War Is an International Crime. Why Does It Go Unpunished?
A sweeping legal history reveals how the international community failed to live up to the promises of Nuremberg.
Foreign Policy
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Fresh off their victory in World War I, the Allies clamored for Kaiser Wilhelm II’s head. There was just one catch: The kaiser had absconded, 59 train cars of luggage in tow, to the Netherlands, which refused to extradite him. He died in 1941 under German occupation, an unrepentant admirer of Nazi policies until the end.
Determined not to repeat that failure after World War II, the Allies did not waver in seeking to deliver justice, convicting 19 Nazi leaders at the International Military Tribunal at Nuremberg in 1946. Despite its association with the Holocaust today, the tribunal did not primarily seek justice for the victims of one of history’s most systematic genocides. Instead, it was an opportunity for the Allies to punish Germany for going to war in the first place.
Nuremberg thus marked a striking departure from centuries of theory and legal tradition protecting a state’s right to wage war, argues scholar Lawrence Douglas in his latest book, The Criminal State: War, Atrocity, and the Dream of International Justice. For the first time, the very act of war-making, or “aggression,” was put on trial.
Douglas deftly weaves together philosophy, history, and law to show how the international community has beaten a hasty retreat from prosecuting the crime of aggression since Nuremberg. He argues that an “atrocity paradigm” has emerged in its place: a legal system that is increasingly emboldened—at least theoretically—to tackle genocide, crimes against humanity, and war crimes. Yet while atrocity trials have been essential in legitimizing victims’ experiences and educating both perpetrators and bystanders, they have largely avoided the issue of criminal responsibility for aggressive warfare, which often enables these crimes in the first place.
Unchecked aggressive wars are proliferating by the day—from Russia’s full-scale invasion of Ukraine to U.S. and Israeli interventions in South America and the Middle East—while the international legal system remains largely powerless to constrain them or seek even retroactive justice. Douglas’ history is a timely reminder that the promise of Nuremberg remains unfulfilled, and that reviving constraints on aggressive war is essential to confronting the atrocities that so often follow.
A black-and-white photograph of three men in military uniforms adorned with medals. They are leaning over a large table, looking down at maps as the man on the left points to a specific location.
Kaiser Wilhelm II (center) with Paul von Hindenburg (left) and Erich Ludendorff circa 1917. Hulton Archive/Getty Images
For centuries, a state’s decision to wage war was nobody’s business but its own. Seventeenth-century English philosopher Thomas Hobbes memorably claimed that the state of nature condemned men to lives that were “nasty, brutish, and short.” The solution was the state, which he believed was the only structure capable of maintaining peace and security. The problem, of course, was that peace and security stopped at national borders: Domestic civil society could be tamed, but the domain of international affairs was still a dog-eat-dog world.
Philosophers and jurists have long grappled with the question of what constraints, if any, can be placed on war. The international community made notable progress in regulating the conduct of armies during war—the body of law known as jus in bello—in the late 19th and early 20th centuries with the banning of certain inhumane weapons and regulations on the treatment of prisoners of war. But the realm of jus ad bellum, which refers to the conditions under which states may resort to war in the first place, has proven more slippery to articulate. When is resorting to war legitimate—and who gets to be the judge?
World War I marked a possible tipping point. “The staggering futility of trench warfare, the sheer wastefulness of men and matériel, gave powerful impetus to treat the launching of war … as the principal catastrophe,” Douglas writes. The victors demanded not just that rank-and-file German soldiers stand trial for war crimes, but that the kaiser himself be tried for “a supreme offence against international morality and the sanctity of treaties.”
Both political and juridical obstacles hampered these efforts. Fearing German nationalist backlash, the Allies allowed war crimes trials to take place in Leipzig, rather than at an international tribunal abroad. It was an unmitigated disaster: Only eight low-ranking soldiers were convicted, their sentences light or quickly commuted; most notoriously, the court acquitted a secret military police officer accused of torturing and assaulting young Belgian boys. These trials did little to halt the backlash—in fact, Hitler and Hermann Göring, later a top Nazi official, first met at a nationalist rally against the Leipzig trials.
Attempts to try the kaiser fared even worse. Beyond the issue of physical access, World War I’s victors squabbled over what to charge him with, ultimately balking at the idea of turning war-making—that precious right of states—into an international crime. In the Ottoman Empire, where at least a million lives had just been claimed in the Armenian genocide, British jurists felt somewhat more emboldened to criticize the state’s treatment of its own citizens, given that the Western powers saw the Ottoman Empire (unlike Germany) as a “semi-barbarous” state. Still nervous about piercing what Nuremberg prosecutor Hartley Shawcross called the “mystic virtues of the sanctity of state sovereignty,” however, Britain ultimately released 118 Turks, many of whom were high-level perpetrators of genocide, from its prisons.
Despite the devastation wrought by the Great War, international leaders and jurists failed, in its aftermath, to transform international law in ways that would either constrain states’ right to wage war or hold them accountable for atrocities. It would take an even greater catastrophe to achieve that.
A man in a light-colored uniform sits at a wooden witness stand in a courtroom. Two military police officers in brown uniforms and white helmets stand at attention behind him against a wood-paneled wall.
Nazi official Hermann Göring during his trial in Nuremberg, Germany, in 1946.Bettmann Archive/Getty Images
“Any resort to war—to any kind of war—is a resort to means that are inherently criminal,” said Supreme Court Justice Robert Jackson in his opening address as the United States’ chief prosecutor at Nuremberg. These words heralded an unprecedented break with centuries of international law by recognizing aggressive war as the paradigmatic international crime.
Although Nuremberg was a revolution, the trials “marked both the triumph and the eclipse of the aggression paradigm,” Douglas writes, partly because the Allies were so divided on what the crime of “aggression” meant that they simply chose not to define it. Given the scale and mass atrocities linked to Nazi aggression—its “monstrous peculiarity”—it was all too easy to forego a specific definition and run the tribunal on an “I know it when I see it” basis.
The concept of aggression has proven elusive and politically explosive ever since. In 1956 alone, Israel invaded the Sinai Peninsula with French and British backing, and Soviet troops crushed a nascent uprising in Hungary. Unsurprisingly, the United Nations Security Council could not agree to condemn either action: As Douglas writes, “Aggression and self-defense very much remained in the eye of the beholder.” Despite enshrining aggression as a violation of the U.N. Charter in 1945, states did not agree on a criminal definition until 2010.
A group of women walk together down a city sidewalk. The two women in the foreground are older; the woman on the left is wearing a grey dress and is being supported by a woman in a blue outfit, while the woman on the right wears a blue polka-dot cardigan.
Itta Halaunbrenner and Fortunée Chouraki (center), mothers of Jewish children deported from France during World War II after arrest by Klaus Barbie’s Gestapo, arrive to testify against Barbie during a trial in Lyon on June 2, 1987. AFP via Getty Images
Meanwhile, another kind of international law had begun to flourish. Despite the neglect of crimes against humanity at Nuremberg, other trials against Nazis delivered such convictions—Adolf Eichmann in Jerusalem and Klaus Barbie (the “Butcher of Lyon”) in France, for example. These trials gave more space for victim testimony, highlighting human suffering and centering the Holocaust as the ultimate crime of the Nazi Verbrecherstaat (criminal state), a regime whose criminality lay not in extrajudicial abuses, but in its use of law itself to subjugate and exterminate.
Courts around the world thus developed a growing body of jurisprudence on atrocity crimes. This has not been seamless: Trials are often geographically and culturally removed from the people they affect, and proceedings are regularly thwarted, underfunded, and delayed. Douglas invokes the image of Irmgard Furchner, a former underage concentration camp worker who was tried in juvenile court in her 90s, to underscore the absurdity of deferred justice. But flawed as they were, these trials, and the international tribunals for Yugoslavia and Rwanda that built on this legacy, were vital in establishing oral histories of victims’ experiences and ensuring that perpetrators were held to account.
A group of soldiers in desert camouflage uniforms and helmets walk down a narrow, dusty street. They are carrying rifles and tactical gear, with a military vehicle visible in the background behind them.
U.S. Marines patrol in Fallujah, Iraq, on Feb. 7, 2005.Scott Peterson/Getty Images
None of these efforts have solved the problem that Nuremberg set out to tackle: When is an act of war itself criminal? If anything, the rise of atrocity trials has complicated this effort, creating a seemingly unresolvable tension in so-called wars of humanitarian intervention. Atrocities—real or invented—have often been used to justify armed action to destabilizing effect: One man’s war of liberation, from Kosovo to Libya to Iraq, is another man’s crime.
Douglas attempts to reconcile this tension, arguing that acts of aggression should be deemed criminal when they are the root cause of atrocity crimes. But though important, Douglas’ arguments feel somewhat academic in an age in which states and international leaders increasingly and brazenly ignore legal pretense altogether.
Indeed, the Trump administration is in many ways the apotheosis of a return to the pre-Nuremberg order. Having launched airstrikes against eight countries in just one year, Trump makes little concession to niceties such as the U.N. Charter or international norms. “I don’t need international law,” he has boasted. He’s said he will “get” Greenland “one way or the other,” that the United States will politically control Venezuela, and has threatened to obliterate a “whole civilization” in Iran. Defense Secretary Pete Hegseth has happily acted on these impulses, reassigning military lawyers and vowing to abandon “stupid rules of engagement.” For the Trump administration, the dog-eat-dog world of the 19th century hasn’t gone anywhere.
Alas, the international legal system is as ill-equipped as ever to deal with the crime of aggression. Take Ukraine: While the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for war crimes, he will never be charged with aggression even in the unlikely event that he sits trial. While the crime of aggression is technically within the ICC’s jurisdiction, the concept has been neutered; member states can claim exemptions to the clause, while non-parties to the court—including the United States, Israel, and Russia—cannot be charged with aggression at all. Although Ukraine has lobbied for an ad hoc tribunal on aggression to be established through other means at the United Nations, it is unlikely to garner enough votes to make that happen.
International criminal law has always been fraught with flaws and dominated by Western and imperial hypocrisy. But recent events demonstrate the wildly destabilizing effects of a pre-Nuremberg world order, in which the strong do what they can, and the weak suffer what they must. Douglas’ book thus serves as a rallying cry: Reminding us that aggressive war is often at the heart of atrocity crimes, it calls on us to defend and build on the legacy of Nuremberg before it is too late.
