The (im)possibility of culpability in a 'Trial by fiat of the successor regime'

In his book entitled Political Justice: The Use of Legal Procedure for Political Ends, published in 1961 Otto Kirchheimer discusses the legal and philosophical problems underlying the question of political trial. The question discussed in this paper, against, the background of the Nuremburg military/political trials following the end of World War II, is to try to understand why the notion of culpability has no place in Kirchheimer’s idea of the war tribunal as an exemplar of the most extreme form of a political trial. It seems common sense and obvious that when we judge responsibility for war crimes, the judicial process should adopt culpability, a generally and widely used method of attaching individual responsibility in non-political trials, as the basis of linking personal responsibility to the judicial norm. Culpability may also suggest a measure of the level of law’s disapproval of such conduct only to materialise itself as punishment. After all culpability, measures one’s individual personal shortcomings, as tested in litigation, by reference to universally accepted legal norms represented in legal rules and laws. However, the paper discusses the various reasons why the notion of ‘culpability’ logically has no role to play in political trials, especially in those purest of political trials namely war tribunals. By contrast, culpability as responsibility is a central concern the transitional justice process. The primary reason is in my view, the observation that political trials, unlike transitional justice processes, set out to legitimate a new political and legal order and the trial gives credibility to the new political power. Consequently any notion of culpability would in this setting de-legitimise the legitimating process and undermine the juridical authority of the tribunal.