City University of New York (CUNY) CUNY Academic Works All Dissertations, Theses, and Capstone Projects Dissertations, Theses, and Capstone Projects 5-2019 Between Politics and Morality: Hans Kelsen's Contributions to the Changing Notion of International Criminal Responsibility Jason Kropsky The Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/3249 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] BETWEEN POLITICS AND MORALITY: HANS KELSEN’S CONTRIBUTIONS TO THE CHANGING NOTION OF INTERNATIONAL CRIMINAL RESPONSIBILITY by JASON REUVEN KROPSKY A dissertation submitted to the Graduate Faculty in Political Science in partial fulfillment of the requirements for the degree of Doctor of Philosophy, The City University of New York 2019 © 2019 JASON REUVEN KROPSKY All Rights Reserved ii Between Politics and Morality: Hans Kelsen’s Contributions to the Changing Notion of International Criminal Responsibility by Jason Reuven Kropsky This manuscript has been read and accepted for the Graduate Faculty in Political Science in satisfaction of the dissertation requirement for the degree of Doctor of Philosophy. Date John Wallach Chair of Examining Committee Date Alyson Cole Executive Officer Supervisory Committee: John Wallach Bruce Cronin Peter Romaniuk THE CITY UNIVERSITY OF NEW YORK iii ABSTRACT Between Politics and Morality: Hans Kelsen’s Contributions to the Changing Notion of International Criminal Responsibility by Jason Reuven Kropsky Advisor: John Wallach 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. iv 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. v Acknowledgements In a way this dissertation began in Fall 2000 in West Philadelphia in the upper rows of a heavily populated lecture hall at the University of Pennsylvania Law School with the course Law and the Holocaust taught by Australian international law scholar Harry Reicher. I would be remiss, then, not to insist on the debt of gratitude owed to Professor Reicher, deceased in 2014, who permitted me to enroll in his class as an undergraduate. His intellectual guidance on matters related to the legal effort to exterminate European Jewry provided a series of landmark discussions on the perils of fascist-leaning governance. Professor Reicher arranged a veritable canon of jurisprudential writings related to the Holocaust, and I am especially thankful for Professor Reicher’s support in my initial application for doctoral study at the CUNY Graduate Center. Marshall Berman, a reader at my PhD prospectus defense in 2010, was an early, pivotal influence on my course of study in political theory. He taught wonderful classes on modernity in the Political Science department at the CUNY Graduate Center that I was fortunate to attend, including courses on Marxism and The Politics of Irrationality. His modernist philosophy where the man in the street is knocked down but gets right back up, where the force of humanizing creative change is far stronger than, say, Robert Moses bulldozing the Bronx, where the history of consciousness is towards ever greater liberation from Faustian excess, resonated with me. I wanted to be part of his urban adventure. His classic All That is Solid Melts into Air was a blueprint for how I wished to act politically in the world—alive, joyous, free. Marshall’s death on September 11, 2013 was indeed a doubly-sad day. vi Throughout this dissertation process, long by the standards of doctoral study, I have turned for guidance to John Wallach, chair of my committee, who provided the initial impetus to research cases from Nuremberg to the Hague. Although this project deviates at points from its initial conception, I have been fortunate to have had an adviser who has supported a rather unconventional account of responsibility in international law focused on a critical assessment of the contributions of Hans Kelsen, author of the Pure Theory of Law. I am deeply indebted for his role as advisor, and for his willingness to continue to mentor me even during a rather extensive medical leave. In addition to his role as Professor of Political Science at Hunter College & The Graduate Center—CUNY, Professor Wallach was Founder & Chair (2010 - 2013) of the Hunter College Human Rights Program. Bruce Cronin, Professor of Political Science and Department Chair at the Colin Powell School for Civic and Global Leadership at the City College of New York, introduced me to the Basic Concepts and Theories of International Relations at the CUNY Graduate Center. In past years, Prof. Cronin, my first reader, has been immensely helpful in adding me to the roster at City College in his role as CCNY Political Science Chair. Associate Professor of Political Science and Associate Director of the Center on Terrorism at John Jay College of Criminal Justice, Prof. Peter Romaniuk, my second reader, is also a Senior Fellow at the Global Center on Cooperative Security. In transitioning from full-time student of political theory to ICL researcher, Prof. Romaniuk has been extremely helpful in making room for me at John Jay in the International Criminal Justice (ICJ) program. I am grateful to both Prof. Cronin and Prof. Romaniuk for their constructive suggestions. I would also like to thank the following people for engaging conversations—and advice—during conference breaks, over the phone, by email, through snail correspondence, in vii restaurants, coffee shops and apartments . Thanks especially to former International Criminal Tribunal for Rwanda (ICTR) Defense Attorney Tiphaine Dickson, former Attorney General of Canada Irwin Cotler, Thomas Olechowski, D.A. Jeremy Telman, Stanley Paulson, Jochen von Bernstorff, Jorg Kammerhofer, Drury Stevenson, Reuven Sugarman, Samuel Moyn, former President of Israel’s Supreme Court Aharon Barak, David Kinsella, Christopher Shortell, Michael P. Scharf, Joshua Felix, Utku Sezgin, Ari Solon, Monika Zalewska, Emily Amdurer, Joseph Bendersky, Jamie Aroosi, the late-Asher Arian, and Clemens Jabloner. Patrick Kerwin, Manuscript Reference Librarian in the Manuscript Division of the Library of Congress was especially helpful in retrieving key correspondence between Hans Kelsen and Supreme Court Justice and Nuremberg Prosecutor Robert H. Jackson. Karen Pittelman provided