The verdict of the international military tribunal was a few years ago. The Nazi greats sentenced to death in Nuremberg, such as Hitler’s governor in Poland, Hans Frank, had long since been hanged. Some of those sentenced to prison terms, such as Hitler’s successor Karl Dönitz, were already released. In 1958 the judges of the Federal Court of Justice in Karlsruhe announced what they actually thought of the whole thing.
So: from the work of the Allied lawyers. From the judgment of Nuremberg. From the signal that went around the world on September 30, 1946, exactly 75 years ago.
The short answer: nothing. On September 9, 1958, the Federal Court of Justice cited a whole series of statements by West German government agencies with cool precision to support the fact that the Federal Republic had not recognized a single decision by the Nuremberg Tribunal.
The verdict against 22 powerful men of the Nazi system, extermination warriors like Hermann Göring or Wehrmacht chief Wilhelm Keitel, whip like striker-Chef Julius Streicher: That was nothing but winning justice. The newly created international criminal offenses, namely war crimes, crimes against humanity and waging war of aggression: They are not even valid law.
On the contrary: Adenauer’s Justice Minister Hans-Joachim von Merkatz from the national-conservative German Party had only recently declared that non-recognition of the Nuremberg judgment was a question of “German dignity”. While this minister had only spoken of “alleged” German war crimes, the Karlsruhe judges now used the phrase: “so-called” war crimes.
If the judgment of the judge is remembered now, the legal aftermath should also be considered
That was how it was in the early Federal Republic. Rejecting “Nuremberg” was mainstream. It also stayed mainstream – for decades. If now, 75 years after the great Nuremberg judgment, the judge’s verdict is remembered, then the legal aftermath deserves to be considered. The rejection, the great reluctance. Also because that shows something about the intertwined relationship between law and politics.
That had been the attitude of the defense attorneys in Nuremberg from the start: the Allies had no right to put Germans in the dock, who had merely acted according to current National Socialist law. For example, lawyer Otto Kranzbühler had executed in November 1945, the defender of Dönitz. What the Allies were doing there was a legal “revolution”, a violation of the iron prohibition of retroactive punishment. No punishment without a – previous – law.
In the years that followed, German lawyers gathered behind this defensive stance. A notable exception was the legal philosopher Gustav Radbruch, who was once justice minister for the SPD in Weimar times. Together with a few supporters, he had praised the Nuremberg Tribunal from 1946 and tried to make it clear to his compatriots that crimes against humanity of the extreme kind committed by the Nazis always remained criminal. Even if the perpetrators are powerful enough to make their own laws.
But Radbruch died in 1949. German jurisprudence and jurisprudence largely did not follow him. Foreign observers occasionally pointed out the bizarre irony: the same German lawyers who, as dashing “legal guardians”, had completely torn down the prohibition of retroactive effects during the Nazi era – courts were supposed to punish at that time, provided that the “basic idea of a criminal law” and the “healthy public sentiment” this required -, now often acted as standard-bearers of this same prohibition of retroactivity in order to defend their regime at that time.
In the building of the Nuremberg Palace of Justice, the legacy is not only administered today – it is presented with pride
Some West German law professors turned the apparent contradiction around. They compared the traditionally somewhat less strict, more flexible understanding of the prohibition of retroactive effects among Anglo-Saxon lawyers with its radical disregard by the Nazis. The President of the Higher Regional Court in Celle warned: One should not “repeat” the mistake of the Nazis of imposing sentences according to the “popular feeling” in dealing with Nazi criminals. A widespread German textbook on international law from 1960 criticized: In Nuremberg the Allies had “destroyed” the leaders of a defeated state. From “revenge”.
In the building of the Nuremberg Palace of Justice on Fürther Strasse there is now a prestigious “Nuremberg Principles Academy”, a place for conferences and seminars, financed by the Foreign Office and the Free State of Bavaria. The historical heritage is not only managed there. It is presented today with some pride. Nuremberg, cradle of international criminal law, Nuremberg, symbol for the strength of the law instead of the law of the stronger. For example, Germany teaches guests from African civil war states about “Nuremberg Law”, almost as if it were a local invention.
Of course it is not. Nobody has fought this Nuremberg law, which the Allies had to bring to the Germans, so persistently and persistently as the West German judiciary and jurisprudence. Nobody closed themselves so stubbornly to the teachings of Nuremberg. In no other western country has the international law discourse been so marked by reluctance, and not only in the somber early years of the republic. But for decades.
Only after the turn of the epoch of 1990, when the SED regime came to terms with government criminality, did the West German discourse begin to move. The then Federal Justice Minister Klaus Kinkel (FDP) described the problem that “our criminal law” was not prepared for state-organized crimes. Because: The respect for the rule of law prohibition of retroactivity is traditionally very high in this country.
Suddenly there was concern that the West German criminal courts, which until then did not want to ignore the laws of the time even in the case of mass crimes in Nazi concentration camps, but only punished so-called excess criminals, would now also have to say to the GDR wall protectors: That was legal. It was ordered. So it is not a criminal offense.
In a series of decisions, beginning in November 1992, the Federal Court of Justice in Karlsruhe initiated a U-turn. The shots at the inner-German border were criminal – even if they were not forbidden by law, on the contrary, they were legally ordered. A political U-turn, a late correction. That was a rehabilitation of the German legal philosopher Gustav Radbruch.
And a much too late, quite transparently interest-based acknowledgment that the Allies in Nuremberg had of course spoken right, not wrong.