The other day, I learned from Tiredofeulies that Russia had withdrawn its backing from the International Criminal Court. This sounded like good news and sent me back to John Laughland’s excellent book, A History of Political Trials (2008), to refresh my memory on why international tribunals are a worthy object of suspicion.
Cutting to the chase, if we cannot trust the Nuremberg Trials to provide a paradigm of blindfold international impartiality, what can we trust? Not much, is the short answer, and one of the reasons is that the Nuremberg model was tainted by Soviet jurisprudence. The following synopsis of Laughland’s chapter on the subject attempts to explain why.
It is a popular misconception that Nuremberg was a trial of the Holocaust. The extent of the Holocaust only emerged during the trials themselves. There were four Counts listed on the indictment, of which the first two are central to present purposes.
1. Conspiracy to commit crimes against peace
2. Aggressive war
3. War crimes
4. Crimes against humanity
The legal novelty of Nuremberg was basically twofold: the notion of a “crime against peace” (meaning that Count (1) had retroactive effect) and application of criminal sanctions against individual state leaders for violations of international law. Hitherto, the defendants in international litigation had been the states themselves.
The Hague Convention (1907) and Geneva Convention (1929) regulated the law of war once commenced (ius in bello) but did not regulated the law declaring war in the first place (ius ad bellum). The Treaties of Westphalia (1648) sealed the principle that international law does not distinguish between just and unjust wars but regards war as a legally neutral relation between states.
Declaration of war, in short, had not been made a crime by 1945, still less a crime prosecutable against individuals.
Framing the scope of Counts (1) and (2) required a measure of delicacy. Successfully prosecuting Germany for aggressive war was necessary in order to exculpate American government policy before December 1941. For a neutral state to help a belligerent, as Roosevelt helped Britain with lend-lease, was a violation of international law and an abuse of America’s proclaimed neutrality. This is why the US prosecutor, Robert Jackson, had to argue that Germany’s commencement of war had been criminal in the first place.
The boundaries of “aggressive war” had never been drawn in a way that enabled it to serve as a general principle. The Russians – who had, lest we forget, invaded Poland, Finland and the Baltic States – demanded its restriction to aggression by “the European axis” and despite Jackson’s misgivings, they got their wish.
So, the USA and the Soviets both had their motives to reverse the Westphalia principle and remove from states their ancient sovereign liberty whether or not to wage war. But the greater contribution to both the concept of (a) “crimes against peace” and (b) the conspiracy to commit them originated in Soviet jurisprudence, particularly the theorising of A N Trainin and A Y Vyshinskii, architect of the show trials.
Since the 1920s, the Soviets had enthusiastically supported disarmament treaties and multilateral agreements, including the Kellogg-Briand Pact (1928), a treaty renouncing war as an instrument of policy, and the subsequent Litvinov Protocol (1929). Soviet promotion of international tribunals intensified after Germany’s violation of the non-aggression pact in 1941. Mainly at the behest of Stalin and Molotov, the “UN War Crimes Commission” was inaugurated in the autumn of 1942 for the investigation of German atrocities.
This contrasted sharply with the British approach expounded by Churchill in the House of Commons in September 1942: he foresaw a plurality of national trials for German crimes to be punished in each country in which atrocities had been committed. Eden shortly afterwards told the Soviet Ambassador, Ivan Maisky, that the suggestion of trying the Nazis in international tribunals was “premature”.
Trainin’s book “Hitlerite Responsibility under Criminal Law” (ed. Vyshinskii, 1944) played a large role in persuading the Allies to prosecute the Germans for crimes against peace and giving them centrality in the indictment.
The second thread of Soviet jurisprudence, endorsed by America and opposed by the French, was that of conspiracy, an elastic concept with a floating standard of proof that does not even exist as a crime in many criminal codes. The allegation of widely drawn conspiracy was instrumental in Stalin’s show trials. When Bukharin complained that he had not even met his alleged co-conspirators, Vyshinskii retorted that mutual acquaintance was not necessary, only agreement in principle to participate in the gang.
Vyshinskii’s formula was the father of the Pinkerton Rule in US law and much later in the doctrine of “joint criminal enterprise” adopted by the International Criminal Tribunals (ICTs) for Rwanda and the former Yugoslavia.
Crimes newly formulated by the victors and given retrospective effect survive as the legacy of Nuremberg. “Crimes against peace” have never subsequently been prosecuted – for fear that the misdeeds of the victors might come under scrutiny.
The Austrian jurist, Hans Kelsen, had lobbied hard before the war for the principle of universal jurisdiction and his doctrine of “peace through law” was influential on the creation of the modern ICTs. Nevertheless, he was sorely disappointed by Nuremberg, which he attacked vociferously in 1947. The retroactivity of the criminal charges he was able to forgive. The presence of the Soviets on the bench and their own ultimate impunity for qualitatively identical crimes rendered the trials, in his view, legally worthless.