- The tu quoquedefence was removed – ad hominem tu quoquemeans ‘at the
person, you too’ and effectively amounts to the defendant saying ‘you committed
the same crimes, so you have no authority to judge me’. - The indictment made reference to violations of ‘international conventions’, but
there is no citation of those conventions, with the implication that it was a loose
term meaning the ‘general standards of criminal law in civilised societies’.
Although the motivation among the leadership of the Allied powers to create the
Nuremburg process was largely political, there was a moral consciousness at work,
a consciousness that became stronger in later decades. Consequently, Nuremberg
posed a problem: on the one hand there was a sense of what can be termed the
‘objective wrongness’ of what the German regime had done. On the other hand,
the trials seemed to depend on the creation of post hoc, or retroactive, laws.
Retroactive laws violate the principle that there can be no crime without an
antecedent law: if you do something that is legal at the time of doing it, then you
should not later be prosecuted for that act. If retroactive laws are created then
power is arbitrary (other ‘troubling’ aspects of Nuremberg included the rejection
of both the tu quoqueand compulsion defences). There has been considerable
debate among legal and political theorists about the retroactivity problem; some
theorists argue that German law was suspended at a point during the 1930s, and
therefore the laws of Weimar Germany (1918–33) should form part of the basis of
the indictment. Other theorists appeal to conventions, such as the prohibition on
murder, which all ‘right-thinking’ human beings, and all properly functioning legal
systems, recognise as valid.
The point about Nuremberg is that German law of the Nazi period could not
form the basis of the judgment, and so other laws or conventions, not rooted in a
particular legal system, had to be used. And Nuremberg is not simply an interesting
historical problem, because it has relevance for contemporary debates about human
rights: if there are human rights as defined at the beginning of this section, then
they are universal, and the universality extends across national boundaries and
across times. The Nuremberg problem will not disappear when the last alleged Nazi
war criminal has died, for it is fundamentally a philosophical problem: how can
there be human rights if there are no laws embodying those rights? But if human
rights only exist where there are laws stating those rights, then how can they be
universal? The post-Nuremberg codification of human rights in the UDHR and the
Genocide Convention (1948) helps to solve a legal problem, but not the
political–philosophical one. To explain, the UDHR was (eventually) signed by the
governments of most states, and through the force of treaty law human rights have
been given legal validity. Had there been such a declaration in the 1920s to which
Germany had signed up, and that was not rescinded by the Hitler regime, then there
would have been a clearer legal basis for Nuremberg (there was such a basis for
the third count of war crimes: the Geneva Conventions of 1864, 1906 and 1929).
However, this does not solve the philosophical problem: if a nation refuses to sign
up to any human rights conventions does that mean it is not obliged to respect
human rights?
This question – and the distinction between legal and philosophical problems –
reveals an ambiguity at the heart of human rights discourse. When we use the term
‘human rights’ are we referring to a set of legal rights, or to moral rights, or, perhaps,
404 Part 4 Contemporary ideas