Additional information: Glossary
Acting under binding orders is understood as a predicament where the recipient of an order, although recognizing its criminal character, nonetheless carries it out because not to do so would mean objectively exposing themselves to a danger for life and limb. The recipient of such an order is not subject to prosecution.
If the binding constraint did not exist however, the carrying out of an order recognized as criminal was, under § 47 (1), 2 of the Code of Military Justice, a punishable offense also in the Nazi period.
If the recipient can credibly show that they carried out the order because they feared for their life, even if this danger did not objectively exist, lawyers speak of “putative binding orders” and courts can recognize this as exempt from punishment.
Binding orders was a pivotal argument in the defense of Nazi war criminals.
Common Design comes principally from the Anglo-American legal tradition. It designates a crime where several perpetrators knowingly and actively took part in the joint pursuit of a goal. At the main concentration camp trials this meant that running a concentration camp was the criminal action and every function or task performed in the concentration camp system represented a part of this crime.
While there can be no binding orders in Common Design, the courts could adjudge different degrees of criminal offense and guilt depending on the position of the accused in the system. If it could be proven that there had been no participation in the overall undertaking, then an acquittal was possible in exceptional cases.
Denazification refers to the attempt by the Allies to liberate the state, the economy, the judiciary, and society in Germany from National Socialism and its ideology, both in private and public spheres, and build a democracy on new foundations. This initiative was pursued differently by each of the occupying powers.
One of the first denazification measures implemented in the U.S. zone was automatic arrest for Nazi officials who had served in the state bureaucracy or the party, or for persons the Allies considered a threat. Denazification was transferred to German jurisdiction in March 1946 with the introduction of the Law for the Liberation from National Socialism and Militarism. Every person of legal age had to fill out a questionnaire. Members of the Nazi Party and its organizations faced proceedings before civilian tribunals which could impose punishments ranging from fines to terms in labor camps.
The airmen’s murders refer to the killing of Allied aircrews by German military personnel and civilians in contravention of international law. The perpetrators were mainly local Nazi Party officials and policemen, less often Wehrmacht soldiers. The civilian population was also involved. The total number of violent crimes against Allied airmen was around 1,000.
With 226 proceedings, punishing these murders was one of the main concerns at the Dachau Trials.
International Law of War
The International Law of War, in modern language usage also known as international humanitarian law, covers the right to initiate war (ius ad bellum) and rights in conducting war (ius in bellum).
Today’s international humanitarian law has evolved over the course of the 19th century and was the attempt to protect POWs and civilians through sets of rules. Important treatises are the Hague Conventions of 1899 and 1907, the Geneva Convention on the treatment of prisoners of war from 1929, and the Geneva Conventions of 1949. Signatories to these conventions were ‒ and are ‒ obliged to adhere to these rules; any violation is considered a war crime.
Natural law assumes that there are universally valid principles of law. It is based on the ancient Greek philosophers Heraclitus and Plato, who claimed that every person has inalienable rights “conferred by nature.” Contemporary natural law has its roots in Christianity and the Enlightenment. Natural law is the foundation of today’s human rights.
Natural law is for example expressed in the U.S. Declaration of Independence as the inalienable right to “life, liberty, and the pursuit of happiness.” In Germany it is anchored in Article 1 of the Basic Law, which states that human dignity is inviolable.
The term Parent Case comes from the Anglo-American legal tradition and its procedural law. Based on case law, judgments create law. The Parent Case, or main trial, has the purpose of creating precedence. Facts and circumstances established there do not have be proven again in follow-up proceedings. This not only provides legal certainty, but also enables a number of trials to be heard in a short period, as took place in the Dachau Trials.
Case law, and along with it the Parent Case, are uncommon in the legal tradition of continental Europe.
Re-education was part of the denazification program launched by the Western Allies, and pursued especially by the U.S. The goal was to prevent the further influence of Nazi and militaristic ideas in German postwar society through civic education. Mass media and cultural programs were used, while the German education system was revamped.
One of the earliest and most important re-education measures in the U.S. zone was the news coverage of Nazi crimes and the legal cases brought against the perpetrators, exemplified by the Dachau Trials.
Prohibition of ex post facto laws
The prohibition on ex post facto laws ensures that a court can only apply a law to a crime if it already existed at the time this crime was committed. The defense counsel in the Dachau Trials appealed to this principle (nulla poena sine lege praevia; no penalty without pre-existing law). The criminal offences indicted at Dachau were based however on established international law of war. While the Anglo-American legal tradition is familiar with this prohibition, because it is largely based on case law, a written codification is not absolutely necessary.