Hans Kelsen and Nuremberg: The Challenge for the Kelsenian Theory of Public International Law

Since his 1920s writings, Kelsen called for a permanent court of compulsory jurisdiction capable of resolving international conflicts. It should also be capable of establishing the individual responsibility of the violators of international law and punishing them in criminal terms when violence had already occurred. Kelsen worked from April 1945 for the U. S. government’s War Crimes Office, preparing up to eight legal reports. And yet it is difficult to gauge exactly what Nuremberg, with its pros and cons, owes to Kelsen’s theses and what those trials really meant for the great jurist. It is worth asking whether Nuremberg was a triumph, or rather a failure of the theses championed by Kelsen; whether we are facing a conquest of legal reason or a new expression of its limitations. Do the Nuremberg trials represent the culmination or the failure of Kelsenian theory of international law? In order to answer these questions, this article takes five selected texts of Kelsen to assess the evolution of his internationalist theses from 1934, when the great war had not yet broken out, until 1947, after the Nuremberg trials. On reading them, one may observe how reality convulses the pure theory of law, subjected to what may be its greatest moment of tension.