The fabric of international law has been radically and irrevocably changed as a result of its contact with atrocity – first in the form of Nazi crimes, and more recently in the shape of atrocities in the Balkans and genocide in Rwanda. Unfortunately, the effort to gain legal dominion over acts of atrocity has not been matched by similar efforts to examine the purposes served by prosecuting the perpetrators of such acts. In this essay, I will argue that the bold promise of international criminal justice can best be fulfilled by tying perpetrator trials to international law’s expressive function: the punishment of atrocities must be seen as a means of serving the interests of history and memory in communities riven by extreme crimes.

The Nuremberg Paradigm

The 20th century witnessed a paradigm shift in the basic model of criminality. In the familiar domestic national paradigm, law views criminal behavior as a deviant act harmful to community norms and interests. In this model, the culprit is an individual and the state intervenes as the accuser and as the agent of enforcement, defending violated norms of community order. This model was not created to deal with situations in which the state itself is the sponsor of crimes or the agent of criminality. To the contrary, the state has classically been seen as the locus of legality, insulated from international interference by prerogatives of immunity and sovereignty.

Perhaps, then, the clearest way in which contact with atrocity has changed law is by puncturing the shield of sovereignty. Today, we accept without argument the idea that state actors responsible for atrocities should have to answer for their conduct in courts of criminal law – be they domestic, international, or hybrid tribunals. But we run the risk of forgetting how deeply radical this idea was before Nuremberg. Sovereignty—articulated in the political theory of Hobbes, enshrined in the Treaty of Westphalia—was, before Nuremberg, an absolute bar to international prosecutions. I do not want to overstate the practical significance of the puncturing of the shield of sovereignty. Sixty years after Nuremberg, the shield remains strong, and from the perspective of human rights lawyers, frustratingly so. Yet the conceptual shift has been dramatic.

We get a clearer sense of the importance of this conceptual shift when we look closer at the four foundational international crimes that can puncture the shield of sovereignty: crimes against the peace, war crimes, crimes against humanity, and genocide. Of these, crimes against the peace may seem the most anomalous inasmuch as this incrimination has never acquired a coherent definition and will only fall under the jurisdiction of the fledgling International Criminal Court if and when a satisfactory definition can be agreed upon. But, if we turn the clock back to Nuremberg, the crime against the peace was the gravamen of the prosecution’s case – it was understood as the principal international crime. This, in fact, made perfect sense from the perspective of the classic theory of sovereignty. Definitional problems aside, criminalizing the unprovoked attack of one nation on another can be seen as deeply conservative, an attempt not to disrupt but to safeguard the system of sovereign nation states. The jurisprudential theory of Nuremberg can be stated thusly: on certain rare occasions, such as in the case of unprovoked warfare, it may be necessary to puncture the shield of sovereignty in order to protect the larger system of sovereign nation-states.

This same jurisprudential understanding was expressed in the other crimes adjudicated at Nuremberg: war crimes and crimes against humanity. As is the case with prosecuting crimes against the peace, prosecuting war crimes permits the international community to shatter sovereignty for the ultimate purpose of preserving it. The International Military Tribunal’s (IMT) conceptualization of crimes against humanity, a crime first recognized at Nuremberg, also fits this pattern. At Nuremberg, a crime against humanity had to have a demonstrable nexus to aggressive war in order to be justiciable before the IMT. But this nexus requirement was not simply a cynical effort on the part of the United States to insulate Jim Crow laws from judicial scrutiny. It also reflected the larger jurisprudential vision of Nuremberg that conceived of international crimes literally as crimes between legal entities called nation-states. If Nuremberg pioneered the radical idea of shattering the prerogatives of the sovereign, it was toward the conservative end of preserving, not supplanting, the larger system of sovereign nation-states.

Shattering the Nuremberg Paradigm

The incrimination that remained most volatile or unstable vis-à-vis this conservative ambition was the crime against humanity. Even before the end of the IMT trial, Control Council Law no. 10, the Allied document which set forth the legal basis for each occupying power to conduct war crimes trials in its respective zones of occupation, had severed the nexus requirement from its definition of crimes against humanity. As an international crime that now no longer needed to demonstrate a connection to international conflict, the crime against humanity was soon joined by another novel incrimination. The term genocide was first coined by Raphael Lemkin, a Polish-Jewish jurist who long before the Nazi extermination of the Jews had agitated for international legal recognition of Turkish atrocities perpetrated against the Armenians. But it was not until 1943 and the advent of the Nazis’ techniques of administrative massacre that Lemkin coined his neologism to denote the destruction of a group qua group. The term genocide first appears in a legal document in the Nuremberg indictment (albeit as a description of war crimes) and by 1948, genocide already finds itself elevated by the international legal community to the status of an independent international crime. Indeed, genocide is now considered the international crime, supplanting crimes against humanity as the gravest violation of any legal code, domestic or international.

The concepts of crimes against humanity and genocide, however, are radical not only in naming radical transgressions or in authorizing the shattering of sovereign prerogatives. They are radical in that the very term “international” is something of a misnomer. They do not reach conduct between nations; on the contrary, they can, and most typically will, reach actions perpetrated against groups or populations controlled within the territorial bounds of a coherent nation-state. This remarkable trend toward severing “international crimes” from any connection to conduct between states finds further elaboration in the recent jurisprudence of war crimes. In one of its most important rulings, the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded in its Tadic decision that a conflict need not be strictly international to be justiciable in an international court. Thus, although Nuremberg continues to be viewed as the most important precedent in international criminal law, developments in the field post-Nuremberg have largely dismantled its basic paradigm. The crime of aggressive war, which maintained the clearest connection to international conduct, has become largely a dead letter and in its stead we find the development of a rich jurisprudence of three international crimes – crimes against humanity, genocide, and war crimes – which have largely eliminated Nuremberg’s connection to the core meaning of the concept of “international.” Indeed, these crimes can better be described as transcending the nation-state, or as “supranational.” Although these crimes may, at times, assume an entirely intrastate quality, I call them supranational to remind us that the traditional fixation on the nation-state as the relevant unit of analysis has receded in importance. “Supranational” crimes permit shields of sovereignty to be punctured but not toward the larger end of protecting the system of nation states. Rather, the prosecution of supranational crimes claims to vindicate the interests of humanity writ large.