Spring 2026 No.77 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר) Law and Holocaust Special Issue
The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. z”l (Italy), Joseph Roubache z”l (France) Board of Governors All members of the Executive Committee are members of the Board of Governors. Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Advisors Elyakim Rubinstein, Justice (Ret.), Prof. (Israel) Roy Schondorf, Dr. (Israel) Jacques Cohen (France) Chief Executive Officer Sharon Banyan (Israel) Head of the Legal Center for Combating Antisemitism Talia Naamat (Israel) Special Projects Coordinator & Editor, JUSTICE Mala Tabory, Dr. (Israel) Representatives to the U.N. in Geneva (UNOG) Main Representative - Sharon Banyan (Israel) Meir Linzen (Israel) Pnina Sharvit Baruch (Israel) Representatives to U.N. Headquarters in New York Main Representative - Richard Horowitz (USA) Sharon Banyan (Israel) Meir Linzen (Israel) Pnina Sharvit Baruch (Israel) Representative to the European Parliament Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Elyakim Rubinstein, Justice (Ret.), Prof. (Israel) Jacques Cohen (France) Roy Schondorf, Dr. (Israel) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias, Prof. (Poland) Alyza D. Lewin (USA) Amos Shapira, Prof. (Israel) Avraham Yishai (Israel) Axel Freiherr von dem Bussche, Dr. (Germany) Baruch Katzman (Israel) Ben Wahlhaus (Israel) Calev Myers (Israel) Carlos Schlesinger (Brazil) Clive Freedman, Sir (UK) Dalia Tal (Israel) Dan Roskis (France) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Ethia Simha (Israel) Fabiana Di Porto, Prof. (Italy) Graham ZelIick, Prof. (UK) Hernan Najenson (Argentina) Hila Kugler Ramot (Israel) Irit Kohn (Israel) Isaac (Tzachi) Shragay (Israel) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan David (Israel) Jonathan Lux (UK) Julia Andras (Austria) Maria Canals De-Cediel, Dr. (Switzerland) Maria Claudia Caputi, Judge (Argentina) Michael H. Traison (USA) Michael Kempinski (Israel) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf Ossmann (Switzerland) Pascal Markowicz (France) Regina Tapoohi (USA) Richard Horowitz (USA) Ronit Gidron-Zemach (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Sergio Mannheimer (Brazil) Sharon Banyan (Israel) Stephen C. Rothman, Judge (Australia) Stephen R. Greenwald (USA) Suzanne Wolfe-Martin (Malta) Talia Naamat (Israel) Theodor Goloff (Canada)
Spring 2026 1 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel office@ijl.org www.ijl.org © Copyright 2026 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE No. 77, Spring 2026 Editor Mala Tabory, Dr. Special Advisor Elyakim Rubinstein, Prof., Justice (ret.) Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Rosa Freedman, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Dan Michman, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Steven E. Zipperstein, Prof. Legal Editorial Staff Shani Birenbaum Jennifer Farrell, Esq. Gavriella Lazarus Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo On the right: A view looking down at the defendants bench at the Nuremberg trials, showing the defandants listening to proceedings with headphones, 1946. Photo credit: Dame Laura Knight, IWM (Art.IWM ART LD 5930) On the left: Dachau Concentration Camp: Crematorium Ovens, April 30th 1945. Photo credit: The Dachau Drawings by Brian Stonehouse MBE, Abbott & Holder Contents President’s Message Meir Linzen 2 Articles Crimes in the Name of the Law: Judges and the Legal Machinery of the Holocaust Isaac Amon 4 The American Roots of the 1935 Nuremberg Laws Menachem Z. Rosensaft 10 American Naturalization Law, Immigration Law, Refugee Law, and the Holocaust: A Short History Paul Finkelman 16 The Nuremberg Trials, the Holocaust and Revenge Dina Porat 27 Holocaust Agunot in Sweden: Between Rabbis and Pastors Arie Reich and Seth Jacobson 32 “The Rumor About the Jews”: Antisemitic Conspiracy Narratives and Their Criminal Prosecution as Incitement of the People Lena Gautam and Niklas Pretsch 39 The New German “Court of Arbitration for Nazi-Looted Art” Matthias Weller 47 Germany’s Journey to Holocaust Accountability and the Evolution of International Law David G. Cotter 55 Listening to All the Voices: Digital Humanities Methods and the Legal Legacy of the Eichmann Trial Renana Keydar 63 Epilogue: Law and Holocaust Rachel Levitan 70 BRIAN STONEHOUSE MBE (1918-1998) The Dachau Drawings April 30th, 1945 Brian Stonehouse MBE (1918-1998) was recommended for the Special Operations Executive in early 1942 and parachuted into occupied France later that year. Disguised as an art student (code name, Celestin), a radio concealed within his artist’s box, he was tasked with aiding the resistance movement and supplying information to the Allies from behind enemy lines. His mission lasted only a few months. Having spent too long transmitting on his radio he was located and arrested by the Vichy French and the Gestapo. Stonehouse was sent to the notorious Fresne prison, near Paris, where he suffered prolonged periods of interrogation and solitary confinement. Labelled Nacht und Nebel (Night and Fog) – Hitler’s directive designed to make resistance collaborators disappear – he was moved to four Concentration Camps; first Saarbrü chen (Neue Bremm), then Mauthausen (Wiener Neudorf), then StruthofNatzweiler, and finally, in September 1944, to Dachau. Dachau was liberated by the Americans on 29th April 1945. The following day, having witnessed and withstood the extreme brutality of the Nazi death camp system, Stonehouse bravely visited the Crematorium, Mortuary and Gas Chamber to record the atrocious scenes his captors had left behind. He made five drawings. [Cover, left]
2 No. 77 JUSTICE his issue of JUSTICE is dedicated to the topic of “Law and the Holocaust.” The horrors of the Second World War, and in particular the horrors of the Holocaust, highlighted the deficiencies in international law in dealing with essential issues. Following World War II, International Humanitarian Law developed, the flagbearer being the great Jewish jurist Professor Hersch Lauterpacht. At the same time, the concept of war crimes solidified, especially the prohibition against the destruction of a people — Genocide. The main author of the concept — perhaps even its inventor — was another great Jewish jurist, Dr. Raphael Lemkin. The Laws of War and International Humanitarian Law developed in the decades following World War II and the Holocaust. However, it seems that the focus of these two areas of international law is now directed, to a large extent, against the State of Israel, the State of the Jewish People, which has to fight for its existence against enemy states and terror organizations. Of course, the State of Israel does not have immunity from the application of the Laws of War and International Humanitarian Law. Yet it is impossible to escape the conclusion that the formulation and implementation of some of the more recent rules is intended to undermine the legitimacy of the State of Israel and to limit its ability to defend itself against states and terror organizations that plan to attack it, and do indeed carry out such attacks. The claim of Genocide submitted to the ICJ by South Africa against the State of Israel (which many countries joined) is the ultimate demonstration of cynicism in the misuse of International Humanitarian Law. The aim of the claim is to undermine the legitimacy of the State of the Jewish People — the people many of whom were wiped out in a Genocide in the terrible Holocaust. I am the son of Holocaust survivors. A large part of the families of both my father and my mother were murdered in the Holocaust. I have written about this many times. There was no conflict or dispute between the German people and the Jewish People, yet the extermination of the Jewish People was almost the raison d'être of the Nazi regime. We cannot close our eyes and refuse to see the revival of similar ideology against Israel as the State of the Jewish People by Iran. There is no historical conflict between the Persian People and the Jewish People. There is no dispute over borders or economic issues between Iran and the State of Israel. A central component of the ideology of the Islamic Iranian regime is the destruction of the State of Israel, namely the destruction of the majority of the Jewish People. Since 1979, Iran has invested a significant portion of its resources in inciting, preparing, financing, and waging war, directly or through proxies, with the aim of destroying the State of Israel. No other country in the world has experienced a challenge like this. President’s Message T Meir Linzen Photo: Idan Gross
3 Spring 2026 Another important issue to discuss in light of modern-day antisemitism is denial of the Holocaust or its scale. As time passes, and there are almost no Holocaust survivors still alive, this issue becomes ever more important. Holocaust denial is dangerous, because it conceals the terrible damage to which antisemitism can lead. Memory of the Holocaust is an “eternal flame,” a constant reminder against resurgent antisemitism and the undermining of the legitimacy of the State of Israel. It is imperative to ensure that Holocaust denial is outlawed in every civilized country, and more important, that the enforcement of this insidious crime is uncompromising. April 2026
4 No. 77 JUSTICE I. Introduction The Holocaust – the systematic murder of six million Jews across Europe – was not carried out in a legal vacuum. It did not require the abolition of courts, the suspension of statutes, or the collapse of administrative order. Judges remained on the bench. Prosecutors filed indictments. Opinions were issued in the name of the state and legal procedures were observed. The state machinery of genocide did not replace law or morality; it appropriated it.1 Nazi policy was codified, interpreted, and enforced by trained jurists who regarded themselves as operating within a valid legal system. Statutes were promulgated in the Reichsgesetzblatt. Administrative decrees bore official signatures. Criminal sentences were imposed after hearings. The forms of legality endured as ethical commitments disintegrated. Given how central law was to the Nazi genocide of European Jewry, legal and judicial professionals face an unsettling reality: law can operate as a key mechanism of atrocity not despite its formal coherence, but through it.2 This accordingly raises a foundational jurisprudential question: what distinguishes the rule of law from the mere existence of law? All societies have created and maintained legal systems, but not all legal systems restrain power. Where law is detached from justice, it may function not as a constraint on authority, but as its instrument. The experience of Nazi Germany forces a reconsideration of the role of judges – and more broadly, lawyers – within such systems. The 1947 Judges Trial at Nuremberg – United States v. Josef Altstötter et al. – confronted this paradox directly.3 For the first time in an international tribunal, judges and legal officials were prosecuted not for battlefield atrocities but for administering a regime of discrimination, persecution, and eventual extermination. In his opening statement, Chief of Counsel Telford Taylor described the legal proceedings as unusual because the defendants’ actions were “crimes committed in the name of the law.”4 The collapse of German judicial integrity between 1933 and 1945 demonstrates how law could be transformed into an instrument of oppression while preserving its forms. The gravest danger to the rule of law is its hollowing out – when courts continue to operate, statutes remain formally valid, and Crimes in the Name of the Law: Judges and the Legal Machinery of the Holocaust Isaac Amon 1. Claudia Koonz, THE NAZI CONSCIENCE 273 (2003) (“The Final Solution did not develop as evil incarnate but rather as the dark side of ethnic righteousness. Conscience … in the Third Reich became a means of underwriting the attack by the strong against the weak … Nazism offered all ethnic Germans, whether or not they joined the party, a comprehensive system of meaning that was transmitted through powerful symbols and renewed in communal celebrations. It told them how to differentiate between friend and enemy, true believer and heretic, non-Jew and Jew. In offering the faithful a vision of sanctified life in the Volk, it resembled a religion … But in contrast to the optimistic language of international covenants guaranteeing universal rights to all people, Nazi public culture was constructed on the mantra: ‘Not every being with a human face is human.’”). 2. David Fraser, LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE OF THE HOLOCAUST (2005). 3. United States v. Altstötter (The Justice Case), 3 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (1951). 4. Telford Taylor, Opening Statement, supra note 3, at 31.
5 Spring 2026 judicial language persists, yet legality becomes at odds with, or detached from, morals.5 This brief article argues that the transformation of the German judiciary was not the product of legal collapse but of legal continuity redirected toward ideological ends. II. When Law Becomes a Weapon The corruption of the German judiciary did not occur through dramatic abolition. There was no decree dissolving judicial independence. Instead, transformation occurred incrementally – through reinterpretation, institutional adaptation, and professional accommodation. Most significantly, under the Führerprinzip, the will of the Führer – Adolf Hitler – was treated as fully supreme. Law was no longer understood as a system of general rules binding even the sovereign. As the theorist Carl Schmitt articulated, political decision supplied legitimacy.6 Judicial fidelity increasingly meant loyalty to leadership rather than adherence to abstract legal principles. The result was not immediate but rather structural bifurcation. As Ernst Fraenkel aptly observed in The Dual State, ordinary courts continued to adjudicate routine civil and commercial matters, preserving the appearance of continuity. Cases involving race, political dissent, or threats to the “national community” were diverted to special jurisdictions designed for ideological enforcement.7 Franz Neumann’s characterization of the Nazi regime as a “Behemoth” captured the growing dominance of political power over legal restraint.8 This transformation proved decisive. Judges did not perceive themselves as participants in revolutionary illegality. They interpreted statutes and issued opinions in conventional doctrinal language. Judicial reasoning absorbed political expectation. The defendants at the Judges Trial refused to accept guilt and asserted their conscience to be clean.9 The trial inspired the following: [The 1961 film directed by Stanley Kramer] Judgment at Nuremberg … even more remarkable is … [that] one of the four defendants [reduced from sixteen to four for the film], E[rnst] Janning (Burt Lancaster), makes a full confession to the court … Janning accuses his three co-defendants – stereotypes of a conservative die-hard, an anxious opportunist, and a fanatical true believer – of corruption, callousness, and wickedness and himself of being the worst of all for the reason that he knew what kind of people they were and still went along with them … Hanno Loewy has argued that, as a courtroom drama, 5. Lon L. Fuller, THE MORALITY OF LAW 39-40 (2d ed. 1969) (“Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute…The citizen’s predicament becomes more difficult when … there is a general and drastic deterioration in legality, such as occurred in Germany under Hitler.”). 6. See Carl Schmitt, “The Führer Protects the Law: On Adolf Hitler’s Reichstag Address of 13 July 1934,” in THE THIRD REICH SOURCEBOOK 63-67 (Anson Rabinbach & Sander L. Gilman eds., 2013). 7. Ernst Fraenkel, THE DUAL STATE: A CONTRIBUTION TO THE THEORY OF DICTATORSHIP (E. A. Shils et al. trans., 1941). 8. Franz Neumann, BEHEMOTH: THE STRUCTURE AND PRACTICE OF NATIONAL SOCIALISM (1942). 9. See Altstötter, supra note 3, at 950 (Defendant Petersen said that in all his actions, he “was guided by the ideal of fulfilling my duty and of serving my country. It was solely my conscience that formed the basis for my actions…my conscience is clear.”) (Defendant Nebelung testified, “I was a German judge. I followed the laws of my country and my knowledge and my conscience in passing judgment.”), 952 (Defendant Oeschey proclaimed, “I always acted in the belief and in the conviction that I was doing right … and it was a matter of conscience for me not to misuse the law in a criminal way, but to apply it in accordance with the will of the legislator…” and Defendant Altstoetter declared the “charges which the prosecution has raised against me because of my alleged participation in war crimes and crimes against humanity … do not apply to me. My conscience is free of any guilt … I always only served law and justice…”), 953 (He concluded by saying to the Tribunal “[t]here is the enormous danger that German justice was shown here in a picture which, even referring to the time between 1933 and 1945, is not identical with actual facts … I know that German administration of justice up to the very end was the best administration of the Reich …[and] [a]ll that could be desired was that the courage which was shown among the German judiciary at those times would have been shown anywhere.”).
6 No. 77 JUSTICE Judgment at Nuremberg needs this invented confession to reach closure: the defendant [unlike in real life] returns to the morality shared by his audience.10 As the film vividly depicts, the moral failure of the Nazi judiciary did not arise at the moment of mass atrocity but began much earlier. Indeed, as Spencer Tracy’s character Judge Dan Haywood says to Burt Lancaster’s character Ernst Janning after the verdict was pronounced, the departure from justice began “the first time you sentenced a man to death you knew to be innocent.” III. From Statute to Sentence: The Institutional Path to Persecution A. The Nuremberg Laws and the Routinization of Racial Policy The Nuremberg Laws of September 15, 1935, marked the formal conversion of antisemitic ideology into statutory law.11 The Reich Citizenship Law stripped Jews of full political membership, reducing them to “subjects” of the state. The Law for the Protection of German Blood and German Honor criminalized marriages and sexual relations between Jews and “Aryans.” In other words, what had previously operated through social hostility and administrative exclusion was now embedded in codified law.12 The implementation of these laws required judicial interpretation, evidentiary evaluation, and sentencing. Courts were tasked with determining racial status based on ancestry, parsing genealogical records, and applying complex classifications distinguishing “Jew,” “Mischling of the first degree,” and “Mischling of the second degree.” Judges assessed documentary proof, weighed testimony, and imposed criminal penalties for Rassenschande (racial defilement). The Supplementary Decree of November 14, 1935, and Reich Supreme Court decisions expanded these definitions, transforming racial identity into a legally adjudicable category, with ambiguity resolved in favor of exclusion.13 The Katzenberger Trial of 1942 illustrates the culmination of this process. Leo Katzenberger, a Jewish businessman in Nuremberg, was convicted under racial laws despite the absence of credible evidence of sexual relations. The court relied on ideological inference rather than proof, converting suspicion into capital punishment. The language of the judgment remained technical and procedural. The violence lay not in rhetoric but in the normalcy of adjudication.14 Through repeated application, exclusion became ordinary. Courtrooms became sites where ideology entered daily life through indictment, testimony, and sentence. Law functioned as an assembly line: classification, prosecution, conviction. The routinization of racial adjudication habituated legal professionals, and the broader public, to the legitimacy of marginalization and eventual exclusion of Jews from society.15 The transformation was incremental but profound: legalized discrimination acquired the stability of precedent and the authority of judgment. B. Aktion T4 and the Jurisprudence of Refusal In 1939, the regime initiated the program later known as Aktion T4, under which individuals with physical and mental disabilities were systematically killed in state institutions. The program rested on a brief Führer authorization, retroactively dated to September 1, 1939. German homicide statutes, however, remained formally in force. No public law repealed them, and the killings were never legalized through ordinary legislative process. Hitler’s private authorization significantly did not amend the Penal Code. Articles 211 and 212, governing murder and manslaughter, 10. Ulrike Weckel, “The Power of Images: Real and Fictional Roles of Atrocity Film Footage at Nuremberg,” in REASSESSING THE NUREMBERG MILITARY TRIBUNALS: TRANSITIONAL JUSTICE, TRIAL NARRATIVES, AND HISTORIOGRAPHY 235, 235–37 (Kim C. Priemel & Alexa Stiller eds., 2012). 11. Lucy S. Dawidowicz, THE WAR AGAINST THE JEWS: 1933–1945 67 (Bantam 1986). 12. Robert Gellately, BACKING HITLER: CONSENT AND COERCION IN NAZI GERMANY 122-23 (2001); William L. Shirer, THE RISE AND FALL OF THE THIRD REICH: A HISTORY OF NAZI GERMANY 231-34 (1960). 13. Alon Confino, A WORLD WITHOUT JEWS: THE NAZI IMAGINATION FROM PERSECUTION TO GENOCIDE 64 (2014). 14. Ingo Müller, HITLER’S JUSTICE: THE COURTS OF THE THIRD REICH 115-16 (Deborah Lucas Schneider trans., 1991). 15. Id.
7 Spring 2026 continued to apply. Article 139 imposed a duty to report known crimes, and Article 152 of the Code of Criminal Procedure required state prosecutors to initiate proceedings upon knowledge of an offense. The doctrinal framework prohibiting homicide remained intact.16 The regime relied on secrecy and administrative assurance that participants would not be prosecuted. The legal contradiction was patently obvious: the killings violated existing criminal law. The judiciary was not stripped of jurisdiction; it was expected to acquiesce. Judge Lothar Kreyssig, in Brandenburg, objected to them on these explicit legal grounds. He argued that no statute authorized the killing of institutionalized patients and sought criminal investigation of those responsible.17 Even when shown a signed order by the Führer, Kreyssig refused to accept it and was forced into early retirement.18 His case in particular is exceptionally informative: It shows that if a judge refused to accept the injustices of the system, the worst he had to fear was early retirement … [most significantly] [n]o matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.19 Kreyssig may have been the only judge who defied the Nazi regime, but two prosecutors are also worthy of mention. Josef Hartinger, a public prosecutor in Bavaria, had investigated suspicious deaths at Dachau in 1933. After reviewing forensic evidence, he concluded that inmates had been unlawfully killed and prepared indictments against SS officials, which were suppressed.20 Martin Gauger was a prosecutor who refused to take the oath to Hitler and ultimately died in custody in 1941.21 His refusal to cooperate with policies he deemed unlawful underscored a central point: professional obligation did not eliminate moral agency. These few figures did not stop the regime’s trajectory. They are significant because they refute the claim that legal compliance was inevitable. The tools necessary to contest unlawful killing were present. What was required was willingness. Yet virtually all judges and prosecutors did not protest. Many rationalized inaction as prudence or loyalty. The end result was that murder proceeded without legal resistance.22 This exposes the jurisprudential fault line at the heart of the Nazi judiciary. When executive command conflicted with statutory prohibition, the legal actor faced a choice: reinterpret the law to accommodate power or insist that the law binds power. Kreyssig, Hartinger, and Gauger chose the latter and paid a price. Their stories do not redeem the judiciary but clarify the indictment. C. The Spectacle of Ideological Justice As political repression intensified, the regime expanded a parallel judicial architecture designed not merely to punish dissent but to dramatize ideological conformity. Among the most notorious of these institutions was the People’s Court (Volksgerichtshof), established in 1934, later presided over by the notorious Roland Freisler. Defendants appeared before a bench, indictments were read, and judgments were pronounced in the language of law. Unlike regular courts, which retained traces of decorum, the People’s Court functioned as an instrument of political theater.23 16. Henry Friedlander, THE ORIGINS OF NAZI GENOCIDE: FROM EUTHANASIA TO THE FINAL SOLUTION 116-117 (1995). 17. Id. at 119. 18. Id. 19. Supra note 14, at 195-196. 20. Timothy W. Ryback, HITLER’S FIRST VICTIMS: THE QUEST FOR JUSTICE 8-9 (2014). 21. See “The Courage to Say ‘No’: Martin Gauger and the Oath to Hitler” (2020), available at https://ndaajustice.medium. com/the-courage-to-say-no-martin-gauger-and-the-oath-to-hitler-9dfb430d377 22. Supra note 14, at 196-197. 23. Supra note 14, at 141 (“[Roland] Freisler observed that ‘such a high court, political in the noble sense of the word in that it guards the security of the nation,’ should be ‘a permanent achievement of National Socialist leadership,’ and he demanded that ‘the court [be] organized and expanded so its outward appearance matches its role.’”).
8 No. 77 JUSTICE The journalist William L. Shirer, observing a case in 1935, later wrote that “the proceedings were finished in one day, there was practically no opportunity to present defense witnesses (if any had dared to appear in defense of one accused of ‘treason’) and the arguments of the defense lawyers, who were ‘qualified’ Nazis, seemed weak to the point of ludicrousness.”24 Not surprisingly, in many cases such as treason, verdicts were effectively predetermined.25 The creation of the Special Courts (Sondergerichte) reinforced this transformation. These tribunals operated with truncated procedures and sweeping jurisdiction over political and racial offenses. Appeals were often unavailable. Sentences, frequently death, were imposed with remarkable speed.26 Judicial authority did not disappear; it was repurposed. The courtroom became a stage upon which the regime displayed its intolerance for dissent and promoted its racial ideology. Law did not recede before power but instead lent power its fullest vocabulary. D. The 1942 Directive and Formal Subordination In October 1942, Minister of Justice Otto Thierack issued a directive instructing judges to render decisions in accordance with the Führer’s will. What had operated through professional adaptation and ideological expectation was now formal policy. Judicial independence was no longer even nominally intact for sentencing guidelines. The distinction between adjudication and political enforcement collapsed.27 By this stage, deportations to ghettos and death camps were underway. Although mass murder occurred outside ordinary courtrooms, the judiciary had facilitated dispossession, imprisonment, and transfer through the routine application of racial and political law. The machinery of persecution was cumulative and institutional. From statute to sentence to murder, the path was legally structured. By the end of World War II, the question was no longer how judges had functioned within the regime, but whether those who administered its apparatus could claim innocence by invoking even a semblance of legality. IV. Judging the Judges: 1947 Nuremberg The Judges Trial marked an unprecedented moment in legal history. Sixteen jurists and officials of the Reich Ministry of Justice were charged under Control Council Law No. 10 with war crimes and crimes against humanity for their participation in the administration of Nazi law. The prosecution did not allege that the defendants had personally carried out killings. Rather, it charged that they had transformed the judicial system into an instrument of persecution.28 The trial lasted just under a year – from March to December 1947 – and included over 600 prosecution exhibits, 1,400 defense exhibits, and the testimony of more than 100 witnesses.29 At issue was the role of courts in sustaining a regime of discrimination, deportation, and death. The indictment alleged that discriminatory laws themselves formed part of a broader criminal plan, and that judges and ministry officials had deliberately contributed to its execution. In language that cut through formalism, the tribunal rejected the notion that the defendants’ acts could be viewed as isolated errors or technical miscarriages of justice. Their conduct had to be understood as part of a coordinated system of persecution carried out under color of law.30 The defendants’ principal defense was formal legality. They had applied valid German statutes. Judges do not enact laws; they interpret and enforce them. Responsibility, they argued, rested with political authorities. The Prosecution vigorously contested this reasoning. Telford Taylor argued that it was not technical compliance with enacted law but knowing participation in a legalized system of oppression.31 The tribunal ultimately agreed and the 24. Shirer, supra note 12, at 269. 25. Gellately, supra note 12, at 85-86; see also Müller, supra note 14, at 143. 26. Gellately, supra note 12, at 48. 27. Otto Thierack, “Letter to All Judges (Oct. 1942),” in RICHTERBRIEFE: DOKUMENTE ZUR BEEINFLUSSUNG DER DEUTSCHEN RECHTSPRECHUNG 1942–1944 9–10 (Heinz Boberach ed., 1975). 28. Supra note 3, at 1063–64. 29. “The Justice Case,” available at https://nuremberg.law.harvard.edu/nmt_3_intro 30. See Müller, supra note 14, at 271 (“Precisely because the men on trial were not fanatic National Socialists, the ordinary workings of the judicial system during the Third Reich were exposed to view, and it became clear to what extent the largely conservative legal profession … had been profoundly involved in the reign of terror.”). 31. Supra note 3, at 32.
9 Spring 2026 judgment emphasized that judicial office does not immunize acts that constitute crimes against humanity. When judges knowingly enforce racial persecution, facilitate deportation, or administer laws whose purpose is discriminatory destruction, they exceed the protections of a characteristic judicial function.32 The tribunal confronted a profound tension: judicial independence is essential to the rule of law, yet immunity cannot extend to the deliberate administration of injustice. Its resolution turned on knowledge and intent. Liability did not attach merely because defendants applied Nazi law. It attached because they participated with awareness in systematic persecution. Indeed, “what was most shocking to the [Nuremberg] court … was not the various appalling crimes themselves (the previous trials had exposed the outrages of the Third Reich with sufficient clarity) but the fact that they had been committed under the cloak of legality.”33 It is worth noting that in postwar Germany, Gustav Radbruch – a former legal positivist and Minister of Justice in the Weimar Republic – changed his view and argued that statutory law must yield when it reaches the threshold of “intolerable injustice,” particularly when it repudiates equality before the law.34 The subsequent adoption of the Nuremberg Principles held that individuals may not evade responsibility by invoking national law or superior orders when the acts in question constitute crimes under international law.35 Professional status does not absolve moral agency. Judicial authority carries heightened responsibility precisely because it cloaks power in the legitimacy of law. The Judges Trial thus stands as a defining moment. When courts become mechanisms of oppression, those who administer them cannot claim innocence through obedience.36 In the end, as Telford Taylor said in the Palace of Justice nearly eight decades ago, “a court is far more than a courtroom; it is a process and a spirit. It is the house of law.”37 As votaries in this extraordinary temple, particularly after the Nuremberg Trials, judges and lawyers in every legal system must be ever vigilant against the transformation of courts into instruments of ideology. It is an institution entrusted with guarding the boundary between power and right. When that boundary dissolves, legality becomes the most effective and efficient handmaiden to tyranny.n Dr. Isaac Amon is a Lecturer in Law at Washington University School of Law in St. Louis, where he teaches Law and the Holocaust. He is also Executive Director and Scholar-in-Chief of the Sinai Legal Association for Memory and Modernity (SLAMM), a nonprofit institute dedicated to the study of law, history, and the global Jewish experience. His scholarship examines the legal history of antisemitism from the Inquisition through the Holocaust and the Nuremberg Trials, including Sephardic and Mizrahi Jewish histories. He served at the International Criminal Tribunal for the former Yugoslavia in The Hague and as an ISIS war crimes investigator. 32. Id. at 1155-56 (For example, the Tribunal condemned Oswald Rothaug, the judge in charge of the notorious Leo Katzenberger Trial, as “merely an instrument in the program of the leaders of the Nazi State of persecution and extermination … His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression. Despite protestations that his judgements were based solely upon evidence introduced in court … [his] opinions were formed and decisions made before the trial had even commenced and certainly before it was concluded … He was and is a sadistic and evil man. Under any civilized judicial system, he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.”). 33. Müller, supra note 14, at 272. 34. Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law (1946),” 26 OXFORD J. LEGAL STUD. 1, 7 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 2006). 35. Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int’l L. Comm’n 374, Principle II, U.N. Doc. A/CN.4/SER.A/1950/Add.1 (1950). 36. Supra note 3, at 1024 (The Nuremberg Tribunal held that “in view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra [in the trial] does not demonstrate the utter destruction of judicial independence and impartiality, then we ‘never writ nor no man ever proved.’”). 37. Supra note 4, at 31.
10 No. 77 JUSTICE he 1935 Nuremberg Laws are considered a bedrock of Nazi Germany’s anti-Jewish policies. In his opening address at the International Military Tribunal at Nuremberg, the chief U.S. prosecutor, Justice Robert H. Jackson, referred to them as the “infamous Nuremberg decrees of September 15, 1935.”1 Ignored by most Holocaust historians, however, is the fact that these laws were inspired by and to a large extent cribbed from racial laws then in effect in numerous southern states of the United States. To place both the significance and the origins of the Nuremberg Laws in their historical context, one must bear in mind that the antisemitism of Nazi Germany did not come to the fore in a vacuum or out of nowhere. Rather, it was a malignant but eminently predictable byproduct, a predisposition as it were, of a state of mind, of racist attitudes that were prevalent elsewhere, including the United States. When Adolf Hitler became chancellor of Germany on January 30, 1933, he did not have in place a novel intellectual or political framework to enact new — that is, previously non-existent — antisemitic legislation. It is in this context that one must consider the large volume of Nazi anti-Jewish laws and regulations starting on April 7, 1933, with the Law for the Restoration of the Civil Service which excluded Jews, as well as those considered “politically unreliable,” from the German civil service. Parenthetically, one should note that de facto anti-Jewish measures had already been implemented by then, but starting in April 1933, they became one of the most prominent features of Nazi German legislation. To understand the evolution of antisemitism as a Nazi ideology, one must first focus on a conspiratorial Russian forgery, The Protocols of the Learned Elders of Zion, and its impact on Hitler, not directly but as the result of its dissemination by the American industrialist and automobile manufacturer Henry Ford. Portions of The Protocols, a 100 percent fictional depiction of a supposedly secret Jewish plot to dominate the world, first appeared in a Russian newspaper in 1903 and it was then published as a chapter in a book by Sergei Nilus, a Russian antisemitic mystic. The contents of The Protocols were promoted by Ford in a series of virulently antisemitic art, first in his Dearborn Independent beginning in 1920 and then in a book, The International Jew: The World’s Foremost Problem. It is probable that Hitler was first exposed to The Protocols through a German translation of Ford’s book. The combination of The Protocols and Ford’s virulent, relentless antisemitic agitation posed a significant enough problem for American Jews that ten major American Jewish organizations under the auspices of the American Jewish Committee issued a joint statement on November 30, 1920, published in The New York Times the following day, that “condemned” The Protocols “as a forgery.” Most relevant here is the following excerpt from that statement: During the past six months there have been sent forth weekly in Henry Ford’s organ, the Dearborn Independent, attacks of extraordinary virulence upon the Jews. These assaults upon the honor of the Jewish people are all founded on The Protocols and on the discredited literature of Russian and German anti-Semitism, inspired by the minions of autocracy. Parrot-like, they repeat the abominable charges that can only appeal to the credulity of a stunted intelligence — charges long since conceded to be unfounded by all fair-minded men.2 The American Roots of the 1935 Nuremberg Laws* Menachem Z. Rosensaft * This article is adapted from a lecture delivered by the author at Cornell Law School, June 7, 2024, as part of Cornell’s 2024 University Wide Alumni Reunion. 1. 2 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 119 (1947) (Proceedings Nov. 21, 1945). 2. “Jews Denounce ‘Protocols of Zion,’” N.Y. TIMES, Dec. 1, 1920, at 19. T
11 Spring 2026 In the wake of the Russian Revolution, the joint statement demonstrated in detail how and why The Protocols was an antisemitic forgery and debunked its claim that Bolshevism was in fact a Jewish movement that constituted a key element of the purported global Jewish conspiracy. The joint statement specifically referred to Ford yet again as follows: Ford, in the fullness of his knowledge, unqualifiedly declares the Protocols to be genuine and argues that practically every Jew is a Bolshevik. We have dealt sufficiently with both these falsehoods. It is useless in a serious document to analyze the puerile and venomous drivel that he has derived from the concoctions of professional agitators. He is merely a dupe. Precisely how much of a dupe Ford was in believing in the authenticity of The Protocols became clear the following year when the Constantinople correspondent of the London Times revealed that it had in fact been plagiarized, to a large extent verbatim, from an 1865 book by a French writer, Maurice Joly, entitled The Dialogue in Hell Between Machiavelli and Montesquieu, a thinly veiled satiric attack on French Emperor Napoleon III. This book neither mentions nor even obliquely refers to Jews. The London Times exposé was published in full in The New York Times on September 4, 1921.3 Henry Ford’s promotion of The Protocols specifically, and antisemitic conspiracy theories generally, acquires heightened significance in light of a New York Times article headlined “Berlin Hears Ford Is Backing Hitler,” published on December 20, 1922.4 This appears to be the Times’ very first mention of Hitler and the crux of the article was a rumored report that Ford was “financing Adolph [sic.] Hitler’s nationalist and anti-Semitic movement in Munich.” This was before Hitler’s failed 1923 Munich “Beer Hall Putsch,” before he wrote — or dictated — Mein Kampf while an inmate in Landsberg Prison, and before he and his Nazi Party emerged as an ultranationalist force on the Weimar Republic’s political spectrum. According to this article, “there is some ground for suspicion that Hitler is spending foreign money” to pay for his “spacious” and “splendidly furnished” Munich headquarters. The article further highlighted that: The wall beside his desk in Hitler’s private office is decorated with a large picture of Henry Ford. In the antechamber there is a large table covered with books, nearly all of which are a translation of a book written and published by Henry Ford [presumably, the recently published German edition of The International Jew]. If you ask one of Hitler’s underlings for the reason of Ford’s popularity in these circles he will smile knowingly but say nothing. Shortly thereafter, in early March 1923, Hitler was quoted in the Chicago Tribune as saying that, I wish I could send some of my shock troops to Chicago and other big American cities to help in the elections. We look on Heinrich Ford as the leader of the growing fascist movement in America. We admire particularly his anti-Jewish policy which is the Bavarian fascist platform. We have just had his anti-Jewish articles translated and published. The book is being circulated to millions throughout Germany.5 It is against this background that one should consider Hitler’s subsequent depiction of Jews in Mein Kampf and his and the Nazi Party’s anti-Jewish rhetoric — not as in any way original diatribes but rather as the regurgitation of antisemitic conspiracy theories that had been widely promulgated by Henry Ford, among others. 3. “Proof that the ‘Jewish Protocols’ Were Forged,” N.Y. TIMES, Sept. 4, 1921, § 7, at 1. 4. “Berlin Hears Ford Is Backing Hitler,” N.Y. TIMES, Dec. 20, 1922, at 2. 5. Quoted in Jonathan R. Logsdon, “Power, Ignorance, and Anti-Semitism: Henry Ford and His War on Jews,” available at https://history.hanover.edu/hhr/99/hhr99_2.html
12 No. 77 JUSTICE It should be noted, incidentally, that Ford is the only American mentioned by name in Mein Kampf as “the single great man” who “maintains full independence in the United States” to the “fury” of the “Jews who govern the stock exchange forces in the American Union.”6 Hitler’s obsession with the concept that the alien Jewish race had been able to insinuate itself into the Germanic or Aryan race aligned comfortably with Ford’s worldview. While much of Hitler’s screed in Mein Kampf focused on what he considered the Jewish intrusion into and attempted domination over the political, economic, and cultural areas of society, he also focused on the Jew as a foreigner with “distinct racial characteristics” marrying into and thus polluting the aforesaid Germanic or Aryan race.7 The dire threat, according to Hitler, was that the hated Jew was being successful in becoming “German.” He pointed out, for example, how “the Jewish influence on economic affairs grows with terrifying speed through the stock exchange”8 and how the Jew “seizes possession” of the press. And of course, at the same time, Hitler demonized the Jew as the Marxist par excellence. Far from demonstrating any novel thought, Hitler merely echoed The Protocols and Ford’s International Jew in depicting “the Jew” simultaneously as the capitalist, the communist, the liberal, and everything he abhorred as inimical to or incompatible with Germany and the German or Aryan people or race. In March 1933, almost immediately after Hitler came to power, Nazi stormtroopers engaged in an organized campaign against German Jews, including the distribution of billboards urging Germans not to shop in Jewish stores as well as looting of Jewish homes, physical violence and at least one death.9 The New York Times reported on March 26, 1933, that by then, as a result of the Nazi antisemitic policies, “Jewish physicians have been dismissed from hospitals, Jewish judges relieved of office, Jewish prosecuting attorneys dismissed and Jewish citizens and tourists molested.”10 The Nazis’ actions against Germany’s Jews resonated in the U.S. On March 19, 1933, around 1,500 “duly accredited representatives of national and local Jewish organizations” met at the Astor Hotel in New York City, in the words of Bernard S. Deutsch, president of the American Jewish Congress, to express their “horror and indignation against the reign of terror to which our brethren are subjected in Germany.”11 The attendees at this gathering approved a resolution to protest the Nazi antisemitic policies across the U.S., with a central mass-meeting at Madison Square Garden to take place at the end of that month. J. George Fredman, commander-in-chief of the Jewish War Veterans of the United States, proposed an amendment to the resolution calling for the boycott of German goods. On March 27, a crowd of more than 20,000 protested against the new Nazi regime in Madison Square Garden, with another 35,000 in the streets outside the Garden and at an overflow demonstration at Columbus Circle. Among the speakers was former New York Governor and Democratic presidential candidate Al Smith who likened the Nazi German regime to the Ku Klux Klan. An estimated one million people attended hundreds of similar meetings throughout the United States that day.12 That same day, the National Socialist Party announced that it would undertake a counter-boycott campaign against Jewish businesses in Germany.13 Four days later, Propaganda Minister Joseph Goebbels declared in a fiery speech to a Nazi audience in Berlin: 6. Adolf Hitler, MEIN KAMPF 639 (Ralph Manheim trans., Houghton Mifflin Co. 1943). 7. Id. at 311. 8. Id. at 314. 9. Armin Nolzen, “The Nazi Party and its Violence Against the Jews, 1933-1939: Violence as a Historiographical Concept” (2003), available at https://wwv.yadvashem.org/odot_pdf/microsoft%20word%20-%207001.pdf 10. “Half Million Jews Affected by Hitler Furor in Germany,” N.Y. TIMES, March 26, 1933, § 8, at 4. 11. “Nazi Foes Here Calmed by Police,” N. Y. TIMES, March 20, 1933, at 5. 12. “55,000 Here Stage Protest on Hitler Attacks on Jews,” N.Y. TIMES, March 28, 1933, at 1. 13. “Ban on Jews Spreads; Hitler’s Party Prepares Boycott in Revenge for ‘Atrocity Tales,’” N.Y. TIMES, March 28, 1933, at 1.
13 Spring 2026 Tomorrow not a German man nor a German woman shall enter a Jewish store. Jewish trade throughout Germany must remain paralyzed tomorrow. We shall then call a three-day pause in order to give the world a chance to recant its anti-German agitation. If it has not been abandoned at the end of that respite, the boycott will be resumed Wednesday until German Jewry has been annihilated.14 On April 6, Hitler himself weighed in. “We must meet the natural demand of Germany for intellectual leadership according to our own kind by the early elimination of the preponderance of Jewish intellectuals from our cultural and spiritual life,” he told a reception for new leaders of the German Association of Medical Associations. “True intellectual achievements have never been made by racial aliens but always by strictly Aryan Germanic spiritual forces.”15 Turning to the anti-German protests in the United States, Hitler expressed his admiration for the discriminatory attitudes that were prevalent in the U.S. at the time. “The American people,” he said, “were the first to draw practical political consequences from the differentiation of races. Through its immigration law America has inhibited the unwelcome influx of such races as it has been unable to tolerate within its midst.” “Nor,” he added insightfully, “is America ready now to open its doors to Jews fleeing from Germany.” Over the next two years, the German authorities increasingly tightened the noose around the collective necks of Germany’s Jews until September 1935 when the German parliament, the Reichstag, enacted two draconian laws that formalized the inferior status of Jews in Nazi Germany. These were the aforementioned Reich Citizenship Law and the Law for the Protection of German Blood and German Honor, collectively known as the Nuremberg Laws because they were announced by Hitler at a Nazi Party rally in the city of Nuremberg.16 The first of these provided that “only a subject of the State who is of German or kindred blood” can be a citizen of the Reich (Reichsbürger) with “full political rights.” This meant that Jews and other non-Aryans were relegated to the inferior status of subjects of the State (Staatsangehörige), essentially individuals without rights but, according to this law, with “particular obligations towards the Reich,” and who were thus effectively at the mercy of the German government.17 While the core Reich Citizenship Law did not mention or refer to Jews, a supplemental decree issued on November 15, 1935, provided that “A Jew cannot be a citizen of the Reich. He has no right to vote in political affairs, he cannot occupy a public office,” and that Jewish public servants would have to retire at the end of 1935.18 This supplemental decree also defined a Jew as anyone with three grandparents “who were fully Jewish by race,” as well as someone with two “fully Jewish grandparents” if they (a) belonged to the Jewish religious community, (b) were married to a Jew, (c) were the offspring from a marriage with a Jew, or (d) were the offspring of an extramarital relationship with a Jew and was born after July 31, 1936. The regulation also created the category of a Mischling — a person with mixed Jewish blood who was not classified as a Jew. This decree further provided that “The Führer and Reich Chancellor can grant exemptions from the regulations laid down in the law.” The Law for the Protection of German Blood and German Honor, meanwhile, prohibited and criminalized marriages and sexual relations between Jews and nationals of German or related blood. This law also prohibited Jews from employing female nationals of German or related blood in their households.19 14. “Nazis Cut Boycott to Day with Threat of Renewal if World Does Not Recant,” N.Y. TIMES, April 1, 1933, at 1. 15. “Hitler Challenges American Protests,” N.Y. TIMES, April 7, 1933, at 10. 16. A third Nuremberg law enacted at the same time relates to the German flag and is of no relevance here. 17. The Reich Citizens Law (September 15, 1935) and the First Regulation to the Reich Citizenship Law (November 14, 1935), German History in Documents and Images, Vol. 7, Nazi Germany, 1933-1945, available at https://ghdi.ghi-dc. org/pdf/eng/English32.pdf; the German text of the Reich Citizens Law (Reichsbürgergesetz) is available at https:// www.jku.at/fileadmin/gruppen/142/reichsbuergergesetz.pdf 18. The First Regulation to the Reich Citizenship, supra note 17. 19. Law for the Protection of German Blood and German Honor (Sept. 15, 1935), available at https://www.vaholocaust. org/law-for-the-protection-of-german/
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