This is not justice

The Hague has replaced Nuremberg's jurisprudence of peace with a licence to the west to kill

by John Laughland

The Guardian Saturday, 16 February 2002

Centre for Research on Globalisation (CRG), globalresearch.ca, 19 February 2002

Because its legal basis is so dubious, the international criminal tribunal for the former Yugoslavia seeks to present itself as the successor to the international military tribunal which tried the Nazi leaders at Nuremberg in

1946. As with many bodies in search of legitimacy - the Hague tribunal was created in 1993 by the UN security council, a body which has as little right to set up a court as it does to raise taxes - its defenders probably think that a quick reference to Hitler can settle the matter. However, the Hague does not embody the legal principles established and consolidated at Nuremberg. It embodies instead their complete destruction.

It might seem tactless to dwell on the most obvious ways in which the Hague differs from Nuremberg: an obscure judge from the Midlands circuit and an unremarkable barrister who has prosecuted for HM customs & excise are hardly

worthy successors of the legal giants at Nuremberg such as US supreme court Justice Robert H Jackson, or the British attorney general Sir Hartley Shawcross. But the mediocre quality of what passes for legal reasoning at the Hague has caused the truly remarkable elements in Nuremberg's noble jurisprudence to be perverted and destroyed.

We now think of Nuremberg mainly as the trial of the Holocaust. This is not how the architects of Nuremberg saw matters. Exhausted by up to six years of all-engulfing war, the allies were mainly preoccupied with the fact that Nazi Germany had plunged the whole world into conflict. When Justice Jackson rose to address the tribunal, his very first words were not about crimes against humanity but instead about his "privilege of opening the first trial in history for crimes against the peace of the world".

For the judges at Nuremberg, the primordial war crime was to start a war in the first place. All other war crimes flowed from this. Although naked aggression has always been illegal under customary international law - as is attested by the numerous and no doubt spurious legal justifications made throughout history by belligerent states for their actions - Nuremberg was innovatory in its clear legal formulation that the planning and execution of a war of aggression constituted a criminal act in international law. It was for this crime, and not for crimes against humanity, that all the Nazis at Nuremberg were judged.

In the minds of the architects of Nuremberg, moreover, the best way to preserve peace was to raise the profile of the concept of state sovereignty.

The rigorous sovereignist logic of the Nuremberg tribunal was clearly spelled out in its charter. Indeed, the Nuremberg tribunal, unlike the Hague tribunal, was not really an international tribunal at all. The judges quite specifically stated that the act of promulgating the Nuremberg charter was "the exercise of the sovereign legislative power of the countries to which the German Reich unconditionally surrendered". There was no pretence that the "international community" was prosecuting the Germans. Indeed, when other countries asked to be allowed to participate in the Nuremberg trial, the allies told them to mind their own business.

People today who argue that heads of state must answer for their crimes forget that the prosecution and punishment of criminal acts is a key attribute of state sovereignty - in the sense that you cannot punish criminals unless you have the police and judicial power to catch and imprison them. Even if the creation of a world state were possible for the purposes of the administration of universal justice, the question would then

be how to subject that new world state power to appropriate democratic and legal controls. In other words, "Who guards the guardians themselves?" The Nuremberg jurists knew that any such talk of universal jurisdic tion would only lead to the creation of a new sovereign power at world level. Consequently, they stuck rigorously to the existing laws of war and to their carefully defined jurisdiction over it. No acts committed by Germans before the attack on Poland on September 1 1939 were prosecuted.

The Nuremberg judges also had an overriding philosophical reason for insisting on state sovereignty as the principal legal foundation for peace -namely that the Nazis themselves had contested it. According to the Nazi theory of "great space", elaborated by numerous German geopoliticians, economists and jurists, state sovereignty was a bogus invention of materialistic liberalism.

Like today's globalists, the Nazis argued that economic realities had changed and that, therefore, the great powers should have the legal right to interfere in the internal affairs of smaller nations in their sphere of influence. Nuremberg and the charter of the United Nations - which is also based on the principle of state sovereignty and non-aggression, and whose very first lines refer to the determination "to save succeeding generations from the scourge of war" - can therefore be understood as nothing less than an attempt to institutionalise an anti-fascist theory of international relations.

On June 13 2000, the international criminal tribunal for the former Yugoslavia formally swung an axe at the very trunk of this logic, when the prosecutor refused to open an investigation into Nato's war crimes in Yugoslavia. (It is often erroneously stated that the prosecutor did open one but found no case to answer.) The decision not to investigate Nato was based, inter alia, on the fact that the tribunal "does not have jurisdiction over crimes against peace". With this refusal even to consider the legality under international criminal law of the Nato war as such, the Hague tribunal has confirmed that the new world order has decisively abandoned the one thing which Nuremberg achieved.

It had always been obvious that the Nato attacks on Yugoslavia were illegal under the post-war United Nations-based system. Not only were the attacks not approved by the security council, that body was not even consulted. Indeed, speeches by world leaders - including Blair's speech on "the doctrine of the international community" given in Chicago on April 22 1999 -

made clear that the very purpose of the Nato attacks was to overturn the old international system and to replace it with a new one. At the same time, Nato turned itself from an organisation committed to defending the national sovereignty and territorial integrity of its members into a worldwide police force with an effectively unlimited mandate. By refusing to prosecute Nato, the Hague has given all this its tacit legal approval.

Like the Hague tribunal, the future international criminal court has postponed indefinitely any attempt to define "crimes against peace". Consequently, the strict circumscription of the circumstances under which war may be waged (ius ad bellum) has now been replaced by an infinitely malleable series of double-standards about how it may be waged (ius in bello): on Jamie Shea's own admission in 1999, these standards are deployed in the service of the Hague's pay-masters, the Nato states. The world has therefore moved from an international system based on a multiplicity of sovereignties to one in which some states are more equal than others. And the Nuremberg jurisprudence of peace has been abandoned in favour of the Hague's decision to award - to the powerful western states at least - a licence to kill.

Dr John Laughland's book, The International Criminal Tribunal: Guardian Of The New World Order, is published by Editions des Syrtes, Paris, later this year

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