The “Jewish question” and many other “national questions” derive from the debates over what it is to be a qualified citizen of any country. National questions are questions of culture, ethnicity and territory and have existed since nations were first formed. The results of national questions often exclude members of society because of differences in what constitutes a productive member of a society. Today, America is asking its own national questions phrased around “America First” slogans, what constitutes assimilation and that immigrants must “follow the law.” These questions have led societies to do evil things.
On September 15, 1935, a meeting was convened at the Nuremberg Rally to address “the Jewish problem.” Two laws were adopted; Law for the Protection of German Blood and German Honor, and the Reich Citizenship Law. Anti-Semitism had existed for years, but Hitler’s insistence on formulating the new laws had more to do with Hitler needing an enemy to use to further his public policy, then his need to eradicate Jews from Germany. The Jews were the excuse Hitler needed to wage war.
One of the issues faced by the authors of the Nuremberg Laws was how to define a Jew. The problem was that assimilated German-Jews made it difficult to determine who was Jew and who was German when the individual was an offspring of a Jewish-German marriage decades before. In the end, even a drop of Jewish blood caused German citizens to be ostracized by Nazi Germany.
The Law for the Protection of German Blood and German Honor segregated Jews, even German Jews from German society. It forbade marriages between Jews and it deprived German citizenship of anyone which had Jewish blood in them, no matter how small. The law also prohibited Jews from displaying “the Reich and national flag or the national colors” of Germany.
The law was introduced as follows:
“Moved by the understanding that purity of German blood is the essential condition for the continued existence of the German people, and inspired by the inflexible determination to ensure the existence of the German nation for all time, the Reichstag has unanimously adopted the following law, which is promulgated herewith:”
Punishments for violating this law ranged from fines to imprisonment to hard labor.
The Reich Citizenship Law defined a citizen of the Reich as a right “granted” by the Reich through a “citizenship certificate.” The Reich granted the citizenship to a person “who is of German or related blood”. Coupled with the Law for the Protection of German Blood and German Honor, it effectively eliminated anyone that had any Jewish blood in them, even if they had been faithful German citizens for years.
Under these laws, many Germans accused of war crimes used the “Nuremberg defense” as their argument of why they were not guilty of the war crimes.
On December 1, 1945, Anton Dostler was executed by a firing squad for war crimes. Dostler was found guilty of executing prisoners of war in Italy. Dostler argued that Hitler’s 1942 Commando Order, ordering the execution of all commandos captured by the Germans absolved him of any culpability. Dostler’s case set the precedent for the subsequent Nuremberg Trials of German officials tried for war crimes.
The Nuremberg Trials produced the Nuremberg Principles. Among them, Principle IV states:
“The fact that a person committed an act which constitutes a crime under international law, acted as a Head of State or responsible government official, does not relieve him from personal responsibility under international law.”
How does the United States deal with “superior orders” under the Nuremberg Principles that were adopted by the United Nations?
In March 16, 1968, First Lieutenant William L. Calley, Jr. participated in the My Lai Massacre. Calley was convicted of premeditated murder of 22 unarmed Vietnamese and sentenced to life in prison. Calley argued that he was operating under orders. Many were outraged at the conviction of an individual acting under orders, including Jimmy Carter. Carter, then governor of Georgia proclaimed the “American Fighting Men’s Day in Georgia” and stated that Calley was a “scapegoat” for the Vietnam War. Richard Nixon ordered that Calley be put under house arrest until the appeal was concluded. The court martial was upheld and Calley’s sentence was commuted to time served.
Thus, Calley was held to the standard that the law does not absolve him of the responsibility to ignore unlawful orders. For American jurisprudence, the Nuremberg Trials and the accompanying jurisprudence makes it clear that individuals cannot be insulated from liability by laws or orders from higher authorities.
The separating of children from their parents to make public policy about immigration – discouraging it – is not a clear-cut case of violations of international norms under human rights agreements/theories, but the activity borders close, thus, putting federal agents and Donald Trump at legal jeopardy should a country choose to make a legal statement about the issue.
It is unlikely this would happen, but the fact remains that evil is evil even if it is under guise of the law. Remember, the United States already imposes its laws extra-judicially as evidenced by the prosecutions of foreigners for violating copyright laws. At least one Spanish judge has attempted to hold foreigners accountable for crimes against humanity even though the activity and the individual are not Spanish.
The United States has wrestled internally and externally with the “superior orders” question because of the water boarding of prisoners during the ramping up of the War on Terrorism. At least one CIA agent, Sabrina de Sousa, was arrested in Italy for her participation in renditions.
As such, arguing that the “law allows it” or that “it is the law” ignores the fundamental truth that an evil activity cannot be excused because the law says it is legal.