Law and empire after 1919

It is hard to overemphasize the devastating impact of the First World War on the credibility of Eurocentric international law. ‘The late war’, wrote an Indian observer, ‘was waged in contravention of the accepted law of nations and in defiance of all notions of international morality.’ Not only were European states caught flouting international law but those who professed to be able to say what international law actually was had been exposed as fantasists: ‘The practice among states is thus contrary to the high-sounding theories of publicists, prize courts, congresses and conferences.’Footnote ⁸ This conclusion inspired legal scholars in India to recover indigenous traditions of international law based on ancient practice, for instance the doctrine of equity, justice, and good conscience. Indirectly, their accounts contrasted legal order in India with European anarchy. Descriptions of ancient Indian laws that enshrined respect for enemy property and sites of religious worship invoked images of European outrages such as the shelling of Rheims cathedral by the German army.Footnote ⁹ Indian legal scholars hardly differentiated between violations of international law by the Entente and the Central Powers. The point was that the way in which European powers had behaved in wartime made the idea that they were fit to spread civilization in their colonies highly dubious.

In the eyes of European and American observers the principal outlaw in the war had been Germany. Its violation of the neutrality of Belgium and Luxembourg, the atrocities it committed against civilians and prisoners of war, and its use of new weapons were roundly condemned by Allies and neutrals. Moreover, Germany’s reliance on military necessity as an excuse for flouting the laws of war radically challenged international legal universalism. If, as German jurists and politicians argued, states had to be free to pursue their interests unhindered by law, a German victory in the First World War would have created a lawless world. The Allies did not escape with their reputations as law-abiding powers entirely intact, however. Britain’s blockade of the Central Powers was controversial, even if some scholars have recently interpreted it as legal innovation.Footnote ¹⁰ It is fair to say, though, that Germany comprehensively lost the legal argument during the First World War.

Defeat in war also cost Germany its empire. It lost colonies and concessions in Africa, the Pacific, and China, as well as its contiguous imperial holdings in Europe. As a result, Germany became the first postcolonial European nation in a world still structured by colonialism. The Allied occupation of the Rhineland inverted accepted civilizational hierarchies and many Germans supported a racist campaign against the stationing of African soldiers in France’s zone of occupation. In German eyes, a Kulturvolk (‘civilized nation’) was being ‘colonized’.Footnote ¹¹ Germany’s distinct experience of imposed decolonization gave rise to a Eurocentric critique of colonialism that assessed other European powers according to their ability to civilize their colonial subjects and simultaneously portrayed Germany as the colonized victim.

Friedrich (Fritz) Berber came of age during this time of destabilized imperial boundaries. Not yet twenty at the Armistice of 1918, he began his law studies in Munich, a centre of political radicalism. His earliest writings fused resentment against the Versailles Diktat with calls for solidarity among those oppressed by the ‘West’. In a pamphlet published by a Christian youth group, Berber argued that the world’s territory had to be distributed in an ‘equitable’ way. ‘It is inequitable that a country with a declining population possesses an overabundance of colonies, whereas a rapidly growing people are deprived of all areas of settlement. This perspective on international politics means that, for instance, the question of Indian freedom is also our question, and the question of Versailles is that of the entire world.’ Asking for the restitution of German colonies in the same breath as campaigning for Indian national liberation may seem paradoxical. Berber, however, asserted that Germany’s shameful treatment at the hands of the victors of the world war had made its population ‘suffer more deeply from the tragedy that exists all around us than elsewhere’ and gave Germans a unique insight into world politics, distinct from that of other Europeans.Footnote ¹² He was not alone in fusing sympathy for anti-colonial movements with visions for a German colonial rebirth. Conservative publicists, for example, supported sizeable diasporic communities of Indian students and activists in Berlin and Munich.Footnote ¹³

Religion was another influence on Berber. His father had been a preacher in the Methodist church, an isolated minority at odds with the quasi-religious nationalism of imperial Germany owing to the church’s links with foreign communities of faith.Footnote ¹⁴ Berber’s early thoughts on reforming international politics therefore centred on individual spiritual renewal and ‘man, as he ought to be, man redeemed’.Footnote ¹⁵ As a student, he moved in reformist Christian circles and throughout his life he remained open to alternative forms of spirituality. He became affiliated with the Anglophone Protestant ecumenical movement, joining the World Student Christian Federation at the peak of its influence.Footnote ¹⁶ He also forged contacts with the British Society of Friends (Quakers) and allegedly converted to Quakerism, possibly because its emphasis on the unmediated experience of Christ suited him.Footnote ¹⁷ Such social connections enabled him to take extended study trips to the United States and Britain. After completing his law degree in 1926, Berber spent a year lecturing on international relations at a Quaker college in Birmingham, England. Having developed an interest in the problems of the British empire as well as in Gandhi’s philosophy, he wrote a doctoral dissertation on the legal relationship between Britain and the Dominions in the Commonwealth.Footnote ¹⁸

For an international lawyer interested in gradations of civilizational hierarchy, the mid 1920s British empire and the legal equality between its constituent parts was a fascinating field of study. After the First World War the Dominions asserted their independence as they participated in the Paris Peace Conference and became full members of the League of Nations. The 1926 Balfour Declaration enshrined the principle of equality in inter-imperial relations but excluded India. A founding League member and thus an actor on the world stage, it had neither Dominion status nor self-government.Footnote ¹⁹ Berber likened the League’s tolerance of Indian inequality to ‘a council of free men [that] does not object to one of them bringing his slave along, dressed up as a free man, and thereby surreptitiously doubling his master’s vote’.Footnote ²⁰ Indian nationalists also regarded the League as an instrument of colonial domination, which, according to Nehru, treated the ‘dependencies of an imperialist power’ as ‘domestic matters’ where international law did not apply.Footnote ²¹ Relations between Britain and the Dominions had traditionally also been regarded as lying outside international law, a doctrine known as inter se. When Berber was writing his dissertation, however, inter se was breaking up, in particular because of Ireland’s pressure.Footnote ²² Britain’s decision to withhold Dominion status from India was therefore a frustrating setback for advocates of Indian independence who had vested their hopes in international law.

Berber’s other early work reveals ambivalence towards British approaches to sovereignty and empire. While he criticized the way that the British empire treated those whom it did not regard as equals – the non-white colonies, the Irish, and the Boers – and unequivocally denounced India’s colonial status, Berber lauded the non-coercive and organic nature of the British Commonwealth as an example of a peaceful loosening of imperial ties. To some extent liberal empire served as a blueprint for international government in his thinking even if he clearly saw through its patterns of exclusion.Footnote ²³ There were, he argued, different layers of hierarchy within imperial systems, and hybrid forms of sovereignty that emerged as a result. International legal structures served to reform and maintain empire precisely because they did not conform to the doctrine of sovereign equality.Footnote ²⁴ The evolution of the British Commonwealth showed that it was possible to build a discrete community that was recognizable in international law. An inherent instability at the heart of imperial international law opened the door to competing universalisms and regional subsystems. This, Berber implied, might be something that Germany could take advantage of when it rejoined the ranks of colonial powers. The British model, however, was only of limited use as the German state was animated by a different kind of ‘spirit’.Footnote ²⁵

Regionalism was indeed a concept that some German jurists developed further in the 1930s and 1940s. Carl Schmitt, the best-known example, argued for a world order of large spaces (Großraumordnung), with Germany as the dominant power in a European Großraum. According to him, multiple co-existing regional hegemons were capable of providing order beyond classical international law’s flawed universalism. Earlier in the twentieth century, the idea of regional legal orders had already been developed by Latin Americans who, as semi-peripheral actors, similarly fell through the fictitious categories of colonizing nations and colonized non-nations and, like jurists on the Indian subcontinent, criticized the standard of civilization.Footnote ²⁶ Berber’s interpretation resembled the way in which semi-peripheral actors appropriated international law for their own ends in proposing a particularistic conception of universality.

With his unconventional interests, Berber’s entry into German academia was not straightforward. Leaving a secure job as a state prosecutor in the Bavarian legal system, he began teaching at the German Academy for Politics (Deutsche Hochschule für Politik) in 1930, outside the regular university system.Footnote ²⁷ The Berlin-based Hochschule had a cosmopolitan ethos, expressed in various international collaborations. At the time of Berber’s arrival, however, its leadership had to accommodate political pressure from nationalist circles and tried to allay fears of Hitler’s rise in the English-speaking world.Footnote ²⁸ In Berlin, Berber made scholarly contacts such as Rudolf Smend, Hermann Heller, and Erich Kaufmann, the last a proponent of natural law and a legal adviser to the German Foreign Ministry. Like many Weimar jurists, these scholars opposed legal positivism, a definition of law which restricted its sources to expressly recognized rules. According to anti-positivists this reduced the state to abstract norms bereft of their historical, political, or ethical contexts, and produced an artificial separation of law and morality. Anti-positivism allowed scholars to blend law and policy. For international lawyers, heavily invested in a critique of the Versailles Treaty, this was appealing.Footnote ²⁹

In the Third Reich, many of Berber’s mentors lost their academic posts as the result of racial or political persecution, but he did not.Footnote ³⁰ Kaufmann, for instance, was driven from his professorship because of his Jewish ancestry. Just before fleeing Germany in 1938 he wrote to a friend, telling him that scholars still met at his house to discuss law and politics but not many were left from the Weimar days, ‘certainly not Fritz B’.Footnote ³¹ Berber prospered under the Nazis. He was in touch with officials of the regime by August 1933 and there was a prospect of him being ‘called to more important work’, according to a British Quaker in whom Berber confided.Footnote ³² In the years leading up to the Second World War, Berber furnished Hitler’s aggressive policies with legal arguments that drew on his earlier critique of liberal empire and rejection of legal positivism.

Legalizing Hitler’s empire

Deploying law as a political weapon was a pillar of Nazi rule. The vast majority of German jurists who did not emigrate willingly cooperated with the regime. They challenged neither the Nazis’ euthanasia programme, nor the concentration camp system, nor the legal persecution of Jews and other minorities.Footnote ³³ No aspect of the German legal system remained unaffected by Nazi ideology, and international law was no exception. Otto Koellreutter, a prominent administrative lawyer and enthusiastic Nazi supporter, regarded it as ‘the most political part of the legal order’.Footnote ³⁴

Initially the regime embraced traditionalist conceptions that emphasized state sovereignty, self-determination, and the equality of states. As Hitler’s foreign policy moved from acknowledging international law between 1933 and 1935 to selectively breaking it between 1935 and 1938 (rearmament, reoccupation of the Rhineland), and from then on denouncing its core claims by attacking the sovereignty of other states (Austria, Czechoslovakia), the divisions between conservative traditionalists and Nazi radicals crystallized. The latter replaced states with racial groups as the principal subjects of international law. As the norms governing German foreign relations had to emanate from the interests of the German people (Volk), binding rules could only exist where these interests coincided with generally accepted state behaviour. In practice, this interpretation justified disregarding international treaties, and during the Second World War provided an apology for annihilationist warfare. The Nazi vision for international law meant the end of universality and created an inside/outside dichotomy which, as Michael Stolleis has observed, was not dissimilar to that of imperial international law’s standard of civilization, although it was overtly, instead of covertly, annihilationist.Footnote ³⁵

Berber joined the collective attempt by German jurists in the Third Reich to underpin Nazi rule with a coherent science of the state. He furthered his career as a member of relevant Nazi institutions (the NS Rechtswahrerbund and the NS Dozentenbund) and in 1937 joined the Nazi party.Footnote ³⁶ Within a few years of Hitler’s rise to power, Berber moved to the centre of Nazi foreign policy-making, working at the intersection of international legal scholarship and propaganda. In 1934, Goebbels, the head of the Nazi Propaganda Ministry, put Berber in charge of a new department for international law and international relations at the Hochschule, instructing him to rebuild its international network.Footnote ³⁷ Within a year, Berber became a protégé of the foreign minister, Joachim von Ribbentrop. In 1935, he was appointed acting director of the Hamburg Institut für Auswärtige Politik (Institute for Foreign Policy), the first German research body for international relations. He transferred it to Berlin to form another foreign-policy institute in 1937. Ribbentrop, who wanted to integrate research and propaganda functions, rewarded Berber with a professorship at the University of Berlin.Footnote ³⁸ Berber also became a contributor to a key journal published by SS jurists that legitimated genocide.Footnote ³⁹

While Berber was institutionally committed to National Socialism, his ideological adherence to the party line was questioned. Among the positions that German international lawyers embraced under the Nazis, his might best be described as that of a liberal nationalist trying to adjust to new realities. Committed Nazis eyed him with suspicion and when he was considered for a professorial appointment in 1936 he was found to lack a ‘National-Socialist personality that was above challenge’. The assessment was partly based on Berber’s 1934 study Sicherheit und Gerechtigkeit (Security and justice).Footnote ⁴⁰ With this book, which he described to a Quaker friend as giving ‘a strong expression to the new German Peace conception outside the League of Nations’, he hoped to establish his academic reputation, even planning an English translation.Footnote ⁴¹

Sicherheit und Gerechtigkeit was a polemic against liberal international law written in a religious key, and its argument can be summarized as follows: after the First World War, international law took a ‘soteriological’ turn and became a quasi-theological theory of salvation. It encroached on areas which had hitherto been a part of international politics, notably the right to wage war. This new international law promoted the idea that inter-state conflict represented nothing but differences in opinion over how to interpret legal rules and constructed a ‘utopia’ in which ‘all appearing conflicts are only disagreements about the interpretation of law which can be solved by a court operating under predictable certainty; these are attempts to turn world history into world adjudication, to turn domestic politics into constitutional jurisdiction’. Quoting Schmitt, Berber argued that such a ‘total legal order’ (universelles Ordnungsprogramm) did not promote world peace but benefited the victors of the world war by enshrining an unequal status quo as a universal order under the watchword of ‘security’.Footnote ⁴² These points were compatible with a traditionalist interpretation of international law as they emphasized Germany’s subdued position among European powers and the limitations of the League.

Berber took this critique further by arguing that soteriological international law was based on a disenchanted rationality. ‘It is of key importance for the post-war soteriology that salvation has not been based on subjectivity but objectivity: not a radically new ethos but a radically new global organization; the centre of this new soteriology is not theology or ethics but the law as the rational form of organization for humankind.’ This, according to him, was not surprising, as ‘we have known since Max Weber that recent European history is distinct among all cultures in its attempt to disenchant the demonical possessions and irrationalities of life and to master them rationally’.Footnote ⁴³ Democracy represented the attempt to rationalize the power of the state. The (fateful) democratic control of foreign policy and the international legal control of state sovereignty were thus inextricably linked.

But – and here Berber made a rhetorical move that positioned Germany outside the West –

German soteriology was built on völkisch assertiveness, not abstract rules, which only left a ‘modest role’ for international law as a sometime ‘agent of justice’: ‘justice is a matter of mastery; it is the great art of tact and of wisdom in political matters, which, in a rationalistic, mechanistic and materialistic age has almost completely been lost’.Footnote ⁴⁵ By insisting on the existence of an elusive justice, which only subaltern Germans could grasp, Berber performed a kind of ‘self-orientalization’ that found its parallels in coterminous discussions among German geo-politicians.Footnote ⁴⁶ Anti-colonial nationalists, for their part, rarely believed that European fascism had anything to offer to colonial peoples. Nehru, for example, regarded fascism and imperialism as variants of the same ideology.Footnote ⁴⁷

At the same time, Berber recommended exploiting international law to project an alternative political philosophy. He called this approach the ‘politics of international law’ (Völkerrechtspolitik). Anticipating Schmitt, who declared a ‘war of international legal studies’ (völkerrechtswissenschaftlicher Kampf) on universalist international law, Berber argued that international law was, and should be, inherently political.Footnote ⁴⁸ He said little about the actual political values on which a reformed international law should be based, nor did he provide a definition of international justice, the norm destined to take the place of security. What justice was would be determined on the grounds of political realities, and ‘scholarship’ would put its ‘counsel at the disposal of political practice’. Elite Anglo-American think tanks served as models for effective political work in international law.Footnote ⁴⁹ Blending liberal internationalist techniques with Nazi foreign-policy aims, Berber discounted universal international law as a decisive force in international politics and anticipated the disciplinary turn to international relations which would be completed by other lawyers of his generation, notably Hans Morgenthau.Footnote ⁵⁰

Sicherheit und Gerechtigkeit was a highly ambiguous study and it was received accordingly. There were damning reviews by Nazi lawyers who doubted that Berber’s conception of international law could deliver for the Nazi state.Footnote ⁵¹ In contrast, émigré scholars regarded the book as a foundational text of Nazi legal scholarship.Footnote ⁵² An American reviewer conceded that Berber was right in his diagnosis of the current fragile state of international law but diagnosed a ‘typically National Socialist conception of international law’ in the rejection of international institutions.Footnote ⁵³ One British supporter of appeasement, E. H. Carr, quoted the book favourably in his seminal realist international relations text, The twenty years’ crisis.Footnote ⁵⁴ In his emphasis on the state as the basic entity of international relations, Berber formulated a core claim of the realist school as it was developed by Carr and others.Footnote ⁵⁵ For all its contradictions, the book spoke to a broad political spectrum and it enhanced its author’s reputation abroad.

To understand how Berber’s critique of international law translated into politics it is important to analyse his propaganda work from the mid 1930s. He published numerous articles and document editions defending Hitler’s foreign policy as compliant with international law.Footnote ⁵⁶ In a 1936 lecture to foreign students he justified German rearmament and the reoccupation of the Rhineland as a reaction to the Western powers’ failure to honour their promise to disarm. This turned Hitler’s unilateral abrogation of international treaties into norm-creating acts.Footnote ⁵⁷ Berber also kept a watchful eye on the liberal empires’ relationship with the League of Nations, revelling in the legal quandaries that the British and French governments found themselves in during the Abyssinia Crisis, when neither intended to apply Article 16 of the League Covenant against the Italian aggressor as it went against their interests. Legality, a hallmark of the post-1919 order, had come back to bite its creators as ‘it is the ruse of law that, born out of a concrete constellation of interests, it can, because it is formulated generally, become a weapon for and against anybody to whom the prerequisites apply’.Footnote ⁵⁸

The 1930s were a decade of crisis for international law and institutions and Berber’s analysis found admirers among disaffected liberal internationalists and legal sceptics abroad. He successfully targeted Anglophone elites and their think tanks, using League of Nations-affiliated institutions and building on his insights into the increased importance of objectivity and rationality in the foreign policy-making of modern liberal democracies. This distinguished him from his peers in the German legal community. Berber used the network of the International Studies Conference (ISC), a federation of foreign-policy research institutes and think tanks which held annual conferences under the auspices of the League of Nations between 1928 and 1939. Both the Hamburg and the Berlin institutes had been founder members but were disaffiliated when Germany left the League in 1933.Footnote ⁵⁹ Berber now reversed this process. He attended the 1935 International Studies Conference in London as an observer and ensured that his Berlin institute became a corresponding member of the federation.Footnote ⁶⁰ He and his staff continued to participate in the conferences and managed to add issues which were of particular concern to Nazi Germany to the official programme.Footnote ⁶¹ In effect, Berber used the ISC as a launch pad to enmesh himself in a transnational network of international relations specialists, spanning the United States, the British empire, and most of Europe, and financed by American philanthropic foundations.Footnote ⁶²

Berber established himself and his institutes as the key German interlocutors of this network: he gave lectures at the European Centre of the Carnegie Endowment in Paris and the Royal Institute of International Affairs in London, and he invited high-profile speakers to come to Germany, most notably the Institute’s Director of Studies, Arnold Toynbee, in 1936.Footnote ⁶³ Other organizations were also targeted, for instance the Geneva Research Center, an international research institute financed by American foundations.Footnote ⁶⁴ As a governing board member Berber vetoed inconvenient research (for example, on sanctions in 1937) and asked ‘to be consulted in advance concerning all texts which might refer in any way to German policies or activities’.Footnote ⁶⁵ He also objected to commissioning German refugee scholars with writing studies for the centre, thereby ensuring that there would be only one German voice.Footnote ⁶⁶ Finally, he used his Quaker connections to assemble a small British pro-appeasement circle of influential pacifists, the ‘Group for Anglo-German Understanding’. Although British interest in the group declined from 1935, Berber continued to meet with Quakers in Germany until finally breaking off contact in 1939.Footnote ⁶⁷ Through his participation in transnational scholarly networks at both personal and institutional levels, he became the privileged interlocutor from the Nazi sphere of international law to liberal internationalism. Liberals were interested in this exchange for political and intellectual reasons and committed their own transgressions by engaging in it.

One issue that was particularly salient in this context was colonial appeasement, an attempt led by British liberals to conciliate Nazi Germany with a new colonial settlement in Africa. Berber had consistently demanded international equality for Nazi Germany, declaring at international conferences that ‘outsiders continued to regard [Germany] … as a fascist state, as a totalitarian state or as a dictatorship. It [i]s none of these things.’Footnote ⁶⁸ If Germany was just like any other European great power, it needed colonies which it would administer capably: ‘if we did do as other nations and accepted this terrible white man’s burden, we should not break down under it’.Footnote ⁶⁹ Arguments that justified the colonial claims of the Western powers, such as the need for raw materials, were similarly taken apart by Berber, who insisted that colonies were a matter of national prestige.Footnote ⁷⁰ Ribbentrop was fixated on gaining African colonies and Berber probably acted on his orders when he convinced Toynbee to support German colonial claims.Footnote ⁷¹ The era of colonial appeasement which had culminated in a British ‘colonial offer’ to Hitler in 1938 ended with Austria’s Anschluss and Germany’s dismantling of Czechoslovakia. It now became clear that Germany was not like other European powers and that the empire it sought to build in the East would not be based on negotiation.

Berber’s Second World War began on a triumphant note. Shortly after the fall of France he wrote a letter to a Rockefeller official, advising him that ‘the situation in Europe has changed considerably and I am sure that even groups and persons who until now had thought that it was possible to do researchwork [sic] on the future of the international Organisation of Europe and the world without Germany’s participation have now learned better’.Footnote ⁷² Berber’s output in the first years of the war, apart from several tendentious document editions, was indeed concerned with bolstering a new European order under German leadership.Footnote ⁷³ First, he contributed to this project in practical ways as his institute produced a series of strategic memoranda for the German Foreign Ministry (Materialien zur Neuordnung) as well as a ‘Europe handbook’.Footnote ⁷⁴ Ribbentrop also put him in charge of the League of Nations’ International Institute for Intellectual Cooperation in Paris, seat of the ISC secretariat, to implement the New Order on the level of intellectual cooperation.Footnote ⁷⁵

Secondly, Berber developed a blueprint for the new German empire in articles published in the early 1940s in which he turned to Europeanist rhetoric. After Hitler’s attack on the Soviet Union and American entry into the war, Nazi ideologues intensified their attempts to justify the war as one to defend and unite Europe against the twin forces of Bolshevism and Anglo-American imperialism. Although the ulterior motives seemed obvious, this discourse was remarkably successful among some west Europeans such as Hendrik de Man.Footnote ⁷⁶ Berber himself extolled the Holy Roman Empire as a model for a united Europe, a ‘community of [the] free peoples’ of Western Christendom. Historical German leadership in the empire, elevated by Berber to ‘a grave sacrifice in the interest of Occidental unity, more sacrificial than England’s proclaimed “white man’s burden” in the dark continent’ provided free expression to Europe’s peoples in a unified realm and gave the German Volk a ‘universalist heritage’ that ‘plays a special role today’. Berber’s idealized pluralism camouflaged the radically different ways in which the Nazis treated conquered peoples in western and eastern Europe and indirectly justified strategies of enslavement and eradication: ‘How different is already today the legal situation of the Protectorate, the Generalgouvernement, of Ostland, of Slovakia, Croatia, Norway, Denmark, France, Hungary, Italy, the Reich in an already embryonically existing European New Order!’Footnote ⁷⁷

Berber also sought to distinguish himself from Carl Schmitt’s Großraum concept, which he criticized as ‘too imperalistic’, even if he adopted other Schmittian terms such as raumfremde Macht, a power foreign to a Großraum.Footnote ⁷⁸ Although he would later use this divergence as evidence of his anti-Nazi convictions (despite publishing them at a time when Schmitt had lost much of his influence), it is more likely that he simply threw his hat into the ring of the debates that accompanied the improvised and violent process of building Hitler’s empire.Footnote ⁷⁹ The interesting point about this disagreement beyond the well-documented antipathy between the two jurists consists of Berber’s insistence that a Greater Germany ought to try its best to not be perceived as an empire.Footnote ⁸⁰ Again, the British Commonwealth served as a model as it ‘wisely avoided giving the leading power Great Britain a title that would have loudly announced it as such’.Footnote ⁸¹ Berber’s ideas for a non-coercive European federation under German leadership utterly jarred with reality. He published them at a critical point in the timeline of the Holocaust, just after the mass murder of Europe’s Jews had been planned by the Nazis at the Wannsee Conference. Whether his proposals were a particularly subtle way of registering dissent (as Berber himself claimed after 1945) is hard to ascertain, but what is significant about them is the way in which Berber insisted that law, empire, and German universalism could be fused together.

Berber himself became increasingly embroiled in the vicious infighting within the polycratic Nazi foreign-policy system and decided to pursue his ‘politics of international law’ elsewhere. After a blackmailing attempt by an SS officer who knew about his involvement with religious internationalism, he convinced Ribbentrop to send him to Geneva permanently.Footnote ⁸² Here, Berber turned to humanitarian international law for the purposes of the German war effort as a legal adviser at the International Committee of the Red Cross (ICRC). At Ribbentrop’s behest, he surveyed prospects for a separate peace with Britain and initiated an ICRC proposal to establish no-bombing zones for civilian populations, which the Allies rejected as Germany would have been the major beneficiary. The basic idea, however, was taken up in the 1949 Geneva Convention.Footnote ⁸³

Berber also engaged in what he later described as ‘humanitarian missions’, which furnished him with a post-war alibi.Footnote ⁸⁴ His attempts to settle in Switzerland after the war failed as the authorities expelled him to the French zone of Allied-occupied Germany, where he first worked as a defence lawyer and then as a legal adviser to the French military government. In 1949 he emerged from his own denazification tribunal as a fellow traveller (Mitläufer) but was barred from an academic post.Footnote ⁸⁵ Berber’s career – for a long time dedicated to the doomed attempt to bring Hitler’s aggressive bid for a race-based empire into alignment with an approach to liberal international law that took advantage of its internal contradictions – had reached a dead end.

India, international law, and new imperial logics

After 1945, the configurations of law and empire shifted again. The ease with which Hitler had broken international agreements and defied international organizations had made the fragility of the post-1919 international legal order painfully obvious. The horrors of the Holocaust and the enormous loss of civilian life during the Second World War underlined international law’s failure to protect individual human beings. Nazi rule in Europe and Japan’s military successes against the British, French, and Dutch empires in Asia irreparably damaged the legitimacy of European colonial rule. By the end of the 1940s, India, Pakistan, Ceylon, Burma, Syria, Jordan, and Indonesia were sovereign states intent on using their newly won status to dismantle the colonial order. International law had to respond to these challenges. It did so, albeit tentatively. The Allied governments established international tribunals in Nuremberg and Tokyo to prosecute Axis war criminals but many lawyers criticized the verdicts as ex post facto law. Under the aegis of the United Nations, governments committed themselves to upholding human rights but only in the non-binding 1948 Universal Declaration. The UN Charter lacked a firm commitment to decolonization, and its trusteeship system, which replaced the League of Nations’ mandates, was initially opposed by European powers. Instead of strengthening international law, the Allies built the new international order on the basis of power politics.Footnote ⁸⁶

All this was not lost on Berber. His views on international law in the early Cold War embraced power politics but also toyed with the idea of reforming international law ‘from below’. Awaiting his denazification tribunal, he reached out to his old Quaker contacts. One of them visited him in Baden-Baden in 1948. Discussing the recent communist takeover in Czechoslovakia, Berber asserted that the ‘country was undoubtedly recognized at Yalta as being within the Russian sphere of influence’ and the sovereignty of small nations was a casualty of international law’s diminished role. But he also recognized that it was necessary to rebuild international law’s normative authority, which could not be done by discredited European governments. He declared that ‘spiritual power alone can now save the world – the power that is more prevalent in the East, in India and China, evidenced by Gandhi’s life and methods, and which is largely lacking in the West’, a statement that resonated with a German orientalist tradition that had often sought to appropriate ‘Eastern’ traits. Berber’s expressed desire to ‘go to India and cooperate there’ with the Quakers represented more than a careerist’s desperate move in a difficult situation.Footnote ⁸⁷ It also reflected a shrewd understanding of who possessed moral authority in a decolonizing world.

In this new constellation Indians emerged as the most vocal representatives of the anti-colonial cause. They used international institutions as a platform but remained sceptical of international law as it had been shaped by the great powers. When the Indian delegation to the United Nations famously charged South Africa with racial discrimination in the first session of the General Assembly, it did so in contravention of the domestic jurisdiction clause in the charter.Footnote ⁸⁸ Indian jurists made their mark in the post-war legal order, none more so than Radhabinod Pal, one of the three dissenting judges at the Tokyo International Military Tribunal, which opened in 1946. Pal not only denied that the charges brought against the Japanese defendants were legitimate but questioned the motives of the prosecuting powers and argued that outlawing crimes against peace could be used to withhold justice from colonial peoples. As German jurists had done in the interwar years, Pal objected to the use of law for upholding an inequitable status quo.Footnote ⁸⁹

Of course, both episodes occurred before or shortly after India attained formal sovereignty in 1947. From then on, Indian jurists and policy-makers had to wrestle explicitly with what B. S. Chimni has called the ‘double life of international law’. International law conferred formal sovereignty on states emerging from colonialism but continued to exist as a system of rules structured by the standard of civilization. Thus it represented an instrument both of liberation and of domination. Radical alternatives, such as that advanced by Nazi Germany, were utterly discredited after 1945. ‘Mainstream liberal international law was the only game in town; even the Soviet scholars struggled with it.’ Like other scholars in the developing world, Indian jurists tried to reform international law from within, ridding it of its colonial heritage and demonstrating that indigenous traditions aligned with international legal principles. India’s foreign policy reflected this dualist relationship with international law as it used international institutions to channel national interests in the absence of military or economic might. At the same time, it retained a critical distance from those same institutions, demonstrated, for instance, by its role in the Non-Aligned Movement.Footnote ⁹⁰

Independent India’s attempts to wield normative power within the international system occurred against the backdrop of regional conflict and the politics of the emerging Cold War. The partition of British India had resulted in a violent territorial dispute between India and Pakistan in Kashmir. Britain and the United States generally favoured Pakistan’s case, mostly because they regarded the country as an indispensable ally in the conflict with the Soviet Union. After India submitted the Kashmir dispute to the UN Security Council in January 1948, Anglo-American partisanship became evident. Philip Noel-Baker, a leading liberal internationalist in the interwar years and now Britain’s representative during the UN discussions, emphatically took Pakistan’s side in the Security Council. Nehru deeply regretted taking the dispute to the UN, which he regarded as being ‘run’ by the United States and Britain.Footnote ⁹¹ The experience would inform his approach to a related dispute over the use of the Indus canal waters.

The 1947 partition had created two sovereign states and imposed political boundaries onto an interconnected irrigation system providing water from the Indus river system to the agricultural lands of East Punjab (India) and West Punjab (Pakistan). West Punjab depended on water from across the border, as five of the six main tributaries of the Indus rise in India. Initially, temporary agreements regulated the water supply to Pakistan but it became clear that a permanent intergovernmental agreement was needed when the government of East Punjab stopped the supply in 1948. India and Pakistan signed the Inter-Dominion Agreement of May 1948, which released water to Pakistan against payments, but the wider conflict between the two states ensured that the dispute remained unresolved.Footnote ⁹² Postcolonial sovereignty turned what would have been a domestic quarrel into an international dispute.

Pakistani officials recognized that international law might offer a way to gain the upper hand in a conflict in which geography was on India’s side. In 1949, Pakistan proposed submitting the dispute to the International Court of Justice, another UN body, hoping to improve its position resulting from the Inter-Dominion Agreement. India categorically refused to involve the court.Footnote ⁹³ But Pakistan attempted to mobilize other institutions in its favour. In October 1949, the country submitted a draft resolution to the Sixth (Legal) Committee of the UN calling upon the International Law Commission to include the topic of international rivers in its list of topics for codification.Footnote ⁹⁴ Although the resolution was not adopted, involving the International Law Commission was a way of getting international legal experts drawn into the issue. The Indian government was acutely aware of these efforts. A transcript of the Sixth Committee’s meeting minutes is preserved in the Indian National Archives, along with detailed instructions on how to refute Pakistan’s invocations of international law publicly.Footnote ⁹⁵ Indian foreign policy was now presented with a delicate problem: how to reject claims made under international law by another postcolonial nation.

The nature of this task explains Berber’s move into the heart of Indian foreign policy in the early 1950s. As in the 1930s, his Quaker connections were crucial. After the Second World War the Quakers founded humanitarian ‘embassies’ at strategic points, one of them being Calcutta.Footnote ⁹⁶ A close Quaker friend of Berber’s, Horace Alexander, was heavily involved in the politics of postcolonial India and went on several fact-finding missions to Kashmir between 1948 and 1950, reporting directly to Nehru.Footnote ⁹⁷ Alexander also became concerned with the canal waters dispute.Footnote ⁹⁸ As the conflict took on a legal dimension, he saw an opening for Berber. In November 1950, three months after Pakistan declared the Inter-Dominion Agreement null and void, Alexander approached the Governor-General of India, who was looking for a specialist in the law of international waterways. Berber did not fit this description but Alexander praised his legal expertise and personal commitment: ‘he is not merely trying to run away from a difficult situation, but he sees an opportunity of serving the cause of peace and goodwill’.Footnote ⁹⁹ In January 1951, Berber accepted the Indian government’s offer to go to New Delhi as a legal adviser.Footnote ¹⁰⁰

Outwardly an odd choice, Berber was particularly suited to the job. He understood inter-imperial relations as a part of international law, which sensitized him to the pre-Partition complexities of the dispute. India’s post-independence foreign policy strove to establish the country as a ‘moral power’, even if Nehru remained conscious of the limits of moral capital in international politics.Footnote ¹⁰¹ Thus India could not afford to be seen to be flouting international law and needed an adviser adept at juggling legal concepts and political realities. As a German, Berber remained sufficiently remote from the interests of the former colonial power, or those of the United States, which in the early 1950s laid the groundwork for a military alliance with Pakistan. At the same time, West Germany established closer ties with India, the key country in its attempt to persuade developing countries not to extend diplomatic recognition to the new East Germany.Footnote ¹⁰² When Berber eventually returned to a German professorship, his appointment was supported by the West German ambassador in New Delhi, who stressed that it would bolster West German–Indian relations as well as ‘our interests globally’.Footnote ¹⁰³ Like other experts at this time, Berber went to ‘help’ India as a representative of the West, an inherently Eurocentric move. However, this West was less unified than many Cold Warriors would have liked to believe.

India’s strategy in the canal waters dispute focused on achieving a political solution while seizing the moral higher ground, an objective complicated by the increased interweaving of international law with developmental logics. In a 1951 article, the New Dealer David Lilienthal alerted the American public to the dispute. His call to internationalize and develop the water resources of the Indus river system involved the World Bank, which offered its good offices for mediation.Footnote ¹⁰⁴ This was an American attempt to find a ‘technical’ solution to the problem, modelled on the Tennessee Valley Authority in the United States. Ultimately, though, the World Bank discussions did not result in internationalization but an affirmation of state sovereignty. The trilateral negotiations which began in 1952 only resulted in a treaty between India and Pakistan in 1960 as both countries presented irreconcilable plans for the economic development of the Indus basin. In the end, the tributaries were divided between India and Pakistan, with new canals giving both countries additional access to water. Major building projects were to be financed by an Indus Basin Development Fund, which the World Bank, co-signatory to the treaty, set up.

As part of the Indian World Bank delegation, Berber stressed that the preamble to an eventual treaty should highlight the moral dimension of the case. Such invocations of morality were strategic, as a letter he wrote to Arnold Toynbee in 1953 suggests: ‘Fundamentally, the situation of my present task is not altogether different from former tasks. Lip service to Gandhian principles combined with Neo-Asian Machiavellism is not an altogether enviable situation.’Footnote ¹⁰⁵ But Berber also decided to use elements of the post-1945 legal imaginary, which divided the world into developed and underdeveloped nations, to bolster India’s claims.

As the dispute dragged on, Berber presented India as a potential poster child for Third World development:

Thus, India’s greater needs for development should take priority. However, slotting India into a developmental hierarchy entailed accepting Western epistemologies that linked sovereignty to economic growth.Footnote ¹⁰⁷ Berber’s arguments indirectly affirmed India’s inferiority in a Eurocentric international legal system, even while they attempted to secure political advantage.

This is also apparent in other writings, in which Berber criticized Anglophone authors for dismissing the international law of ancient India as not ‘real’: ‘considering the indelibly linked unity of law, morality and religion in the old Indic codes … the old Indian law of nations had a higher chance of being adhered to than modern international law’. Western international law’s failings were apparent because it had allowed the bombing of civilians (in Nazi Germany) and the use of atomic weapons (against Japan) and was fundamentally rooted in colonial conquest. Only the ‘fanatical Mohammedans of the Near East and the xenophobic Mongols of the Far East were able to assert their independent statehood against European colonialism’, while ‘the mild, nonviolent believers in international law, the peoples of the Indian Kulturwelt [cultural world] on the continent and the islands became the prey of European conquerors’. Fusing orientalist stereotypes with a critique of Western international law, Berber argued that a moribund European colonialism, ‘a conception in international law which was from the beginning irreconcilable with the vital rights of non-European peoples’, now had to give way to a new order based on different values, such as ahimsa, the old Indic principle of non-violence.Footnote ¹⁰⁸ Whether Berber truly thought Eastern values would triumph remains doubtful, but his appropriation of them is significant.

Meanwhile, liberal international law really was the only game in town. Western institutions remained prominent in another soft-power strategy used by India in the water dispute, namely influencing the emerging scholarly consensus on the substance of international water law. A focal point here was the International Law Association (ILA), an influential non-governmental body founded in 1873, during the highpoint of imperial international law. In 1954 the ILA created a special river law committee on which India and Pakistan both had several representatives and which included the American John Laylin, Pakistan’s legal adviser in the canal dispute. Unsurprisingly, the Indians argued that states should be free to develop their water use according to their needs, while the Pakistanis emphasized the priority of existing uses.Footnote ¹⁰⁹ Berber also joined the committee and published a book in which he argued that there was no such thing as a global customary water law. Any future law would have to be based on the outcome of political negotiations: ‘The motley diversity exhibited by water treaties is nothing other than a reflection of the motley diversity of international relations in general.’Footnote ¹¹⁰ Thus he prepared the ground for the eventual treaty.

After securing a professorship in Munich in 1954, Berber continued to work for the Indian government, influencing the ILA rivers committee.Footnote ¹¹¹ An opinion that he submitted to the ILA in 1957 (which was circulated by the Indian foreign ministry to its missions) reiterated the unsettled nature of international water law in a world which had only recently recognized the sovereign equality of many nations.Footnote ¹¹² The political purpose behind his treatise was to delay agreement within the ILA on the rules of river law before Pakistan finally agreed to sign the Indus Water Treaty in 1960. The ILA only adopted the Helsinki Rules on international river law in 1966, a compromise between the Indian and Pakistani positions. Berber’s scholarly offensive ensured that state practice – namely the outcome of concrete negotiations between India and Pakistan – would shape future legal principles and not vice versa.