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.Footnote ¹ 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.Footnote ² 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 in German courts.

The Moscow Declaration of 1943 had announced that most Nazi criminals, those whose crimes had occurred in a specifiable locale, were to be returned to the scene of the crime to stand trial. Under the provisions of this territoriality principle, thousands of German war criminals were tried in courts across western and eastern Europe. Altogether, more than 95,000 Germans and Austrians were convicted of Nazi crimes after the war. Of these, the majority—at least 52,721—were tried in eastern Europe. An additional 2,890 were convicted in west European courts.Footnote ³ The Allied authorities themselves tried some 8,812 Germans or Austrians in their own occupation courts.

Outside eastern Europe, however, it was the Germans themselves who conducted the largest number of trials for Nazi atrocities. Nearly 20,000 people were convicted of Nazi crimes in German courts after the war—6,495 in the courts of the western occupation zones/Federal Republic and at least 12,776 in the Soviet occupation zone/German Democratic Republic.Footnote ⁴ Of these cases, the overwhelming majority were tried in the period from 1945 through 1949 (4,419 of the West German and 8,059 of the East German convictions). Unlike later West German trials, which were exclusively concerned with homicide (after 1960 with murder) because of the statute of limitations, these early trials concerned the full panoply of Nazi crimes against people and property. From 1945 to 1949, the largest percentage (38.5 percent) of German Nazi trials concerned denunciations, followed by crimes against political opponents (16.3 percent) and crimes committed in the course of the so-called Reichskristallnacht (15.4 percent). Since German courts were restricted to jurisdiction over crimes mainly against Germans, crimes connected with the Nazi extermination programs (1.2 percent) or war crimes (also 1.2 percent) were barely represented.Footnote ⁵ Almost exclusively initiated by surviving victims who made allegations to the police, these were typically small trials against small groups of defendants or individuals, often relying heavily on the testimony of surviving witnesses, as opposed to the documentary strategy pursued against the Nazi elites at Nuremberg.

These early German trials have, to date, received very little scholarly attention.Footnote ⁶ Indeed, it would probably be fair to say that, with the exception of a handful of specialists in the history of Nazi trials, few people are even aware that there were trials for Nazi crimes in German courts during the occupation period. Given the sheer magnitude of these trials, they clearly played an important role in Germany in this period. As such, the fact that we know so little about them constitutes a significant gap in our historical understanding of the transition from the Third Reich to the postwar order.

This omission is particularly glaring if one considers all the attention that has recently been focused on so-called “transitions from authoritarian rule,” of which the West German case was one of the first and most successful.Footnote ⁷ Together with denazification and reeducation, criminal trials formed one of the central pillars of the Allied attempt to remake German society after the war. Moreover, the German experience of what has come to be called transitional justice was one of the most extensive and systematic ever undertaken.Footnote ⁸ Trials for Nazi crimes conducted by the Germans themselves were at least as important as the more well-known Allied trials in this process. Indeed, given the widespread and mounting hostility toward the Nuremberg Trial inside Germany during the occupation period, where the percentage of those viewing the trial as “fair” fell from seventy-eight percent in 1946 to thirty-eight percent in 1950, it is likely that the early trials in German courts were more important for the democratization process in West Germany than the Allied trials were.Footnote ⁹ After all, these trials could not be quite so easily dismissed as the Allied trials as a form of “victor's justice.”Footnote ¹⁰

Control Council Law No. 10 of December 20, 1945, authorized the occupation authorities to grant German courts in their respective zones jurisdiction over “crimes against humanity,” which in this context meant any number of criminal actions (murder, deportation, enslavement, persecution) against German citizens or stateless persons.Footnote ¹¹ Only the Americans declined to take advantage of this clause. Rather than authorizing the German courts in their zone to prosecute Nazi crimes against humanity, they had the Länder in their zone each pass identical laws in May 1946 regulating the application of ordinary German statutory law to Nazi offenses. In the American zone, Nazi crimes were thus tried as ordinary crimes, for example, homicide, assault, arson, etc., under the German criminal code, rather than as crimes against humanity. In practice, this meant that German courts in the American zone applied the typically milder sentences of the German criminal code. It also meant that certain kinds of Nazi crimes, denunciations in particular, were more difficult to prosecute, though the Law for the Liberation from National Socialism and Militarism did authorize German courts to prosecute such cases.Footnote ¹² This was an important precursor to the subsequent practice in the Federal Republic, which likewise prosecuted Nazi crimes as ordinary crimes, rather than crimes against humanity.

The remaining occupation powers all granted German courts more or less broad jurisdiction over Nazi crimes against humanity. The Soviets granted German courts jurisdiction over crimes against humanity under Control Council Law No. 10 through August 1947, at which point their strategy shifted somewhat under the provisions of so-called Order 201. Henceforth, German courts in the Soviet zone were to prosecute Nazi crimes simultaneously as crimes against humanity (where applicable) and as part of the denazification process per Control Council Directive 38, which punished mere membership in organizations deemed criminal by the International Military Tribunal at Nuremberg. This expanded the authority of ordinary German courts in the Soviet zone with respect to Nazi crimes significantly. In effect, the Soviets unified criminal trials and political lustration, two facets of Allied policy that were kept separate in the three western zones, most explicitly in the use of separate special courts (so-called Spruchkammern) for denazification proceedings. Both the Soviets and the Socialist Unity Party saw this as a way to further “democratize” the legal system by entrenching their claims to political legitimacy on the moral high-ground of Nazi prosecutions.Footnote ¹³

The French and the British both granted the German courts in their zones comprehensive jurisdiction over Nazi crimes against humanity. The British in particular developed a broad formal policy concerning such jurisdiction. For this reason, and because the British zone was so much larger than the French, much of the subsequent controversy that arose throughout the western occupation zones concerning crimes against humanity as a legal category focused on the British zone. Crimes against humanity as defined in Control Council Law No. 10 were nearly identical with the definition articulated in the London Charter authorizing the International Military Tribunal. As a consequence, German courts outside the American zone were in the unusual position of applying what was in effect international law to domestic crimes throughout the occupation period. More importantly, “crimes against humanity” had been codified neither in German nor international law prior to 1945. Many German jurists throughout the western zones, including many in the American zone who were not directly affected, were deeply troubled by this situation and expressed their discomfort in no uncertain terms, both to their Allied supervisors and in the public sphere more broadly.

In this article, I examine the debate over crimes against humanity in western Germany in the late 1940s.Footnote ¹⁴ I begin by analyzing British policy regarding German jurisdiction over crimes against humanity. The British had the most systematic such policy and, as a result, the British zone was the focal point for much of the debate over crimes against humanity. Unlike the French, who granted comprehensive jurisdiction all at once starting in Baden and then extending to the remainder of their zone, the British quite deliberately expanded German jurisdiction over different categories of crimes against humanity gradually throughout 1946 and 1947.Footnote ¹⁵ This is important because as German jurisdiction expanded, German judges and prosecutors became increasingly skeptical of such trials as they raised new and increasingly serious jurisprudential (and political) problems from a German perspective.

Second, I then interrogate the intense debate that took place in German judicial circles concerning such trials, particularly as this concerned the issue of the perceived violation by such trials of the legal principle, nullum crimen, nulla poena sine lege (no crime, no punishment without law). This principle, which had long been a staple of continental law, encompassed three main elements: there can be no retroactive law or penal sanctions, there can be no customary law or analogical jurisprudence, and, finally, the law must be precise in its stipulation of the elements of a crime and the penal sanctions attached.Footnote ¹⁶ As a legal innovation, crimes against humanity were seen by many as clearly violating the ex post facto prohibition. Appeals to customary law in its defense were seen as unsatisfactory, since this, too, violated the nulla poena principle. It is important to note, however, that contrary to the common assumption, the Germans were by no means universal in their condemnation of the retroactive prosecution of crimes against humanity and that the eventual rejection of such prosecutions after 1949 was hardly a foregone conclusion. The occupation period was a period of transition, one that might well have produced quite different outcomes, in this specific area as in others. This contingency is worth remembering.

Finally, I conclude that the outcome of the controversies over prosecuting crimes against humanity in German courts was paradoxical. There can be no doubt that for many of the critics of such prosecutions, one of the main objectives was to minimize the prosecution of Nazi criminals, perhaps even to terminate such prosecutions altogether. The effect of these debates, however, was to contribute to the eventual democratization of West Germany by deradicalizing the judiciary. Because German judges and prosecutors used the language of fairness, due process, and legal formalism to help to undermine the prosecution of Nazi criminals, they inadvertently committed themselves to a strict proceduralist view of the rule of law that stood in marked contrast to the tradition of patriotic instrumentalism and right-wing natural law theorizing that had characterized much of the German judiciary before 1945. The point is not that the German judiciary became convinced liberals after 1950. Many of them did not. Rather, the point is that they could no longer articulate in legal vocabulary a rejection of the liberal rule of law or the democratic state, as they had during the Weimar Republic and the Third Reich.

British Policy

Although Germany was directly governed by its Allied occupiers for the better part of five years prior to the founding of two sovereign German states in 1949, the Allies could hardly hope to administer the entire country without German assistance. As a consequence, the Allies began reconstituting German administrative authority from an early date. This is true not only of local and regional government, but of the judiciary as well.Footnote ¹⁷ In November 1945, the Allied Control Council for Germany issued Law No. 4 reconstituting German courts. This contained two key provisions. The first was for a preliminary but in principle far-reaching denazification of the German judiciary. “For the purposes of transforming the German courts, all former members of the Nazi party who actively participated in its activities, as well as all other persons who took part directly in its punitive measures, must be removed from the judicial or prosecutorial office and may not be readmitted to such offices.”Footnote ¹⁸ These apparently stringent criteria were, however, greatly restricted, with far-reaching consequences, by the subsequent guidelines for the denazification of the judiciary (Control Council Directives Nos. 24 and 28 of January 12 and October 12, 1946), which demonstrated a “more differentiated and far less consequential attitude” than CC Law No. 4.Footnote ¹⁹

Given the inevitable shortages of qualified legal personnel, it proved impossible adequately to purge the judiciary or prosecutor's offices of compromised individuals. In the British zone, only about thirty percent of sitting judges were denazified and removed from the bench.Footnote ²⁰ In the American sector, one contemporary observer estimated that only nineteen percent of judges who had been Nazi party members were removed from the bench.Footnote ²¹ Moreover, legal institutions in the British zone underwent a rapid “renazification” during the late 1940s as former Nazi judges and prosecutors were reinstated, thus increasing the number of incriminated legal personnel serving in the zone.Footnote ²²

Those removed were replaced by judges who had gone into “inner emigration” during the Third Reich, judges who had already retired in 1933 and were brought back into service after the war or, in a very small number of cases, judges who had been in exile abroad. The seventy percent who were not denazified had served on the bench under the Nazis. Of course, some of these had served in relatively “safe” courts, such as administrative Amtsgerichte where they had little occasion to implement the more repugnant Nazi legal practices. Many, however, had been actively involved in some of the worst aspects of Nazi criminality. For instance, of the Hamburg judges who had issued verdicts in “race mixing” cases under the Nuremberg Laws, eleven of the seventeen to survive the war were reinstated to the bench afterward.Footnote ²³ A strikingly large number of deeply compromised judges remained on the bench until well into the 1960s, as first revealed by the so-called Braunbuch campaign in the late 1950s and confirmed by subsequent scholarship.Footnote ²⁴ In addition to initiating the denazification of the German judiciary, CC Law No. 4 also restored criminal jurisdiction to German courts, with the very important exception of “criminal actions by Nazis or other persons directed against citizens of Allied nations or their property.”Footnote ²⁵

The Allied Control Council followed up CC Law No. 4 with CC Law No. 10 on December 20, 1945. This law formed the basis for most subsequent Nazi trials in Germany until the restoration of full German judicial sovereignty in the early 1950s.Footnote ²⁶ CC Law No. 10 covered the same criminal categories as those contained in the London Charter authorizing the International Military Tribunal at Nuremberg, namely, crimes against peace, war crimes, and crimes against humanity. Crimes against peace covered the planning and waging of aggressive war and waging war in violation of treaties. War crimes covered violations of the laws and customs of war, including an array of atrocities against civilians and prisoners of war (POWs). Crimes against humanity covered “murder, extermination, enslavement, deportation, kidnapping, torture, rape, or other inhumane acts committed against any civilian population; or persecutions on political, racial, or religious grounds, whether or not in violation of domestic law of the country where perpetrated.”Footnote ²⁷ Given the substantial similarity of the acts covered by both war crimes and crimes against humanity, it is important to note that the principle difference lies in the relationship between the perpetrator and the victim. Crimes against humanity are “simply an extension of war crimes, because the category of protected persons is the same in the two laws [i.e., non-combatants], the difference being whether the violators were of the same or another nationality.”Footnote ²⁸ In other words, war crimes were those committed against Allied citizens, whereas crimes against humanity were those committed against German citizens or stateless persons.

This fact was made explicit in the way that CC Law No. 10 enabled German courts to be granted jurisdiction over some Nazi crimes. According to Article III, Paragraph 1 d, “German courts may be granted jurisdiction over crimes committed by German citizens against other German citizens or against stateless persons.”Footnote ²⁹ Note that CC Law No. 10 did not mandate that German courts be given jurisdiction over such cases, but merely stated that such jurisdiction could be given. The decision whether to grant such jurisdiction, as well as the manner in which it should be done, was left to the discretion of the individual occupying powers. It was thus to be expected that substantial differences would develop between sectors, as indeed happened.

For the British, three factors in particular determined their policy regarding Nazi trials in German courts. First, they had a sense of moral, or at least political, obligation to ensure that Nazi crimes against German victims were punished. Second, in the face of persistent and serious manpower shortages, they felt compelled to prosecute such cases using the minimum possible level of British resources. Finally, despite their somewhat cavalier attitude toward the denazification of the judiciary in their zone, itself partially a response to personnel shortages, they remained skeptical of the political reliability of the German judiciary.

On January 31, 1945, Undersecretary of State Richard Law had promised in Parliament that, while “Crimes committed by Germans against Germans are in a different category from war crimes and cannot be dealt with under the same procedure … I may assure [Parliament] that his Majesty's Government will do their utmost to ensure that these crimes do not go unpunished.”Footnote ³⁰ The political stakes of keeping this promise were felt by the British to be quite high. “If this [Nazi crimes against other Germans] is to go unpunished, undoubtedly the prestige of Military Government will suffer very greatly in the eyes of the Anti-Nazi Germans; indeed, there is evidence that this is already happening.”Footnote ³¹ Yet it also rapidly became apparent that it would be all but impossible for the British to conduct such trials themselves. As early as September 1945, British occupation authorities on the ground in Germany were noting that “there is urgent need for a policy regarding atrocities, i.e., crimes committed against Germans by Germans who have not committed war crimes.”Footnote ³² While it might be true that some such cases could be tried in British military courts, they could not “accept general responsibility” for all such cases. “The German police and courts will therefore be allowed to deal with minor atrocities in any area where we are sure that we can trust them.” This issue of trust was to be of paramount importance for the British authorities as they carefully crafted a policy of granting German courts jurisdiction over Nazi cases gradually, in each case following what the British termed “precedent trials” in occupation courts.Footnote ³³

The war office in particular was strongly in favor of holding a limited number of precedent trials in British military courts. Secretary of War John Lawson wrote to Foreign Secretary Ernest Bevin in October 1945, pointing out that the release scheme for serving officers, especially legal officers, meant that trained lawyers would be in increasingly short supply, especially those with the “exceptional versatility” required to prosecute cases in military courts using German legal categories. In particular, Lawson did not want to overburden Control Commission courts with excessive numbers of precedent cases. “The more we load onto the Control Commission, the more we stand in danger of breaking it and bringing our policy into disrepute.”Footnote ³⁴ Consequently, Lawson argued strongly that the British should only try “one or two special cases and rely as much as possible on German courts to undertake these trials themselves.” Bevin concurred, suggesting that perhaps at first there should be a British observer present during these German trials, a suggestion that never came to fruition.Footnote ³⁵

British general policy with regard to German jurisdiction was established along the lines suggested by Lawson and Bevin and implemented by British Military Government Ordinance 47 of August 30, 1946. This gave German courts in the British zone jurisdiction over crimes against humanity largely as defined by CC Law No. 10, except that it restricted their jurisdiction to crimes committed by Germans against Germans and not (yet) stateless persons. It further stipulated that German courts were required to apply all other elements of CC Law No. 10, including the available sentences (up to and including the death penalty, as well as prison sentences and monetary fines) and the explicit prohibition on the so-called defense of higher orders.Footnote ³⁶

Although Ordinance 47 seemed quite general, the British did not in fact initially grant German courts jurisdiction over all crimes against humanity committed under the Nazis. Rather, as the Legal Division of the British Occupation Government explained to the Military Governments of the various British Länder in September, “It was decided as a matter of policy that before the German Courts were authorized to proceed with these cases, certain selected cases should be tried by Military Government Courts, in order that the sentences awarded might be available as a precedent.”Footnote ³⁷ For the time being, German courts were restricted to jurisdiction over crimes committed in the concentration camps, all other Nazi crimes being exempted until such time as the relevant test cases before occupation courts had been completed. The point of this restriction was that the British did not trust the Germans to reach appropriate verdicts and impose proper sentences without some precedents to guide them. This letter also added that German courts were to have jurisdiction over all crimes that were illegal under German law, “provided that the charges are framed and that the cases are tried in accordance with German law.” In other words, German courts were free to try Nazi crimes under German statutory law, either in conjunction with a charge of crimes against humanity or independently. The courts were not bound by German statutory sentencing guidelines, however, and could “where they consider that such penalties are inadequate to fulfill the requirements of justice,” impose the harsher sentences available under CC Law No. 10.Footnote ³⁸

The British gradually extended German jurisdiction over other Nazi crimes against humanity. On November 21, 1946, German courts were granted jurisdiction over cases of denunciations, although no test case had yet been completed in occupation courts.Footnote ³⁹ In order to expedite the process, Legal Division simply referred to the case of Helene Schwerzel who was sentenced by the Berlin Landesgericht to fifteen years for denunciation, indicating that this constituted an appropriate sentence for such cases. Then, on December 20, 1946, the British gave German courts jurisdiction over cases of forced sterilization and racial persecution with the exception of cases involving Jews, indicating a series of test cases, in which the sentences ranged from a one-year suspended sentence to three years in prison and a RM 100,000 fine.Footnote ⁴⁰ Finally, on July 5, 1947, after the completion of a test case in which eight Germans were tried for the burning of the synagogue in Aachen during Kristallnacht, where the sentences ranged from acquittal to five years in prison and a RM 5,000 fine, German courts were granted jurisdiction over crimes against humanity committed against Jews.Footnote ⁴¹

Thus, from the summer of 1947, German courts in the British zone had effective jurisdiction over all Nazi crimes against humanity committed against Germans. In October, this jurisdiction was extended to cover cases where a majority but not all of the victims were German (with the exception of cases where any of the victims were British subjects or the most serious offenses were directed at Allied citizens).Footnote ⁴² The British finally extended German jurisdiction to crimes against humanity committed against stateless persons (as originally envisioned in CC Law No. 10) in March 1948.Footnote ⁴³ After nearly two years of German trials, the British finally felt the Germans were reliable enough to be entrusted with trials dealing primarily with crimes against non-Germans.

Altogether, in the period to October 31, 1949, German courts in the British zone convicted 2,036 defendants of Nazi crimes; 3,407 defendants were indicted, yielding a conviction rate of roughly sixty percent.Footnote ⁴⁴ This comprised roughly forty-three percent of all convictions for Nazi crimes in the three western occupation zones together.Footnote ⁴⁵ Three categories of crimes dominated in these early postwar trials: denunciations (38.3 percent), crimes against political opponents (16.3 percent), and crimes associated with the 1938 Kristallnacht pogrom (15.4 percent). By contrast, Nazi mass murder figured only minimally in these trials; 6.7 percent of German Nazi trials from 1945 to 1949 dealt with crimes in concentration camps (not death camps) or prisons. A mere 0.7 percent of trials dealt with the so-called Euthanasia campaign. And only 1.2 percent of cases dealt with the mass exterminations in eastern Europe.Footnote ⁴⁶ Even had the political and prosecutorial will to pursue such cases been present, it would have been extremely difficult, given the restrictions on German jurisdiction. Most of the victims of Nazi extermination had been foreign nationals, and thus lay outside German jurisdiction until the 1950s.

Nullum crimen, nulla poena sine lege

From the British perspective, what was at stake in having German courts try Nazi crimes against humanity was to preserve the political legitimacy of the occupation government, while simultaneously relieving it of an excessive burden on its limited resources. For the Germans, however, these trials rapidly became a source of profound controversy. Because CC Law No. 10 explicitly framed Nazi crimes as crimes against humanity, a legal category first formulated at the London Conference in June 1945, a great many Germans felt it violated the fundamental legal principle, nullum crimen, nulla poena sine lege. This legal principle applies to criminal law and consists broadly of three elements: a prohibition on retroactive law, a prohibition on customary law and analogy, and a requirement of statutory specificity. A staple of the continental legal tradition, it is in significant respects foreign to the Anglo-American legal tradition, a fact that helps to explain the mutual incomprehension that reigned between the British and many Germans in the course of the debate over prosecuting Nazi atrocities as crimes against humanity.

The legal principle (or set of legal principles) nullum crimen, nulla poena sine lege was first articulated in its full Latin formulation in 1801 by Paul Johann Anselm von Feuerbach, the leading German legal philosopher of the late eighteenth and early nineteenth centuries, but its roots stretch much further back.Footnote ⁴⁷ Of the three main elements of the nullum crimen, nulla poena principle, the prohibition on ex post facto law is the oldest. Roman law already restricted ex post facto law making, although the scope of the restriction was quite narrow. Major exceptions were made for natural crimes, acts that had already been viewed always as wrong, even in the absence of a written prohibition.Footnote ⁴⁸ Belated codification of such natural crimes therefore did not violate the ex post facto prohibition in the eyes of Roman jurists. The other major elements of the principle, the prohibition on customary law/analogy and the demand for statutory specificity, were largely absent in Roman law, in large part because the Romans did not yet distinguish between the powers of the legislator and those of an adjudicator. While the scope of the ex post facto prohibition expanded somewhat in the course of the Middle Ages to cover even natural law crimes, much room was left for explicit exceptions, and the other elements of the principle had yet to develop.Footnote ⁴⁹

It was only with the Enlightenment that the nullum crimen, nulla poena principle in its modern form began to emerge. Early modern natural law theory, which had proposed the direct, earthly application of the laws of reason, even without prior codification, had not recognized the nullum crimen, nulla poena principle. In the Enlightenment, however, efforts to articulate a theoretical basis for limiting the power of the state recovered the Roman prohibition on ex post facto law and, on the continent at least, added to it a great skepticism of customary law or expansive judicial interpretation of statutory law, alongside a desire for a complete, specific, and binding legal code. According to Hans-Ludwig Schreiber, the key figures in this development were Locke and Montesquieu.Footnote ⁵⁰ Locke's principle contribution was to articulate the notion that individual freedom depended on the state's being bound by its own laws. While the sphere of freedom was, in Locke's view, defined by the natural laws of reason these could and indeed had to be embodied in written positive law, lest disagreement over the content of natural law lead to the dissolution of civil society. Montesquieu added to this the notion that in order to preserve individual freedom from state excesses, it was necessary strictly to separate the powers of government into distinct branches, so that each could check and balance the others. According to this view, it was the task of the legislature to make the laws, and that of the judiciary to apply them. If judges were simply to apply the law, it was obviously important that they be able to know in considerable detail what the law was. Indeed, Montesquieu wanted to prohibit judicial interpretation of the law altogether, which would require an unimaginably exhaustive and precise codification. If for Locke, it was necessary for the state to articulate natural law positively, for Montesquieu that articulation had to be so specific as to preclude judges from inappropriately engaging in legislation in the guise of interpretation.

Schreiber argues persuasively that at this point, the elements of the nullum crimen, nulla poena principle were fully in place. All that was left was for Feuerbach finally to articulate in a pithy formulation the principle that there can be no crime without prior statutory specification. To this essentially political principle, Feuerbach added a psychological dimension, in the form of a theory of deterrence. This view holds that the point of criminal law is to deter crime. It does so by threatening greater harm to the perpetrator than any potential gain to be expected from the criminal act. In order for this threat of harm to deter, however, the criminal must be aware of it. Hence, it becomes necessary to spell out, in advance and in reasonable detail, what consequences will attend any given criminal act. Not only is a formal, written, and specific law necessary to make an act criminal, it is necessary to specify what punishments will attach to the act as well. Therefore, there can be neither crime nor punishment without prior law. Judicial power is greatly restricted both in the interpretation of the law and in the determination of the appropriate punishment.

The Americans were the first to incorporate some of these principles into their understanding of law, in the form of prohibitions on ex post facto law, first into various colonial and state constitutions and eventually into the federal constitution. Despite otherwise embracing much of Montesquieu's theory of the separation of powers, the American legal tradition never adopted the other dimensions of the nullum crimen, nulla poena principle. Common law remained as much a part of the law of the land as written law, and therefore the prohibition on customary law and the principle of statutory specificity never really found much traction in the United States.Footnote ⁵¹ Efforts by American legal reformers in the nineteenth century to promote formal legal codification on the continental model by and large failed. While it is true that, perhaps ironically, England succeeded in greater legal codification in the nineteenth century than the United States did, such statutory reforms were not intended to bind judges and lawyers to written law in the manner implied by the nullum crimen, nulla poena principle.Footnote ⁵² Describing the codification of elements of British commercial law at the end of the nineteenth century, Sir Frederick Pollock noted that what he termed “consolidating legislation” “does not purport to abrogate the case law on the subject.” Rather, he insisted, “Codes are not meant to dispense lawyers from being learned, but for the ease of the lay person and the greater usefulness of the law. The right kind of consolidating legislation is that which makes the law more accessible without altering its principles or methods.” For Pollock, as for most common lawyers, the point of codification was to declare “the law as it was settled and understood, without prejudging any remaining doubts on questions of principle.”Footnote ⁵³ These would continue to be determined by judicial interpretation and case law.

If the Americans and the British thus never fully embraced the hostility toward customary law or the desire to circumscribe the scope of judicial reasoning embodied in the nullum crimen, nulla poena principle, matters played out quite differently on the continent. The intellectual dominance of the principle manifested itself constitutionally and legislatively, rapidly in France during the revolutionary period, and more gradually in the German states over the course of the nineteenth century.Footnote ⁵⁴ Formulated in Articles 7 and 8 of the Declaration of the Rights of Man and Citizen, the principle was also present in the French constitutions of 1791, 1793, and 1795 and achieved its most enduring formulation in Article 4 of the Code Pénal of 1810.Footnote ⁵⁵ The differences from the American constitutional prohibition on ex post facto law are revealing. In the Declaration of Rights, for instance, the principle seems to allow for a derogation of many of the basic rights articulated. For example, Article 11 asserts that citizens have the right to communicate ideas and opinions freely, “but shall be responsible for such abuses of this freedom as shall be defined by law.”Footnote ⁵⁶ Similar legally determined derogations are possible for freedom of religion (Article 10) and the right to property (Article 17). One might go so far as to say that, on the continental model, it is the nullum crimen, nulla poena principle that does much of the legal-political work of defending the individual from the state that is assigned to constitutional rights on the Anglo-American model. It is the arbitrary exercise of state power that is to be feared, not the state as such.Footnote ⁵⁷

The codification of the nullum crimen, nulla poena principle proceeded more slowly in the German lands, unsurprising given the political plurality of the region. The earliest efforts to bind judges closely to law in the first central law code in the Hapsburg Empire, the Josephina of 1781, was intended more to secure their subordination to royal authority than to protect the freedom of subjects from arbitrary state power.Footnote ⁵⁸ Yet in the Prussian Allgemeines Landrecht (1794), this royalist impulse was already constrained by the notion that the law ought to bind the state as well as command its subjects, the nullum crimen, nulla poena principle being one principle mechanism for doing so.Footnote ⁵⁹ As Carl Gottlieb Svarez, the decisive figure in the drafting of the Allgemeines Landrecht, put it, humans did not join together to form a state “in order to subordinate themselves to the naked arbitrariness of an unlimited master.”Footnote ⁶⁰ Svarez was less concerned about the power of the state as such than its arbitrary exercise. A specific, written, prospective code was to guarantee that subjects would at least know what it was the state expected of them so they could behave accordingly.Footnote ⁶¹ What was crucial was that state power be exercised consistently and predictably, not that it be subject to any particular set of limitations. Judges could not exercise their individual judgment but only apply law, and the sovereign himself could only act through law, not in direct application of his authority to individual cases. As in France, and unlike in the Anglo-American legal tradition, legal certainty, not individual rights, was viewed as the central mechanism for taming the state.

Unsurprisingly, the next major German legal code to incorporate the principle was the 1813 Bavarian Criminal Code, drafted by Feuerbach himself. This was followed over the course of the nineteenth century by various other German states (for example, the Oldenbourg criminal code in 1814, the Württemberg constitution of 1819, the Saxon constitution of 1831, the Criminal Code for the Grand Duchy of Hesse in 1841, and the Thuringian Criminal Code of 1850).Footnote ⁶² Of greatest importance for future developments in Germany was the adoption of the principle by the Prussian Criminal Code of 1851, whose Section 2 was a verbatim translation of Article 4 of the Code Pénal.Footnote ⁶³ With only trivial editorial changes, this was incorporated into the Criminal Code for the North German Federation (January 1871) and for the German Empire (May 1871).

This long-standing commitment to the nullum crimen, nulla poena principle was severely compromised during the Third Reich. Contrary to the allegations that it was legal positivism that “rendered German jurists defenseless” against the Nazis, Nazi legal theory built upon an ongoing tradition of right-wing natural law theorizing.Footnote ⁶⁴ Early in the Third Reich, the Minister of Justice Franz Gürtner wrote that it was necessary to “consider every attack on the welfare of the ethnic community and every violation of the goals toward which the community is striving as wrong per se. As a result, the law gives up all claims to be the sole source for determining right and wrong. What is right may be learned not only from the law but also from the concept of justice that lies behind the law and may not yet have found expression in the law.”Footnote ⁶⁵ In a similar vein, Carl Schmitt, picking up on a nineteenth-century formulation by Franz von Liszt, denounced the nullum crimen, nulla poena principle for turning the German criminal code into a “magna carta for criminals.”Footnote ⁶⁶ Elsewhere, he stated, “I would counter the rule of law principle, ‘nulla poena sine lege’ with the principle of justice, ‘nullum crimen sine poena’ [no crime without punishment].”Footnote ⁶⁷ In effect, Gürtner and Schmitt advocated a return to the idea of a “natural crime,” the belated codification of which was no act of injustice.Footnote ⁶⁸

In accordance with this theory, the Nazis enacted any number of ex post facto laws, the most notorious perhaps being the Gesetz über Verhängung und Vollzug der Todesstrafe (law regarding the application and implementation of the death sentence) of March 29, 1933, the so-called “Lex van der Lubbe,” after the Dutch communist convicted of setting the Reichstag fire. This law applied the death sentence retroactively for arson.Footnote ⁶⁹ In 1935, the Criminal Code was amended, so that Section 2 now explicitly allowed extensive judicial analogy, in accordance with “the healthy sensibilities of the Volk.”Footnote ⁷⁰ While this did not entirely abolish the nullum crimen, nulla poena principle (it was still impermissible to apply more severe sentences retroactively, for instance), it did allow for the use of analogy and for the extensive interpretation of statutory texts.Footnote ⁷¹ Even where the Nazis did not issue new laws, judges in the Third Reich proved themselves more than capable of perverting existing positive law along new, racist lines.Footnote ⁷²

German Responses to British Policy

It was with the Nazi perversion of law in mind that one of the first legislative actions of the occupation government in Germany was to restore the prohibition on ex post facto law formally in CC Law No. 1, which barred retroactive law, including the application of new sentences to old offenses.Footnote ⁷³ Because CC Law No. 10 had obviously not been in effect under the Third Reich and, furthermore, because the category of crimes against humanity was arguably a legal innovation in international, not to mention German domestic law, the mandatory application of this law to Nazi crimes was perceived by many German jurists as a clear violation of the prohibition on ex post facto law.Footnote ⁷⁴ There were three dimensions to the German critique of CC Law No. 10 on nullum crimen, nulla poena grounds. First, crimes against humanity seemed to criminalize types of behavior that had not previously been punishable, the most important being “political persecution,” including political denunciations. Second, CC Law No. 10 applied new, generally harsher sentences, even to acts that had been previously criminal under German law (for example, homicide or assault). Finally, many German jurists were also troubled by the relative imprecision of the statute.Footnote ⁷⁵ In this way, CC Law No. 10 appeared to violate every element of the nullum crimen, nulla poena principle. The fact that CC Law No. 1 prohibited the retroactive application of both new laws and new penal sanctions lent additional, positive law weight to these objections.

German opponents of prosecuting Nazi crimes against humanity sought to exploit this inconsistency in occupation law. In one of the first of many protests registered by a German judge in the British zone to the use of the provisions of CC Law No. 10 to try Nazi crimes, Hodo von Hodenberg, president of the Oberlandesgericht in Celle wrote to his superiors in October 1946, highlighting the contradiction.Footnote ⁷⁶ Hodenberg himself was not a Nazi.Footnote ⁷⁷ He was, however, deeply conservative and an ardent nationalist.Footnote ⁷⁸ He was a leading figure in the so-called Heidelberg Circle. This was a group of prominent jurists, including particularly many of the most prominent defense attorneys from the Nuremberg trials but also other judges and some prominent legal academics, who met frequently to strategize how best to help German “war criminals.” The core of the Heidelberg Circle's strategy, according to Norbert Frei, was to deploy legal positivism and a seeming value neutrality to argue against criminal prosecutions for Nazi atrocities. “What was preeminently conceptualized and coordinated there [in Heidelberg], was a politico-historical legal positivism [vergangenheitspolitischer Rechtspositivismus] that lay claim to ‘objectivity’ and that had the goal of eliminating the war criminals problem—nothing more, but also nothing less.”Footnote ⁷⁹ Hodenberg also provided testimonials on behalf of prominent former Nazi officials in their denazification proceedings, such as his former protégé Kurt Blanke, one of the key figures in the expropriation of French Jewry.Footnote ⁸⁰ Some of Hodenberg's ideas were even too radical for his compatriots in the Heidelberg Circle, such as his suggestion to use the press to pressure the Allies and, later, Federal German Government to grant amnesty to those convicted at the main Nuremberg Trial and imprisoned in Spandau.Footnote ⁸¹ Clearly, no Nazi criminals were so implicated as to preclude Hodenberg's sympathy.

In his assault on CC Law No. 10, Hodenberg chose the nullum crimen, nulla poena principle as his main weapon. German judges had had to swear to uphold occupation law per CC Law No. 2, Hodenberg argued, yet CC Law No. 1 had outlawed retroactive law, thus placing German judges in an untenable position. In order to fulfill their oath to obey occupation law, they had both to prosecute crimes against humanity in fulfillment of CC Law No. 10 and refuse to do so in fulfillment of CC Law No. 1. Leaving aside the question of whether crimes against humanity were criminal under German law at the time of their commission, the judge wrote, “Ordinance 47 thus contradicts a basic law of the military government, as well as a fundamental principle of German criminal law; it is bound to put judges and prosecutors in conflict with their oath per Art. 5 of CC Law No. 2.”Footnote ⁸²

Judge von Hodenberg then advanced two other arguments that would be central to those who objected to the retroactive application of CC Law No. 10. “One can admittedly assume [that these crimes] were already criminal actions under German law at the time of their commission,” he wrote. This would justify the criminal prosecution of such acts, though not as crimes against humanity. This possibility was foreseen in both CC Law No. 10 and Ordinance 47, which allowed for crimes against humanity to be prosecuted in conjunction with violations of German statutory law. According to von Hodenberg, however, such joint prosecutions would still be in violation of the prohibition on ex post facto law because such criminal acts as would now be threatened with the death sentence, instead of just jail time. “In this way, however,” he added, “a fundamental principle is damaged, the violation of which during the Nazi period was justifiably subject to severe attacks. Simply the unreserved announcement of such principles to the courts and hence their unavoidable proclamation to the public is likely to cause serious damage to the [public's] legal consciousness, especially since the public can presume that German courts will make use of the opportunities thus afforded them.”Footnote ⁸³ Judge von Hodenberg considered it his duty to prevent such damage to the public legal consciousness. “I am of the opinion,” he concluded, “that a practical use of the opportunities provided by Ordinance 47 … to go beyond the boundaries of German criminal law is out of the question if the trust in German administration of justice is not to be severely damaged anew. This is a matter of defending a fundamental point of view, whose surrender could in no instance be justified.”

In a published version of his objections, Hodenberg expanded on this argument. Again, he made arguments of principle—that “crimes against humanity” violated both the substantive and penal aspects of the nullum crimen, nulla poena principle—and political expedience.Footnote ⁸⁴ He rightly pointed out that denunciations, which were prosecuted as crimes against humanity under CC Law No. 10's provision against “political persecution,” were particularly troublesome. Not only had denunciations not been criminal under German law during the Third Reich, they had in many cases been legally required, since they generally amounted to reporting a crime (for example, denouncing one's neighbor for “race defilement” as defined by the 1935 Nuremberg laws). If one tried to criminalize such acts, because “material justice demands it,” one would set a dangerous precedent. “One would have to reckon that with every change in political ideas, even those who thought they had made allegations [of a crime] for well-intentioned and morally justified reasons, could themselves be prosecuted on these grounds.”Footnote ⁸⁵ Extending this slippery slope argument, Hodenberg added that “every exception to a decisive core principle of law, in particular criminal law, carries with it the danger of its repetition.”

In von Hodenberg's protest, one can see the basic contours of the many similar objections registered by German judges and prosecutors to the application of CC Law No. 10 and the prosecution of Nazi crimes as crimes against humanity.Footnote ⁸⁶ First, there is a pronounced attention to the formal letter of the law, characteristic of legal positivism. Hence, the apparent contradiction between CC Law No. 1 and CC Law No. 10 is a major sticking point for von Hodenberg. Second, there is the claim that most Nazi crimes were already illegal under German law and hence there was no need to prosecute them as crimes against humanity. Third, he pointed out that CC Law No. 10 marked a double violation of the prohibition on ex post facto law in that it created new criminal categories and also imposed new sentences even on those acts that were already criminal. Carl Schmitt made a similar argument when he disingenuously defended the nullum crimen, nulla poena principle after the war. Schmitt argued, with respect to crimes against peace, that these not only retroactively criminalized previously legal behavior, but simultaneously marked an ex post facto shift in international legal obligations from the state to the individual.Footnote ⁸⁷ Finally, von Hodenberg alleged that prosecuting Nazi crimes as crimes against humanity would be to act as the Nazis themselves had done by applying the law retroactively. This would further tarnish the reputation of the German judiciary and make the project of restoring public trust in the law all but impossible.

It is important to note that, despite his categorical rejection of prosecuting Nazi crimes as crimes against humanity, von Hodenberg was explicit that such cases could in most instances still be prosecuted under German law. In effect, in cases where an action was criminal under both CC Law No. 10 and German law, the issue was reduced primarily to one of the proper sentencing guidelines to be applied, since in all other respects (for example, the burden of proof, the evaluation of evidence, the use of criminal procedure, etc.) it made no difference whether the defendant's actions were labeled crimes against humanity or something else (e.g., murder, assault, kidnapping, etc.).Footnote ⁸⁸ This was, at least initially, the interpretation of the German Central Justice Office and their British legal liaison officer as well.Footnote ⁸⁹ Crimes against humanity, on this reading, was simply a new way to label existing crimes and hence no violation of the ex post facto prohibition at all.

The issue became more difficult, however, when the acts in question were not criminal under German law, as was the case with most instances of denunciation.Footnote ⁹⁰ Here there could be no argument that prosecuting such acts as crimes against humanity was simply laying a gloss of Allied law on a fundamentally German statutory foundation. Here, the typically Anglo-American vagueness of the legal definition of “denunciation” in CC Law No. 10 added to the nullum crimen, nulla poena problems for German jurists.Footnote ⁹¹ “It provides—admittedly in contradiction to German legal customs—no newly codified criminal legal definition of the crime (Tatbestand), but only provides boundaries, which are to be fleshed out by the presiding judge in accordance with the facts of the case.”Footnote ⁹² This common law approach was deeply frustrating for many Germans, who resented not only the apparent retroactivity of CC Law No. 10 but also the extensive judicial interpretation implicit in its ill-defined statutory crimes, both clearly in tension with the nullum crimen, nulla poena principle.Footnote ⁹³ In the directive of November 11 granting German courts jurisdiction over cases of denunciation under CC Law No. 10, the British had recognized that this might prove troublesome to the Germans and had added a provision allowing courts to refer cases they felt would mark a clear violation of the prohibition on retroactive law to the Central Justice Office (the de facto German Justice Ministry for the British zone) for possible further referral to the special courts (Spruchgerichte) being set up to try membership in criminal organizations per the Nuremberg ruling.Footnote ⁹⁴ In effect, the British were picking their fights and were initially willing to let the Germans off the hook in instances where it was felt that the case in question involved not merely a retroactive sentence but an entirely retroactive application of the law to crimes that had, in effect, to be defined judicially in case law.

Things were not to prove so simple, however. In January 1947, Col. J. F. W. Rathbone, director of the Legal Division of the British military government, issued a directive stipulating that “there can be no doubt that CC Law No. 10 has now become German material law and one cannot evade the consequences of this, even when it will be necessary in some cases to violate the principle ‘nulla poena sine lege.’”Footnote ⁹⁵ According to Rathbone, German judges, as holders of public office, were not only “obligated to pursue crime but also to take care that justice is served.” Here we see one of the guiding principles for the British in this debate. For them, the retroactivity issue was largely legal nitpicking—“this wretched ‘nulla poena’ doctrine,” as Rathbone called it—and the larger issue was one of justice, regardless of whether this corresponded with the formal letter of the law.Footnote ⁹⁶

As a result of Rathbone's directive, the Central Justice Office informed the superior courts that they could not evade cases for crimes against humanity, even in instances of denunciation, simply by handing them off to Spruchgerichte.Footnote ⁹⁷ Such courts, the Central Justice Office said, would operate effectively just like ordinary courts, and it would therefore not solve the problem to give them cases that regular courts felt were too troublesome to try. If the retroactive application of the law was a problem for the ordinary courts, it was a problem for the entire judiciary, and simply passing the problem off would not solve it. Tellingly, the Central Justice Office here gave a positivist justification for the use of CC Law No. 10. Since the occupation authorities exercised sovereign authority in Germany, they had the right to set in abeyance all prior law, even retroactively. “Objections of conscience become German judges as little as if a German legislator had violated this principle through a constitutional amendment.”Footnote ⁹⁸

In May 1947, the British forced the Germans' hand by refusing to extend the jurisdiction of the Spruchgerichte to cover cases of denunciation after all.Footnote ⁹⁹ The reasons for this were largely pragmatic, since the Spruchgerichte were already overburdened with cases of membership in organizations declared criminal by the International Military Tribunal at Nuremberg (for example, the SS or the Gestapo). Furthermore, the Nuremberg verdict had established two categories of criminal membership: membership with criminal knowledge and membership with criminal action. The court had ruled that simple membership in a criminal organization was punishable except for “persons who had no knowledge of the criminal purpose or acts of the organization, and those who were drafted by the state for membership, unless they were personally implicated in the commission of acts declared criminal.”Footnote ¹⁰⁰ In their May directive, the British made ordinary German courts responsible for those persons implicated in specific crimes against humanity, while reserving Spruchgerichte cases of criminal membership where there was no evidence of individual wrongdoing.

Now that the easy way out had been taken away from them, German judges raised an even greater hue and cry, since they were now undeniably responsible for applying CC Law No. 10 retroactively. The Legislative Subcommittee of the Hanseatic Lawyers' Council drafted a formal letter of protest, expressing “serious reservations … among all adherents of the rule of law.”Footnote ¹⁰¹ And von Hodenberg continued to push the issue, explaining to the Central Justice Office that, in cases where a denunciation happened to be factually true, the denouncer, far from being a criminal, could plausibly be seen as having fulfilled a “higher duty” to obey the formal letter of the law. The denouncer could thus hardly be seen as having acted “maliciously … and did not leave the sphere of humanity.”Footnote ¹⁰²

Despite the protests raised by many German judges regarding the retroactivity of crimes against humanity prosecutions, it would be gravely mistaken to think this marked a universal rejection of such cases by the German judiciary. For instance, in one of the earliest issues of the Süddeutsche Juristen Zeitung, the main legal gazette for the American occupation zone in Germany, Gustav Radbruch, former Weimar Justice Minister, Heidelberg law professor, and one of the leading German legal philosophers of the first half of the twentieth century, articulated what was to become the most influential formulations in the debate over Nazi criminality. He argued against the purported validity of Nazi law, which he termed “statutory injustice” (gesetzliches Unrecht).Footnote ¹⁰³ According to Radbruch's broader legal theory—formulated well before the Third Reich—the validity of law derived from three factors: its justice (Gerechtigkeit), its instrumental usefulness (Zweckmäßigkeit), and its value for legal security (Rechtssicherheit).Footnote ¹⁰⁴ Of these, the presumptive validity of positive law largely served only the last function. In and of itself, then, on Radbruch's prewar theory, positive law was not necessarily always valid law. In its postwar formulation, much more pointed than earlier versions, Radbruch asserted that positive law in the Third Reich frequently failed to meet all three criteria—most especially that of justice.Footnote ¹⁰⁵

There was always the risk, in Radbruch's view, that legal security and justice might conflict, and it was not always possible to “draw a sharp line” between cases where the conflict between the two invalidated positive law and ones where it did not, save in those case where “justice is not even strived for, where equality, which constitutes the core of justice, is deliberately denied in the formulation of positive law.”Footnote ¹⁰⁶ This was self-evidently the case with much of Nazi law, according to Radbruch, meaning that for the most part it was prima facie invalid. The practical conclusion, then, was that simple obedience to Nazi law did not create a barrier to postwar criminal prosecution, nor did it constitute a valid legal defense.

This formulation had important implications for how to evaluate the character of Nazi prosecutions in light of the nullum crimen, nulla poena principle. If, as Radbruch insisted, “justice” was as much a goal of law as legal security, then retroactive laws that served justice might well be valid, whatever their impact on legal security. This was left implicit in Radbruch's published work, but in a planned but unpublished “Afterward” to a new edition of the Rechtsphilosophie, he made this point explicit. “For us it is sufficient that, at least for the crimes of inhumanity [Unmenschlichkeitsverbrechen], these represent a serious injustice according to a supra-statutory [übergesetzliches] natural law of which every person is conscious. Culpable [verschuldetes] injustice is, as Kant demonstrated, identical with deserving punishment; clearly it cannot be the true meaning of nulla poena to assist those recognizably deserving of punishment who appeal to the absence of positive law.”Footnote ¹⁰⁷ Radbruch here rearticulated the theory of natural crimes in a liberal vein, based on the principle of equality.

Although Radbruch chose to leave this statement unpublished, others were willing to make the argument publicly. Richard Lange, law professor at Jena, for instance, noted that even for criminal denunciations where there had been no prior statutory prohibition, the awareness that they were wrong in a normative sense had long existed. Therefore, he argued, such denunciations could be considered morally culpable. The question was whether they were punishable, which was not related to the question of guilt on his reading. “The prohibition on retroactive criminal laws is not a requirement of justice—if it were, it would allow for no possible exceptions—but rather a requirement of legal security. This, however, allows for rare, strictly delimited exceptions where justice as the higher goal of the legal order demands it.”Footnote ¹⁰⁸ Nullum crimen was a moral principle, one not violated by prosecuting crimes against humanity. Nulla poena was simply a matter of legal certainty, which was violated by CC Law No. 10. Such a violation was acceptable, though, because it was limited and exercised for the sake of justice.

The German judicial authorities themselves made rather different arguments in defense of the retroactive prosecution of Nazi crimes. Rather than appealing to even a modified natural law argument, as Radbruch and Lange did, they relied on a somewhat curious (and historically dubious) positive law genealogy of the nullum crimen, nulla poena principle. In an important article designed to quell the criticism among German judges, Dr. Wilhelm Kiesselbach, head of the Central Justice Office in the British zone, argued strongly in favor of the use of CC Law No. 10.Footnote ¹⁰⁹ Kiesselbach, who had made a name for himself on the German-American Mixed Claims Commission after World War I as well as having served as the president of the Hansiatic Superior Court before being dismissed by the Nazis in 1933, began by reiterating the Central Justice Office's earlier argument that CC Law No. 10 constituted positive law and was therefore binding on German judges.Footnote ¹¹⁰ The obligation to enforce this positive law could only be evaded if there was some “extralegal law,” above and beyond positive, written law. It was, however, “controversial” whether such extralegal law existed and, even if it did, it could only be used with the greatest caution, since using it to invalidate positive law “would necessarily entail a dangerous legal uncertainty that would shake the foundations of the state.” Citing Gustav Radbruch's partial defense of natural law from 1914, Kiesselbach noted that even Radbruch had argued that a “judge is not a servant of justice but of legal security.”Footnote ¹¹¹ Only where the contradiction between positive and natural law was of an “unbearable degree” and where “‘illegal law’” (widerrechtliches Recht) was being deliberately created could judges neglect positive law. There was thus an enormous burden of proof on the person who disobeyed positive law to demonstrate that it was an unbearable violation of natural law.

So, did the principle, nullum crimen, nulla poena sine lege, constitute such an important element of natural law that one would be justified in violating positive law to protect it? Kiesselbach answered in the negative. According to him, the advent of written constitutions marked a profound historical rupture for the prohibition on ex post facto law, which now had an earthly embodiment, rather than existing amorphously as an abstract, natural law principle. Kiesselbach argued (mistakenly) that the prohibition on ex post facto law was primarily a constitutional provision, derived from the experience of Absolutist arbitrariness, and therefore it, too, had to be viewed as a form of positive, not natural law. It thus had only the force of positive law and was subject to legal change. Consequently, the prohibition on ex post facto law alone could not invalidate positive law. This was possible only if that law was otherwise “reprehensible as measured by previously developed fundamental principles.”Footnote ¹¹²

Kiesselbach then appealed to the Anglo-American common law tradition: “Law [in English] does not mean Gesetz (Gesetz is Statute Law) but rather justice.”Footnote ¹¹³ And the source of law qua justice (Recht) was less statute than judicial rulings. Consequently, the Nuremberg trial did not enact law but justice. Because common law developed less from legislation than from precedent, it was better adapted to modern societies, with their ever changing social circumstances, which is why it, rather than continental law, was rapidly becoming “global law” (Weltrecht).Footnote ¹¹⁴ It thus made sense that for common law, the prohibition on retroactive law was less central than for continental law. This in turn meant that one could hardly accuse the drafters of CC Law No. 10, schooled in the common law, of deliberately perverting justice. Yet since such a deliberate perversion of justice was the only criterion whereby natural law could invalidate positive law, CC Law No. 10 remained perforce valid and binding. “If, after a period of unscrupulous legal anarchy and heretofore unknown terror, actions whose criminal character is beyond doubt were deliberately left unpunished, then the adherence to legal notions created for the protection of a normal state order, like the principle nulla poena, would not serve justice but injustice.”Footnote ¹¹⁵

Kiesselbach thus turned von Hodenberg's argument on its head. Where von Hodenberg had argued that any use by German courts of retroactive law would be to replicate Nazi practice, Kiesselbach argued that only the retroactive prosecution of Nazis could render proper justice on Nazi criminality. It was not the Nazis' use of retroactive law but their failure to adhere to positive law (in the form of the Weimar constitution) that had been the core of their abuse of justice. Correspondingly, a rigid adherence to the prohibition on retroactive law would be, in the aftermath of the Third Reich, to fail in the most fundamental task of a judge. If legal security was to be reconstructed and preserved, indeed, if justice were to be served, then Nazis had to be punished regardless of whether this violated the ex post facto prohibition. Kiesselbach's error (or perhaps evasion) in missing the natural law roots of the nullum crimen, nulla poena principle also makes sense in light of his broader argument against the right-wing natural law tradition that had done such damage to the principle during the Third Reich. The legal-intellectual landscape of the immediate postwar years was far more complex than any simple binary opposition between a Nazified legal positivism and a “renaissance of natural law” indicates.Footnote ¹¹⁶

Foundations of the Debate

At this point, the question clearly arises as to why the ex post facto issue became so central for German judges and jurists under the British occupation. There are at least four reasons that so many German judges felt uneasy about the perceived violation by CC Law No. 10 of the nullum crimen, nulla poena principle. At the most basic level, there was clearly a bureaucratic turf war going on between the reconstituted German judiciary and its British overseers. Most German judges, having only briefly been out of office in the immediate wake of the German surrender and having been rapidly reinstated in office, felt understandably proprietary of “their” legal system. After all, most of the critics of CC Law No. 10 insisted (if somewhat disingenuously in von Hodenberg's case) that they could and would try the majority of Nazi crimes, but would do so on the basis of German, not occupation, law. And this was a terrain where German judges were indisputably “Herr im Haus,” able to dictate methods and procedures to the British. In this respect, the debate over crimes against humanity in the British zone must be viewed in part as an early attempt by German elites to reassert a degree of sovereign power within their occupied country.

The second reason for the vociferousness of the debate has to do with the ambiguous legacy of legal positivism in Germany and the even more ambiguous character of its critique in the postwar period. It is revealing that both the critics and the defenders of CC Law No. 10 lay claim to the power of positive law. For the critics such as von Hodenberg, the contradiction between CC Law No. 1's prohibition on retroactive law and CC Law No. 10's embrace of it created an untenable contradiction—one they invariably wished to see resolved in favor of CC Law No. 1. The official defenders of Law No. 10, such as Kiesselbach, meanwhile, argued that since the Allies held legislative power in Germany, if they demanded retroactive prosecution, it was the obligation of German judges to obey. Unofficial defenders of prosecuting Nazi crimes against humanity, such as Radbruch and Lange, embraced a more explicit natural law theorizing. Yet Radbruch at least was unwilling to abandon legal positivism entirely, arguing in 1947, that “as a rule, the positivistic doctrine must stand, which is to say that the statute, without regard to its content, is to be considered binding law. The rule of law and legal security demand this fundamental commitment to the statute, which may be relaxed only in altogether exceptional, indeed, unique cases, such as we have experienced in the Nazi period—and hope to never experience again.”Footnote ¹¹⁷ All sides simultaneously appealed to legal positivism and its natural law critique.

Neither the use nor the critique of positive law was politically innocent in the postwar period. As Raphael Gross has brilliantly demonstrated, the critique of legal positivism in the postwar period was in many ways a successful effort to deflect any critique of the German judiciary for its complicity with the Nazi regime by indicting them merely of hypocrisy, not ideological consent. Their crime was blind obedience to a regime they (allegedly) did not believe in. Legal positivism merely “set in abeyance [German] moral values” which themselves persisted, underground and untouched.Footnote ¹¹⁸ To the extent there was such a thing as a natural law renaissance after the war, it was intended more to protect than to condemn the Nazi era judiciary, who had themselves, after all, been strong proponents of a kind of “ethnically healthy” natural law.

According to this view, there were grounds for a kind of cheap optimism in the postwar period, since there was a German tradition that merely needed to be taken out of mothballs and dusted off. This optimism had about it a kind of compulsory moral character, according to Gross. “This morally loaded optimism is reminiscent of typical Nazis' moral demands, such as the ‘strength-through-joy’ ideology.”Footnote ¹¹⁹ If Gross is right, then much of the debate surrounding the real or imagined retroactivity of “crimes against humanity” was conducted on the German side in a language of subterranean Nazism, in the sense that the efforts to recover a German tradition supposedly set aside briefly (and reluctantly) during the Third Reich, was in reality a continuation of Nazi attitudes about the distinctiveness of German values. The legal positivist defense of due obedience (in the name of prosecuting Nazis!) clearly echoed the willingness of the German judiciary to enforce retroactive law in the Third Reich. The critique of retroactive law likewise rehabilitated a kind of Nazi moralism, the defense of the higher values of the nation in the face of a rigid legal formalism, arguing that the only failings of the German judiciary from 1933 to 1945 had been formal, not substantive.

This brings up the third likely reason that German judges were so incensed by what they felt to be the violation of the nullum crimen, nulla poena principle, namely, their own far from unblemished pasts. Denazification had left in place the vast majority of Nazi judges. At least some of those objecting to the use of CC Law No. 10 may have been doing so for quite dubious reasons. The subterranean Nazism of the legal rhetoric in the debate over crimes against humanity in the late 1940s is thus hardly surprising, since the debate was to a significant degree being conducted among (ex)-Nazis or ultra-conservative nationalists. As Ulrich Herbert has demonstrated, there was a concerted effort by former Nazis systematically to undermine the prosecution of what were deceptively labeled “war crimes” from very early on.Footnote ¹²⁰ In this, they were abetted by ultraconservative nationalists such as von Hodenberg. For many of its critics, the whole point of overturning CC Law No. 10, and with it, the prosecution of Nazi atrocities as crimes against humanity, was to make it more difficult to prosecute such crimes at all.

This is precisely what happened, as the precipitous drop in prosecution rates in the 1950s demonstrates. In 1954, for instance, only 162 new investigations were initiated, compared with more than 4,000 in both 1947 and 1948. Similarly, there were a mere four convictions in 1957, as compared with more than 1,600 in 1948. Lest one think that these numbers reflect the simple fact that most potential cases had already been handled, it is worth noting that in both 1959 and 1960, after the opening of the newly formed Central Office for the Investigation of Nazi Crimes, more than 1,000 new investigations were initiated and convictions reached a renewed high point in 1968, with 67.Footnote ¹²¹

Finally, German judges, regardless of whether tainted by their activities in the Third Reich, clearly partook of the broader political culture of Germany in the late 1940s. As recent research has made increasingly clear, a great majority of Germans thought of themselves as the chief victims of World War II in its immediate aftermath.Footnote ¹²² For many German judges, then, the retroactive prosecution of Nazi crimes was simply one more instance of the ongoing persecution of the Germans. That they themselves were being asked to collaborate in that purported persecution was the final indignity. The confluence of these factors is abundantly clear in von Hodenberg's critique of CC Law No. 10. His assertion that to prosecute Nazi criminals retroactively would be to act as the Nazis had done embraces a narrative of Germans as Hitler's first victims, as if they themselves had had nothing to do with the regime. It also recapitulates the assertion that the judiciary's failure in the Third Reich had been formalistic—a failure to enforce the letter of the law—rather than ideological. On this reading, German law itself was never tainted by Nazism and German judges had learned their lesson. Consequently, there was no call for extraordinary legal measures to prosecute crimes against humanity; quite the opposite. Doing so would be to recapitulate the injustices of the past, not to make amends for them. It was the obligation of German judges to resist Allied injustice as a way to make amends for their failure to resist Nazi injustice.

Perhaps more important than the question of why the debate over the perceived retroactivity of prosecutions for crimes against humanity took place in Germany in this period are its longer-term consequences. The most obvious and ultimately unfortunate of these was of course that German courts ceased prosecuting Nazi crimes as crimes against humanity as soon as they were able to do so—de facto in 1950, de jure in 1955.Footnote ¹²³ This led to the precipitous drop-off in the rate of successful prosecutions for Nazi crimes after West German courts regained legal autonomy in the 1950s. In general this drop in prosecutions has something to do with limited resources and more to do with a lack of political will (as evinced in the partial amnesties of 1949 and 1954 that affected especially the relatively minor offenses that had formed the majority of early Nazi cases). The Allies' inability and unwillingness any longer to pressure the Germans to pursue Nazi crimes also played a role. Still, one ought not to underestimate the increased difficulties of securing convictions for Nazi crimes under the strictures of German statutory law. Given that German criminal law had no real categories for organized criminality and was incapable of addressing adequately the complex institutional context and systematic character of Nazi criminality, the rejection of crimes against humanity as a legal category posed serious challenges for future Nazi cases.Footnote ¹²⁴ The development of a largely exculpatory jurisprudence also seriously distorted who could be convicted, focusing attention on low-level perpetrators directly involved in violence, in contrast to higher ranking “desk killers.”Footnote ¹²⁵

It would, however, be overly simplistic to see the debate over the retroactivity of crimes against humanity in the late 1940s in purely negative terms. One of the unanticipated consequences of this debate was the way that it contributed to what has been termed the “deradicalization” of the German Right in the postwar years. Unlike many conservative intellectuals, however, who acquired a “new respectability” through an embrace of the revived Christian politics of the postwar years, judges and prosecutors followed a somewhat different path.Footnote ¹²⁶ Precisely because many of the critics of the prosecution of Nazi criminals voiced their concerns in the language of the rule of law, their rhetoric came increasingly to assume the rule of law as a given of politics. They may well have been seeking a specific political outcome in this debate, namely a decrease in or termination of Nazi prosecutions, but they were constrained to frame their political objectives in legal terms. Conservative, even right-wing politics, here embraced the proceduralism of the liberal rule of law. This was itself new to the German right.

In their critique of crimes against humanity as a form of ex post facto law and a violation of the nullum crimen, nulla poena principle, German jurists of the 1940s embraced a strong version of what Judith Shklar has called (pejoratively) “legalism.”Footnote ¹²⁷ Yet I would argue that the embrace of legalism by postwar German jurists as a weapon against unwanted Nazi trials had the important unintended consequence of disrupting a legal culture that had, since at least the end of World War I, embraced a dangerous form of legal instrumentalism and a perverse rhetoric of nationalist substantive justice. German jurists embraced legalism as a political position and underwent an unintended political transformation as a result. To be sure, some German jurists in the postwar period were democrats by conviction, but, particularly in the 1950s, they remained a clear minority. The reentry of Social Democrats into the legal system, particularly if they had been in exile, was never smooth, and they frequently faced serious opposition from their colleagues.Footnote ¹²⁸

In contrast to the late Wilhelmine period, where a moderating, perhaps even a liberalizing, trend was clearly visible among the judiciary, much of the Weimar judiciary strongly rejected the republic and its democratic norms.Footnote ¹²⁹ This rejection of democracy directly affected the understanding of law prevalent among German jurists.Footnote ¹³⁰ This is most obvious in the notoriously different treatment accorded perpetrators of right-wing as opposed to left-wing political violence, where the average sentence for left-wing murderers (of whom there were twenty-two) was fifteen years, while the average sentence for the 354 convicted right-wing murderers was four months.Footnote ¹³¹ More crucial in the long run than this blatant political bias was the legal theory deployed to defend it.

Picking up on arguments articulated by Carl Schmitt even before the war but which gained a new urgency during the crisis years of the republic, the Weimar judiciary embraced a consequentialist theory of guilt that defined it in fundamentally political terms. Schmitt defined guilt initially in a positivist sense: “The individual should want [wollen] that which the penal state [strafende Staat] wants… . If that is not the case, then the individual is guilty.” In other words, guilt consisted in a divergence of the individual will from the will of the sovereign state. Schmitt opened the door, however, for an important deviation from pure positivism. Not all state goals were created equal, he insisted. By measuring individual guilt in relation to the goals of the state, “the individual interests of society and state come most clearly and plainly to the fore.” The relative value of different state goals was reflected, according to Schmitt, in the differential punishment of different crimes. “[T]he more valuable the object under [legal] protection, the greater the divergence between the state's and the individual's goals when it is harmed, therefore, the greater the degree of guilt.”Footnote ¹³²

As long as the state was viewed as the sole and more or less objective arbiter of the relative value of different objects of legal protection, this argument was typical of late-Wilhelmine legal positivism. What changed after 1918 was that the existing state was no longer viewed as necessarily the best judge of its own real ends. Increasingly, it was seen as an enemy of the real interests of the “people,” precisely because of its liberal and democratic character.Footnote ¹³³ Kenneth Ledford has identified a crisis of proceduralism among lawyers in private practice during the Weimar period, revealing “the limited integrative power of procedural conceptions of liberalism and its inherent weakness in the face of opponents mobilized by substantive ideas of justice.”Footnote ¹³⁴ Among a great many judges and prosecutors during the Weimar period, the sense of skepticism toward proceduralism turned into open rejection. In part, this was because they embraced substantive ideas of justice that were deeply nationalist in orientation and that led to a more or less open rejection of the Weimar state as such. When combined with an understanding of guilt as essentially political in character, this rejection became fundamentally toxic. Schmitt again formulated this with the greatest clarity. He argued that what he contemptuously called the “parliamentary legislative state” was in open contradiction with legitimate authority. “‘Legality’ here has the meaning and purpose of making superfluous and negating the legitimacy of either the monarch or the people's plebiscitarian will as well as of every authority and governing power, whether in a form that provides its own foundation or one claiming to be something higher.”Footnote ¹³⁵

Positive law, in this context, could no longer be viewed as necessarily setting out the measure of guilt in and of itself. Since guilt was measured according to the significance of the state interest harmed, and since there was now a perceived contradiction between the state and legitimate authority, it was an easy step to say that it was the interest of authority, not the actually existing state that determined the true measure of guilt. Thus, criminal law could become an instrument in the hands of nationalist judges and prosecutors for openly rejecting the existing republican state as illegitimate and unworthy of the protection of its own laws. Laws came to be viewed as protecting a higher purpose, the good of the nation, not the state. The more acts harmed legitimate authority, now seen not as the formal state but as a nation above the state, the more culpable they were. The trend toward a psychologization and subjectification of the law, already apparent in the Kaiserreich, was now politicized and deployed as a mechanism for using law to undermine democracy.Footnote ¹³⁶ Hitler's 1924 treason trial, in which he received a shockingly mild five-year sentence (of which he only served ten months) is only the most obvious example of this widespread trend.Footnote ¹³⁷

What changed then again in 1945 was not necessarily the political orientation of much of the judiciary. There is little reason to believe that there was a wholesale conversion to liberal democracy among judges and prosecutors who only a few months earlier had been willing henchmen in the Third Reich. The external constraints of the occupation now made it impossible for them to achieve their political objective of scuttling Nazi prosecutions through open opposition. A return to the liberal proceduralism they rejected during the Weimar Republic offered a way forward. Illiberal ends would now be pursued by liberal means. Forced to embrace proceduralism as an instrumental mechanism, these nationalist jurists nonetheless boxed themselves into a rhetorical corner from which it proved difficult to extricate themselves. The embrace of proceduralism made it very hard openly to reject or condemn the new republic created after 1945. A key segment of the German antidemocratic elite had helped to defang itself.

This legalist approach to illiberal politics had the added advantage of diverting attention away from the substantive and ideological complicity of much of the judiciary in the Third Reich. As Stefan Gottwald has said of personal rights, “since already published attacks against the traditional doctrine of person and legal capacity could no longer be erased, many [jurists] attempted to repress what they had still been teaching quite recently by means of displacement and a radical change of course.” Such efforts to “repress one's own guilt” were widespread in the legal scholarship and jurisprudence of the occupation period and early Federal Republic.Footnote ¹³⁸ Yet they also had unintended democratizing consequences.

Obviously, given the crises of the Weimar years, it would be naïve to assume that legalism and proceduralism are in and of themselves an adequate basis for liberal democracy or a complete explanation for the success of West German democracy. That success was overdetermined, with many factors contributing. These include the geostrategic context, in which the Western Allies retained veto power over major elements of German politics even after the founding of the FRG, the accompanying fear of communism in the east, the experience of two catastrophic military defeats in the space of a generation, and the success of the German economic recovery, especially after the start of the Korean War in 1950. Yet, if Weimar democracy failed in part because it was a “democracy without democrats” (Hugo Preuss), the Federal Republic succeeded even among its more conspicuously antidemocratic elites.Footnote ¹³⁹ The embrace of legalist proceduralism by the judiciary was an important part of this process. Because the issue of retroactive law was one of constitutional governance and due process, it framed even antidemocratic demands, such as an end to Nazi prosecutions, in terms not of substantive justice but of procedural rectitude. This stands in marked contrast to the conceptualization of the rule of law in the Weimar Republic. By making their stand on the issue of retroactivity, the often antidemocratic critics of Nazi trials embraced a universal procedural principle, one incompatible with any open articulation of nationalist claims of substantive justice. In effect, the terms of the debate were shifted fundamentally in favor of democracy, even for its opponents. The debate over crimes against humanity thus has to be viewed as paradoxical. The claims of substantive justice and the desire to punish Nazi crimes vigorously ultimately lost out to a narrow and often cynical proceduralism that nonetheless contributed significantly to the stability of the emerging liberal democratic state in West Germany by deradicalizing key segments of the juridical elite.