Nuremberg’s sacred beacon and the shadow of The Hague
On October 1, 1946, i.e. 80 years ago, the International Military Tribunal at Nuremberg delivered its verdicts against 24 top Nazi leaders. Most of the defendants were found guilty in committing the gravest crimes against peace and humanity, as well as war crimes. This included 12 death sentences by hanging while others received life sentences or lengthy prison terms.
The political and legal action which resulted in instituting the Nuremberg and Tokyo tribunals stemmed from the fact that the Nazi ideology and action were something the world had never seen or experienced before that. The Nuremberg Trials cannot be presented as a hasty effort by the victors to punish and reprise the defeated enemy. They constituted an act of the entire humankind coming together to put Hitler’s Nazism on trial as an extremely dangerous and over-the-board act of ideological, political and military barbarianism.
This is how Nuremberg became a Sacred Beacon akin to Promethean fire in terms of its role in international criminal justice. It was imperfect and bore the imprint of retroactive enforcement. Still, it shone its light and showed humanity the path towards universal justice.
What does Nuremberg’s legacy mean for humanity in the 21st century? Has it turned into a cold monolithic obelisk or retains the ability to address present-day concerns and aspirations at a time when, judging by the news reports, the world is sliding towards a fatal sinkhole in which force dominates law? When taking a closer look at what happened in Nuremberg during the trials, do we see them just as a trial against those who were defeated, or was it an act of giving birth to international law in its present-day form? What language did Nuremberg speak? Did it speak the language of triumphant victors that goes back all the way to the stone carvings representing Oriental rulers, or did it speak the language of universal human justice?
Can the memory of what happened eight decades ago serve as a beacon and guide us in the fog created by the urgent challenges faced by the international justice system? Can this memory counter the dark which threatens to cover the civilisation of law?
The Nuremberg Trials were more than just a legal procedure. They were also what we would call today a major research project since it served as a starting point for setting the justice system on a new mission, which consisted of establishing the historical truth through judicial process.
The verdict rested on a plethora of irrefutable, well-established, corroborated pieces of evidence which were thoroughly verified and examined. Everything offering an insight into the Nazi atrocities in miniscule detail was used as evidence. Apart from witness testimonies, there were also multiple public and private documents, forensic and other reports, film chronicles, etc. A huge archive of testimonies was created, and the victims had their day in court and made their voices heard. This gave Nuremberg its timeless ethnical role by making it an act of justice and an act of remembrance at the same time.
The Nuremberg Trials operated as a gigantic magnifying glass by focusing the rays created by thousands of facts and testimonies to produce an intense laser beam of truth in law that cut through deep layers of lies and falsifications, omissions and malicious silence. Despite the objections of the losing side, in both procedural and historical terms, with its arguments that the Tribunal reduced complex global politics to black-and-white figures of those who were designated as the culprits, historical and legal truths are inseparable in the documents of the trials.
The legality and legitimacy of Nuremberg
To the outside world, the Nuremberg Tribunal appeared like Athena springing fully armed from the head of Zeus – majestic and complete. The four victorious powers were forging a new legal order upon the ruins of a vanquished state, sitting in judgment over the defeated.
In strictly legal terms, the Tribunal rested on the constituent authority of the victors, who acted on behalf of humanity as represented by the United Nations. The London Agreement and the Charter of the International Military Tribunal served, mutatis mutandis, as a kind of octroyed “mini-constitution.” The legality of the Nuremberg trials and the binding force of its rulings were grounded in the collapse of the Nazi state and in the Allies’ occupation law, as established by the instrument of surrender.
Yet its legitimacy was rooted in natural law, drawing upon universal moral values – foremost among them, justice. It was founded on the conviction that certain crimes are so monstrous that they violate the very idea of humanity (delicta juris gentium) and must, at all costs, be suppressed. This point of reference made it possible to cut the Gordian knot of fascist evil and to punish its perpetrators, without stepping outside the legal framework. It also paved the way for affirming a hierarchy of values in which law stands above force and crimes against humanity are not subject to the statute of limitation.
The provisions of positive law are meant to pave the way to civil peace and to all that sustains it. An orthodox positivist would say: “If there is asphalt and there are road signs, then that is the road.” Yet anyone still able to distinguish between mere statute and true justice would object: “If a road leads to an abyss, no matter how well maintained it is or how strictly traffic along it is regulated, it is a trap.”
Positive law divorced from morality is merely mechanics and arithmetic – tools that can easily become the mechanics of torture and the arithmetic of murder. Conversely, when grounded in a moral foundation, legal tools carry a powerful humanistic charge. To us today, these are self-evident truths; yet at the time of the trials, the matter was far from obvious.
Given the prevailing legal concepts of that era, the Tribunal faced a seemingly insurmountable conceptual challenge: how could one rule on crimes that, at the time of being committed, were not clearly defined under either national or international law? Robert Jackson, the Chief Prosecutor for the United States, wrote in a report to the US President: “Those acts which offended the conscience of our people were criminal by standards generally accepted in all civilized countries, and I believe that we may proceed to punish those responsible in full accord with both our own traditions of fairness and with standards of just conduct which have been internationally accepted.”
Can a statute truly constitute Law if it mandates Evil? Nuremberg provided an emphatic “no” to this perennial question of the philosophy of law. By stressing in its documents that a statute trampling upon moral imperatives is nothing more than legalised murder (that is, murder enshrined in the clauses of positive law), the Tribunal signalled a resurgence of natural law thinking – on a scale unprecedented at either the national or, certainly, the international level.
The Nazi defence team strongly relied on arguments rooted in legal positivism, arguing that their clients were acting entirely within the sovereign, written laws of Germany at the time. However, the philosophical credo of Nuremberg was defined by the work of Gustav Radbruch, a German legal scholar and follower of Immanuel Kant – an essay titled Statutory Lawlessness and Supra-Statutory Law (1946). According to the “Radbruch formula,” unjust laws cease to reflect legal principles – or, in essence, to constitute legal norms at all. This allowed the realities of the national legal order to be evaluated through the lens of natural law. The Tribunal appealed to “higher principles” that stand above national legislation.
The shadow of Immanuel Kant – whose categorical imperative demanded that a human being always be treated as an end and never as a means – was invisibly present in the debates that shook the courtroom. After all, Nazism was the ultimate manifestation of precisely what the great thinker had railed against in his writings: the treatment of people as mere means – as objects of discrimination, propaganda, inhumane experiments, and extermination (masked by euphemisms such as “racial hygiene,” the “Final Solution,” among others). Nuremberg also followed Kant in affirming that every individual – even the most heinous criminal – has the right to a fair trial, for he (or she) remains a human being.
In the arguments of prosecutors and experts, in the remarks of judges, and in the reasoning behind the Tribunal’s decisions, an epic clash played out between the positivist (formal-normativist) and natural law conceptions of justice – invisible, yet monumental in its significance and far-reaching in its consequences. Here, natural law appeared not as the abstractions of armchair theorists, but as a formidable force drawing a decisive line under the criminal “legal order.”
Natural law serves as a criterion for evaluating positive law. Nuremberg demonstrated that, in extreme cases, the Themis of international justice can and must look beyond the formalism of a legal-positivist veil to perceive, in the light of natural law, the abyss into which the inhuman Hitler regime was plunging the world while hiding behind that very veil.
A state’s legal order is a realm immune to external interference; sovereignty acts as the skin of the state body. But what is to be done when this covering, intended to protect the body from infection, becomes the source of a terrible contagion itself? If the foundation of a building meant to provide shelter and security has rotted away, eaten through by egregious arbitrariness and inhumanity, and its rooms are used as torture chambers, does it not deserve to be demolished? Nuremberg answered “yes”.
Nuremberg established that a sovereign state is not an absolute fortress exempt from the Kantian “categorical imperative.” International law does not generally address global metaphysical questions, focusing instead on practical objectives. Yet at Nuremberg, the pragmatism of the victors aligned remarkably well with the universal moral imperative of natural law – to punish monstrous, inhumane acts in the face of which positive law had proven powerless.
Thus, Nuremberg served as retribution against Evil and defined the legal principles of the post-war world. It embodied the triumph of natural law. Its principal legacy lies precisely in the bold attempt to place Law above Force – even if that very attempt was born of the triumph of right over might; this legitimacy, rooted in natural law, outweighs all of Nuremberg’s dogmatic, procedural, and organisational flaws combined.
Today, as certain legal systems legalise inhumanity, including the resurgence of Nazi ideology, the conclusion once reached at Nuremberg takes on undeniable contemporary relevance.
The dogma of legal retribution
Another unique feature of the Nuremberg Trials is the coordinated work of representatives of different legal traditions – judges and prosecutors of the four Allied nations. It was not only an institutional but also a cultural and legal experiment that could fail. However, the chosen format has proven its viability despite certain differences.
If law is a language, then legal doctrine is its grammar. Without proper grammar, the meaning fades away and is lost. Every lawyer knows that calls for justice without reliance on doctrinally sound constructions can lead to lynching, extrajudicial executions, or quasi-judicial retribution.
But how can you dogmatically describe a situation of “a criminal system (organisation)” where responsibility is diluted among thousands of functionaries, each of whom is nominally just a cog in the wheel? How can you dogmatically describe a crime that was perpetrated without direct orders but by virtue of membership in a certain organisation? The Nuremberg Trials resolved this extremely complicated problem by formulating dogmatically correct notions of international criminal liability and collective guilt, which encompass all the guilty and spare the innocent.
In this sense, the main doctrinal document of the Nuremberg Trials – the Charter of the International Military Tribunal (an annex to the London Agreement signed on August 8, 1945) – is distinguished by a highly practical novelty.
It has introduced the categories of crimes that have become the cornerstone of international criminal law.
Article 6 of the Charter defined three categories of crimes coming within the jurisdiction of the Tribunal:
1. Crimes against peace: planning, preparation, initiation or waging of a war of aggression;
2. War crimes: violations of the laws or customs of war (murder, ill-treatment or deportation);
3. Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.
Crimes against humanity were set aside from war crimes and were potentially not connected to military actions, although the connection was partially discernible in the Charter.
The Tribunal exposed loopholes in the so-called laws of war, which led to an overhaul of the Geneva conventions (1949). They expanded the protection of civilians and introduced the principle of universal jurisdiction for war crimes (aut dedere aut judicare).
Article 8 established that acting pursuant to orders shall not free from responsibility, but may be considered in mitigation of punishment. This norm has eliminated the “I just followed orders” defence line, which was used for centuries to justify the actions of the military and officials.
Years later, philosopher Hannah Arendt, who watched the trial of Adolf Eichmann in Jerusalem, formulated the concept of “the banality of evil,” which elucidated on the conclusions made in Nuremberg. Monstrous crimes are not committed by monsters but by ordinary bureaucrats who “faithfully” executed orders. How can you judge a person who just did his job well? The Nuremberg Trials provided the answer: individual liability for one’s actions, regardless of official status and subordinate relationships.
And lastly, the Tribunal declared that the war of aggression is “the supreme international crime.”
Although the Tribunal did not apply universal jurisdiction but acted on the basis of the law of occupation, the approaches used in Nuremberg provided an impetus for the emergence of this principle (at the trial of Adolf Eichmann in Jerusalem and the Klaus Barbier case in France).
Regarding the doctrinal and procedural aspects of the Tribunal, it can be described as a “surgical intervention,” a painful and possibly imperfect action that was vitally needed to prevent the spread of both law-shattering revenge and impunity.
In the era of digital noise and artificial intelligence, at the beginning of the second quarter of the 21st century, we have found ourselves at a crossroads. The impression is that the legacy of the Tribunal is being swallowed by the quicksand of geopolitical and ideological chaos that is spreading throughout the world.
Back then, in 1946, the International Military Tribunal became a hammer brought down upon the criminal state and its legal order. But can the doctrine of international criminal law keep pace with the increasingly more sophisticated methods of modern warfare?
Nuremberg put on trial specific individuals on whose orders unprecedented atrocities were committed. But who is the criminal today? Who is the subject of a “crime against humanity” if the target is chosen by autonomous artificial intelligence? The coder? The code itself? The drone operator sitting thousands of miles away from the target? The AI that takes the decision to attack? Or the corporation that sells dual-use technologies?
Are the Nuremberg principles applicable to the “hybrid warfare,” when an order to kill is issued through an encrypted channel, while the perpetrator is located overseas? How broadly can the notion of “superior responsibility” be interpreted? Can the CEO of a technological company be called to account for the development of software the use of which resulted in war crimes?
Eighty years ago, the truth was captured in documentary and oral evidence. Today, it is diluted in digital noise. Orders are now seldom issued on paper; we more frequently have to rely on “digital traces” (drone footage and group chats). How to survive in this ocean of data? Back then, witnesses looked the accused in the eye. Today, the witness is a server storing logs in the silence of data centres. How can you interrogate a machine? How can you make a code feel the weight of an oath?
And lastly, how can we distinguish documentary evidence from a clever forgery in the era of post-truth and deep fake? Back then, the judge could see the tears of the witness. Today, the judge watches a potentially AI-generated video file. How can we distinguish reality from a simulation? Is our intellect being held hostage by ubiquitous algorithms that determine what we see and what stays hidden?
On the one hand, as was already noted, without a clear legal doctrine, justice risks becoming a theatre of shadows. On the other hand, any law, without sacrificing its core doctrinal structure, must remain capable of progressive evolution incorporating conceptual and technological dynamics. That is why international criminal law of the 21st century must have no “grey areas” for crimes against humanity. This principle, which was formulated and applied for the first time in 1946, must be able to “breathe,” that is, to evolve in terms of both the legal doctrine and the philosophy of law, taking into account changing threats.
What can be broadly termed as the “hermeneutics of Nuremberg” is capable of meeting these challenges, exposing all links of the invisible chain spread across servers and offshores. It can be used to determine the extent of liability of the drone operator sitting thousands of miles away, the corporation that created dual-use technologies, and the seller who supplies warring sides with weapons of mass destruction. It can be used to qualify an algorithmic command and a tweet as evidence of crimes against humanity.
However, this cognitive optimism is dampened by other, less reassuring observations.
21st century: International criminal law in crisis
Positive law can be compared to a full-flowing river. It can bring life by offering its waters for irrigating fields and groves, but at the same time it can nurture dangerous infections. Nuremberg emerged as a dam of sorts, since for the first time in human history it set the boundaries for impunity of national lawmakers and law enforcers. But has the pressure exercised by geopolitical realism and neoliberal cynicism impacted and deformed the core pillars holding this dam together?
In Nuremberg, there was a successful effort to harmonise regulations pertaining to different legal traditions, law enforcement practices and doctrines by blending all them into a single fabric to create a human-centred vision of justice, good and evil, crime and punishment. Could it be that this fabric became rotten these days? Could it be that it turned into a patchwork quilt, torn apart by all kinds of mercenary considerations?
Do the Nuremberg Trials still shine as a torch in the sanctuary of present-day international criminal justice? Or have they turned into fading coals, all covered in the ash of ideological preferences and geopolitical interests? Has the notion of universal jurisdiction turned into a political hunting weapon these days?
Nuremberg helped shape the carcass of modern international criminal law. It could seem that it would go on to develop the institutional and regulatory muscle to be able to adequately counter the threats hanging over the humankind and especially the threats to what we call humanity.
However, it took almost half a century after the Nuremberg Trials to establish international tribunals for former Yugoslavia (1993) and Rwanda (1994). It was only in 2002 that the International Criminal Court (ICC) opened in The Hague. However, it lacks universal jurisdiction. Importantly, the clanking double standards and foreign policy agendas have made it much harder to hear the tolling Nuremberg bell.
Why have so many countries around the world refused to take part in the ICC? Could it be that this institution is extremely unstable due to its overt political bias? Could it be that, to use a metaphor, the beams supporting this would-be temple of justice, even if the court in The Hague does not exactly live up to this status, even from rhetorical perspective – these beams can collapse any minute and bury those who trusted this institution under the rubble?
It is telling that most permanent members of the UN Security Council (Russia, China and the United States), as well as major powers like India and Indonesia are not parties to the ICC. The fact that these and other states have been seeking to shield themselves from the ICC jurisdiction demonstrates that the ICC is facing an extremely deep crisis of confidence.
Equally telling is the fact that while most permanent members of the UN Security Council have not signed the Rome Statute, this body has the authority to refer cases to the ICC, as it happened with Libya and Darfur. This, in turn, creates quasi-universal jurisdictions when principles which are presented as having a universal nature do not apply to everyone both de facto and de jure.
If the 1946 International Military Tribunal can be compared to a hastily deployed field hospital, then the International Criminal Court of today could be well compared to a permanent hospital. But does it have the means to treat all the ills it purports to be able to cure? Does the personnel have the required skills for establishing a diagnosis and administering treatments, let alone carry out an operation? What about compulsory treatment? Do they have the necessary resources? What has this hospital actually achieved over more than 20 years of its existence, apart from the successful absorption of budgets running into the billions?
The whole idea and the way international criminal justice system operates are experiencing a deep-running crisis 80 years after the Nuremberg verdicts.
How did it happen that a crucible that was designed to produce universal principles turned into a shady dwelling where truth is blurred to serve political agendas? Or did it become Plato’s cave, where dwellers have turned away from the sun and can see nothing but ugly shadows created by ideological preferences and geopolitical ambitions?
Today, we will not find what is left of the Promethean fire in The Hague, where an institution which casts itself as Nuremberg’s immediate successor is located. The shadows are also becoming thicker. This is probably the only thing that is left of the Nuremberg flame in present-day international criminal justice.
How was it possible to replace the mirror of truth with the distorting mirror we face today?
The Hague’s anti-Nuremberg and the collapse of universality
The global community embraced the Nuremberg Trials as restitution of the cosmos of justice from the chaos of violence and tyranny. Their jurisdictional role put aside, the Nuremberg Trials became a purifying and unifying ritual for all humanity in the eyes of the millions of victims and a billion of observers. At the same time, the majority of people in the world feel deeply disconnected from the International Criminal Court. The Global South countries perceive it not as the guardian of law, but rather as a means of Western dominance and an elite club deciding the fate of “barbarians”.
In all appearances, this is due to the fact that the institution of international criminal justice has degraded into a theatre of the absurd where representatives of the Global West have claimed the roles of judges for themselves, while the others are cast solely as accused. Also, in its practical activity, the ICC fragments the Nuremberg legacy, stripping it of its integrity and interconnectedness, and cherry-picks only those elements that suit the masters of the global “behind-the-scenes” establishment.
The Nuremberg Trials were a game-changer for the international criminal law and justice due to their inherent moral clarity and firm moral consensus. Those were the qualities that essentially made it possible. Both the judges and the prosecutors took guidance from general natural legal considerations – their similar understanding of morality, conscience, and common sense. All of them were equally convinced that the atrocities committed by Nazis threatened the civilised existence of humanity per se, and therefore, could not be justified by any considerations – whether legal, ideological, or based on worldviews. In the tribunal documents, humanity speaks the common language founded in the common civilisational legacy – a language that firmly binds morals and law together.
The Hague International Criminal Court – which, truth be told, cannot be called international in the full sense of the word – this unity is non-existent. A series of studies have convincingly shown that judges representing different legal, cultural and political traditions vote according to so-called coalition models, or based on the principle of political blocs, regional affiliation or common ideological legacy, aside from any actual legal – that is, objective and neutral – criteria.
In The Hague’s kingdom of crooked mirrors, the law ceased to be the existentially significant “moral minimum” and turned into a language of (geo)political bargaining, ideological proclivities and aversions, etc. Hence the sweeping de-universalisation of all the approaches that the International Criminal Court attempts to employ as unconditionally and universally binding.
In other words, as opposed to the Nuremberg Trials, The Hague’s institution has no integral ethical and legal standing. It has been replaced by an array of competing precepts of all stripes – let’s call them liberalism, post-socialism, post-colonialism, partially Islamism, so on and so forth – that are far detached from the natural legal approach that was at the root of the Nuremberg Trials. It is hardly surprising that the ICC judgments reflect not so much the jus cogens norms, but rather the polarisation of the modern world – the sharp division into distinct political and civilisational camps.
Thus, by rejecting the fundamental criterion of universality – that based on values and essence – the ICC is not and cannot be a truly universal court in the sense that the Nuremberg Trials were.
From retribution model to justice imitation
The Nuremberg Trials implemented a classical model of criminal punishment based on the principle of retribution – a just and commensurate punishment. The culprits were in the hands of the court and incurred an actual punishment in the form of execution or long prison sentences. The punishment was inevitable while the retributed evil was absolute. That created an effect of legal triumph and moral catharsis.
Furthermore, the mandate of the International Military Tribunal had clearly defined timeframes and needed no bureaucratic self-preservation. It was independent from routine procedures.
It is ridiculous and sad to compare these characteristics of Nuremberg justice that won it the recognition and acknowledgement of many generations, to what is happening in The Hague.
Before anything else, it is a bureaucratic machine with an enormous annual budget and inflated staff that is quite self-sufficient and almost completely out of touch with reality – as indicated, among other things, by the ICC’s stubborn attempts to proclaim itself a universal institution, which is certainly not feasible because its legitimacy is purely conventional. The criminal prosecution of ICC functionaries by Russian authorities for their insane farce around arrest warrants; the US sanctions against an ICC prosecutor and other actions are all constitutionally substantiated measures of criminal and procedural response to the infringement of sovereign supremacy by a supranational body.
It should be reminded that the Nuremberg Trials stood on universalism. This world view, nurtured by the ideas of the Enlightenment and the memory of the tragedy of World War II, prevailed throughout the 20th century. The fact that more and more countries are starting to see universal jurisdiction as a threat to their sovereignty is largely the fault of The Hague’s practices that were built upon ideological cornerstones rather than legal ones. Even genuine enthusiasts of permanent international criminal justice – which were plenty in this country as well – soon realised that what was initially perceived as an idealistic, if sometimes not very appropriate, legalizing of international relations was merely a smokescreen for neo-liberal interventionism.
Double standards: The Procrustean bed and selective justice
It is no coincidence that, for the Global South, the court in The Hague epitomises neo-colonial control. The majority of the world’s population does not view the ICC as a court of their own, but rather as a court of global elites imposing Western templates – a far cry from a true Court of the Peoples.
In the ancient Greek myth, the bandit Procrustes would force travellers onto his bed, hacking off their legs if they were too long for it or stretching their limbs if they were too short. Much like that ancient brigand, ICC officials stretch or truncate the principles of the rule of law to suit the political ambitions of particular states, thereby trampling on the concept of equality before the law – a cornerstone of legal civilisation. Tellingly, it is primarily African leaders who are laid upon the Procrustean bed of The Hague’s justice. The majority of the court’s investigations and verdicts have targeted Africans, entrenching the perception of it as a “court for Black people” – an instrument of neo-colonialism.
The case of Laurent Gbagbo – the former president of Côte d’Ivoire – illustrates this Procrustean logic. The ICC spent eight years prosecuting only one side of the conflict and kept Gbagbo detained for two years after his acquittal, while the prosecution’s appeal was pending. This logic dictates that African leaders must either fall in line with Western expectations or be stripped of power and hauled before the ICC.
The case involving a militia in Darfur highlighted another facet of this distorted reality: the ICC reacted swiftly to an attack on UN peacekeepers yet spent years ignoring the mass atrocities against civilians.
The ICC’s actions thus display striking selectivity: throughout its more than twenty-year existence, it has steadfastly avoided investigating crimes committed by US military personnel in Afghanistan and Iraq, while displaying remarkable alacrity in cases targeting officials from non-Western nations. This represents not merely sporadic instances of double standards, but a pattern of selective law enforcement.
Recently, however, the ICC appears to have realised that for the first two decades of its existence it focused almost exclusively on conflicts in Africa while ignoring violence perpetrated by powerful Western states – a stance that sits uneasily with its own high-flown rhetoric about universal justice. Consequently, it has sought to prosecute leaders of Western and other powerful nations. Paradoxically, in doing so it risks total collapse, as the architects of neoliberal globalisation – Western states, including signatories to the Rome Statute (the treaty to which the Court itself is a legal appendage) sabotage its directives.
A few examples clearly demonstrate how, for the collective West, political expediency invariably outweighs formal international obligations.
When the ICC Chief Prosecutor sought arrest warrants for both Israeli and Hamas leaders, the UK government asserted that the Court likely lacked jurisdiction over Palestine. German Chancellor Olaf Scholz publicly stated that he “could not imagine” an Israeli leader being arrested on German soil. Meanwhile, the French Foreign Ministry noted that, given the Israeli Prime Minister’s immunity as the head of a state that is not a party to the International Criminal Court, France had no intention of acting on an arrest warrant against him. Hungarian Prime Minister Viktor Orbán conspicuously welcomed Netanyahu with full honours and announced his country’s withdrawal from the Rome Statute.
These moves, among other things, further fuel the politicisation of the situation. The ICC increasingly views itself as a “besieged fortress” and relentlessly seeks the patronage of the world’s powerful states – a tendency that inevitably leads to greater servility in its functioning. It is hardly surprising that its jurisdictional actions are frequently aimed primarily at exerting moral and political pressure.
A tool of hybrid warfare: The games of arrest warrants
A prime example is the issuing of arrest warrants for the leaders of states that are not party to the Rome Statute. From a legal standpoint, this is nonsense, to put it mildly; yet in terms of media impact, it is a sensational, high-profile gesture – precisely the effect intended by the masters of the Hague panopticon. Both customary international law and the UN Charter firmly uphold the immunity of high-ranking state officials. The ICC, however, insists that the Rome Statute overrides these immunities, and not only for member states, while attempting to prosecute citizens of non-member states for acts that those states do not consider subject to ICC jurisdiction.
All of this constitutes a flagrant violation of the fundamental principle recognised as far back as Roman times – of pacta tertiis nec nocent nec prosunt (treaties neither harm nor benefit third parties). The ICC’s attempt to establish a supra-constitutional hierarchy headed by a supranational judicial body – effectively acting as a secular Pope issuing interdicts against the leaders of defiant states and churning out arrest warrants that could not be executed without risking a third world war – has failed. Worse, it has played a decisive role in discrediting the Court. These games with arrest warrants outraged even the United States, which imposed sanctions on ICC officials.
The Nuremberg legacy in the penal sphere (that is, in matters of criminal punishment) is the principle that punishment is inevitable for crimes directed contra omnes, against all humanity. The Hague, by contrast, demonstrates the wonders of double bookkeeping, tirelessly manoeuvring between declared universality and its own exorbitant bias. When the question arises of crimes committed by NATO military personnel – in Afghanistan or Iraq, for example – The Hague’s sword miraculously becomes dull. As a result, international criminal responsibility has ceased to be an instrument for restoring a disturbed balance (retributio).
In fact, before our very eyes, the Hague institution has turned into an ordinary instrument of lawfare, in which law is resorted to as an improvised weapon of ideological confrontation and geopolitical battle. The ICC’s priorities reflect not so much the objective gravity of the crimes as political expediency.
The sword of international criminal responsibility bequeathed by Nuremberg – heavy, direct, and inevitable – has been replaced in the practice of the ICC by the poisoned dagger of insinuation. Accusations are often based on the presumption of guilt of certain political figures; the process becomes more important than the truth. Punishment, following the general degradation of penal logic, has ceased to be a consequence of a proven act. Instead of harsh but fair retribution, we see a farce in which legal rhetoric is used to demonise geopolitical and ideological opponents.
More than three dozen arrest warrants still outstanding are evidence not only of the ICC’s stunning impotence but also of its politicisation. After all, issuing a warrant that is obviously impossible to execute is a symbolic gesture, an instrument of political pressure – not genuine justice. Let us compare this with Nuremberg, which delivered real, executed punishments.
Imperatives of justice behind the mirror of politicisation
By focusing on secondary consequences while ignoring the root causes of conflicts as long as those it views as belonging to its own camp, The Hague has de facto made the jus contra bellum (the law against war) principle worthless. In Nuremberg, the victor’s justice took on a universal dimension and ensured universal justice, while The Hague moved in an opposite direction in an attempt to assert the victor’s justice in a partisan manner, i.e., the right of the Western minority to judge everyone else. The fact that many countries opted for leaving the ICC’s jurisdiction, including by withdrawing their signatures under the Rome Statute or refusing to ratify it, serves as a clear confirmation that the international community does not believe that weapons for waging hybrid wars, even when cloaked in a court dress, have the right to speak on behalf of humankind.
Selective law enforcement and ignoring UN Security Council resolutions, when they do not benefit the centres which fund the ICC operations, as well as attempts to prosecute leaders from countries which did not ratify the Rome Statute, and thus undermining this whole agreement – all this wreaks havoc within the system of international law in general.
In this connection, we often hear that the ICC undermines international criminal law by its activities. Alas, this goes beyond isolated instances of procedural inconsistency, or lack of transparency in the way decisions are made, or selective case law. The Hague has discredited the very idea of international criminal justice at its core. The temple of justice turned into a puny courtroom packed full of geopolitical appetites and ideological phobias.
The ICC’s degradation stems from the failure of neoliberal hegemony. The Rome Statute can be viewed as a product of the 1990s, when globalists expected what they called the end of history to become reality. But history did not end, as demonstrated by the fact that Russia, India, Brazil and other countries started reinforcing their sovereignty, while China generated high growth rates. As for the responsibility to protect concept, which inspired the ICC’s creators, the emerging powers view it as blatantly interventionist. This is how the ICC became locked in its ideological schizophrenia by trying to apply norms developed in an era of US dominance against those who oppose this hegemony, while lacking the resources and the will to take this hegemon to trial, even if, by the way, this hegemon can no longer aspire to enjoy this role.
For all its inevitable shortcomings, the Nuremberg Tribunal was the best international justice could achieve in the historical environment of that time when justice (Dike) went hand in hand with retribution (Nemesis). But The Hague replaced the altar of justice with a gunsmith’s shop serving the global West where what remains of universal principles is forged into lightnings for the newly-proclaimed Olympians and shackles for all the rest.
In its deeper meaning, Nuremberg can be traced back to the way Plato understood punishment where the wrongdoer faces retribution by virtue of law rather than according to the might makes right principle. It may have been a tribunal established by the victors to judge the defeated, but its verdicts rested upon the universal notion of justice rather than arbitrary action of the triumphant side.
Meanwhile, the would-be truths produced by The Hague are far from universal. They are contextual and subject to momentary considerations. Nuremberg answered the question of how an absolute evil can be held to account. Meanwhile, The Hague’s mission consists of relativising evil, which can be beneficial to some while detrimental to others. This places political expediency ahead of justice, while procedural and rhetorical tricks and sophisms leave little, if any, space for truth.
Nuremberg enabled Germany and the world to clean off the stain of Nazism by asserting the universal principles of justice, crime and punishment, while The Hague offers universal procedures with a partisan bias. But even if it can be assumed that the ICC follows formal procedures, this cannot guarantee genuine justice in the application of law.
In Nuremberg, humankind made the Never Again vow. The sacred memory of the victims and a clear sense of responsibility for the future came together to ensure that Nuremberg’s legacy remains effective. Meanwhile, the ICC suffers from an incurable historical amnesia by replacing memory with momentary political games, ignoring the neo-Nazi crimes and the rehabilitation of the aggressor’s accomplices. The attitude of influential forces in Western society – for which the ICC acts as a mouthpiece – towards neo-Nazi trends in both Ukraine and across Europe is defined by the formula “let them exist” – a stance with perilous consequences that betrays Nuremberg’s legacy.
From an ideological perspective, Nuremberg signalled the triumph of values lying at the foundation of civilised law over the horror of anti-values used by the Nazis in their assault on the moral foundations of human existence. The Hague treats universal justice as the collective West’s Trojan Horse. Justice is being offered at a geopolitical auction amid noisy perorations about universal principles and equality for everyone.
The Nuremberg Tribunal was a provisional body created to deal with an extraordinary situation, but it was also extremely legitimate. The ICC operates as a permanent mechanism and was created in the years of relative calm. However, its legitimacy is shrinking faster than Balzac’s magic skin.
Themis out, Janus triumphs
As a result, what emerged on the ruins of the post-war world order was not a temple of Themis but a pagan shrine where people pray the two-faced Janus while chanting that crime is what the strong of this world find profitable to be qualified as such. They replaced a universal vision with selectiveness and partiality, substituted political expediency for principles, while the disastrous imbalance between the three main pillars of penal law – the gravity of offence, the severity of punishment and its inevitability – is visible to the naked eye.
While casting itself as Nuremberg’s successor, the ICC became its opposite. Nuremberg was a mirror of truth and incarnated law and truth, while The Hague offers a distorted vision of justice to an extent of becoming unrecognisable, while justice itself is nowhere to be seen. In its current state, the ICC can serve as a spectacular example of what Carl Schmitt called political theology. All the key notions in ICC’s documents – be it jurisdiction, crime, aggression, humanitarian intervention, etc. – they all prove to be subjected to a political agenda. Therefore, returning to the Nuremberg principles would require something more than simply reforming the ICC procedures.
Conceived as a shield for humanity, the ICC has turned into a bludgeon used to hit those who refuse to be part of the unipolar world order. This court has the most advanced regulations, the highest costs, while remaining unrivalled in terms of its impotence. The burden of the Nuremberg legacy proved too much for it to shoulder. Or perhaps this legacy is too sacred and pure with all the haze and darkness descending upon this world…
A light that never fades: Sovereignty, memory, inevitability
Russia has always seen and will always see the Nuremberg Tribunal as the Trial of Nations that rejects relativism in matters of good and evil, especially when the magnitude of evil threatens both the civilisation of law and human existence as such. Its formal shortcomings cannot overshadow its legal and moral power, which stems from the supra-positive principles of the civilisation of law that transcend the will of any state.
Moreover, the importance of Nuremberg is not limited to the judgement of Nazism. It was largely the starting point of the rise of the post-war world order. Therefore, any attempts to revise the Nuremberg legacy amount to a revision of the outcome of WWII, downplaying the role of the Soviet Union in defeating fascism, and “forgetting” Nazi crimes. In our opinion, this is not just a delusion or idle fantasies, but an attack on the existing international law and constitutional identity.
While upholding the inviolability of the Nuremberg principles enshrined in the UN Charter, the Russian legal tradition and diplomacy have been working to prevent their distortion. In particular, the penalisation of the public denial of facts established by the Nuremberg Trials (Article 354.1 of the Criminal Code of Russia) is in keeping with the Nuremberg covenant of the inevitability of punishment and the impermissibility of forgetting crimes against peace and humanity.
Unlike the collective West, Russia has not forgotten that Nuremberg was made possible by a shared victory over a monstrous Evil, a shared sacrifice, and a shared memory. The West is betraying this memory, while Russia is preserving the existential understanding of international justice that is the legacy of Nuremberg, which the West has replaced with procedural games.
A vast network of state and public institutions has been created to keep the Nuremberg legacy. Russia’s Historical Society, Investigative Committee and Foreign Ministry are focused, in part, on protecting historical truth. The National Centre of Historical Memory was established under the President of Russia to protect the Nuremberg principles at the highest state level. The holding of international forums, including the one titled No Statute of Limitations: Nuremberg, 80 Years On, the publication of archival documents, and the daily activities of law enforcement agencies in this sphere are creating a vibrant and effective memory infrastructure, which stands in sharp contrast to the amnesia and impotence of The Hague.
Unlike the International Criminal Court (ICC), Russia has demonstrated its capacity for the optimal administration of justice, rather than its simulation. Our law enforcers are actively using Nuremberg documents for investigating Nazi crimes perpetrated during the war and in modern-day Ukraine. In addition to the aforementioned codification of the inadmissibility of the rehabilitation of Nazism, they are painstakingly collecting evidence of crimes committed by Ukrainian neo-Nazis, which is a direct continuation of the Nuremberg legacy. Criminal persecution and punishment for the rehabilitation of Nazism are a reality of law enforcement in Russia.
The Nuremberg imperative – “Crimes against humanity must not go unpunished” – is still alive.
But who will realise these precepts in a world where the latest inversion of international criminal justice has become hostage to geopolitics and ideological phobias, where distorting mirrors multiply, while clear reflections fade away? Humanity is yet to answer this question.
In this literally critical situation, when Law is yielding to Force more rapidly than ever since the Nuremberg Trials, Russia is defending classical international law based on the sovereignty of its main subjects (states) against a host of newly-minted “rules” and the politicised practices of The Hague. Refusal to ratify the Rome Statute is not isolationism but elementary caution and basic protection of one’s constitutional identity. While protecting the foundations of international legal order against their destruction by Hague-style voluntarism, Russia continues to view international law as a harmonious system of agreements among equal subjects rather than the diktat of directives handed down from above.
That is why Russia is protecting the Nuremberg legacy – forgotten by the West –not only in its national territory but also on the international stage. Therefore, while consistently upholding the principle of sovereign equality of states enshrined in the UN Charter, Russia does not recognise the jurisdiction of the ICC, which is trying to force its decisions on states that have not agreed to accept them. Russia is against the practice of permanent UN Security Council members (the United States, Britain and France) initiating investigations against other states while remaining immune themselves.
The Nuremberg doctrine of natural law and universal human rights does not reject the sovereignty and priority of the national constitution and national law. It only stipulates the unacceptability of their use by the authorities to commit infernal atrocities and crimes against humanity. Consequently, in a civilisation based on the rule of law, sovereign power cannot infringe upon inalienable human rights. Sovereignty does not mean impunity. But legal universalism does not imply the right of an interstate clan to crack down on undesirable states and their leaders either. True justice is only possible where there is respect for the sovereign equality of states and inalienable human rights.
As it was noted, the attitude of the West, which is manipulating the levers of supranational jurisdiction, to the “spirit of Nuremberg” is not merely utilitarian, but profoundly cynical. The West turns to it for the accelerated dismantling of sovereignties and elimination of national leaders who appear disloyal to the global establishment. Unlike in the West, the idea of the unacceptability of Nazism has a powerful consolidating effect on Russian society. To preserve the memory of the millions who perished, our country is promoting an architecture of international criminal liability that is based on sovereignty and equality, and can be used to give the harshest possible assessment of all atrocities similar to those committed by the Nazis, regardless of who perpetrates them. That is why Russia stands for a more equitable and depoliticised system of justice based on alternative institutions that are free from Western tutelage.
Trust for international criminal justice can only be restored through the creation of its new architecture devoid of the flaws that have turned the ICC into an instrument of political arbitrariness.
However, we should be realistic: the window of opportunity for international justice, specifically criminal justice, will only open when there is a consensus among the major powers on which international security and peace around the world primarily depend.
In conclusion, I would like to describe the Nuremberg legacy as a majestic lighthouse that illuminates the vast expanses of international law. The more time passes since its construction, the more its light depends not only on the power of the lamp itself, but also on the efforts of its guardians, who must take care of it daily, meticulously cleaning its glass and carefully repairing its crumbling steps, and keep the light burning for the benefit of the civilisation of law.