3 - Debating Crimes against Humanity in the West

Summary

In western Germany, a major controversy developed over the British and French policy of requiring German courts to prosecute Nazi crimes against humanity. German critics argued that this violated the violation on ex post facto law making. This, they said, made such trials unjust and similar to the courts of the Third Reich, which had also used ex post facto laws. The British and their German supporters argued that Nazi crimes could only adequately be punished as crimes against humanity, since many Nazi misdeeds had not been criminal under the laws of the Third Reich (e.g. the denunciation of individuals to the Gestapo). The American decision not to grant German courts jurisdiction over crimes against humanity came in large part out of a desire to avoid a similar controversy in their own occupation zone. Many of those critical of prosecuting Nazi atrocities as crimes against humanity wanted to help Nazi criminals and make it harder to prosecute Nazi crimes. Yet, because they made their arguments in the language of liberal legalism and the principles of legality, these critics helped to deradicalize the German legal profession, which had previously been deeply anti-liberal and anti-democratic.