The Legacy of Rome II - Aftermath

This proposition has found its way into all the later statutes of international criminal courts and tribunals. Thus, the sovereign state has to some extent been dismantled. It has lost its pivotal position within the international legal order. Whatever status a human community may have or claim, its leaders are placed under the rule of international law.

In fact, a state — that in actual terms means, a government — should never be above the law.

Neither should one accept the principle: Essentially, therefore, Nuremberg, together with the UN Charter, marked the inception of the international community as a legal concept that is more than an academic construction. As long as governments were the exclusive masters of all occurrences within their borders, the real impact of international law could be dismissed as being marginal or even insignificant.

Much too often, treaties had been ridiculed just as pieces of papers that could not resist the slightest wind of change. All of a sudden, however, it appeared that there was a common moral ground acknowledged by all states that demanded respect and could eventually be enforced through common institutions. It is true that the international community is a concept lacking absolutely clear-cut contours. But it may become visible and take concrete shape through rules and mechanisms designed to uphold certain common values the integrity of which is essential for the peaceful existence of mankind as a whole.

Since the exercise of criminal jurisdiction belongs to the key functions of governmental power, the nucleus was created of a development which found its culmination point in the two ad hoc tribunals established by the Security Council 24 and the International Criminal Court ICC under the Rome Statute. Although the Rome Statute has not yet been ratified by all states and currently is being actively combated by the United States, the ICC encapsulates the ambition to establish at world level a judicial function that is not dependent on state consent but authorized to discharge judicial functions even without or against the will of states.

Thus, a network of institutions, which belong to an overarching structure that has primacy over state sovereignty, is slowly emerging and expanding. The IMT showed that it is indeed feasible under the real conditions of international life to conduct criminal proceedings under the auspices of an international authority. International criminal prosecution has thus become the hallmark of the emergence of an or the international community.

Perhaps the most significant lesson to be drawn from the Nuremberg trial is that criminal responsibility does not necessarily depend on national legal statutes. At Nuremberg, the German law of the Nazi period played no role as a basis for prosecution. It was international law on which the IMT relied.

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According to the official interpretation of the IMT, all the offences listed — crimes against peace, war crimes and crimes against humanity — had firm foundations in customary international law. This is a contention which was already discussed. The remarkable fact was that the screen between international law and the individual, normally constituted by state sovereignty, was pierced. According to the traditional dualist view, international and domestic law differed precisely regarding their scope ratione personae. International law addressed its commands to states, whereas domestic law dealt with private individuals.

Nuremberg brought that traditional conception of the relationship between the different legal levels of the house of law down to its knees. This was indeed a necessary and desirable quantum leap. In a world where observance and respect for human rights constitute one of the basic axioms of international law, it would be absolutely incongruous to deal with massive violations of human rights solely according to the traditional mechanisms on an inter-state level.

The notion that dictators might immunize themselves from any prosecution by enacting laws that legalize crime and injustice pursuant to a formal concept of the rule of law, has become unbearable within the framework of the new human-rights-oriented direction of international law. The rule of law must be understood in a substantive sense, in accordance with the values commonly recognized by the international community.

Respect for state sovereignty cannot be boundless. If a dictatorial regime cannot be stopped by its own people, then the international community must step in. In such instances, justice requires that the responsible leaders — and not a whole nation! Criminal sanctions can also have an important deterrent effect — although it must be acknowledged that in many countries the existence of international criminal law and international criminal tribunals is widely unknown and, therefore, can hardly influence the decisions of the leadership.

Today, individual criminal responsibility is the unchallenged cornerstone of the entire edifice of international criminal law. A crime against the peace and security of mankind entails individual responsibility,. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. Wherever international criminal tribunals are established, they rely invariably on the premise that the legal order of the country concerned has no determinative significance.

The individual, thus, becomes directly subject to international law.

The Charter of the IMT also provided for the prosecution of groups or organizations. This extension of the scope ratione personae of the indictment brought with it considerable difficulties. None of the texts governing the currently existing international criminal courts or tribunals has followed the Nuremberg example. It would be particularly difficult to accept states as defendants in criminal proceedings as well. Essentially, it would not be the state concerned but its people that would become the target of any punishment — over and beyond the consequences which derive for a state from the commission of an internationally wrongful act.

By definition, a trial against a state would be based on the assumption of collective criminal guilt — a notion implicitly rejected by the leaders of the four victorious Powers who opted in favour of a trial against the main war criminals who had not only launched a criminal war, but had also killed millions of their own citizens.

On the other hand, to impose on a people sanctions which suffocate it, denying it any opportunity to join the other nations, would not only be politically disastrous, as shown by the aftermath of the unfortunate Treaty of Versailles. It would at the same time amount to a blatant violation of the rights of the members of the succeeding generations who should bear no responsibility for the misdeeds committed by their fathers and forefathers.

1. Legacy of Nuremberg | Journal of International Criminal Justice | Oxford Academic.
2. Sound Bites: A Novel about Politics and the Media.
3. Growing Up in Bridgeport in the ‘40s and ‘50s;
4. Mary Beard: why ancient Rome matters to the modern world | Books | The Guardian!
5. In Search of Capn Tim : A Tale of Four Surf Sisters.
6. BBC - History - World Wars: The Legacy of World War Two: Decline, Rise and Recovery.

The criticisms against the Nuremberg convictions that were based on the offence of aggression have been mentioned. One can hardly dismiss those criticisms — although they were largely irrelevant inasmuch as all of the defendants were found guilty on a considerable number of other charges. At the present juncture, it is necessary to reconsider the issue. The fact that in crimes against peace were not a legally consolidated class of offences does not mean that the same judgment would still be valid today.

In order to clarify the legal position, the practice as it has developed since must be evaluated. As far as judicial pronouncements are concerned, no one has ever been convicted of aggression since the days of Nuremberg and Tokyo. In fact, there is no basis for such a conviction in the statutes of the currently existing international criminal courts and tribunals.

Although in the former Yugoslavia aggression was something very real, the Security Council preferred not to touch upon this burning question. Aggression does not figure among the heads of jurisdiction assigned to the ICTY. In the case of the ICC, it would have been almost natural to vest it with a corresponding title of jurisdiction in order to continue the line commenced at Nuremberg.

The crime of aggression is mentioned in Article 5 as an offence falling within the competence of the ICC. But Article 5 2 makes an important reservation that renders the statement of principle de facto inapplicable. It stands to reason that such an amendment to the Rome Statute will hardly ever be approved. Thus, Article 5 2 is a clear indication of the lack not only of practice, but also of opinio juris. During the drafting process, the issue was deliberately left open. The British House of Lords in a recent judgment 31 endeavoured to rescue the Nuremberg convictions notwithstanding this disclaimer, but did so rather ineptly.

The House of Lords could have reasoned more cogently by distinguishing between acts of aggression and wars of aggression. One can hardly believe that broad consensus will ever be attained on the definition of an act of aggression. Is a short-term armed intervention, carried out with a view to rescuing one's own citizens from a life-threatening situation, an act of aggression?

It is a different matter altogether if a state invades a foreign country with the intent to annex parts of that country or to expel and kill the persons living there. To be sure, the difference is one of degree only, but this difference has a qualitative character. When charges were brought at Nuremberg against the major German war criminals, the relevant facts were absolutely clear: Nazi Germany had launched a war first against Poland and thereafter against other European states. One may safely assume that agreement still exists today as to the necessity of prosecuting persons who are responsible for leading their country into a genuine war of aggression, while any understanding of the concept of aggression that goes beyond a narrow core would probably end up in acrimonious debate.

Nonetheless, an objective assessment of the legal position warrants the conclusion that on this issue we are still in the field of lex ferenda. It would be naive to believe that international mechanisms for the prosecution of perpetrators of international crimes can be run like domestic legal systems.

Because of the political character of all the relevant offences, international institutions cannot rely on any kind of bureaucratic automaticity. Without strong political backing, they will not be able to achieve their aims. The difficulties encountered by the ICC are very telling.

What is important here is the debate, not the resolution. Ancient Rome is not a simple lesson for us, nor is it a civilisation that we should gratefully admire. There is much in the classical world — both Roman and Greek — to engage our interest and demand our attention. But admiration is a different thing. But admiration apart, Roman debates are embedded in our own, and they are embedded in those of our predecessors who have in turn bequeathed their own problems, solutions and interpretations to us.

I am not only referring to debates on Catiline and civil liberties, but also to the lurid, largely fictional, anecdotes of Roman emperors that have framed our own views of political corruption and excess where does autocratic excess end and a reign of terror begin? Our own world would be immeasurably the poorer, and immeasurably less comprehensible to us, if we did not continue to interact with the Roman past. Cynically, we should probably also wonder whether Kennedy or Palmerston actually knew that their cherished slogan had first become a Roman commonplace after being uttered as a desperate plea from a tragic Sicilian as he was pinned to a cross and illegally crucified by a rogue Roman provincial governor in the first century BCE — a plea that had no effect whatsoever.

Inevitably, the Rome with which we engage is a moving target. That is partly because of the new ways of looking at the old evidence, and the different questions we choose to put it. It is a dangerous myth that we are better historians than our predecessors. But we come to Roman history with different priorities — from gender identity to food supply — that makes the ancient past speak to us in a new, as well as an old, idiom.

Whereas once the empress Livia, wife of the first emperor Augustus, was presented as a scheming manipulator and poisoner, we are now much more sensitive to the way male traditions tend to project villainy and self-interest on to women who have the fortune, or misfortune, to be married to the man in charge think Cherie Blair.

Livia may not have been a shy retiring lady innocent of all machinations, but we now realise that we would be the dupes of a tendentiously patriarchal vision to think of her simply as the wicked witch behind the throne. There have also been an extraordinary array of new discoveries — in the ground, under water, even lost in libraries — presenting novelties from antiquity that tell us more about ancient Rome than any modern historian before us could ever have known. We now have a manuscript of a touching essay by Galen, a Roman doctor whose prize possessions, kept in a lock-up store in the centre of Rome, had just gone up in flames; this resurfaced in the library of a Greek monastery only in We have discovered wrecks of Mediterranean cargo ships that never made it to Rome, with their foreign sculpture, furniture and glass destined for the houses of the rich, and the wine and olive oil that were the staples of everyone.

Surprising as it may seem, the best-preserved ancient battlefield turns out be under the sea. And, as I write, archaeological scientists are carefully examining samples drilled from the ice cap of Greenland to find the traces, even there, of the pollution produced by Roman industry — the mines in Roman Spain, for example, where thousands of people, children included, worked in appalling industrial conditions to produce the silver that ended up as Roman small change. Others are putting under the microscope the human excrement found in a cess-pit in Herculaneum, in south Italy, to itemise the diet of ordinary Romans, and to ask what went into — and out of — their digestive tracts, 2, years ago.

A lot of eggs and sea urchins are part of the answer. Roman history is always being rewritten, and always has been.

It is a work in progress, and the myths and half-truths of our predecessors always demand correction — as our own myths will no doubt be corrected by our successors in due course. For me, it is the one-sided thuggish image of the Romans that we especially need to re-examine. But it is much more misleading when it masquerades as the answer to some of the biggest questions about ancient Rome. Why did a small and very ordinary little town by the Tiber, with no obvious advantages, come to dominate first the peninsula of Italy and then most of the known world?

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Were they simply, as is often claimed, a community committed to aggression and conquest, built on the values of military success and little else? The fact is that Romans did not start out with a grand plan of world conquest. But the motivations that originally lay behind their conquests through the Mediterranean world are far harder to pin down. One thing is certain: Roman conquest undoubtedly was vicious. But Rome expanded into a world not of communities living at peace with one another, but one of endemic violence, rival power bases backed up by military force there was not really any alternative backing and mini empires.

The basic answer to that has little to do with superior tactics or even with better military hardware; it has much more to do with boots on the ground. In its early centuries at least, standard Roman practice, unique in the ancient world and most of the modern, was to turn those it had defeated into Roman citizens and to convert erstwhile enemies into allies and future manpower. It was an empire built — as those desperate refugees on the Danube must have hoped, long after the policy had ceased to be feasible — on the extension of citizenship and the incorporation of outsiders.

It was also an empire of which some Romans themselves were the most powerful critics. The liquidation of the empire began while he sat on the opposition bench in the early postwar years, and was completed toward the end of his life, during the administration of his fellow Tory Harold Macmillan. The same Macmillan, recognising that Britain had missed the European bus in the s as it began to record impressive economic achievements, would belatedly attempt to board it in the following decade.

But by that time the French President Charles de Gaulle had positioned his large frame at the European community's door, blocking British entry in and again in Britain subsequently joined Europe - figuratively with admission to the European Economic Community in , and literally with the opening of the Channel Tunnel in But the question of which was more important, its trans-Atlantic 'special relationship' or its trans-Channel connections, remained an open question for the rest of the 20th century and has continued to be so right up to the present day.

A World of Nations: The Community of Europe: He currently directs the university's International History Institute. His many publications include: This page is best viewed in an up-to-date web browser with style sheets CSS enabled. While you will be able to view the content of this page in your current browser, you will not be able to get the full visual experience. Please consider upgrading your browser software or enabling style sheets CSS if you are able to do so. This page has been archived and is no longer updated. Find out more about page archiving.

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