Morality and Law
The Present and Future of Transnational Justice

Transnational justice, whether we like it or not, is becoming an increasingly real fact in the life of a global society, writes Valdai Club Programme Director Oleg Barabanov. The question of its relationship with sovereignty (embodied, inter alia, in US policy) is also becoming more acute. Whether it is possible to reconcile these two points of view, and which one will prevail, the future will show.

In the series of 75th anniversaries that commemorated the end of World War II and the formation of a new world order in 1945-46, there is one which perhaps doesn’t stand particularly brightly against the background of the others. On April 18, 1946, the newly created International Court of Justice held its first, inaugural session. This anniversary gives us cause to reflect upon the evolution and prospects for the development of transnational justice throughout the world.

The court considers disputes between states and also makes advisory judgments on cases referred to it by the UN General Assembly and other UN bodies. In the 75 years it has existed, the International Court of Justice has considered only 178 cases. On the one hand, this number seems extremely small. On the other hand, taking into account the objective limitations associated with the sovereignty of states, it becomes quite understandable. At the same time, although the bulk of the cases that have been adjudicated by the International Court of Justice in practice turned out to be connected with fairly small issues on a global scale (for instance, clarifying the border line between certain countries in certain sections, both on land and, especially recently, at sea), nevertheless, some of its decisions have received widespread global resonance. These include the case of Nicaragua vs USA in 1986. Then the court found that the United States was waging an undeclared secret war against Nicaragua, supporting anti-government rebels, and thereby violating international law. This verdict of the court gained great importance in the context of the anti-imperialist struggle of small countries. In fact, after this verdict, the United States began to sharply restrict and abandon the universal jurisdiction of international courts.

The United States announced that it would enforce the decisions of the International Court of Justice only on a discretionary basis (i.e. when Washington does not object to them).

This same approach was later developed in the United States’ unwillingness to bind itself to the jurisdiction of another similar entity: the International Criminal Court. As for other high-profile cases of the International Court of Justice, it is worth recalling its verdicts on Namibia in 1966, recognising its right to self-determination and condemning the annexation of South West Africa by apartheid-era South Africa. There was also an advisory judgment on the decolonisation of Western Sahara in 1975, filed at the request of the UN General Assembly, an advisory judgment in 2004 that Israel had violated international law by building a wall on the border with the Palestinian territories; an advisory judgment in 2019, which recognised the illegality of the UK’s separation of the Chagos archipelago from Mauritius. In 1996, the court passed a highly resonant advisory judgment on the legality of nuclear weapons, where it recognised the full legitimacy of the possession and even use of nuclear weapons in military conflicts. The only limitations in this judgment were that nuclear weapons should be used solely for self-defence purposes and in accordance with the principles of international humanitarian law. In 2010, in an advisory opinion, the court recognised that the unilateral declaration of Kosovo’s independence did not violate international law, since “international law does not contain a prohibition on the declaration of independence”. This judgment, of course, provoked opposite assessments on the part of supporters and opponents of Kosovo independence. A separate controversy unfolded over whether this judgment of the court is precedent in nature for other similar cases, or not.

Sometimes the decisions of the International Court of Justice were compromising in nature, and then observers accused the court of striving to get away from sensitive topics and taking an “ostrich” attitude. Thus, in 2015, the court ruled in the case of Croatia and Serbia, which accused each other of genocide, that neither side had presented convincing evidence of this. In addition, in a number of high-profile cases, the court refused to make a decision on the merits, citing the lack of necessary jurisdiction. This was the case with respect to its 1974 decision in the case of Australia and New Zealand vs. French nuclear tests in the Pacific. Also, the 2004 decision on Yugoslavia’s lawsuit against the Western countries for illegal military interference in its internal affairs, and the 2011 decision on Georgia’s lawsuit against Russia over the 2008 conflict.

The International Court of Justice was by no means the first body of international justice. Earlier, in the era of the League of Nations, a similar court operated under its auspices — the Permanent Court of International Justice. Also, even earlier, in 1899, the Permanent Court of Arbitration, created as a result of the work of the first Hague Peace Conference, began its work. It is still in effect, considering, in part, a parallel range of cases to the International Court of Justice, where states prefer a more informal nature for the proceedings.

In addition to these courts, which deal mainly with disputes between states, perhaps a much greater public interest is aroused by other branches of transnational justice, which are also rapidly developing in the modern world. First of all, this concerns international criminal justice. Here, we also see the beginning immediately after the World War II in connection with the activities of the Nuremberg Tribunal. The Valdai Club has already turned to the modern political assessment of its work in connection with the anniversary. Despite all the moral significance of the Nuremberg verdict handed down to the main Nazi criminals, right up to the present day there are discussions about the legality of the trials themselves. They are based primarily on the fact that in Nuremberg the principle “nulla poena sine lege” (“no penalty without a law”) was not observed. This is a principle that is one of the key foundations of the fairness of criminal justice. The Charter of the Nuremberg Tribunal, indicating the articles of the accusation, was adopted after the end of the war in Europe, and, therefore, the lawyers of the defendants repeatedly raised the question before the tribunal that their clients had not violated anything, since not the law, but at least an international legal document that considers their actions crime, was adopted only post factum.

Reading the multivolume transcript of the Nuremberg Tribunal, one can repeatedly see the controversy between the prosecution and the defence on this very issue, with detailed arguments from both sides. The meaning of this polemic consists, to a large extent, in the relationship between morality and law in the judicial process; the topic is not new, it was developed in Roman law. It can be reduced to the question of whether it is possible to issue a criminal sentence to a person on the basis of only moral condemnation. In Nuremberg, no one, judging by the transcript, even the lawyers (if we put aside their professional chicanery), had any doubts that the defendants were doing morally unacceptable things. The only question is whether they could be considered criminals in the absence of a law (both within German and international law), which qualified their actions as crimes at the time of their commission.

Morality and Law
Nuremberg Trials 75 Years On: Who Was Tried and How
Oleg Barabanov
The Nuremberg Tribunal, on the one hand, laid the foundation for the modern interpretation of war crimes, crimes against peace and humanity. On the other hand, the court clearly distinguished between different spheres of state activity within the criminal regime. This approach is understandable. But let’s not forget about Hannah Arendt’s famous thesis about the banality of evil: everyone is guilty within the framework of a criminal regime, writes Valdai Club Programme Director Oleg Barabanov.
Expert Opinions

Fortunately for humanity, the judges of the Nuremberg Tribunal did not support this interpretation of “nulla poena sine lege”. The verdict contains a detailed rationale as to why the defendants are guilty despite this principle. The key here was the approach that a failure to comply with the international legal (and even political) obligations of the state can be interpreted as a criminal offense of individuals who have held responsible government posts. It is clear that even within the ideal theory of law this approach is also debatable and unobvious. But in the real conditions of the post-war world, it became the only one possible for the just punishment of Nazi criminals. Germany was a part to international conventions on the laws and customs of war, and on the treatment of prisoners of war. Germany had signed bilateral treaties and multilateral documents (the Kellogg-Briand Pact) on the renunciation of aggressive war. Therefore, the violation of them is a crime of individuals. The defence’s references to the notion that only Hitler as the head of state was to blame for everything, and the rest were only executors, were not accepted by the court. Here, which is indicative, not a legal, in fact, but a moral approach was also used: that every person has the right to a moral choice: to occupy a leadership position in a criminal regime or to refuse it. A person who has made his moral choice can and should then receive his criminal sentence. This dilemma of shared responsibility between supervisor and subordinate was emotionally embodied in a statement made by one of the defendants, Colonel General Jodl, during the Nuremberg Trials. He said something like this: “The Fuehrer betrayed us by passing away. He repeatedly told us at headquarters that he alone is responsible for everything, and we must do our job, without thinking about anything. And now the Fuehrer is gone, and we are being judged.”

The results of the tribunal’s work were reflected in the “Nuremberg Principles” — a document drawn up in 1950 by the UN International Law Commission on behalf of the UN General Assembly. It has largely formed the basis of the modern approach to international criminal justice, which, as before, focuses on war crimes and crimes against humanity. It received its practical expression in international ad hoc tribunals for conflicts in the former Yugoslavia and in Rwanda, as well as in the creation of a permanent International Criminal Court under the Rome Statute of 1998. However, the refusal of the United States and a number of other countries to take part in the work of this court and to recognise its jurisdiction constitutes a big “hole” in international criminal justice and does not allow it to take on a completely global character. Here, the unresolved contradiction between sovereignty and the transnational character of the court is quite obvious.

Another area where transnational justice is actively developing is the observance of human rights. There is no support here for the idea of creating a global tribunal, but it is being implemented in the format of the Council of Europe, within the framework of the European Court of Human Rights in Strasbourg. However, the UN Human Rights Committee also holds quasi-court hearings, some of which receive a wide global resonance: for example, the case on the rights of climate migrants in 2020. Another branch of law where transnational justice has become universal is international sports law (contracts, anti-doping, etc.). Here, the Court of Arbitration for Sport is a key regulator of the global sports movement. The possible projects for the future includes the idea of transnational climate justice, which, most likely, will receive its implementation as the global carbon tax and other green transformation projects.

In general, transnational justice, whether we like it or not, is becoming an increasingly real fact in the life of a global society. The question of its relationship with sovereignty (embodied, inter alia, in US policy) is also becoming more acute. Whether it is possible to reconcile these two points of view, and which one will prevail, the future will show.

Views expressed are of individual Members and Contributors, rather than the Club's, unless explicitly stated otherwise.