The Internationalists by Oona Hathaway

Author:Oona Hathaway
Language: eng
Format: epub
ISBN: 9780241239049
Publisher: Penguin Books Ltd
Published: 2017-08-12T04:00:00+00:00

THE VERDICT

On October 1, 1946, the International Military Tribunal handed down its verdicts. It sentenced twelve of the defendants to death by hanging (Göring, Ribbentrop, Keitel, Ernst Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Fritz Sauckel, Jodl, Arthur Seyss-Inquart, Martin Bormann in absentia), seven to terms of imprisonment ranging from ten years to life (Admiral Karl Dönitz, Funk, Hess, Admiral Erich Raeder, Baldur von Schirach, Speer, Konstantin von Neurath), and three were acquitted (Schacht, Papen, Fritzsche).

In its judgment, the Tribunal justified the charter’s provision criminalizing aggressive war by referring to the Peace Pact. Its justifications for using the Pact as a foundation for individual criminal punishment, however, were disappointing, even shocking. For the Tribunal did not accept, or even mention, the Ečer-Chanler theory. It did not accept, or even mention, the Kelsen theory. Its principal argument was the very one that the prosecution team had tried to avoid making: the theory that Schmitt offered to justify the Lex Lubbe in which it is permissible to punish evil acts even if they were not legally crimes when committed. “To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue,” the Tribunal wrote, “for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.”66

The Tribunal mumbled some more sentences about the uniqueness of international law—how it does not have a legislature and how international agreements such “as the Pact have to deal with general principles of law, and not with administrative matters of procedure.” “This law is not static,” it wrote, “but by continual adaptation follows the needs of a changing world.”67 True enough, but why does any of this entitle the Tribunal to send men to their deaths?

In its brevity and failure to take more seriously the arguments made before it, the Tribunal missed an opportunity to justify the basis for its decision. It left the impression that its decision was legally unfounded and politically motivated, an act of victor’s justice. That it did so is all the more unfortunate because the Tribunal had excellent arguments available. Some of the greatest legal minds of the time had devoted themselves to crafting the arguments on both sides of the cases—not just Jackson but Ečer, Lauterpacht, Kelsen, and, yes, Schmitt. They had treated the issue with seriousness. By passing over these arguments, the Tribunal failed to do what was necessary to vindicate its decision. Indeed, those who read only the opinion of the Tribunal severed from the arguments presented before it—as nearly everyone still does today—have no way of knowing that such arguments were ever made. They might reasonably conclude, as so many have, that the Tribunal offered the best case it could for the decision it had made, and that the case was weak, or even unjustifiable.

There is some indication that the Tribunal was uncomfortable with its own decision.

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