It is an article of faith among transnational penal experts that Sir Peter von Hagenbach's 1474 prosecution in Breisach for atrocities committed serving the Duke of Burgundy constitutes the first international war crimes trial in history. Hagenbach was tried before an ad hoc tribunal of twenty-eight judges from various regional city-states for misdeeds, including murder and rape, he allegedly perpetrated as governor of the Duke's Alsatian territories from 1469 to 1474. Though it remains obscure in the popular imagination, most legal scholars perceive the trial as a landmark event. Some value it for formulating an embryonic version of crimes against humanity. Others praise it for ostensibly charging rape as a war crime. And all are in agreement that it is the first recorded case in history to reject the defense of superior orders. Such a perspective has arguably helped invest the Nuremberg trials with greater historical legitimacy and lent subtle sanction to the development of international criminal law in the post-Cold War world. But the legal literature typically deals with the trial in very cursory fashion and its stature as pre-Nuremberg precedent may hinge on faulty assumptions. As the 1990s explosion of ad hoc tribunal activity is nearing its end and the legal academy is taking stock of its accomplishments and failures, it is perhaps time to look more closely at the Hagenbach trial. This piece does that by digging below the surface and revisiting some of the historical and legal premises underlying the trial's perception by legal academics.
In the main, international law specialists have relied on older historical accounts to conclude that Hagenbach's service as Burgundy's Alsatian bailiff constituted a five-year reign of terror that culminated in a legitimate and ground-breaking atrocity conviction. But revisionist historians tend to see Hagenbach's ordeal not as a good-faith justice enterprise but rather as a show trial meant to rebuff the territorial ambitions of Sir Peter's master, Charles the Bold. They emphasize that liability was grounded on confessions obtained through torture. And while they concede that Hagenbach may have been boorish and autocratic, they note that the first few years of his rule were relatively pacific and the 1474 uprising against Sir Peter was primarily a reaction to attempted Burgundian regional encroachments and perceived feudal suppression of growing urban and bourgeois prerogatives. The trial itself, they point out, was not international at all as the men who sat in judgment of Hagenbach were all subjects of the Holy Roman Empire. Nor was it a war crimes trial, since there was no armed conflict at the time the alleged atrocities took place. But there are shortcomings in the revisionist analysis as well. The high level of animosity shown Hagenbach, as demonstrated by the severity of the torture and the stripping of his knighthood, indicate that the atrocity allegations may not be unfounded. Moreover, there is evidence that Burgundy's occupation of the territory was hostile and so the charges against Hagenbach may very well be considered war crimes. Finally, by 1474, the Holy Roman Empire was no longer a viable political entity and so the ad hoc tribunal may indeed have been international in nature.
It is no coincidence that such a unique event took place between the erosion of medieval hegemony and the imminent establishment of Westphalian sovereignty. Not until the Westphalian veil was pierced by the Nuremberg trials nearly five hundred years later, did the subject of the Hagenbach trial take on contemporary relevance in the legal literature. In the end, the piece concludes that while some of its details may be lost in the mists of time and its legal status may remain muddled in theoretic gray zones, the Hagenbach trial should continue to play an important role as an historic and conceptual pillar of international criminal law's "pre-history."