The Nuremberg Follies: Why The Nuremberg Code Was Meaningless The Day It Was Written & Remains So.

Periodically, I get deluged with emails and messages from folks searching for any legal basis to resist COVID-19 mandates. A common refrain in these communications is a desperate reliance on the Nuremberg Code as providing some sort of controlling legal authority in the United States.

I generally ignore these communications. As a lawyer, I can tell you that American law gives whimsical weight to international law at best. In other words, international law such as the Nuremberg Code carries no weight in the United States’ legal systems. As a thinker, I can find far more stable grounds to take an ethical position on resisting COVID-19 mandates. In other words, I consider reliance on the Nuremberg Code to be frivolous and baseless.

Why?

The Nuremberg Code is not an international treaty. It does not even enjoy the status of an international resolution promulgated by a body such as the United Nations. Instead, it is a prosecution memorandum written by doctors working for United States prosecutors in the case of United States v. Brandt – a World War II war crimes trial of Nazi doctors for human experimentation.

The Code’s history has been controversial at best. The American Medical Association initially rejected the Code as providing any sort of ethical guidance, and American and other Western nations dismissed the Code as a special set of rules for the barbaric atrocities committed by Nazi doctors. Thus, until the Declaration of Helsinki, the Code carried no legal weight outside of the Nuremberg trials.

As far as the Code’s impact in the United States, the federal government adopted parts of it in federal regulations found in Title 45, Part 6 of the Code of Federal Regulations. The parts adopted, however, do not come close to providing the absolute protections that those who seek to wield it as a weapon against public health mandates in the United States assign to it.

Personally, I can identify serious problems with the Nuremberg Code. As a criminal defense lawyer and someone who believes in basic fairness in legal systems, the Nuremberg Code is a horrible and unjust creation. When the United States prosecuted Nazi doctors for their experimentations during the Holocaust, it faced a critical and fundamental problem. Its own medical associations and bioethical theorists struggled to articulate what ethical principles that the Nazi doctors and scientists had broken. Western common law did not provide an answer either.

In fact, the only legal authority that clearly prohibited the gratuitous atrocities that Nazi doctors committed was pre-Nazi German law – The Guidelines for New Therapy and Human Experimentation. Many of the modern concepts that we know peddle as binding medical ethics originated with the German Weimar Republic – i.e., informed consent. Adolf Hitler negated these guidelines by executive fiat.

Thus, during the operative time that the Nazis committed unspeakable atrocities against the Jewish people, no formal law clearly prohibited what they did at the level of gravity that the United States sought to hold Nazi doctors accountable. To clarify, the United States could have easily prosecuted the doctors for murder, assault, battery, and other similar crimes under existing American and Western common law principles. They, however, understandably wanted to send a global message that the atrocities committed were crimes against humanity that the world could not tolerate.

No law existed to enable the United States prosecutors to send such a message. Undaunted, United States prosecutors assigned doctors and scientists to create such law specifically for the purpose of securing the convictions of the Nazi doctors that it was prosecuting. Those doctors and scientists created the Nuremberg Code, and United States prosecutors submitted it to the Nuremberg tribunal in the form of a memorandum urging the tribunal to adopt it as the law governing the case. The Nuremberg tribunal then adopted it as the law governing the case after revising it slightly, and it used the Code to justify the convictions of the Nazi doctors for crimes against humanity.

In other words, the Nuremberg Code was not created with any other intent but to serve as the justification for convicting Nazi doctors for crimes that the world had never seen before. In the immediate aftermath, even the United States medical and scientific community dismissed the Code as only standing for that purpose, and it carries little to no authoritative weight in modern legal systems because it was the self-serving creation of law for a specific purpose.

Make no mistake. I believe that the Nazi doctors tried and convicted at the Nuremberg trials committed unspeakable atrocities during the Holocaust that merited their deaths.

At the same time, I strongly oppose the creation of law mid-trial for the sole basis of ensuring someone’s punishment. As a legal matter, I would strongly question the applicability of such a law as a binding legal principle without a thorough legislative debate and ratification.

Questioning the hypocrisy of the United States’ government based on its use of the Nuremberg Code is fair game in my view. Expecting the Nuremberg Code to provide salvation in the face of government tyranny when the Code itself was a manipulative and unjust tool to achieve a governmental end is unmatched folly in the first degree.

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