By George J. Marlin.
But first a note from Robert Royal: Friends: With all the online infighting over who's a "Nazi" or a "Fascist," almost no one stops to think why it is that we regard such political formations as wrong. Today, George Marlin, recalling the trials of real Nazis, explains the need to resort to divine law and natural law. But to do that brings with it certain other public judgments as well. At The Catholic Thing, we'd be glad to see that, and labor towards it in various ways. And that's the reason for our end-of-year fundraising, which is moving along. But I have to be frank and say we need to step up the pace and need many more of you simply to step up. Our business manager, Hannah Russo, just reminded me that this week TCT turns seventeen. So by my reckoning, we're still in our early youth - and plan on having many years ahead. Please help us to make that a reality so that TCT can continue to appear every day, now and for a long time to come.
Now for today's column...
Exactly eighty years ago yesterday, the War Crimes Tribunal convened a trial to prosecute twenty-four Nazi leaders - a legal procedure with continued relevance for us today. The driving force behind the creation of the tribunal was American President Franklin D. Roosevelt. Shortly after America entered the war, he said, "It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murders of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith."
The November 20, 1945 indictment of the 24 Nazi ringleaders consisted of three parts. Part one accused the defendants of conspiracy to wage a war of aggression and violation of international treaties; these were "crimes against peace." Part two charged the defendants with violations of the laws and customs of war as embodied in the Hague and Geneva conventions and as recognized by the military forces of all civilized nations; these were "war crimes against peace." And finally, part three accused the Nazis of the extermination of racial, ethnic, and religious groups and with other atrocities against civilians; these were "crimes against humanity."
The arguments of the defense were essentially two. First, it was claimed that at the time the various acts were alleged to have been committed, the "crimes," which the defendants were now being charged, had no statutory basis: either in German law or international law; that the legal basis of indictments had been created after the fact. Since "ex post facto" laws are constitutionally prohibited by each of the Allied Powers, they could hardly have validity in a court convened by those nations.
The defense's second argument was that the accused ought not to be charged with the consequences of following the orders of Germany's lawful leaders. Hitler's supreme authority had been confirmed equally by appointed judges and elected legislators, and he was able to boast of the Nazi Party: "We stand absolutely as hard as granite on the ground of legality."
It was, however, perverse legality. Beginning with the decree for the Protection of the People of the State (1933), which obliterated the personal freedoms formally protected by the Weimar Constitution, the Nazis promulgated a series of legal outrages. There were "Racial Purity" laws that forbade marriage between Jews and non-Jews. There were laws that forced the registration of "alien races" and genetically "less valuable" individuals; and laws that expelled Jews from government employment and permitted the "Aryanization" of Jewish assets. From such "hard as granite" laws, Hitler and the German leadership fashioned the Final Solution.
Yet, despite the enormity of these Nazi atrocities, the legal dilemma at Nuremberg was very real. In establishing a case against the defendants, especially on charges of "crimes against humanity," the prosecution had no pre-existing statutes sufficient to the task. B...
