Law in Literature & Film 2022/23 Judgment at Nuremberg Dr Samantha Halliday International military Tribunal, Palace of Justice, Nuremberg, 1945 “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most tributes that Power ever has paid to Reason. … [The defendants] do have a fair opportunity to defend themselves – a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.” (Robert H. Jackson) United States v. Josef Altstötter, et al. – the justices’ trial Nuremberg – the Valhalla of National Socialism Victors’s justice? • “There is nothing more foreign to those proceedings than either the presumption that the defendants are innocent until proved guilty or the doctrine that any adverse public comment on the defendants before the verdict is prejudicial to their receiving a fair trial. The basic approach is that these men should not have a chance to go free. And that being so, they ought not to be tried in a court of law.” • Charles E Wyzanski Jr “Nuremberg--A fair trial?: Dangerous precedent” (1946) 177 April The Atlantic, at 69. U.S.A. v Alstötter et al: Judging the judges • One of the "Subsequent Nuremberg Trials", the "Trials of War Criminals before the Nuremberg Military Tribunals" (NMT). • • 16 jurists and lawyers. Indicted for:1) Participating in a common plan or conspiracy to commit war crimes and crimes against humanity. 2) War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property. 3) Crimes against humanity on the same grounds, including slave labour charges. 4) Membership in a criminal organization, the SS or the NSDAP leadership corps. • • • The role and position of the judge during the NS period. • • • • Art. 102 WC 1919 Judges are independent and subject only to law. Art. 104 WC 1919 Judges of the public courts are appointed for life… Law for the restoration of professional civil service 1933 2nd law for the transfer of the administration of justice to the Reich 5 December 1934: In the national socialist state, the state judiciary is one unit, it belongs to the Reich and requires uniform administration by the Reich. Beschluß des Großdeutschen Reichstags (Decree of the Greater German Reichstag), 26 April 1942 recognised Hitler as the Supreme Judge. The centralisation of the administration of justice under the Reich Ministry of Justice 1st Letter to judges: “…The profession of the judge and that of the physician are akin — he gives aid to the compatriot who asks him for help and thus prevents damage to the community. The judge, like a physician, must be able to eliminate the seat of a disease or perform operations like a surgeon. … To aid the judge in fulfilling his high duty in the life of our people, I have decided to publish the "Judges' Letters." They shall be distributed to all German judges and public prosecutors. These judges' letters will contain decisions, which I consider to be especially worthwhile mentioning on account of result or argumentation. With these decisions I intend to show how a better decision could or should have been found; on the otherhand good, and for the national community important, decisions shall be cited as examples. The judges' letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They are rather aimed at telling how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision. • Law relating to the giving of oaths by civil servants and soldiers in the Wehrmacht, 1934 • §2 1.The service oath of civil servants takes the form:“I swear: I will be loyal and obedient to the Führer of the German Reich and Volk, Adolf Hitler; observe the law and fulfil my duties conscientiously so help me God.” Major characters: Dan Haywood • “A rock-ribbed republican who thought Franklin Roosevelt was a great man.” • “This is what we stand for: justice, truth and the value of a single human being.” Ernst Janning / Dr Franz Schlegelberger • Under Secretary of State, Reich Ministry of Justice 1931. • Acting Reich Minister of Justice 1941 – 1942 • Luftgas trial. • Opportunist, or the last decent judge under Hitler? Emil Hahn / Oswald Rothaug • • • Presided over the Katzenberger case Judge in the special court Prosecutor at the Volksgericht • In sentencing Rothaug the NMT said at 1155 – 1156: “From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant's court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.” Cases: The Feldenstein case / Katzenberger case • Law for the protection of German blood and honour) 1935 • §2 Unmarital sexual relations between jews and citizens of German or related blood is forbidden.” • §5 (2) The man who acts contrary to the prohibition contained in §2 will be punished by a term of imprisonment or hard labour. • Decree against public enemies 1939 • § 2 Crimes During Air Raids Whosoever takes advantage of air raid protection meaures commits a crime or offence aginst body, life or property, will be punished with hard labour for up to 15 years, or or for life, or in particularly serious cases with death. • §4 Exploitation of the state of war as a reason for more severe punishment Whosoever commits a crime by intentionally exploiting the extraordinary conditions caused by the war, will be punished beyond the usual penalty framework with hard labour for up to 15 years, with life long hard labour or with death, if this is required by the sound public instinct because of the particular despicability of the crime. The Peterson case • Law for the prevention of offspring with hereditary diseases, 1933 §1 (1) Whosoever suffers from a hereditary disease can be surgically sterilised if, according to the experience of medical science it is highly probable that his offspring would suffer from severe physical or mental hereditary impairments. (2) Whosoever suffers from one of the following diseases is to be regarded as suffering from a hereditary disease according to this law • congenital feeblemindedness, • schizophrenia, • manic depression, • hereditary epilepsy, • hereditary Huntington’s chorea, • hereditary blindness, • hereditary deafness, • serious hereditary physical malformation. (3) In addition, whosoever suffers from chronic alcoholism can be sterilized. Cf Virginia Sterilization Act 1924, upheld by US SC in Buck v Bell, 1927. Key themes • • • • The use of law as a political tool The relationship between law & justice Legal positivism Does a judge have a duty to apply the law regardless of whether it accords with morality? • Key article: Gustav Radbruch “Gesetzliches Unrecht und übergesetzliches Recht” (1946) 1 Süddeutsche Juristen-Zeitung 105 – translated by Paulson et al (2006) 26(1) Oxford Journal of Legal Studies 1 – Radbruch argued that legal positivism was so entrenched that the German legal profession were powerless against the National Socialist regime. • • Things to consider • • • • • • • • • • Was the Justices’ trial simply victors’ justice – another, if different, corruption of law for political ends? To what extent are judges obliged to apply the law? Did the judges in the 2 cases shown in the film apply the law? Was the law of the National Socialist period law at all? Was the judicial system in any position to administer justice? To what extent were judges and the administration of justice simply part of the National Socialist political system? Were the judges independent during the National Socialist period? To what extent was the tribunal independent / free of political pressure? Is there a legally significant difference between the Petersen and Feldenstein cases? Is Janning’s decision to convict in the Feldenstein case more culpable that the decision to sterilise Petersen? Why did the tribunal distinguish between Janning and the other defendants? Why might some judges (in this case Janning) be expected to owe a higher duty to ‘justice’ in the face of immoral laws? Is there any merit in the argument that judges like Janning should have stayed in office in order to mitigate the effects of the National Socialist regime? Were the judges the culprits or the victims of National Socialism?
