law. This is odd, since both the Holocaust and the
world’s reaction to the horrors of the Holocaust are very much tied
to the law. This volume, Holocaust, Genocide and the Law, is being
written to fill this gap.
The volume will initially examine the legacy of the Nuremberg trials
sixty years after they took place. It will demonstrate that, while
in the aftermath of the International Military Tribunal (IMT) trial
and the later zonal trials, much criticism was leveled at how the
trials were conducted, the prestige of the Nuremberg proceedings has
risen with the passage of 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 fairly decent job of delivering justice towards the defendants at
the dock.
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
consciences in doing their work.
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 the IMT proceedings, the
Western prosecutors knew that they had to prove their case for each
defendant, with no assurances that a verdict of guilty was a
foregone conclusion. The Western judges, likewise, saw their role as
impartial arbitrators. This was in contrast to Iona Timofeevich
Nikitchenko, the Soviet Union’s judge at the IMT. To the great
chagrin of Chief Prosecutor Robert Jackson, 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 [referring
to Yalta] declarations by the heads of the governments…. The whole
idea is to secure quick and just punishment for the crime.” He then
famously added: “If… the judge is supposed to be impartial [at
Nuremberg], it would only lead to unnecessary delays.”
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 legal system in Germany
during the Nazi era. Legal scholars are still perplexed to explain
how a highly developed and sophisticated legal 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 changes being made to
the German legal system during the Nazi era, including the legal
exclusion of German Jews from the concept of “citizen,” and the
Nuremberg Race Laws, which gradually transformed the non-citizen 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 so-called system of legal barbarism instituted by the Nazis and
the many forms of legal injustice perpetuated under the Nazi regime
has been examined previously in both general studies of the
Holocaust and in specific treatments 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.” Lucy Dawidowicz in her War Against the Jews catalogues
the various laws targeting Jews. German scholars, and particularly
Ingo Müller, in his landmark study Hitler's Justice: The Courts of
the Third Reich, and Diemut Majer in her exhaustive examination of
the numerous “special laws” applied against the Fremdvölkische in
“Non-Germans” Under the Third Reich: The Nazi Judicial and
Administrative System in Germany and Occupied Europe, helped to
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. Müller, in particular,
demonstrated how German jurists were more than willing, using his
phrase, in order to "coordinate" themselves into the new reality
created by the Nazis and even to profit from it.
The first postwar examination of the legal system of Nazi Germany
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 cannot 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, taking place during 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 20th
century. In a series of law review articles and later in their
individual books, Hart and Fuller used the Nazi law’s legal
conundrum as the background to argue their opposing points of view
of the meaning of “law.” Hart was a positivist par excellence, who
argued that Nazi laws, though wicked, were like any other laws to
which fidelity must have been observed by subjects of Nazi Germany.
Fuller was a proponent of natural law, contenting that every law
must be examined through the filter of “inner morality.” For Fuller,
since Nazi laws were immoral, they cannot be granted the status of
“law.” Hart disagreed, conceding that laws may be immoral, but that
their immorality does not disqualify 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.
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. Rather, 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, David Fraser correctly notes that
the tools and techniques of judges and lawyers during the Nazi era
was 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.” Bernhard Lösener, the expert on Jewish
affairs in the German Ministry of Interior, saw himself to be a good
lawyer who conscientiously both drafted and applied laws having to
do with this job of legally persecuting Jews.
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 horrors was the
perception that Germany was being threatened both internally and
externally. This precondition becomes especially relevant to the
current predicament being faced by democratic societies living in
the Age of Terrorism.
In his historical study, All the Laws But One, former U.S. Supreme
Court Chief Justice William Renquist anticipated the current debate
in the Age of Terrorism on how to properly balance the protection of
civil liberties with the need to maintain national security. Citing
examples of President Abraham Lincoln's suspension of the right to
habeas corpus during the American Civil War, enactment of strict
censorship laws during World War I under President Woodrow Wilson,
and the U.S. Supreme Court's willingness to uphold President
Franklin Delano Roosevelt’s order for the internment of Japanese
Americans and the secret military trial of eight Nazi saboteurs
during World War II, Renquist 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 threatened the
national well being. It simply cannot be said, therefore, that in
every conflict between individual liberty and governmental authority
the former should prevail.”
Former President (Chief Justice) of the Israel 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 war."
Examining Nazi legal barbarism and the role of German legal actors
during the Nazi era for the purpose of seeking lessons for today is
not the same, however, as making sweeping analogies comparing
current events to the 1930’s era. Rather, it is examining 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 will of the Führer. The critical period is
from 1933-1939, when there was still a possibility of legal
resistance. It is this period that can provide the greatest lessons
for today. Moreover, there is a benefit to examining the extreme
situation of legal barbarism, presented by Nazi Germany, for
learning lessons how to maintain the rule of law in times of threat.
One other major distinction between Germany between 1933- 1939 and
today is that the perceived “threat from within” in the early Hitler
years was not real, but manufactured by the Nazis as a means to
explain to the populace why legal emergency measures must be taken.
The Jews of Germany and other persecuted groups did not pose a
threat to Germany as a nation. On the other hand, the internal
threat in the United States, the United Kingdom, continental Europe,
Israel and other liberal democracies throughout the world from both
homegrown and foreign terrorists is real, and so legal measures must
be taken to protect against this threat. Nevertheless, the
perception of a hidden fifth column within the ranks of society in
post-1933 Germany and today is the same.
As of this writing, with the threat of future 9/11- style terrorist
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 how German legal actors
conducted themselves between 1933-45. It is a well-known adage that
democracies are precarious institutions, and that constant vigilance
must be maintained to preserve such democracies from undue
government encroachment. Remembering the sorry behavior of German
judges and lawyers during Nazi era can play an important role in
making sure that today’s democracies, faced with the threat of
terrorism, do not transform themselves into legal tyrannies.
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