farewell with a “See you at the next conference” in Vienna, Amsterdam, Durban or wherever it may be. Still, as a sceptical Dane, I felt somewhat abashed by the heartfelt willingness of the Swedish Prime Minister to face up to the problems and his courage in depicting his own society’s problems in such an unsparing manner. Is it absolutely certain that neo-Nazism is so weak in Denmark because of the politics of free speech, or could it be that, for historical reasons, Nazism and being German have been so intimately linked that Nazism is seen as something non-Danish? Do we not owe it to our neighbours to take their problems more seriously and maybe reconsider whether everything in Denmark is as good as we assume? New laws may not be necessary, only the will to put the existing laws to use. The lesson from the Holocaust is more relevant than ever, precisely because of the increasing globalisation and the budding international judicial system.
tions that involve a change in the fundamental rule of the international system, that is, that states never interfere with the internal affairs of other countries, a “juridical politics of memory”.
Early in the war, the American president, Franklin D. Roosevelt, had defined the allied war aims as the defence of freedom of speech, freedom of religion, freedom from hunger, and freedom from fear. These four freedoms became the founding principles of the United Nations as the world-wide alliance against the so-called Axis Powers: Germany, Italy and Japan. On 1 January 1942, the intention was announced to create a new international organisation to succeed the discredited League of Nations. In article 4, the 47 founding members committed themselves to “re- cognizing the necessity to establish, at the earliest possible time, a multilateral organisation, resting on the foundational principle of the sovereign equality of all peace-loving states, and open to membership for all such states, big and small.”35 Between 21 August and 7 October 1944, representatives from the four major powers – the US, Great Britain, Soviet Union and China – met in Dumbarton Oaks outside Washington DC, to establish more detailed principles for this new world organisation. At Dumbarton Oaks it was agreed, among other things, that the UN should “promote the solution of international economic, social and other humani- tarian problems and encourage respect for human rights and other fundamental freedoms.” The United Nations was formally established at the San Francisco Conference in June 1945.
Parallel to this reorganisation of the world, the trials in Nürnberg in occupied Germany signalled an even greater revolution in the rules of international politics.
Through an agreement between the victorious powers – Great Britain, France, the Soviet Union and the US – an International Military Tribunal was established on 8 August 1945. It had the authority to prosecute and punish persons who had com- mitted “crimes against the peace”. These crimes were defined as war of aggression, war crimes and crimes against humanity.36 After a hectic collection of testimonies and documents, the indictment was presented on 18 October 1945, and trials began on 20 November. The tribunal concluded its proceedings almost a year later, on 31 August 1946, with the verdicts delivered on 30 September and 1 October of that year. Twelve of the convicted leaders of the Nazi party and the army were sentenced to death by hanging. Three received life imprisonment, four were given long prison sentences, and three were acquitted. Similar trials took place in Tokyo against the more prominent Japanese war criminals, though for pragmatic reasons not against the Emperor, despite his formal responsibility for the war.
35 Rigsdagstidende, Tillæg A 1945, sp. 1354.
36 Lehmann, 1997; Bloxham, 2001.
The Nürnberg and Tokyo trials have only proved to be of relatively minor significance in providing guidelines for proceedings within the international system, not least because of the cooling of relations among the victors. In addition, notwithstanding the careful attention that was given to defendants in terms of having the opportunity to defend themselves, the tribunals proceeded without any firm grounding in a pre-established set of legal principles. Thus, some resemblance to the summary victors’ justice of past times was unavoidable. Although they were more conscientious, the victors’ perception of the conflict remained the basis for the trials. Hence, subjecting the victors’ war tactics and objectives to an independent review was never even considered. Others have criticised the fact that the tribunals were based on retroactive rules. One rejoinder to that would be that none of the Nazi leaders was in any doubt that they were violating human laws. Why else would they go to such extremes in order to hide the extermination of Jews and other groups?
Despite the criticisms, the war crimes tribunals, especially the ones in Nürnberg, did set new standards for international engagements through the indisputable documentation of heinous and systematic crimes against combatants, civilians and – most importantly in this context – groups within a country’s own population. Once victory had been secured and the most important German and Japanese war criminals had been convicted and executed, the interest of the major powers in human rights and international courts quickly waned. Not until July 1998 did the establishment of a permanent International Criminal Court enjoy world-wide sup- port. Located in The Hague in the Netherlands, this court commenced its work in 2003, despite American opposition.
The failure of the League of Nations had its roots in adherence to the principle of the inviolable sovereignty of states, that is, non-interference in domestic legal and political affairs.37 Thus, in the inter-war years the international system was unable to prevent the escalation of conflicts and wars, just as it was incapable of protecting the ever-increasing number of refugees.38 To meet the objective of ensuring peace and security, the UN complemented the principle of state sovereignty with a new principle in international cooperation that obliged states to respect individual human rights (Article 1 of the UN Charter). These two principles are contradictory in so far as the equality and sovereignty of states are normally interpreted as the sovereign right of governments to do as they please within their own territory, including the right to harm their own population. Conversely, respect for universal human rights
37 See Østergård, 2003b.
38 Kirchhoff, 2005.
ultimately implies that individuals can request outside help against the abuses of their ‘own’ government.
Toward the end of the twentieth century this conflict has developed into an increasingly dynamic phenomenon, and today the clash between the two types of rights constitutes one of the most important front lines in international politics, as well as in national politics, where right-wing populist parties are gaining ground with their demand for the rejection of all internationally binding norms and rules.
Nonetheless, today’s states no longer enjoy an absolute monopoly as actors on the international stage. Individual citizens who have suffered violations of their human rights, as well as groups who have been the victims of colonisation or other foreign control, have achieved a voice and rights. Despite these modifications, the UN still fundamentally builds on anarchic relationships between sovereign territorial states, called nations.39 This is particularly evident in the Security Council, where, for reasons of effectiveness, the major powers have the right to veto decisions that run counter to their own interests. However, smaller states too act fairly unashamedly to advance their “national interest”. The international legal order, which is commonly referred to, essentially constitutes a set of rules along the lines of traffic regulations.
If a state is sufficiently strong or insistent it is usually able to demand and receive special treat, as the US is currently doing and as the Soviet Union has done previously. Notwithstanding recent and continuing developments such as the International Criminal Court, we have seen but the beginnings of a genuine legal system between states.
Alarm over the US use of nuclear bombs against Japan apparently only con- tributed little to the formulation of the basic human rights. At this early point, the prevailing sentiment seemed to be that Japan had made its own bed, accompanied by a resigned attitude towards the risk of extinction by this ultimate weapon. This attitude to the use of nuclear weapons against the Japanese is fairly consistent with the indulgence with which those responsible viewed the nuclear exposure of their own troops. Only much later did the view take hold that the use of such weapons might itself involve genocide and constitute crimes against humanity or worse?40
The 1948 adoption of the convention against genocide followed on the heels of a resolution on genocide in the UN General Assembly on 11 December 1946.41 This convention must be seen in conjunction with other attempts to formulate interna- tionally binding rules for relations between states, including limits on the actions of
39 For an analysis of the past, present and future of nation states in the Westphalian system, see Hettne, Sörlin & Østergård, 1998.
40 Markusen, 1997.
41 Markusen, 2000:190; Lippmann, 1985.
governments against their own citizens, a fundamental break with previous interna- tional customary law, which since the 1648 Westphalian peace accord to end the Thirty Year War had recognised the internal, absolute sovereignty of states as the pillar of the international system. This system revolves around the regulation of relations between states, including guaranteeing their inviolable sovereignty.42 The more or less intentional consequence of the sovereignty principle is that sovereign states have traditionally been able to act as they please towards their own citizens, as long as they were able to maintain control of their territory. The UN broke with this principle by establishing limits to acceptable state behaviour.
As already mentioned, the Cold War paralysed the organisation in its early years, restricting the consequences of the newly established limits to state sovereignty. The major powers could veto Security Council resolutions, and did so if their own or the interests of their friends were at stake. For years, it was primarily the Soviet Union that exploited this method, but as the number of member states exploded with decolonisation, the US and other Western Powers increasingly had to threaten a veto when they were in the minority. The result was a near-paralysis of the world organisation from which it apparently only recovered in the 1990s. How that came about and the difficulties it is encountering at the beginning of the 21st century are not at issue here. Instead, I am concerned with the changes in values that signalled this transformation of the international, and inter-national, rules of the game as they have come to be expressed in European cooperation.