Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 6: International criminal justice and the past
This chapter examines whether Leo Tolstoy’s ‘domain of jurisprudence’ – in the present case, international criminal justice – has a theory of history at all (albeit sublimated) and whether that theory of history can (or should) explain why or how certain events occur.2 This problem of history returns us to a moment in the institutional development of international criminal law written about previously by the author, and viewed by him as the field’s modern origin: such as the meetings of a commission of legal experts (including Robert Lansing, Ernest Pollock and James Brown Scott) convened by the delegates to the Versailles Peace Treaty at the end of the First World War.3 It was here for the first time that lawyer-internationalists had to grapple with the tension sketched by Tolstoy half a century earlier. In 1919, a committee was established at the Versailles Peace Conference to look into the question of war crimes trials for the defeated German elite (including the Kaiser). This represents the first occasion in international history when there was a somewhat methodical, official statement and interrogation of what would become some of the central problems in the field.4 This committee laboured under a curious but revealing title: The Commission on the Responsibilities of the Authors of the War. Their deliberations turned out to be more contentious than the Versailles statesmen might have anticipated. In effect, the Commission began to enact a series of distinctively twentieth century debates between opposing views of history.
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