In 1945, American and British forces began to unearth the horrible evidence that the Nazi regime led by Adolf Hitler had systematically tortured and slaughtered over 6 million Jews during World War II. On April 15, we pause to remember that tragic period as we observe Holocaust Memorial Day. The ruthless murder of so many innocent men, women and children should never be forgotten. Nor should we ever forget the legal basis upon which German leaders were held accountable for such terrible crimes at the famous Nuremberg trials.
After the war, many German military leaders were prosecuted in Nuremberg, Germany, for “war crimes” and “crimes against humanity” by an International Military Tribunal formed by France, Great Britain, the United States and the Soviet Union. Nazi defendants objected to being put on trial for simply following orders and the laws of their country. They also complained that defining crimes after the fact constituted improper “ex post facto” laws, which is specifically prohibited by the United States Constitution and the laws of many other nations. So, on what basis could the victor nations presume to convene these war crimes trials in Nuremberg?
The answer to that question is found in the opening statement of the lead prosecutor at Nuremburg, Robert Jackson, who was also a justice on the United States Supreme Court at the time. Justice Jackson stated that “even rulers are, as Lord Chief Justice Coke said to King James, ‘under God and the law.'” The Nuremberg Court rejected the argument of Nazi defendants that there was no pre-existing law and appealed to natural law in its judgment, noting that “so far from it being unjust to punish [them], it would be unjust if [their] wrong[s] were allowed to go unpunished.”
Despite the fact that the defendants were following orders and laws of their country, they were found guilty of violating a higher law to which all nations were equally subject. Sir Hartley Shawcross, the British prosecutor, said that there could be no immunity “for those who obey orders which – whether legal or not in the country where they are issued – are manifestly contrary to the very law of nature from which international law has grown.”
Both the British and American prosecutors were expressing something well understood in the law at that time – the law of man and nations is subject to the laws of God and the laws of nature. Sir William Blackstone in his “Commentaries on the Laws of England” in 1765 explained the law of nature in this way:
This law of nature, being co-eval [co-existent] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this. …
The fact that the law of God is the basis for international law was not new to British and American jurisprudence at the Nuremberg trials. In 1791, James Wilson, one of our first United States Supreme Court justices appointed by President Washington, explained the “law of nations” (international law) as follows:
The law of nature, when applied to states or political societies, receives a new name, that of the law of nations. … The law of nations as well as the law of nature is of obligation indispensable: the law of nations as well as the law of nature is of origin divine.
Wilson emphasized that all law “flows from the same divine source: It is the law of God. … Human law must rest its authority, ultimately, upon the authority of that law, which is divine.”
Well before the formation of the United Nations, our forefathers understood that all nations were subject to the law of God. Indeed, it was upon the basis of the “Laws of Nature and of Nature’s God” that Wilson, together with Thomas Jefferson, Ben Franklin, John Adams and others, declared independence from Great Britain in 1776.
Ironically, all the other nations which joined to prosecute the Nazi regime based on the law of nations given by God now reject the sovereignty of that God over law and government, the defunct Soviet Union being the first and most obvious example. As it was in the days of David, “the kings of the earth set themselves and the rulers take counsel against the Lord and against His Anointed, saying ‘let us break their bands asunder and cast away their cords from us'” (Psalm 2:2-3). The United Nations, which purports to make and enforce modern international law, routinely undermines God’s laws concerning life, liberty and property and openly rejects any connection between God and the law of nations.
As America and other nations try to “set themselves” against the laws of God, we increase the risk of repeating the lessons of history. When our thoughts turn toward the horrors of the Holocaust this weekend, let us not forget that the Nazis at Nuremberg were held accountable because of the higher law of God to which all nations, at all times, are subject.
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