Close window  |  View original article

Pardons for Nuremberg

What right did we have to execute Nazis who murdered their Jewish citizens?

By Hobbes  |  February 3, 2019

The recent infanticide-legalizing liberalization of New York abortion laws shows that our next Democrat president should issue an apologetic blanket pardon to every single one of the Nazis who were convicted of "crimes against humanity" at Nuremberg.

The "Nuremberg trials" were a series of military tribunals conducted in Nuremberg, Germany after World war II.  The trials became famous for prosecuting political, military, judicial and economic leaders of Nazi Germany, who planned, carried out, or participated in the Holocaust or other war crimes.

Although the legal justifications and trial processes were controversial at the time, the Nuremberg trials became an important precedent for dealing with genocide and other "crimes against humanity."  The conviction and execution of 12 prominent Nazis marked a turning point in international law.

A Philosophical U-Turn

The Nuremberg trials were controversial even among those who approved of the result.  Harlan Stone (1872-1946), chief justice of the U.S. Supreme Court, described the proceedings as a "sanctimonious fraud" and a "high-grade lynching party."  William O. Douglas (1898-1980), then an associate U.S. Supreme Court justice, said the Allies "substituted power for principle" at Nuremberg.

The trials abandoned the principles of the Treaty of Westphalia which came into effect in 1648.  The treaty basically said that going forward, nations would not interfere in each other's internal affairs.  By this fundamental principle of international law, Nazis could perhaps be prosecuted for inhumane treatment of other countries' citizens, but not of their own.

It's easy to forget that Adolf Hitler had become ruler of Germany via the democratic process of winning elections.  What's more, even after being elected, he and his fellow Nazis had meticulous concern for legalities.  Every act of rounding up Jews and sending them to death camps, every other "crime against humanity," was done according to laws which had been duly passed by elected representatives of the German people.  Yes, they were Nazi-favored laws, but the Nazis got into the Reichstag, or legislature, by winning elections.

The Holocaust and the German slave labor camps were internal matters which were placed off-limits to external interference by the 1648 treaty.  The Treaty of Westphalia was highly respected by the international community, and for good reason - it had brought an end to decades of religious war.  Its principle of letting each nation handle its own affairs has probably saved more lives than any other single document, the U.S. Constitution included.

Even to this day, Westphalian rules have relevance.  President Bush II's 2nd Iraq war wasn't justified on the grounds that Mr. Hussein was killing his citizens with poison gas, it was undertaken because everyone thought he had nuclear weapons and was prepared to use them against us.  Preventing attack has always been regarded as a justifiable reason to go to war.

That is also why criticism of Israeli efforts to bomb Iranian convoys bringing weapons to Lebanon has been muted - everybody knows that those weapons will be deployed against Israel in a decades-long undeclared war, so taking them out early is fair game.

Armed intervention to prevent internal "crimes against humanity" would clearly be a violation of these important Westphalian principles, so long as there's no real threat against anyone outside the target country.  This made Mr. Clinton's decision to bomb separatists in Yugoslavia controversial and was a major reason not to get involved when Tutsi and Hutu were slaughtering each other in Rwanda.  The Rwandans hated each other, but generally speaking confined their violence within their borders; same for Yugoslavia.

President Clinton's actions were loudly questioned at the time, even though he was a Democrat.  Critics believed that the violence on the ground was excessive and offensive and there were other factors involved.  Those who favored his actions realized that the foundation for intervention had been laid fifty years earlier when the victorious allies decided to cast aside the time-honored Westphalian principles and administer "victor's justice" at Nuremberg.

In "Opening Address for the U.S., Nuremberg Trials," Robert H. Jackson, chief Nuremberg prosecutor for the United States, argued that the trials were valid because justice is based upon the existence of absolute right and wrong regardless of what local laws say.  The trials ruled that the Nazis had violated universal natural laws.  Death sentences were inflicted on officials who engaged in the murder of millions because they should have known that what they were doing was absolutely wrong even though everything they did was entirely in accordance with the duly-passed Nazi laws in legal force at the time.

Crimes Against Humanity and Higher Law

No similar trials had ever been held, so the victorious allied powers negotiated a document which came to be known as the "London Charter" to define the crimes which the accused might have committed.

A common, and entirely reasonable, defense was that the crimes defined in the London Charter were ex post facto law; that is, the Charter criminalized actions committed before it was drafted and which were not criminal when they were committed.  Indeed, it would have been illegal for the camp guards and other functionaries not to kill their prisoners when ordered to do so because it was required by German law.

Another defense was that the trial was unjust and biased "victor's justice" in that the Allies were applying a harsh standard to crimes committed by Germans and leniency to crimes committed by their own soldiers.

The most familiar defense was the statement, "I was only following orders."  Orders to kill Jews had come directly down the chain of command from Adolf Hitler, but, having committed suicide before the trials took place, he wasn't available for prosecution.  As The Atlantic put it in 1946,

In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior? ...

There is no citation of any particular international convention which in explicit words forbids a state or its inhabitants to murder its own citizens, in time either of war or of peace. ...

The example of Napoleon shows that our consciences would have no reason to be disturbed about the removal from society and the permanent detention of irresponsible men who are a threat to the peace of the world.

The "following orders" defense was denied based on Justice Jackson's statement that mass murder was "absolutely wrong."  The trials endorsed the idea of "higher law" under which some actions were absolutely right and others absolutely wrong no matter what.  Having established that principle, the tribunal ruled that murder of noncombatants was absolutely wrong and that officials who carried out Hitler's orders should have known better.

Abortion and Higher Law

Let's come down to today.  New York's Gov. Cuomo recently signed the Reproductive Health Act which made abortion legal up to the time of birth. It says that abortion is OK even if done when the woman is in labor, if necessary to "protect the patient's life or health."  The R.H.A. gives no standard for making such decisions beyond "the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case"; it does not specify any objective medical crieria, much less anything legally enforceable.

In short, the law does not have any restrictions that would ever prevent an abortion from taking place under any circumstances whatsoever; all that's needed is a doctor willing to perform it.

Just to make good and sure that abortion is always legal no matter what, the R.H.A. removes all references to abortion from the New York penal code.  Homicide used to include causing the death of a person, defined as "a human being who has been born and is alive," or of an unborn child if the woman has been pregnant more than 24 weeks.  "Born and alive" remains in the penal code, but the unborn are no longer persons under New York law.

These extremely late abortions require less paperwork than before because the R.H.A. repeals part of New York's public health law that previously regulated them.  Abortions after the 12th week of pregnancy formerly had to be performed in a hospital.  Abortions after 20 weeks required a separate physician to provide medical care for any infant born alive during the procedure.

The now-repealed section also declared that a child born alive during an abortion immediately received the full protection of all New York laws and required medical records to be kept of efforts to care for the child.  New York law is now silent on the status of an infant born alive during an abortion.  It appears that New York Democrats believe that any recognition of "fetal personhood" would necessarily be anti-woman.

In other news, Virginia Delegate Kathy Tran proposed a bill that would ease state restrictions on late abortions.  Pro-lifers accused her of trying to legalize infanticide.  Virginia governor Ralph Northam, who trained as a pediatric neurologist, was asked about this; he explained what happens when a woman goes into labor with a baby that may not be viable.  The infant, he said, would be delivered and kept comfortable, and the family would decide about resuscitation.

Hm.  The family and the doctor would decide about resuscitation after the baby has already been born?!  Many "normal" newborns need intervention to get them started breathing - the proverbial "smack on the bottom."  Under New York law, medical intervention to keep the child alive is no longer required and it seems that Virginia's governor wants to lead his state down the same road.

The New York Times quoted a conservative reaction:

"Under the bill's actual text, virtually any claim of impairment would suffice to meet the act's requirements," wrote National Review's David French. "Anxiety? Depression? The conventional physical challenges of postpartum recovery? Any of those things could justify taking the life of a fully formed, completely viable, living infant." ...

The murderous abortionist Kermit Gosnell, serving a life sentence in prison, is an exception, but he was operating outside the law.

The Times is correct in observing that Gosnell was operating outside the law as it stood at the time, but under the new New York law, resuscitation efforts are no longer required.  It seems that much if not all of what went on in Gosnell's abortion mill would now be legal under New York law, and what wasn't made explicitly legal would be impossible to prove without streaming video.

Regardless of the specific text of New York or Virginia law, the fact that we're having these debates makes it crystal clear that letting fully-formed infants who've made it outside the womb die is no longer "absolutely wrong."  Liberals say that it's OK to kill babies at any moment up to the moment of birth and letting them die afterward is OK if they can be declared "impaired."

How long will it be until it's OK for them to be killed during the first or second minute after birth even if they're perfectly healthy?  Or ten minutes?  Or twenty?  How long a delay is acceptable?  Why are we even having to ask this question if there are any moral absolutes at all?

Pro-life people have always argued that an unborn baby is just as human as one that's out and breathing the free air.  Pro-abortion advocates disagree, but even the abortion-mad Chinese Communists don't generally try to murder a baby after it's already been born.  Not so our American Democrats.

Which raises a vital question of international law: should Governor Cuomo be subject to prosecution by any country in the world - or other state - that happens to lay hands on him for "crimes against humanity" by virtue of enabling the murder of innocent citizens of his own country, which he should inherently know is absolutely wrong?  His actions certainly meet the Nueremberg standard.

Of course, we all know this isn't going to happen, but it still matters.  If this doesn't occur the next time Gov. Cuomo sets foot out of the Empire State - and it won't - our last-century assertions of absolute right and wrong no longer hold.

In that case, the Nazi concentration-camp guards were wrongfully convicted against a principle we've demonstrated that we don't believe in anymore, assuming we did even back then.  Their complaints about unfair "victor's justice" were correct - now, anyway, even if not at the time.

In the interest of the restorative historical justice so beloved of the Left, who want to right all wrongs since Noah got off the ark, the next Democrat president should pardon the Nuremberg defendants and set the record straight: there are indeed no universal moral laws, a nation's leaders can do whatever they please to their own people, period.  The Uighurs whom the Chinese have locked up are lucky they're being reeducated instead of being turned into lamp shades - and being citizens of that country, nobody else has the right to utter a peep.