From the Sentimental Story of the State to the Verbrecherstaat, Or, the Rise of the Atrocity Paradigm

By the terms of the ‘sentimental story of the state’ fashioned by thinkers such as Hobbes, the state represented the greatest bulwark against the disordering effects of violence, and obedience to the law represented the supreme virtue of the pacified citizenry. Nazi Germany fundamentally upset the sentimental story; in the parlance of Karl Jaspers, Nazi Germany was a Verbrecherstaat, a criminal state. The Nuremberg trial treated aggression as the paradigmatic crime of the criminal state; subsequent developments in international criminal law view acts of atrocity—crimes against humanity, genocide, and war crimes—as the paradigmatic state crimes. In this chapter, it is argued that this shift—from treating aggression to treating acts of atrocity as the paradigmatic state-sponsored crimes—has unsettled basic legal categories, such as the criminal/enemy dyad and the distinction between policing and war-making. The unsettling of these categories leaves, the chapter argues, international criminal law in a vexed state.