Retroactive Law and Proactive Justice: Debating Crimes against Humanity in Germany, 1945–1950

Abstract

The Nuremberg Trial may well be the most famous trial of the twentieth century, which is as it should be. After all, the Nuremberg Trial, while perhaps not as unprecedented as is frequently assumed, did mark a decisive turning point in the history of international law. It marked the first broadly successful attempt to impose the rule of law not just on the conduct of war but also, in a limited way, on domestic atrocities as well. The fame of this single trial has had the unfortunate side-effect of overshadowing the literally thousands of other Nazi trials that took place after World War II, however. These additional trials can be divided into three categories: those that took place in the domestic courts of victim nations, those that took place in occupation courts, and, perhaps least well-known, those that took place inGermancourts.

Transitional Justice in South Africa and Brazil: Introducing a Gendered Approach to Reconciliation

“…4 Devin o. Pendas, Retroactive Law andProactive Justice: Debating Crimes Against Humanity in Germany, 1945-1950, 43(3) Central european history 428 (2010). 5 luc huyse, Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past, 20(1) law & social inquiry 51 (1995).…”

Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present

“…After months-long deliberations, on December 20th, 1945, the decision was made that the Allied-controlled courts would prosecute Nazi crimes against the Allied citizens, and the crimes against Germans were given at disposal of the German judges. This became known as the Allied Control Council Law 10 [64][65][66]. Prior to allocating criminal cases to German courts, the Allies had to clear the German judicial system.…”

“…In the 1940s, after the German justice system had been reactivated, German judges had the choice of whether they wanted to apply international law or the German Penal Code of 1871 when putting Nazi criminals on trial [66]. Although the international law that derived from the Nuremberg Trials was designed to prosecute offences such as crimes against humanity and genocide, the majority of German jurists decided to stick with the German law ignoring the fact that it was unsuitable given the severity of crimes committed in the Third Reich.…”

“…By 1992, approximately 103,823 Germans had been investigated; of them only 6,487 were prosecuted and 5,513 were convicted, most for non-lethal crimes. About 7% of those convictions were for crimes against Jews [73,66]. In the German Federal Republic, putting those on trial who had been active in the euthanasia programme proved difficult.…”

“…[C] The Congress expresses its deep fear and 63 anxiety, lest 64 these transgressing 65 Nazi biologic doctrines, and their distorted 66 trend of thought, be transferred and implanted, 67 knowingly or unknowingly, into the medical and biologic science of our time.…”