Building Anew 397Putting Evil on Trial
As at the end of the First World War, there were scores to be settled. It
will be recalled that, aft er that earlier confl ict, it had been decided that
the planning of aggressive war was not a criminal off ense in international
law. Th e state waging the war would be liable— but that meant civil liabil-
ity, leading to the payment of compensation by the state. International
law, it was concluded, had no provision for individual criminal liability
on the part of the po liti cal leaders. Th at was then. It was going to be dif-
ferent now.
Largely at the instigation of the American government— with Henry
Stimson, now serving as secretary of war, as the leading fi gure— it was de-
cided to mount a full- fl edged judicial trial of the German (and later the
Japa nese) leadership, in the full light of the global press and public. Support
for this initiative was far from unanimous. Th e Soviet government favored
swift summary punishment. Th e French lawyer André Gros, a professor of
international law at the Sorbonne (and future World Court judge), was an-
other voice in opposition. He pointedly reminded the Americans of their
own opposition to just such a proceeding at the conclusion of the First World
Wa r.
Despite these objections, an International Military Tribunal, as it was of-
fi cially entitled, was created by way of a treaty among the four powers oc-
cupying Germany (the United States, the Soviet Union, Britain, and France),
in August 1945. Th ree sets of charges were agreed. One was war crimes (i.e.,
violations of the laws of war, such as breaches of the Hague Rules). A second
category was labeled “crimes against humanity.” Th e expression had been
employed in 1915 by the Allied governments in denouncing Turkey for the
Armenian massacres. But Hersch Lauterpacht suggested employing it as a
technical term for a criminal off ense. It referred basically to atrocities
against civilian populations. Th e third set of charges was given the label
“crimes against the peace,” a phrase coined by the Soviet law professor A. N.
Tra i ni n. Th is meant, in essence, the planning of aggressive war prior to the
actual outbreak of it.
Th e chief prosecutor was American Supreme Court Justice Robert Jack-
son. He was not an international- law specialist, but some prominent inter-
national lawyers played subordinate parts in the drama. Kelsen, now based