The Nuremberg trials that followed the close of World War II were, like the atrocities they prosecuted, unprecedented in international law. And yet the idea that political and military leaders might be held accountable for their actions was not entirely new. Cases cited in the trials themselves included the actions of the Imperial Diet at Regensburg following Frederick II’s invasion of Saxony in 1756 and the Congress of Vienna of 1815, which declared Napoleon “an enemy and disturber of the tranquility of the world” – somehow the French, comme ennemi et perturbateur du monde, is more charming – for violating the terms of his confinement to Elba and returning to France to raise an army.
But another example, cited by the prosecution in two of the Nuremberg trials, has been raised from obscurity to be regarded as ‘the first international war crimes trial’. It is the trial of Peter von Hagenbach, which took place in the town square of Breisach, a small Alsatian town now in Germany, on May 9, 1474.
Hagenbach was a minor nobleman and soldier in the court of Charles the Bold, Duke of Burgundy whom Charles had appointed to oversee his newly acquired territories in the Alsace. That his four-and-a-half-year rule was tyrannical doesn’t seem to be in doubt: complaints were raised almost from the beginning. Charles rejected them. He didn’t want Hagenbach to do what neighbouring rulers or his new Alsatian subjects wanted him to do, he said; he wanted Hagenbach to do what he wanted him to do.
Eventually, the people of Alsace rose against him. Taking advantage of a mutiny, which followed Hagenbach’s failure to pay his men, they seized him in his stronghold in Breisach early in April 1474. Over the following weeks, Hagenbach was tortured until he confessed he planned to deport and then murder all the town’s citizens. Instead of simply executing him, however, a tribunal was set up to judge him. Its 28 members all represented signatories to the recently established League of Constance, aimed at constraining Charles’ political and military ambitions, including the cities of Strasbourg, Basel and Berne.
Hagenbach was charged with, among other things, murder, pillage, oppressive taxation and rape. His first line of defence, familiar from more recent international criminal trials, was that, as a subject of Burgundy, the court had no jurisdiction over him. His second, with regard to the bulk of the charges, was that he was simply fulfilling his orders. But his motion to call Charles as a witness to this was denied. Whether he was given such orders was irrelevant, the judges ruled; he should have known his actions were illegal. The rape charges he flatly denied: the women, including nuns, had all agreed to accept payment beforehand, he said.
Does Hagenbach’s case merit the fame it has latterly won? Or have 20th-century jurists overstretched by claiming a largely forgotten 500-year-old trial as precedent for their innovations?
Either way, Hagenbach was beheaded shortly after the judges ruled against him. His last words were another kind of defence. “I was only human,” he said. “Please pray for me.”
This piece first appeared in the May 2021 Months Past column in History Today.