Date of Degree
International Law | International Relations | Political Theory
Hans Kelsen, Pure Theory of Law, Principle of Legality, International Criminal Law, Crimes Against Humanity, Rule of Law
The pure theory of law analyzes the legal normative basis of jurisprudence. According to its author, Hans Kelsen (1881-1973), the study of law as a science can only arise once “alien elements” associated with sociology, politics, ethics and psychology are extracted from strict legal cognition. But what happens when the international sphere of law that possesses the special quality of holding state officials accountable for core international crimes requires intrusion by extra-legal sources? Does Kelsen’s structural edifice collapse? Or is it reconstituted? In examining how international criminal responsibility, a test case for Kelsen’s positive law claims derives its legitimacy, this dissertation affirms the moral underpinnings of imputation at the highest level of legal cognition. The central legal concept of imputation as an otherwise “de-personalized” or “de-psychologized” notion of responsibility under national legal conditions is conceptually transformed through analysis of offenses of the magnitude of crimes against humanity and genocide. The capacity for moral agency otherwise rejected as a term of legal cognition under Kelsen’s general theory of law and state, under the conditions of international criminal law are assumed to act on the willing state agent.
Through a combination of theoretical and case study analysis, I argue that critics misrepresent Kelsen’s position on international criminal responsibility by conflating it with a political realist or classical legal positivist defense of the immunizing acts of state doctrine, which protects state officials from prosecution by parties other than their own government. The advice Kelsen dispensed to US Supreme Court Justice and Nuremberg Prosecutor Robert H. Jackson in advance of the London International Military Tribunal (IMT) charter conference, demonstrates the most convincing rationale used to date in formulating the modern conception of individual (fault-based) responsibility in international law. While he violates his doctrinal commitment to the separation of law from morality in justifying international prosecution, Kelsen nevertheless establishes a unified description of a sphere of coercion based on the principle non sub homine sed sub lege (“not under man, but under law”).
Modified to adapt to judicially adventurous opinions since 1993 with the creation of the International Criminal Tribunal for Yugoslavia (ICTY), Kelsen’s dynamic analysis of responsibility for core international crimes remains under-studied, and hence under-valued. A revisionist account of Kelsen’s major writings on humanitarian law is necessary to promoting a theory of international criminal responsibility inspired by the democratic values of compromise, tolerance and relative peace. Despite his own emphatically contrary claims to purity, Kelsen’s legal philosophy retains an implicit commitment to moral normative values in determining culpability at the highest level of adjudication. His emphasis on the validity of retroactive legal technique, arguably his greatest contribution to the study of international criminal responsibility, defines the theoretical and practical scope of this term’s historically-modified definition.
Kropsky, Jason, "Between Politics and Morality: Hans Kelsen's Contributions to the Changing Notion of International Criminal Responsibility" (2019). CUNY Academic Works.