Minor Forms of Persecution. The Justice tribunal made clear that laws did not qualify as crimes against humanity simply because they “could be and were applied in a discriminatory manner.”86 In particular, the Tribunal refused to criminalize German laws that imposed the death penalty on habitual criminals, on looters, on hoarders, and on individuals whose statements undermined “military efficiency.” Such laws, the judges insisted, may be “revolting to our sense of justice.” But that did not mean that they were crimes against humanity, particularly given that they were adopted in response to the exigencies of war. The Tribunal upheld the anti-looting laws, for example, by claiming that “[a]nyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the werewolves who roamed the streets of the burning cities, robbing the dead, and plundering the ruined homes should be severely punished.”87 Similarly, with regard to the military efficiency laws, the Tribunal noted that “even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war.”88 Although the peacetime/wartime distinction was obviously critical to the Justice tribunal, the fact that none of those “Draconic laws” directly involved political, racial, or religious persecution also seems to have been important. The Tribunal was more than willing to condemn acts that involved such persecution even when the acts themselves were relatively minor. Two examples are particularly illustrative. First, the Tribunal held that Xxxxxxx had committed a crime against humanity when, in the final weeks of the war, he sentenced a German count to death for insulting Xxxxxx and expressing approval of the attempt on his life. It acknowledged that “the mere fact alone that Xxxxxxxxx was prosecuted for remarks hostile to the Nazi regime may not constitute a violation of C. C. Law 10,” but insisted that “Xxxxxxxxx was not convicted for undermining the already collapsed defensive strength of the defeated nation, but… as a last vengeful act of political persecution.”89 Second, the Tribunal held that even “lesser forms of racial persecution” such as denying Jews the right to engage in civil litigation without advancement of costs qualified as crimes against humanity. The Tribunal recognized that such laws might appear “as a small matter compared to the extermination of ...
