Peace and Global Justice through Prosecuting the Crime of Aggression? Kelsen and Morgenthau on the Nuremberg Trials and the International Judicial Function

Abstract

Hans Kelsen’s and Hans Morgenthau’s views on international law diverged sharply. Nowhere is that divergence more striking than in their positions on the role of judicial bodies. While Kelsen held a strong international court to be indispensable in order to pacify international relations, Morgenthau assumed that international courts would only emerge as a result of an already pacified international political system. Nonetheless, the two men both were highly critical of the way the Nuremberg International Military Tribunal established after World War II handled the issue of punishing aggressive war. Both questioned the legal bases for the Tribunal’s jurisdiction of the newly-created “crimes against peace” and pointed to a potentially fundamental problem of institutionalized international criminal law in a world, in which some states “are more equal than others” (Orwell). Difficulties in defining the crime of aggression and the problem of unequal application of international criminal law continue to haunt this area of international law until today.