Individualizing Guilt at Nuremberg

Abstract

For several years, the historiography of 20th century human rights law, humanitarian law and international criminal law has been dominated by a strand of scholarship that draws attention to the political implications of international law and challenges the assumption of its impartiality. Recently, a new corpus of Anglophone writings has emerged that counters the critiques of liberal internationalism as forwarded by proponents of NAIL (New Approaches to International Law) and TWAIL (Third World Approaches to International Law). The principal merit of this new scholarship is to remind us that the first attempts to criminalize aggressive wars can be traced back to World War One, and that this progress was often the intellectual achievement of individual legal scholars. Nonetheless, it is historically misleading to suggest that there was a direct connection between the rights-based discourses of the interwar period and the International Military Tribunal (IMT). Some of the new legal histories have advanced a basically linear narrative here. However, this chapter argues that, by charging German defendants with ‘crimes of aggression’ on the basis of the ‘individual liability’ principle, ‘Nuremberg’ constituted not a continuation, but a break with the elaborate academic debates of the interwar period.