collaborators never took place. He had taken refuge in Holland, and that country refused to extradite him, rightly arguing that there was nothing in international law that could countenance the incrimination of a head of state as being personally responsible for an international misdemeanour. According to the international legal order as it stood, the only subject in law was the state: only a state could be indicted for international wrongdoing, and any sanctions imposed, whether economic, financial, territorial, military or other, had nothing to do with criminal law. For its part, the German government refused to hand over the 900 individuals, but did consent to having them tried on German soil, in front of the Supreme Court in Leipzig, which was agreed to by the victorious powers. But only a few of the accused actually stood trial, and only light sentences were handed down. Yet, in spite of this paltry result, the whole affair had significant consequences in normative terms. Article 3 of the Fourth Hague Convention, 1907, stated that only states—not individuals—could be called to answer for violations of the law of warfare, whereas the precedent set by the Versailles Treaty made this principle partially inoperative.51
The real origin of international criminal jurisdiction can be identified with the institution, in 1945 and 1946 respectively, of the Nuremberg and Tokyo Tribunals. The creation of these two criminal courts had been anticipated, in the theoretical sphere, by Hans Kelsen’s essay Peace through Law, which appeared in 1944. Kelsen set out an institutional strategy for attaining peace, borrowing from Kant (notably the celebrated pages in Zum ewigen Frieden) the ideal of perpetual peace, with federalism as a model, and indeed the idea of making individuals, as well as states, subjects in international law.52 Kelsen maintained that, in the aftermath of the Second World War, his project for a ‘permanent league for the maintenance of peace’ stood a good chance of being accepted by the victorious major powers. In his project, one important innovation was grafted on to the old model of the League of Nations—namely the attribution of a central role to judicial, as opposed to normative and executive, functions.
In Kelsen’s opinion, the principal cause for the failure of the League of Nations lay in the fact that at the summit of its power structure was a Council representing a sort of worldwide political government, rather than a Court of Justice. In the light of his normativism, this was a serious ‘error of construction’ because it meant that the international order lacked any neutral and impartial judicial authority. Peace could only be guaranteed by a court of justice able to settle international controversies by applying international law objectively, free of any political conditioning.53 There was one other aspect which Kelsen, true to the Kantian conception of international law as ‘cosmopolitan law’ (Weltbürgerrecht), considered crucial: it was necessary to establish the individual penal responsibility of whoever violated international law in carrying out government activities or directing military operations. The court was to indict individual citizens who were guilty of war crimes, and their countries were to be held responsible for making them available to the court.54
It was this sort of legal internationalism, albeit in a very different form to that contemplated by Kelsen, which guided the victors—the United States, the Soviet Union, Britain and France—in instituting the Nuremberg International Military Tribunal. Agreement was reached in London on 8 August 1945, just two days after the atomic bomb was dropped on Hiroshima, and two days before the bombing of Nagasaki. The Tribunal held its opening session in November 1945, and hearings continued until October 1946. Of the twenty-two accused, three were cleared, six were convicted and given life imprisonment or shorter prison sentences, and ten were given the death sentence, which was carried out immediately. For the first time in the history of humankind, a war of aggression was considered not as a generic breach of international law involving the liability of the state qua state, but as an authentic ‘international crime’ for which individuals too were held penally responsible. Article 6(a) of the Tribunal’s Statute gave an explicit definition of ‘crimes against peace’, placing them under the jurisdiction of the court alongside ‘war crimes’ and ‘crimes against humanity’. They consisted in actions such as ‘planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’.55 Robert Jackson, chief US prosecutor to the Nuremberg Tribunal, had this to say in his opening speech to the court:
Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crime.56
In one of the best-known passages of the trial’s summing up, war is declared to be ‘essentially an evil thing’:
Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing from other war crimes only in that it contains within itself the accumulated evil of the whole.57
In the text of the Nuremberg sentence and in the intentions of the Tribunal judges, a war of aggression as the prominent instance of the category of ‘crimes against peace’ does indeed seem to be clearly conceptualized, even if it is set down in very general terms and without specifying the subjective elements in the criminal conduct.58 Aggressive war—i.e., a war that is not purely defensive—is not only an international crime but, as we have seen, is the ‘supreme international crime’ inasmuch as it is the root of all the negative consequences of warfare. All who incite to warfare or decide to go to war or fight are indictable for this ‘supreme crime’, because they are personally responsible for killings, acts of aggression, limitations of liberty and the destruction of property. Whoever knowingly fights an illegal war relinquishes any claim to legal immunity or extenuating circumstances: he or she is simply a criminal to be subjected to judicial punishment.
Thus we are confronted by a notion of war opposed toto caelo to that of the European warfare limited by the jus publicum Europaeum. In the latter conception, war was seen as the sovereign right of states, with antagonistic relations between states being regulated and limited by law, and hence rendered legal. By virtue of Resolution 95(1) of the UN General Assembly, incorporating the principles set out in the Statute and the judgement of the Nuremberg Tribunal, the new notion of war may be considered as confirmed by a customary international norm. In common with every other principle which the UN Commission on International Law derived from the Statute and the sentence of the Tribunal, the new legal conception of warfare is valid erga omnes.59 Among these principles, we can single out individual responsibility for violating criminal norms of international law, the non-extenuating nature of acting in obedience to higher orders, and the concepts of ‘crimes against peace’, ‘war crimes’ and ‘crimes against humanity’.
The ‘dual-standard system’ of international criminal justice
For decades, the principles established by the Tribunals of Nuremberg and Tokyo were not put into effect. Only once was an attempt made to cite the Nuremberg trial as an international legal precedent: in August 1949 Ethiopia asked Italy to extradite the marshals Pietro Badoglio and Rodolfo Graziani as war criminals. Ethiopia wanted to bring them before an international tribunal made up of a majority of non-Ethiopian judges which would have followed the principles and procedures laid down in the Statute of the Nuremberg Tribunal. As one might expect, this attempt met with no success.60
The two international Tribunals have come in for scathing criticism, notably by Hannah Arendt, Bert Röling, Hedley Bull61 and Hans Kelsen. The severest critique
