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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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The Trial of Peter von Hagenbach

The Trial of Peter von Hagenbach

Reconciling History, Historiography and International Criminal Law

Chapter:
(p.13) 2 The Trial of Peter von Hagenbach
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Gordon Gregory S.

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0002

Abstract and Keywords

This chapter discusses the first international war crimes trial in history — that of Sir Peter von Hagenbach for atrocities committed serving the Duke of Burgundy. Hagenbach was tried before an ad hoc tribunal of twenty-eight judges from various regional city-states for misdeeds 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. The chapter is organized as follows. Part II examines the conventional view of Hagenbach in the field of international criminal law. Part III considers the historiography of the case, limning the evolution of a narrative that starts with Hagenbach as evil incarnate and progresses toward a more charitable view that explains the historical animosity toward him in terms of Hagenbach's being a francophone outsider imposing a reform regime on an entrenched, corrupt, germanophone society. Finally, Part IV concludes that both historic portrayals of Hagenbach are likely accurate: he was a despised outsider and reformer at first, but became violent and despotic toward the end of his stewardship when resources to govern were dwindling and local unrest reached a tipping point.

Keywords:   war crimes trials, Duke of Burgundy, Alsatian territories, international criminal law, francophone

(I) Introduction

It is an article of faith among transnational penal law 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 defence 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 (p.14) failures, it is perhaps time to look more closely at the Hagenbach trial. This piece will do 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.1 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.2 They emphasize that liability was grounded on confessions obtained through torture.3 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.4 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.5 Nor was it a war crimes trial, since there was no armed conflict at the time the alleged atrocities took place.6

But there are shortcomings in the revisionist analysis as well. The high level of animosity shown to Hagenbach, as demonstrated by the severity of the torture and the stripping of his knighthood, as well as a criminal past, indicate that the atrocity allegations may not be unfounded. Moreover, there is evidence that, in the period leading up to the trial, 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.

This chapter is divided into four sections. Part II examines the conventional view of Hagenbach in the field of international criminal law (ICL). It demonstrates that the ICL perception of the case as history’s first ‘international war crimes trial’ finds its origins in a law professor’s Manchester Guardian op-ed published while the International Military Tribunal (IMT) at Nuremberg was deciding the fate of the major Nazi war criminals. The op-ed, by English jurist Georg Schwarzenberger, argued that the Hagenbach precedent supported many of the legal positions taken by the IMT prosecution at Nuremberg, including charging crimes against humanity (p.15) and rejecting the defence of superior orders. And, following in Schwarzenberger’s footsteps, subsequent ICL scholars have cited the Hagenbach case in support of arguments for normative evolution in the field, such as contending that Hagenbach represents precedent for charging rape as a war crime. Part III considers the case’s historiography, limning the evolution of a narrative that starts with Hagenbach as evil incarnate and progresses toward a more charitable view that explains the historical animosity toward him in terms of Hagenbach’s being a francophone outsider imposing a reform regime on an entrenched, corrupt, germanophone society. Given the historiographical cleavage, then, each camp has an historical narrative that necessarily diverges from the other. But they also have many points in common. This part considers the convergences and divergences as well. Finally, Part IV attempts to reconcile the divergences and concludes that both historic portrayals of Hagenbach are likely accurate: he was a despised outsider and reformer at first, but became violent and despotic toward the end of his stewardship when resources to govern were dwindling and local unrest reached a tipping point. Hagenbach likely committed atrocities in this final phase. At the same time, and for related reasons, Burgundy became a belligerent occupying power. And given the atrophied state of the Holy Roman Empire, those who sat in judgment of Hagenbach represented sovereign polities. So the trial of Peter von Hagenbach was indeed the world’s first international war crimes trial.

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 500 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’.

(II) Hagenbach and International Criminal Law

International criminal law is a product of the twentieth century. After World War I, through the treaties of Versailles and Sèvres, Allied leaders contemplated using it to bring to justice Kaiser Wilhelm II and the Ottoman officials responsible for the Armenian genocide. But the requisite political will to follow through proved lacking and the formulation and use of ICL would have to wait for the prosecution of the architects of another world war’s horrors. The IMT was, then, a novel enterprise and thought to be without precedent. As such, at the time of its establishment, it was subjected to much criticism. Among other things, detractors accused it of enforcing laws ex post facto and creating out of whole cloth a new offence—crimes against humanity.

But at least one expert had a very unique view of the Nuremberg proceedings. Georg Schwarzenberger, an English jurist of Jewish–German descent who had (p.16) fled Nazi persecution in the 1930s, saw an analogy between Nuremberg and an obscure case from the fifteenth century—the criminal trial at Breisach of Sir Peter von Hagenbach. In an article written after the close of evidence at the IMT trial, while the judges were still deliberating, Schwarzenberger published an article in The Manchester Guardian titled ‘A Forerunner of Nuremberg: The Breisach War Crime Trial of 1474’.7 In the article, Schwarzenberger opined that the Hagenbach proceeding ‘appears to be the first international war crime trial’ and that it was conducted ‘in accordance with the highest judicial standards’.8

Schwarzenberger explained that, in serving as a governor for the Duke of Burgundy, Hagenbach ‘established a regime of arbitrariness and terror that went beyond anything that was customary even in those rather rough times’ and he went so far as to analogize Hagenbach’s conduct with that of the Nazi leaders in the dock at Nuremberg.9 In referring to the trial itself, Schwarzenberger suggested that Hagenbach was charged with something akin to crimes against humanity. In the words of the prosecutor, he noted, the accused had ‘trampled under foot the laws of God and men’ and had committed what would be called today crimes against humanity.10

Moreover, Schwarzenberger stated that Hagenbach’s trial involved charges of war crimes because ‘the hold of Burgundy over the pledged Austrian territories was more akin to the occupation of foreign territory in war-time than to a peacetime occupation of foreign territory under treaty’.11 Similarly, by Schwarzenberger’s estimation, the trial was ‘international’ in character since the judges hailed from different sovereign city-states in the region that were no longer part of the Holy Roman Empire.12

Finally, the article closed by noting that ‘when judgment was pronounced, the tribunal rejected the advocate’s preliminary objections to its jurisdiction. It overruled the plea of superior orders, found Hagenbach guilty, and condemned him to death’.13

Apparently, the prosecutors at Nuremberg noticed Schwarzenberger’s article. In the Control Council Law No. 10 ‘subsequent proceedings’, American Chief Prosecutor Telford Taylor relied on the Hagenbach case to argue to the Nuremberg Military Tribunal in The Ministries Case, for example, that charging crimes against humanity did not constitute an impermissible ex post facto application of law.14 The Hagenbach trial factored into The High Command Case as well. In noting that the provisions of the IMT Charter and Control Council Law No. 10 were the expression of existing international law, the NMT in The High Command Case judgment referred to ‘the trial of Sir Peter of Hagenbach held at Breisach in 1474. The charges against him were analogous to “Crimes against Humanity” in modern concept. He was convicted’.15

(p.17) And so this became the Rosetta Stone for ICL perception of the Hagenbach case—forged by Schwarzenberger and embraced at Nuremberg. Schwarzenberger strengthened its foundation with subsequent scholarly publications. For example, he devoted a short chapter to it in his treatise The Law of Armed Conflict (1968).16 Chapter 39 (‘The Breisach Trial of 1474’) of Volume Two, titled International Law as Applied by International Courts and Tribunals, fleshed out the materials of his Manchester Guardian article.17

By 1976, Professor L.C. Green of the University of Alberta could observe in his book, Superior Orders in National and International Law:

There seems to be a widely accepted view that the problem of superior orders on the level of international law is of recent date, originating with the judgment of the Nuremberg tribunal after the Second World War. In fact, this is not historically correct. In September 1946, Professor Schwarzenberger drew attention to the trial conducted on the orders of the Archduke of Austria on behalf of himself and his Allies of Peter of Hagenbach, Charles of Burgundy’s Governor of Breisach. The trial took place in 1474 before a court made up of 28 judges drawn from Breisach, the other allied Alsatian and Upper Rhenian towns, Berne, a member of the Swiss Confederation, and Solothurn, allied with Berne. Broadly speaking, the charges covered what today would be described as war crimes and crimes against humanity.18

Then, in a passage starkly demonstrating Schwarzenberger’s influence in connecting the Hagenbach trial to modern ICL antecedents, Green linked Hagenbach to both Article 227 of the Versailles Treaty (contemplating an international criminal trial for Kaiser Wilhelm II) and a nascent version of crimes against humanity. ‘Foretelling the charges specified in the Treaty of Versailles against the Kaiser, Hagenbach was alleged to have “trampled under foot the laws of God and man”’.19

Subsequent descriptions of the case in ICL literature, with minor variations, are remarkably consistent with the Schwarzenberger blueprint. Robert Cryer has noted that, with respect to the Hagenbach trial, ‘the standard reference for international criminal lawyers remains Georg Schwarzenberger’s International Law as Applied by International Courts and Tribunals II: The Law of Armed Conflict, Chapter 39’.20 And thus Schwarzenberger’s influence extends to every form of scholarship in ICL, including treatises, compilations, casebooks, law review articles, and internet commentary.21

In the meantime, one can discern through this entrenched narrative many of the important lineaments of modern ICL norm development. In addition to being traditionally recognized as establishing precedent for rejection of the superior (p.18) orders defence22 and formulation of crimes against humanity,23 the case is now credited with helping cultivate new ICL norms. For example, it is now considered precedent for charging rape as a war crime.24 Similarly, the tribunal’s refusal to accept Hagenbach’s argument that only a court of Burgundy could try him is thought to have served as a model for the International Criminal Tribunal for the former Yugoslavia’s rejection of Dusko Tadic’s plea of jus de non evocando.25 More recently, in response to claims that the International Criminal Court’s Rome Statute does not brook state self-referral of cases,26 Mohamed El Zeidy has invoked the Hagenbach trial as proof to the contrary.27

This phenomenon of citing Hagenbach to help legitimize modern norm creation is summed up nicely by Timothy L.H. McCormack: ‘There is a tendency by some commentators to make too much of the Hagenbach trial by characterizing it, without qualification as “the first international war crimes trial” and then relying on it as international legal precedent for more contemporary developments’.28 Is it appropriate for modern jurists to avail themselves of the Hagenbach case in this manner? In order to answer that question, we must take a much deeper look at the historical record and legal issues.

(III) Hagenbach and History

To understand the Hagenbach phenomenon in the ICL context, one must reconstruct the historical record and then dig below its surface. Given the plethora of historical narratives regarding the Burgundian bailiff, it is necessary to classify and parse the materials—in other words, as a preliminary matter, an examination of the case’s historiography is indispensable. Then the history itself can be considered to identify the narrative points of convergence and divergence.

(p.19) (1) Historiography

Over the centuries, history has been progressively more kind to Peter von Hagenbach. That might have seemed inconceivable in 1474. In the aftermath of his execution, he was portrayed as evil incarnate. His trial was seen as fair and his execution entirely justified. Hagenbach’s initial infamy owes primarily to contemporary narratives published by his foes.29 On the Teutonic side, Swiss chaplain Johannes Knebel, a conscientious diarist from Basel, chronicled the governorship, trial and execution of Sir Peter.30 In the words of historian Gabrielle Claerr-Stamm, ‘the Knebel diary results in a [Hagenbach] biography that is very dark, where everything is atrocities, brutality, a portrait completely black, without nuance’.31 To a lesser extent, Johannes von Durlach, Breisach’s notary, also described the Burgundian bailiff’s supposed depredations in a publication known as ‘The Reimchronik’, a 1474 collection of rhymed verse.32 Claerr-Stamm has noted that ‘for centuries these first texts would influence historians who would repeat them, without any critical distance’.33 Historian Werner Paravicini adds: ‘For centuries, histories and poetic accounts cast this dark figure in the role of anti-hero for the Burgundian occupation of the Upper Rhine, the quintessential alien French speaker, the man of every excess, sexual and otherwise.’34

Among those historians (both expert and lay) one would include Charles the Bold’s Gallic enemies (allies of French King Louis XI), who did not give terribly flattering accounts of Hagenbach in those early years.35 For example, Philippe de Commines, former counsellor to the Duke of Burgundy, until he switched his allegiance by becoming a key advisor to Louis XI,36 contributed towards creating the ‘black legend’ surrounding Hagenbach.37 Subsequent French historians wrote even more damning prose about the Alsatian bailiff. In his History of France, Henri Martin wrote that Hagenbach’s pastimes were murder and rape.38 P.E. Tueffert (p.20) described Hagenbach as the archetypal feudal monster whose life was one long string of crime and infamy.39 Perhaps the best known and most influential of these French historians (and, in many ways, the culmination of the work of previous ones) was Aimable-Guillaume-Prosper Brugière, baron de Barante (commonly referred to as ‘Prosper de Barante’) whose multi-volume work Histoire des ducs de Bourgogne de la maison de Valois: 1364–1477 figures prominently in any bibliography of the Burgundian duchy.40 Barante, who apparently relied in large part on the now-missing text of Hagenbach contemporary M. Golbéry (in a journal kept by sixteenth-century architect Daniel Specklin), provided the classic portrait of Hagenbach as demonic villain.41

Nevertheless, a more nuanced view of Hagenbach began to emerge in the latter half of the nineteenth century. In his study of the final years of the Burgundian court, History of Charles the Bold, Duke of Burgundy (1868), American historian John Foster Kirk questioned the reliability of the contemporaneous germanophone accounts of Hagenbach.42 French historians eventually followed suit. In his book Peter von Hagenbach and the Burgundian Domination, author Charles Nerlinger offered this charitable description of Hagenbach: ‘He was a forward-looking character, but impressionable, guided only by instinct, brooking no dissent and prone to fly off the handle.’43 That trend continued into the twentieth century. In her 1957 Hagenbach biography, Der Landvogt Peter von Hagenbach, German historian Hildburg Brauer-Gramm attributed tyrannical qualities to Hagenbach but found them somewhat mitigated by his capabilities as a soldier and partly excusable given the boorish culture of the Burgundian court.44

Hagenbach’s reputation was further rehabilitated by English historian Richard Vaughan in his 1972 study Charles the Bold: The Last Valois Duke of Burgundy.45 Vaughan portrayed Hagenbach as a visionary administrative reformer who was not given sufficient resources to effect necessary change in the region. Finally, Hagenbach’s reputation was more recently rehabilitated in Gabrielle Claerr-Stamm’s full-length biography of Hagenbach. As Paravicini notes: ‘Nerlinger, Witte, Bernoulli, and very recently Gabrielle Claerr-Stamm have written Hagenbach biographies which tend to rehabilitate his image: Georges Bischoff goes as far as to call him “Peter the Good, or the Bold”.’46

(p.21) So which historians have it right—those relying on the contemporaneous accounts or the revisionists? Are there any degrees of consensus between them? The section that follows will attempt to stitch together an historical record from the various strands of available narratives.

(2) History

(a) Points of consensus in the record

(i) Overview: The Duchy of Burgundy in a time of upheaval and transformation

The pre-Westphalian political Europe in and around the time of Peter von Hagenbach bears little resemblance to today’s continent. While the nation-state represents the predominant contemporary European unit of organization, a less homogenous political configuration predominated in the fifteenth and early sixteenth centuries. Alongside the larger kingdoms and imperial realms, the landscape was dotted with lordships, principalities, cantons, grand duchies, prince-bishoprics, federations, abbeys, petty lordships, countships, fiefdoms, margraviates, and city-states. The proliferation of these smaller polities was in part responsible for a rather volatile transnational environment with strategic manoeuvring and jostling for position and power throughout the continent—sometimes directly in competition with larger kingdoms, nascent nation-states and the continent’s supranational behemoth, the Holy Roman Empire. Against this backdrop played out the bloody battles of, among others, the end-stages of the Hundred Years War and the incipient clashes of what would become the Protestant Reformation and culminate in the Thirty Years War.

Some of the era’s tumult was due to the emerging erosion of certain medieval power structures, such as the Holy Roman Empire and the Catholic Church. Glimmerings on the horizon of the Protestant Reformation, the resolution of dynastic struggles, and embryonic yearnings for democracy and ethno-linguistic self-determination can certainly account for much of this change. On the other hand, some of the violent upheaval of the time was very personality driven—certain ambitious rulers wished to expand their domains and were willing to engage in armed conflict to make that happen.

One such ruler in the latter half of the fifteenth century was Charles, Duke of Burgundy, whom history remembers by the colourful cognomen, ‘the Bold’. His detractors referred to him as Charles ‘the Terrible’. The Valois Burgundian duchy that Charles took over in 1465 had grown considerably in size, wealth and power in the century since Charles’s similarly-dubbed great-grandfather, Philip the Bold, received it in apanage from King John II of France. Originally a relatively modest fief in the northeast portion of France, it became something of a middle kingdom between England, France, and the German Holy Roman Empire. It eventually stretched from the Low Countries to parts of modern-day Germany and its possessions included, among others, Franche-Comté, Flanders, Brabant, Luxembourg, Lorraine, and Alsace.

Charles the Bold, aggressively following the expansionist policies of his father, Philip the Good, was responsible for bringing the duchy’s growth to its apex. Notwithstanding that growth, there were significant north-south territorial gaps in the Burgundian (p.22) realm and Charles wanted to bridge them to form a united super-landmass, the ‘Kingdom of Lotharingia’, under his rule in the heart of Europe. He also had hopes of parlaying such power into a bid for accession to the Holy Roman Imperial throne. As a consequence of such ambition and expansionist aims, as well as a series of shifting alliances among other sovereigns vying for power in the region, Charles found himself within the eye of a bellicose Continental storm that would eventually consume him.

More precisely, to the west, as Burgundy sought to maintain and enlarge its territory in France, Charles was engulfed in a turf war with French King Louis XI. To the east, the Duke incurred the enmity of the Swiss and Austrians after gaining control of Alsace and subjecting its citizens to the authoritarian stewardship of Hagenbach. He would ultimately be squeezed between these two axes of conflict.

At the same time, the Europe of Peter von Hagenbach was transitioning from a feudal, land-based civilization to an increasingly urbanized, bourgeois society. Much of the tension precipitating the armed conflicts was also due to this increasing rift between these old and new orders during the High Middle Ages. Peter von Hagenbach and his master Charles the Bold represented the old order. The emerging nation-state of France, whose king, Louis XI, appreciated and supported the sociological and economic shift from medieval to modern, represented the new order. So did many of the Swiss cantons and Alsatian free city-states. The rising burgher class in these pre-modern territorial pockets would lock horns with Charles and his bailiff and history would never again be the same.

(ii) The conflict with Louis XI

The contest between Charles the Bold and Louis XI began not long after Louis’s ascension to the French throne. In an effort to extend and centralize royal power, Louis began to limit the prerogatives of the French nobility—assessing them new levies and stripping them of much authority. At the same time, Louis discharged some of his father’s most loyal and competent ministers and officers and they, in turn, intrigued with the nobility to stir up rebellion against the French monarch.

The foremost champion of their cause was Charles the Bold, who used Louis’s young and ineffectual brother Charles, the Duke of Berry, as the figurehead of a nobility opposition group, known as ‘the League of the Public Weal’.47 Led by Burgundy, the League went to war against the King of France.48 The position of the two sides ebbed and flowed.49 But after royal forces failed to check a Burgundian advance on Paris, Louis, a very shrewd diplomat (later dubbed the ‘Universal Spider’) gave the impression that he was yielding to the League’s demands. All these measures, however, were seemingly taken in an underhanded effort to break up the League. Louis was temporizing. Within months of ceding Normandy to his brother, for example, he reclaimed it. In the end, France was saved from collapse by the refusal of the lesser gentry to rise up against its king, and by the alliance of Louis with the citizen class, especially the growing ranks of city dwellers.

(p.23) But the larger war between Louis XI and Charles the Bold continued and entered a new phase. Louis extended an olive branch to certain key members of the League by returning to them various estates and privileges and beginning the process of turning them against Charles. Over the next few years, Charles would win various military campaigns against Louis but could not bring him down. Louis had some success on the battlefield as well and in 1472, after an unsuccessful invasion of France, Charles was obliged to make a lasting truce with Louis. Yet another phase opened in which Charles’s projects were to be concentrated primarily on his eastern flank, toward the German-speaking territories. In the meantime, Louis kept his eye on Charles’s new endeavours and waited for his chance to destroy Burgundy through new diplomatic alliances.

(iii) Austria, Switzerland and Alsace

To put the case of Peter von Hagenbach into context, one must also consider the situation on Charles’s eastern flank—the area that now comprises Switzerland, Austria, and Germany. The Holy Roman Empire took control over the territories of modern Switzerland in approximately AD 1033. Over the next two centuries, certain Swiss cantons entered into a political alliance known as the ‘Old Swiss Confederacy’. By the mid-fifteenth century, the Confederates, or Eidgenossen, formed a loose affiliation of about a dozen largely independent small states.

Although they had the status of ‘imperial immediacy’ within the Holy Roman Empire (ie, directly under the Emperor), they had been for some time under the effective control of Austria’s ruling family, the Habsburgs. The latter resisted Swiss efforts to gain independence and this led to a series of fourteenth-century battles against Habsburg forces that the Swiss won decisively, most notably the Battles of Sempach and Näfels. By the time Charles assumed the Burgundian mantle in 1465, there was still much bad blood between the fiercely independent Swiss and their former Austrian feudal overlords. And the Swiss were expanding their control over territory in the Rhine region. The Confederacy controlled most of the land south and west of the Rhine to the Alps and the Jura mountains and was poised to take the Sundgau portion of the Rhine territory (southern Alsace). Ultimately, the Eidgenossen agreed not to attack this region in exchange for a significant reparations pledge from the Austrians.

Unfortunately for the Austrians, Archduke Sigismund (also known as ‘Sigmund’) was in dire financial straits and could not afford to pay the Swiss and/or maintain control over his possessions on the Upper Rhine. So he agreed to mortgage these Alsatian lands to Charles the Bold. By the treaty of St Omer, entered into on 9 May 1469, Charles acquired Habsburg possessions on both sides of the Rhine, including the Landgraviate of Alsace, the counties of Ferrette and Hauenstein (with a large part of the Black Forest), the towns of Breisach and Ortenburg, and the four so-called ‘Forest Towns’ of Rheinfelden, Seckingen, Lauffenburg, and Waldshut. In exchange, Sigismund received 50,000 Rhenish florins and a promise from Charles that he would pay the Swiss reparations in the sum of an additional 10,000 Rhenish florins. Title to these possessions could be redeemed by Sigismund but only upon a lump-sum payment made at a specified place—it (p.24) was not contemplated that Sigismund would ever be solvent enough to regain his Upper Alsace lands.

So what exactly did Charles acquire for 60,000 florins? His new possessions might be described as an archipelago of city-states more or less accustomed to independence given the absentee-landlord role played by Sigismund while he was nominally in control. Assuming Charles could keep the citizens of these newly-acquired towns happy, the Treaty of St Omer put him in quite an advantageous position. In concluding the entente with Sigismund, Charles and the Austrian archduke both gave and received pledges of friendship and support to one another. After all, Charles would be solving for the Austrian ruler a thorny financial and administrative problem in Alsace and in return Sigismund would help quench the Burgundian’s thirst for territorial aggrandizement. At the same time, Charles would extinguish Sigismund’s reparations debt to the Swiss Confederacy. This could help strengthen the longstanding friendly relationship between the Confederacy and the House of Burgundy.

On the other hand, from Charles the Bold’s perspective, the new arrangement was fraught with peril. For one thing, the Eidgenossen, likely believing Sigismund incapable of satisfying his reparations debt, were prevented by Charles’s assumption of the debt from acquiring new territory. Moreover, the new Austro–Burgundian arrangement might have convinced the Swiss that Charles had formed a strong alliance with Sigismund, the Confederacy’s perceived oppressor and sworn enemy. This could potentially put Charles in a precarious position vis-à-vis the militarily powerful Eidgenossen.

Moreover, the smaller power brokers of the parts of Upper Alsace not within Burgundian control—the independent city leaders and Imperial regional governors, for example, would now have to coexist with the acquisitive Duke of Burgundy in their backyard, and they were justifiably concerned about Charles’s territorial ambitions. Further, all these independent neighbourhood polities, in addition to those in Charles’s possession, were German-speaking. The Burgundians were francophone—and no overlord in this largely Germanic region had ever spoken a foreign language. That could certainly become a source of friction.

So while the Treaty of St Omer could understandably have brought many strategic advantages to Charles, it certainly had the potential to upset the relatively harmonious relations his duchy had previously established in the region. If governed judiciously, the new Alsatian possessions might promote ducal prestige, generate tax revenue, serve as a strategic buffer and perhaps further solidify Charles’s relations with his Germanic allies. If governed maladroitly, Charles could alienate his eastern neighbours and perhaps make attractive an alliance with the ever-scheming Louis XI that could squeeze Burgundy within dangerous pincers.

Thus, Charles the Bold seems to have needed someone effective and politically astute to administer these territories. In the event, he chose Peter von Hagenbach, a trusted lieutenant whose dog-like loyalty and blind devotion had endeared him to Charles through years of Burgundian court intrigue and military conquest. Unfortunately, while the ideal candidate might have won the region over with a (p.25) light touch and effective diplomacy, Charles’s deputy ultimately terrorized Upper Alsace with blunt force trauma and what some accounts would describe as a reign of terror.

(iv) Peter von Hagenbach

The origins of Peter von Hagenbach are rather obscure50—even his year of birth is unknown (although estimated to be 1420).51 His father Anton was a lesser nobleman of southern Alsace and his family had been under the feudal dominion of the Habsburgs since the middle 1300s. Anton hailed from the town of Hagenbach, where his family’s like-named ancestral castle was located. This small municipality was within the vicinity of Mulhouse, a larger town that would later factor prominently in Peter’s life as a servant of the Duchy of Burgundy. Records indicate that Anton von Hagenbach became a citizen of Thann and entered into the service of the powerful Habsburgs.52 In 1428, he became the mayor of Thann and in 1440 he was named Habsburg Council at the Court of Ensisheim.53

When Anton von Hagenbach met Peter’s mother, Catherine, she was the widow of a French nobleman by the name of Jean de Montjustin, the Lord of Belmont.54 Belmont’s castle, in which Peter was raised, was located in the Franche-Comté, a nearby francophone Burgundian province. Reflective of his parents’ respective mother tongues, Peter was fully fluent in French and German.55

Peter von Hagenbach appears to have received his education in a francophone monastery and then turned to a life of military and ducal court service. Historian Werner Paravicini writes that an ‘unknown intermediary opened the door for him [Hagenbach] to the Burgundian court’.56 An early reference to his service to the Duchy appears in 1443, when he apparently took part in a military operation in Luxembourg conducted under the aegis of Charles the Bold’s father, Philip the Good.57 Perhaps not coincidentally, in the same year, Peter was made a Knight of the Order of St George of Burgundy.58 The year 1443 played a significant role in Hagenbach’s personal life too as he then married Marguerite d’Accolans, a noblewoman of the Franche-Comté.59

By 1448, Sir Peter von Hagenbach’s darker side had begun to manifest itself. According to historian Hildburg Brauer-Gramm, Hagenbach kidnapped a certain Marquard Baldeck, a banker from Basel with whom he had dined the previous evening.60 Hagenbach demanded a ransom from Baldeck’s family.61 The plot was foiled when, at Philip the Good’s behest, Baldeck was immediately released without the ransom being paid.62

(p.26) In the early 1450s, Hagenbach’s name first appears in official Burgundian court records as ‘Aquenbacq’ or ‘Archembault’.63 By 1460, he was a maitre d’hotel at the ducal court and the career prospects of the ambitious courtier were rapidly improving.64 According to Duchy of Burgundy expert Richard Vaughan:

Soon after then [Hagenbach] took sides with Charles, then count of Charolais, in the quarrels between him and his father Philip the Good, and he was able to earn Charles’s undying gratitude in the summer of 1462 when he exposed Jehan Coustain’s alleged plot to murder him, a plot which he himself may have contrived on Charles’s behalf in order to eliminate Coustain and discredit his patrons the Croys. It was probably soon after this that Charles wrote to Hagenbach addressing him as ‘my very good friend’ and assuring him that he would neither abandon nor fail him whatever might happen.65

Hagenbach’s exploits on the battlefield during the 1460s further endeared him to Charles, particularly with ‘Hagenbach winning military renown in the 1465 war of the League of the Public Weal’.66 That conflict began in June with Charles attacking the French Count of Nevers’s towns of Péronne, Roye, and Montdidier, with Péronne being ‘captured by a nocturnal escalade’ in October—Hagenbach’s ‘most brilliant exploit’, according to Richard Vaughan.67

Vaughan also credits Hagenbach’s military renown to his participation in Charles’s bloody campaigns against Dinant and Liège, two rebellious towns in the Burgundian territory of what is now Belgium.68 For example, disregarding the preference for nocturnal siege operations, Hagenbach brazenly took the lead in charging Dinant in the middle of the day. Kirk notes that his ‘vigour and resolution strongly recommended him to the favour of a commander [Charles the Bold] personally so distinguished for these qualities, and obtained for him ultimately a place in Charles’s confidence productive of fatal consequences to both’.69

Hagenbach was also valuable to Charles off the battlefield. Owing to his fluency in German, for example, he was frequently utilized on diplomatic missions.70 It was Hagenbach, for instance, who negotiated the 1465 alliance between Burgundy and the count palatine of the Rhine.71 In the estimation of Richard Vaughan: ‘In the summer of 1469, [Hagenbach] was an obvious choice for the post of ducal bailiff in Upper Alsace.’72

(b) Points of divergence in the historical record—the bailiff years

(i) The demonic portrait of Hagenbach

There are differing accounts of Hagenbach’s time as Charles’s bailiff in Upper Alsace. The older and more contemporaneous accounts tend to paint him as a tyrannical, (p.27) sexually deviate, bloodthirsty monster. This portrait was nicely encapsulated by French historian Prosper de Barante. In introducing readers to Hagenbach, Barante noted that the Alsatian bailiff was ‘one of the most cruel and violent men to hold power over a people’.73 ‘He knew no justice’, Barante elaborated, ‘and the slightest refusal to satisfy his whims was tantamount to a death sentence’.74 Barante observed that he had people killed without even giving the slightest clue as to why—many of them with his own hand.75 For example, Barante described the case of four citizens of the Alsatian town of Thann who were sent by the Thann government to complain to Hagenbach about exorbitant taxation (this incident would eventually become a focal point at Hagenbach’s 1474 trial).76 ‘Without any sort of trial’, Barante recounted, ‘Hagenbach had these four unfortunate burghers decapitated’.77

As this incident reveals, Hagenbach’s taxes were responsible for sowing much discontent in the Upper Alsace. One of the conditions on which the Alsatian lands were mortgaged to Charles, Barante explained, was that the liberties of their residents be preserved and respected.78 Barante recounted that Hagenbach paid no heed to that guarantee and ultimately violated it by imposing a one-pfennig tax on each bottle of wine consumed in the region.79 Barante then detailed a series of other violations of the Alsatian rights under his stewardship: (1) farmers were subjected to compulsory labour service and thereby prevented from engaging in their agricultural work; (2) soldiers were regularly quartered in the homes of the citizens without their consent and the soldiers would mistreat the homeowners without the latter having any legal protection or recourse; (3) noblemen were deprived of their right to hunt; and (4) sexual violence was visited on young girls from all walks of life and classes, including nuns.80

With regard to sexual depredations, Johannes Knebel, the Basel chaplain, reported that the bailiff became acquainted with a cloister of nuns in Breisach.81 Among them was a beautiful young vestal.82 Knebel reported that Hagenbach ‘stared at her with burning desire’.83 He threatened her with death if she did not submit to his desires.84 One of his lieutenants searched the cloister, found the attractive holy woman, and took her to Hagenbach, who raped her.85 Hagenbach’s lieutenant threatened the other nuns with death for having attempted to hide Hagenbach’s victim.86

(p.28) Prosper de Barante focused on one particularly heinous incident wherein Hagenbach invited a town’s married couples to his residence for a party.87 Once all were assembled, he removed the husbands from his residence and forced the wives to strip naked. Following this, he placed a covering over the head of each woman. The husbands were then ordered to return and inspect the naked bodies of the masked women. Those who were not able to identify their wives in this state were thrown down a long flight of stairs. Those who recognized their wives were rewarded by being forced to ingest copious amounts of alcohol that rendered them fatally ill.88

According to Barante, Hagenbach’s hatred for the inhabitants of his ducal charge was particularly intense toward the townspeople, as opposed to the rural residents.89 And this included the towns outside the Duke’s direct authority, such as Strasbourg, Colmar, Schelestadt, and other cities under Imperial aegis. Hagenbach is supposed to have subjected them to a regular litany of insults and poor treatment. Strasbourg in particular seemed to bear the brunt of the bailiff’s wrath. He subjected Ortenberg Castle, owned by the Strasbourgeois, to a military siege and then occupied it as ducal property. He imposed the dreaded wine tax on Strasbourg and then demanded that its citizens swear an oath of allegiance to the Duke of Burgundy.90 ‘In the end’, writes Barante, ‘no one knew when the limits of the bailiff’s tyranny would be reached’.91

However, Hagenbach’s greatest mistake by far, writes Barante, was alienating the Swiss, the House of Burgundy’s traditional ally and good neighbour. This began with Hagenbach’s seizure of the seigneury of Schenkelberg, which was property of the Swiss city of Berne. Later on, one of Hagenbach’s deputies arrested near the town of Breisach a group of Swiss merchants travelling with their fine cloths to the Frankfurt Fair. ‘They were mistreated, their goods were confiscated, and they were imprisoned in the Schuttern Castle, where their captors demanded from them a ransom of 10,000 crowns.’92 These prisoners were liberated by soldiers of Strasbourg who burned Schuttern Castle to the ground.93 This helped forge an alliance between the Swiss and the free cities of Alsace.94

(ii) The revisionist portrait of Hagenbach

Later chroniclers of the period have taken a much more charitable view of Hagenbach’s role in alienating Alsace and its neighbours. In his work, A History of Charles the Bold, Duke of Burgundy (1863–67), John Foster Kirk pointed out that surviving contemporaneous accounts, those supporting Barante’s history, were written by the chroniclers of Hagenbach’s judges and executioners. ‘The truth is, these chroniclers—monks and municipal scribes at Basel and Strasburg—recorded simply from day to day, without personal cognisance or investigation, whatever rumours had currency and a special interest in their localities.’95

(p.29) And the negative reports regarding Hagenbach, he noted, date from his final year in Alsace—there is little to nothing during the first four years.96 Nevertheless, even Kirk acknowledged that Charles the Bold ‘left Alsace to the mercies of a tyrannical steward, the minor villain of the piece, in whom the vices of his principal were mixed with others still more odious, whose cruelty and craft had no false lustre, no redeeming trait’.97

British historian Richard Vaughn refused to accept wholesale the cartoonish depiction of Hagenbach ‘as the archetypal tyrant, the Burgunidan bogeyman, the iniquitous immoral official of a detested foreign regime’.98 Instead, Vaughan focused on the fact that Charles was not very concerned about the administration of his Alsatian properties.99 And thus Hagenbach was left to fend for himself with few resources and little direction. Given his aristocratic sense of superiority, his gruff military demeanour and his disdain of the region’s Swiss, urban and lower class citizens, he soon ostracized the Alsatian population.100

Vaughn opines that the situation was aggravated by fears of Charles’s territorial ambitions in the region and further exacerbated by his administrators’ speaking a foreign language:

Unlike the Austrians, the Burgundians were welsch, or French-speaking foreigners, in a thoroughly Germanic area. Their arrival and the administrative activities which accompanied it, aroused the suspicions and distrust of Charles’s ally the imperial Landvogt of Alsace, Frederick the Victorious, elector palatine of the Rhine, as well as of two of the most powerful and populous cities on the Rhine, Strasbourg and Basel.101

Concerns about Charles’s desire for land acquisition seemed to reach their peak in September 1473, when he met with Holy Roman Emperor Frederick III in Trier to discuss Charles’s possible ascension to the Imperial crown.102

Alsatian historian Georges Bischoff has noted that, in addition to local fears about Burgundian expansion, the citizens of the Upper Rhine resented Hagenbach’s strict administration and his curbing of corrupt practices in the region.103 He went so far as to add that Hagenbach’s administrative reforms, so abhorred by the Alsatians and Rhenians, presaged the structures instituted by Louis XIV two centuries later.104 Heinrich Heimpel noted that Hagenbach went through the territory with an ‘iron sweeper’—imposing duties, improving castles, establishing a road-police, improving trade and organizing a court system moulded after the Burgundian, and reforming cloisters.105 Certainly, one of Hagenbach’s most impressive achievements was in the area of public safety and roads administration. During his tenure, Charles Nerlinger pointed out, ‘security on the roads was so good that one could carry across the region gold or silver attached to nothing more than a bindle stick’.106

(p.30) Vaughan believed that Burgundian problems in the region were well illustrated in the case of the imperial city of Mulhouse, whose citizens had been enduring a wave of criminal attacks by brigands in the region.107 In response, in May 1470, Hagenbach, ‘in his typically forthright manner’, demanded that Mulhouse ‘should accept in perpetuity the protection of the Duke of Burgundy and his successors…But though the Burgundian bailiff stormed, threatened, and coaxed Mulhouse…she remained resolute in her opposition to any sort of Burgundian penetration’.108 Over time, the Alsatian population was subjected to a rising level of insults, threats and occasional physical violence—behaviour that in the final months of his service Vaughan described as ‘increasingly arbitrary, offensive and indecorous’.109

(c) Hagenbach’s downfall

Regardless of whether one subscribes to the older view of Hagenbach as bloodthirsty monster or the revisionist version of him as tactless bully, one thing is certain: he managed to whip up hatred within the region and unify the citizens of the Upper Rhine in passionate opposition against him. With encouragement from Louis XI, in March–April 1474, the Swiss Confederation, the Austrians and the free/imperial towns entered into an alliance, known as the ‘League of Constance’, to achieve ‘the peace of the land’ and extricate it ‘from the tyranny of the Duke of Burgundy and his wicked bailiff Peter von Hagenbach’.110 The first order of business was to redeem Sigismund’s mortgage from Charles the Bold. This was achieved through the funding of the towns of Basel, Colmar, Sélestat, and Strasbourg.111 Subsequently, Sigismund appointed his own bailiff, Sundgau nobleman Hermann von Eptingen, to replace Hagenbach.112

By this point, events were closing in on Peter von Hagenbach and he knew it. He appealed to Charles the Bold for additional troops but the request was denied as Charles had military ventures occupying his troops in other parts of Europe including the Low Countries and Lorraine.113 Thann had been Hagenbach’s headquarters but he feared for his safety there since its citizens had, from his perspective, plotted against him the previous summer.114 So he decided to make his stand in Breisach, a walled and more easily defensible town on the Rhine,115 and he fortified it with a large garrison of Picard and German mercenaries.116 It was bruited about town that Hagenbach planned to expel the citizens of Breisach and then drown them in the Rhine. There seemed to be a great sense of urgency that League of Constance troops launch an assault against the Burgundians and save Breisach’s civilians.

(p.31) (i) The arrest, inquisition and torture

In the end, though, it was not the direct action of enemy troops that led to the Burgundian governor’s demise. Unfortunately for Hagenbach, Charles the Bold had not provided sufficient funding for the bailiff’s tiny garrison and they began to mutiny against him on Easter Sunday, 10 April 1474. Vaughan notes that the local citizenry which ‘had suffered at Hagenbach’s hands the total abrogation of their civic institutions and liberties, encouraged and supported them’.117 The mercenaries were expelled from the city and Hagenbach was placed under house arrest (he had been living in the house of the Breisach mayor and would remain there for a few days).118 The day after his arrest he was bound in cords.119 Three days later he was removed to a dungeon in the public prison, his body covered in chains, his wrists secured in handcuffs, and his legs set in stocks.120

Prison conditions were apparently quite harsh. A note from his jailers in mid-April acknowledged that ‘the harsh handling of the prisoner seems to be in order…so he is not able to escape’.121 Kirk added that ‘three strong men were appointed to watch him day and night’ until the arrival of Archduke Sigismund.122 The latter reached Breisach at the end of April and ordered that instruments of torture be brought there from Basel.123 Sometime during that week, Hagenbach was interrogated while being subjected to torture on six different occasions.124 While the interrogation focused on Hagenbach’s conduct as bailiff in Upper Alsace from 1469 to 1474, it also dealt with Charles the Bold’s territorial ambitions, particularly the details regarding his meeting with Holy Roman Emperor Frederick III at Trier in September of 1473.125

On 5 May 1474, ostensibly because of poor prison conditions, Hagenbach was taken from the dungeon to what was known as ‘The Water Tower’ (on the other side of town) for additional interrogation.126 Unable to move his broken body of his own force, he was transported in a wheelbarrow while onlookers derisively heckled him.127 During the transfer, he ‘cried loudly’ and at one point he shouted ‘murderer’. He was tortured severely on that day—four separate times. He supposedly admitted to his misdeeds and named accessories.128 Among other things, he is supposed to have admitted that he intended to remove forcibly the citizens of Breisach from the (p.32) city with the intention of eventually exterminating them.129 One of Hagenbach’s associates, an official in the Breisach government, was detained and questioned about the bailiff. Pursuant to physical coercion, he admitted that Hagenbach intended to deport the citizens of Breisach and have them exterminated.130

(ii) The trial

Now that Hagenbach had confessed to his supposed crimes, what was to follow? In that era, one might have supposed that the prisoner would be summarily executed. He escaped lynch-mob justice on Easter Sunday only thanks to Breisach resident Friedrich Kappelar’s decision to arrest him and await instructions from Archduke Sigismund.131 In his book Die Feldzüge Karls des Kühnen (1843), German historian Bernhard Emmanuel von Rodt related that, when presented with the situation, Sigismund made a startling decision for the time. Given Hagenbach’s position as bailiff to the Duke of Burgundy, Sigismund concluded that he was entitled to an open, public hearing and ‘his fate would be decided by it’.132 Eminent German historian Hermann Heimpel has noted that the contemplated trial was consistent with other legal actions in late fifteenth-century Swabia.133

What might have seemed entirely unprecedented, though, was the make-up of the court that would sit in judgment of Hagenbach. He was not to be tried by a local judge. Instead, numerous representatives of sovereigns from around the region, twenty-eight in all—including sixteen knights, would sit as part of an international ad hoc tribunal.134 As described by Georg Schwarzenberger: ‘Eight of [the judges] were nominated by Breisach, and two by each of the other allied Alsatian and Upper Rhenanian towns [Strasbourg, Sélestat, Colmar, Basel, Thann, Kenzingen, Neuburg am Rhein, and Freiburg im Breisgau], Berne, a member of the Swiss Confederation, and Solothurn, allied with Berne.’135

In fact, each sovereign represented a member of the League of Constance (Berne being the only representative of the Swiss cantons).136 As one contemporaneous account put it, Hagenbach ‘was judged on behalf of all the members of the alliance’.137 Heimpel elaborated: ‘The assembly of this court shows that the League of Constance…was more than a “political union” in the modern sense of the term; those united saw themselves as a legal community, such as a medieval union, and such entities set up courts for special cases.’138 As Breisach’s sovereign, Austria provided the presiding judge.139

On 9 May 1474, at 8 am, Peter von Hagenbach’s ‘special’ case opened for trial before an enormous crowd assembled outdoors in front of the Breisach mayor’s residence (not far from the Water Tower).140 The open-air setting was consistent (p.33) with an old Germanic judicial custom that was still observed at the time.141 Thomas Schutz, the chief magistrate of Ensisheim, was designated as the tribunal’s presiding judge.142 The nominal trial prosecutor was Sigismund’s new Alsatian bailiff—Hermann von Eptingen.143 Eptingen, for his part, chose Heinrich Iselin, one of the commissioners from Basel,144 to present the prosecution’s case to the court.145 The other representative from Basel, Hans Irmy, took on Hagenbach’s representation.146

The proceedings began with the presiding judge requesting the prosecution to make its opening statement.147 According to most accounts, Iselin began dramatically by explaining to the tribunal that Hagenbach had ‘trampled under foot the laws of God and man’.148 He then read the indictment, consisting of four counts:

  1. 1. Murder in relation to the 1473 beheading of the four Thann citizens without any validly rendered judgment in violation of imperial law;149

  2. 2. Perjury in relation to Hagenbach’s oath to uphold the laws of Breisach, which he violated by restructuring certain governmental offices, stripping certain government representatives of their power, illegally quartering soldiers in homes, pillaging and plundering property, and imposing onerous taxes on the town’s citizens;

  3. 3. Conspiracy to commit murder in relation to the supposed plot to expel and exterminate the citizens of Breisach;150

  4. 4. Rape of numerous women and girls in the region, including nuns.151

(p.34) Given these charges, the prosecutor notified the tribunal that he would be seeking a death sentence.152

Hagenbach’s counsel, Hans Irmy, then gave his opening statement. He began by challenging the jurisdiction of the tribunal. He argued forcefully that ‘the Tribunal was not competent to decide this case’ because ‘only the Duke of Burgundy could be [Hagenbach’s] judge and his superior’.153 The tribunal rejected the jurisdictional challenge and found that it was competent to sit in judgment of Hagenbach for the crimes charged.154

The prosecution then put on its case-in-chief, which consisted of the testimony of six witnesses who had heard Hagenbach’s confession to the crimes charged.155 After this, Hagenbach asked for a recess and requested that two additional attorneys be added to his defence team. The tribunal then assigned to the Hagenbach team one representative each from Colmar and Sélestat.156 After Hagenbach conferred with his attorneys, the defence put on its case, which consisted of the following arguments:

  1. 1. Regarding the execution of the Thann citizens, they had tried to rise up in rebellion to Burgundian rule and were executed pursuant to the Duke’s orders with the consent of the Holy Roman Emperor;

  2. 2. He acknowledged he swore to respect the Breisach citizens’ rights but they subsequently swore a new oath of allegiance to the Duke which had the effect of overriding Hagenbach’s pledge regarding previously existing rights—the actions he took after the Breisachers swore their new oath of allegiance was pursuant to orders from the Duke;

  3. 3. Regarding the quartering of troops, that was again pursuant to the Duke’s order—Hagenbach does not seem to have directly answered the charge that he planned to deport and exterminate the Breisachers;

  4. 4. As to the charge of rape, Hagenbach responded that his accusers were just as guilty as he was of that crime and that he never actually committed violence against the women in question—he paid to have consensual sex with them.157

Given that all of Hagenbach’s conduct was at the behest of and under the aegis of the Duke, his attorneys renewed their motion to dismiss on jurisdictional grounds—only the Duke could sit in judgment of his servant.158 In the words of defence counsel Hans Irmy:

Sir Peter von Hagenbach does not recognise any other judge and master but the Duke of Burgundy from whom he had received his commission and his orders. He had no right to question the orders which he was charged to carry out, and it was his duty to obey. Is it not known that soldiers owe absolute obedience to their superiors? Does anyone believe that the Duke’s Landvogt could have remonstrated with his master or have refused to carry out (p.35) the Duke’s orders? Had not the Duke by his presence subsequently confirmed and ratified all that had been done in his name?159

After presentation of the defence, the motion appears to have held more sway.160 Remarkably, the judges seem to have recognized that it was a close call. So persuasive must the defence argument have been that prosecution attorney Heinrich Iselin actually made a motion to withdraw the charges.161

In response, a new attorney for the prosecution, Hildebrand Rasp, was appointed and he reasserted the charges of the indictment, arguing as well that Hagenbach confessed to many other crimes that were not even charged.162 The defence responded that such admissions were invalid as they were the product of torture. Rasp’s dubious retort: the admissions were made when Hagenbach was not actually on the rack so they were made freely.163 Several new witnesses were then called to testify and they corroborated that Hagenbach did not make the confessions during torture.164

Nevertheless, Rasp advanced an alternative argument. Even if the confessions were deemed tainted, Hagenbach had committed the crime of lèse-majesté. In other words, by testifying that Charles and the Holy Roman Emperor had ordered conduct by Hagenbach that was manifestly in violation of the law, he slandered these leaders.165 It was not possible, he concluded, that they could have given Hagenbach such orders.166

Hagenbach’s defence counsel Hans Irmy then called for an adjournment of the trial.167 He wanted time to serve the Duke of Burgundy with interrogatories asking whether, in fact, he had given Hagenbach the orders as asserted by the defence.168 In the annals of the law, this was a watershed moment. If the judges had granted the continuance motion and sought to verify the factual accuracy of Hagenbach’s testimony regarding the Duke’s directives, the defence of obeying superior orders would have been implicitly reaffirmed. Instead, the Tribunal made history. It found an adjournment unnecessary.169 Even if Hagenbach had received orders to commit the charged conduct, he should have known such orders were patently illegal.170

The parties having rested their cases, the Tribunal retired and deliberated for some time. According to Charles Nerlinger:

The President of the tribunal then addressed the judges and asked if they found Peter von Hagenbach guilty. The judge representing Strasbourg, Peter Schott, rose and asked that (p.36) he and the other judges be allowed to retire and deliberate on the weighty issue they were asked to resolve. They remained for a long period in deliberations, more than one of them undoubtedly aware that his sense of confidence regarding the bailiff’s guilt had been shaken. Finally, they returned and in hushed silence they declared slowly, one after the other, that Peter von Hagenbach was guilty and sentenced him to death.171

According to John Foster Kirk, a herald advanced and, standing in front of Hagenbach, declared his degradation from the order of the Knights of St George’s Shield.172 ‘Another functionary followed, who, with a glove of mail, struck him a blow upon the right cheek.’173

(iii) The execution

The Tribunal had not specified in what manner the sentence would be carried out. The judges permitted Hagenbach to be heard on this issue. Given that the manner of his execution would likely shape the way posterity viewed his legacy, the heretofore stoic Landvogt suddenly became emotional:

[The prisoner] lost, for the first time, the firmness and composure which he had manifested throughout the day, and which had been rendered the more conspicuous by the contrasted spectacle of his enfeebled and emaciated frame. His head sank upon his chest. His red eyes, instead of their customary flashes of menace and derision, sent forth from their deep recesses a glance of timid supplication. ‘Have pity’, he whispered, ‘and execute me with the sword!’ Strange to say, the appeal was not disregarded. Each member of the court, as he was called upon by name, gave his voice that Hagenbach should die by the sword.174

Hans Irmy, for his part, fought hard for his client to the last. He renewed his motion to adjourn the proceedings to seek verification from the Duke that he had given his bailiff the supposed orders that gave rise to the charged crimes.175 This final appeal was rejected.176 It was 4 pm and the trial was over.177

Preparations were then made for the execution. The judges rode on horseback at the head of a long, torch-illuminated procession toward a field just outside of town.178 The condemned man was marched on foot at the centre of the cavalcade, a confessor holding a crucifix before his eyes as he strode beside him.179 Apparently, the role of executioner was quite coveted and seven headsmen (from as many different towns) vied for the privilege.180 The honour was ultimately bestowed on Colmar’s official, a ‘short man with a short sword’.181

On the scaffold, Hagenbach made his last public announcement:

I am not concerned about my life; I have risked it enough on the field of battle. But I lament that the blood of many an honest man should be shed on my account. For assuredly my noble master, the Duke of Burgundy, will not suffer this deed to go unavenged. I regret neither my life nor my body: I ask only that you forgive me for having done what I have been sentenced (p.37) for and for other things even worse than that. Those of you for whom I served as governor for four years, please forgive what I have done through lack of wisdom or through malice. I was only human. Please pray for me.182

The disgraced knight then bequeathed his gold chain and sixteen horses to a religious house in Breisach. He asked that this provision be honoured by the profligate Sigismund. His hands were then tied, he genuflected, said another short prayer and finally placed his head on the block. The executioner’s blade then sliced through the air and found its mark. Five years to the day after Charles the Bold signed the treaty of St Omer, Burgundy was officially expelled from the Sundgau and its governor was dead.

(d) The aftermath

Kirk reports that, when hearing of Hagenbach’s execution, the Duke of Burgundy ‘fell into a paroxysm of rage’.183 Nevertheless, he failed to take immediate action.184 By summer, though, he was ready for reprisal measures. In August, Burgundian troops, led by Peter’s brother Stefan von Hagenbach, conducted a raid in the Sundgau region wherein they looted, pillaged and burnt everything in their path.185 They murdered and displaced a large number of Alsatian residents and took children to be sold and enslaved.186

This incursion might be considered the opening salvo in a protracted conflict between Charles the Bold and the League of Constance, known to history as the ‘Burgundian Wars’.187 The hostilities culminated in three decisive battles. The Duke of Burgundy drove into modern-day Switzerland but his forces were defeated by Confederate troops at the Battle of Grandson in March 1476.188 Within three months, Charles the Bold had gathered a new army and marched yet again into Swiss territory. But he would lose once more in the June 1476 Battle of Morat.189 Finally, in January 1477, Swiss troops fighting with an army of the Duke of Lorraine beat Charles in the Battle of Nancy, the war’s decisive engagement.190 Charles himself had taken the battlefield with his troops outside the walls of Nancy and his badly mutilated body was found in a ditch three days after the defeat.191 Such was the fate of the last of the Valois Dukes of Burgundy.

When Charles the Bold died in battle without sons, Louis XI declared the Duchy extinct, and he absorbed into the French crown its territorial portion lying in modern- day France.192 The Burgundian Low Countries possessions were ultimately transferred to the Habsburgs (via the marriage of Charles the Bold’s daughter, Mary, (p.38) to Archduke Maximilian of Austria).193 This gave rise to two centuries of hostilities between France and the Habsburgs (Spain/Austria) over possession of these lands.194 And two major conflagrations followed—the Thirty Years War and the War of the Spanish Succession.195

(IV) Final Analysis

(1) Who was Peter von Hagenbach?

In life, Peter von Hagenbach played a significant role in bringing about the fall of the House of Burgundy, which ultimately led to a seismic realignment of the European balance of power.196 In death, he has traditionally been portrayed as evil incarnate and the subject of the world’s first international atrocity trial. But is his infamy deserved? And should his legacy take on such mythic proportions? As with most matters related to Hagenbach, it is hard to say with certainty.

But the traditional view seems more consistent with the available evidence. That said, a reasonable argument can be made that any insights into Hagenbach’s character and actions during his time as bailiff must be parsed sequentially. Put another way, the Hagenbach of 1469 was not the Hagenbach of 1474. Revisionist historians have emphasized the relative dearth of bad press for Hagenbach during the first years of his Alsatian administration. And that makes sense. At the beginning of the relationship between Hagenbach and the Duke’s new subjects, everyone was apparently on his best behaviour (and during that early period, Hagenbach was often away from Alsace still engaging in military service for the Duke).197

But over time, the local citizenry grew weary of Hagenbach’s insults, his aristocratic animosity towards townspeople and the bourgeoisie, his boorish behaviour, and his use of progressively more strong-arm tactics to raise revenue and exert control over the region for Burgundy. And it did not help that he was perceived as linguistically and culturally foreign—a feudally-oriented francophone in a germanophone region then developing a merchant class and trending toward urbanization. By 1473–74, uneasy relations between a restive population and its by now desperate bailiff deteriorated to such a degree that Hagenbach was arrested, tried and executed.

Revisionist historians also point out that Hagenbach was attempting to enact administrative reforms to help modernize the region and make it run more efficiently. But for that he needed the proper personnel and material. Revisionists contend that, in large part, Charles the Bold’s failure to provide him with that is what led (p.39) to his lieutenant’s downfall. The old guard, on the other hand, believed firmly that Hagenbach’s own follies, namely his tyrannical, capricious and violent methods, precipitated his demise.

But these superficially competing explanations can perhaps be reconciled. The Duke’s financial and logistical support of Hagenbach’s administration was indeed lacking. But that does not tell the whole story. With few resources at his disposal, Hagenbach may have chosen to fulfil his duties in a progressively violent and arbitrary manner so as to rule more effectively by fear. He did not have the personnel necessary to quell an increasingly restive population—perhaps terror was used to compensate for this.

Consistent with this view, as resources were choked off even further during the final months of his satrapy, Hagenbach’s intimidation tactics escalated until spiralling out of control in 1474. The historical record permits such an inference. The bulk of specific allegations against the Burgundian bailiff are from his final year in power. It would make sense then, that the charges lodged against him at trial were related to conduct of recent vintage. Seen in this light, we can understand that the citizens of the Upper Rhine were at first only berated, taxed and put upon. They were likely terrorized and violated only toward the end. In the words of historian Ruth Putnam: ‘It is in this period of Hagenbach’s life that the stories of gross excess are told…his personal passions…were permitted to run riot and he spared no wife nor maid to whom he took a fancy’.198

What evidence supports the view that the good burghers of Alsace were the victims of Sir Peter’s violence? Their treatment of the wayward knight after his arrest is most revealing in this regard. While torture may have been commonplace in ordinary criminal inquisitions of the time,199 the severity of torment inflicted leads one to believe it was inspired by and directed at the kind of mass, depraved criminality of which Hagenbach has traditionally been accused.200 Significantly, in this regard, in addition to enduring horrific torture, he was stripped of his knighthood. Degradation of knighthood was exceedingly rare in the Middle Ages and reserved only for the most extreme and infamous crimes.201

And there is other evidence to suggest Hagenbach’s culpability for atrocities. Most telling perhaps is the trial record itself. Hans Irmy, it must be remembered, mounted a valiant and spirited defence to the very end. And yet the record does not reveal his even attempting to refute the charge that Hagenbach planned to (p.40) exterminate the citizens of Breisach202 or that he murdered the four petitioning residents of Thann. At most, he offered the rejected defence of superior orders. Nor did Irmy (or Hagenbach, for that matter), directly deny the rape charges (merely objecting that taking women in this fashion was common practice and/or he had paid for services rendered).203

Did Hagenbach slaughter thousands of innocent civilians in concentrated liquidation campaigns? There is no evidence to suggest he did—he was not a fifteenth- century proto-Nazi. But the record suggests that he terrorized the local population by murdering civilians, raping numerous women and conspiring to commit a large-scale massacre in Breisach. It should be noted that the rape charges are the most persuasive as there are numerous examples and they were never directly refuted.

And Hagenbach’s backstory further validates this view of him. He was the product of a Burgundian ducal culture that was steeped in and glorified violence—the reflection of its bellicose chief, Charles the Bold (known to his enemies as Charles the Terrible).204 The duchy was in almost a permanent state of war with one enemy or another during Charles’s reign.205 Charles the Bold’s Burgundy was in the practice of laying siege to towns and routinely killing civilians who resisted—Liège, Dinant, Neuss—all were subjected to horrific violence by Burgundian troops and Hagenbach played a leading role in the first two.206 And within that violent culture, Hagenbach was Charles’s fiercest, most loyal lieutenant. In that regard, Sir Peter’s steadfast reliance on superior orders at trial speaks volumes.

And it is not to be overlooked that a criminal disposition was apparent even before Hagenbach cast his lot with Charles the Bold. The reported kidnapping of Marquard Baldeck, the Swiss banker for whom Hagenbach demanded ransom, is telling in that regard. Hagenbach also seems to have fabricated a murder plot (p.41) against Charles the Bold, which he falsely pinned on a court rival to have him eliminated.207

Add to this Hagenbach’s contempt for the emerging bourgeoisie and townspeople, as well as a deep animosity toward the Swiss, and his stewardship of the Upper Rhine represented the perfect storm. By 1474, he had indeed become the scourge of the Sundgau. In this regard, it is interesting to note Burgundy expert Richard Vaughan’s insight that, in fact, it may have been Hagenbach driving policy and tactics in Charles’s Alsatian territory, not the other way around:

Many of Hagenbach’s activities were undertaken at [Charles’s] express command, though often as a result of representations made to him by Hagenbach in the first place. It is possible, for example, that Charles only agreed to sign the treaty of St Omer on Hagenbach’s persuasion. In the duke’s letters to Hagenbach of 8 August 1470 he orders him to undertake the siege and conquest of Ortenberg castle, ‘in accordance with your memorandum (advertissement)’, which seems to imply that Charles was here acting on detailed advice to take Ortenberg sent him by Hagenbach. As to other mortgaged places, the bailiff wrote to Charles describing how he had seized possession of Landser and seeking the duke’s approval, which was given on 6 January 1474…. On 26 December 1470 he wrote congratulating Hagenbach on taking Ortenberg.208

Finally, it should be pointed out that Hagenbach may be responsible for atrocities in the region, even if he did not personally commit or order them. In particular, the Picard and Wallon mercenaries he hired toward the end of his reign had a well-known reputation for being unruly, violent and hostile toward the local Alsatian population.209 French historian Émile Paul Toutey, for example, describes Picard soldiers engaging in mass rape of Breisach’s women toward the very end of 1473.210 These troops may have acted on their own initiative but Hagenbach was their superior and, at the very least, he bore command responsibility for their actions.

(2) Was the 1474 Breisach Proceeding history’s first international war crimes trial?

Those who critique Georg Schwarzenberger’s conclusion that the Breisach Trial was Nuremberg’s precursor, spearheaded by German historian Heinrich Heimpel,211 are supported in this view by two fairly straightforward and superficially compelling arguments: (1) the trial was not ‘international’ because those who sat in judgment of Hagenbach owed their allegiance to the same sovereign—the Holy Roman Empire; and (2) no war crimes were implicated as the ‘war’ between Burgundy and the League of Constance had not yet officially begun. Looking at each of these points a little more carefully, however, tends to vindicate Schwarzenberger.

(p.42) (a) An ‘international’ trial?

Nominally, the trial was presided over by a group of judges representing different political entities (primarily city-states, such as Strasbourg and Basel) in the Upper Rhine region. The argument that the trial was not international in nature hinges on the assertion that each of the entities represented was incorporated into a larger political superstructure—the Holy Roman Empire, which had been founded by Charlemagne in the year 800.212 But is this a credible claim? Many historians are of the view that, by the late Middle Ages, the Holy Roman Empire had ‘ceased to be an effective entity’.213 In particular:

[Consisting of] more than 300 principalities…the Holy Roman Empire emerged from the Middle Ages a weak and fragmented entity. Even the fabled Hohenstaufen Emperors were unable to prevent the emerging sovereignty of territorial princes…. Aptly described by Voltaire as neither holy, nor Roman, nor an empire, this historical atavism was moribund long before its final dissolution.214

In this sense, by 1474, perhaps it is more accurate to describe the Holy Roman Empire as something more akin to an intergovernmental organization with hundreds of independent member states. Could it be rightly compared, for example, to the modern Commonwealth of Nations, which consists of sovereign states that were formerly part of the British Empire?215 If so, the men who sat in judgment of Peter von Hagenbach clearly represented sovereign entities, not imperial subjects.

On the other hand, it must be pointed out that the murder charges were based on ‘imperial law’. That indicates the Holy Roman Empire may have been a bit more than the modern equivalent of the British Commonwealth. Might it look more like the European Union, for example? Even if that is the case, it does not necessarily diminish the sovereign status of the political entities represented at Breisach that day. To analogize in modern terms, an ad hoc tribunal using European Union law to resolve an issue—but not convened by or operating explicitly under the authority of the European Union—would not signify that the individual European states participating in the tribunal (France and Germany, for example) had lost their sovereignty. In this regard, it cannot be ignored that the Tribunal was convened by Sigismund, the Archduke of Austria, not by Emperor Frederick III.216

(p.43) (b) A ‘war crimes’ trial?

Regardless of its international nature, the other key issue is whether the Hagenbach inquest can be properly characterized as a ‘war crimes’ trial. Telford Taylor summarized the argument against calling it a war crimes trial in his Ministries Case opening statement: ‘The acts of which he was accused were not committed during actual hostilities or in time of war and, therefore, under our modern terminology would be akin more to crimes against humanity than to war crimes.’217 But Taylor’s statement may be erroneous on both factual and legal grounds.

First, from a factual perspective, by April 1474 a state of hostilities did arguably exist between the Duchy of Burgundy and the League of Constance principalities and city-states. The League was formed in March 1474 with the primary purpose of expelling Burgundy from the region. Not coincidentally, at about the same time, Hagenbach took up fortifications in Breisach and prepared for an attack—he knew a state of hostilities existed. Indeed, House of Valois expert Richard Vaughan concludes that there was an ‘authentic armed revolt against Charles the Bold [in] Alsace in April 1474’.218

Second, from a legal perspective, even assuming Burgundy was not officially at war with the League by April 1474, it is still arguable, under modern conceptions of the law of war, that Hagenbach engaged in war crimes. According to law of war expert Yoram Dinstein, ‘belligerent occupation may be carried out without any hostilities either preceding or following it’.219 Dinstein then elaborates: ‘If the occupation of the territory of State A (in whole or in part) by State B is suffused with coercion, the occupation is belligerent and the relationship between States A and B shifts from peace to war (even in the absence of hostilities.)’220

In the case of the Burgundian occupation of Alsace, it had clearly turned coercive during the first part of 1474. In the first place, funded by the League of Constance, Sigismund had paid off his debt and he and his League allies sought to reclaim the Alsatian lands held by Charles the Bold as collateral pursuant to the Treaty of St Omer. Consistent with this, Sigismund appointed a new bailiff for the region, Herman Eptingen. The population’s entreaties to Charles the Bold to remove Hagenbach had fallen on deaf ears and Hagenbach clearly perceived rebellion in his midst during those final months of service to the Duke. In addition to the defensive fortifications at Breisach, Hagenbach’s claim he extra-judicially killed the citizens of Thann on grounds of rebellion attests to this.

Nevertheless, in the absence of a more detailed bill of particulars, we cannot know with certainty which of Hagenbach’s charged crimes took place during this period of coercion. In fact, it is difficult to identify the precise date on which the occupation could be safely described as ‘coercive’. Nor is it clear whether a coercive occupation in 1474 existed in the same manner and degree in each of the Alsatian (p.44) territories occupied by Charles the Bold where any of Hagenbach’s charged crimes may have occurred. And so, as is true with so much else in this case, no definitive conclusions are possible.

(3) Crimes against humanity?

But perhaps it is well to reconsider Telford Taylor’s analysis that Hagenbach was charged and convicted of misdeeds akin to the modern formulation of crimes against humanity. For ICL purposes, along with the rejection of the superior orders defence, this could be the trial’s most significant legacy. Modern experts routinely quote prosecutor Heinrich Iselin’s opening charge that Hagenbach had ‘trampled under foot the laws of God and man’. But where is that supported in the historical record? Heinrich Heimpel contends it is nowhere to be found in the original source materials.221 Of the non-contemporaneous historians, Prosper de Barante appears to be the earliest quoted source of Iselin’s most famous words. And from that source, succeeding generations of historians have quoted one another, in echo chamber fashion, as support for Iselin’s weighty utterance. But what exactly are the words used in Barante’s treatise? The relevant passage follows:

On 4 May 1474 [Hagenbach] was…brought before his judges on Breisach’s town square…Henrich Iselin, of Basel, then addressed the court as Herman Eptingen’s representative, acting on behalf of Duke Sigismund and the country. He spoke more or less in these terms: ‘Peter von Hagenbach, knight, chief steward of his lord the Duke of Burgundy, and the Duke’s governor in the territory of Ferrette and Upper Alsace, should have respected the privileges he swore to protect when taking his oath of office; but not only did he violate the rights pledged and guaranteed in this country, he trampled under foot the laws of God and man.’222

And where exactly did Barante himself find evidence of Iselin’s peroration? Barante’s treatise offers no clues—there is no specific citation in support of the text (or approximate text). Consistent with Heimpel’s conclusion, my research has not unearthed reports of that exact language in contemporaneous accounts.223 There are hints of it, however, in the journal of Basel’s diarist Johannes Knebel, the most frequently quoted contemporary chronicler (and, according to historian Charles Nerlinger, ‘the most reliable source’).224 For example, Knebel quotes Iselin in his (p.45) opening statement as follows: ‘And after the tribunal was summoned, Heinrich Iselin…began to lay charges against Peter von Hagenbach…First, that in [1473], in [Thann], he caused four citizens…to be decapitated without tribunal or justice, and so had acted against the law of the divine emperors’.225 Knebel has Iselin go on to say: ‘Also, he had overwhelmed by force and against their will many married women, maidens, even nuns…and had done the same things against God, justice, and all honesty.’226

Thus, while Knebel’s Iselin quotations allude to Hagenbach’s acting ‘against the law of the divine emperors’ and ‘against God, justice, and all honesty’, with specific respect to the first and fourth counts of the indictment, they do not have Iselin generally charging Hagenbach with ‘trampling under foot the laws of God and man’.

The discrepancies can perhaps be explained, though. First, according to Gabrielle Claerr-Stamm, Barante constructed his Hagenbach history, at least in part, relying on another old chronicle kept by a prominent architect of Strasbourg, Daniel Specklin.227 Barante indicates in his book that Specklin’s manuscript was compiled based on the contemporaneous accounts of a certain M. Golbéry, an official of the Alsatian city-state of Colmar.228 Unfortunately, the portion of the Specklin chronicle dealing with Hagenbach (the entire year 1474, for that matter) was lost in a fire after the Strasbourg library holding it was shelled in 1870 by German troops during the Franco–Prussian war.229 As a result, it is quite possible that Barante’s rendering of the Iselin-opening derives from the missing portion of the Specklin manuscript (to which, for example, twentieth-century historian Heinrich Heimpel would not have had access).

There may be yet another simple explanation. Barante essentially acknowledged that he was only paraphrasing Iselin (qualifying his reporting of Iselin’s words as ‘approximate’ or ‘more or less’—à peu près in French). Given the admitted loose transcription, there is arguably enough consistent language in Knebel to reconcile (p.46) the slightly different language in Barante. In this regard, the notion that Barante was a less than careful historian is reinforced by an obvious mistake two sentences before the recounting of Iselin’s opening statement. In particular, Barante introduced the section by informing readers that Sir Peter’s trial took place on ‘4 May 1474’.230 It is universally acknowledged that Sir Peter von Hagenbach was tried and executed on the ninth of May 1474, not the fourth. Ironically, given its future impact on the development of international criminal law, a potentially minor transcription error in a Burgundian side-plot may be the most significant legacy of Barante’s mammoth ten-tome history of the Burgundian House of Valois!231

Even if we can chalk up Barante’s inadvertent proto-formulation of crimes against humanity (via Iselin) to a transcription error, Hagenbach was arguably guilty of our modern understanding of the offence all the same. The Rome Statute of the International Criminal Court defines crimes against humanity as a series of heinous acts, such as murder or rape, committed as ‘part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.232 As with war crimes, legal analysts could quibble about exactly when Hagenbach committed various acts of murder, rape and other crimes in relation to a widespread or systematic attack (or whether he had knowledge of the attack). But as most of the crimes charged at the Breisach Trial were committed in and around a period of hostility between Burgundy and the Alsatian polities, the requisite nexus between Hagenbach’s individual transgressions and a widespread or systematic attack can likely be established.233 Similarly, given that he was in charge of the forces engaging in the widespread or systematic attack, it is not a stretch to impute knowledge to him of any such attack.

(p.47) (V) Conclusion

In illuminating the hidden history of the 1474 Breisach Trial, this chapter has attempted to identify and resolve certain vertical and horizontal dissonances in Hagenbach scholarship. With respect to the former, this has amounted to an exercise in historiographic and historical archaeology. The recent attention lavished on the case by ICL experts is informed by a cartoonish conception of the defendant—an ultra-violent, sexually depraved monster who ran amok for years along the Upper Rhine and terrorized its population. Consistent with that interpretation, the authorities who captured and tried him engaged in a righteous and visionary justice enterprise. They came out on the winning side of a Manichean struggle that gave birth to ICL and ennobled its pedigree.

Digging deeper, though, one finds a very different narrative developed initially by nineteenth-century historians and embraced by most of their twentieth-century confreres. They saw Hagenbach as a would-be administrative reformer whose efforts were thwarted by xenophobic subjects and a parsimonious superior. In trying to transform a fragmented archipelago of city-states into a cohesive governmental entity, Hagenbach was despised because he threatened an ingrained culture of seigneurial privilege and parochial complacency. In his efforts to redeem property put in hock by Sigismund, he likely reinforced views of Burgundy as excessively acquisitive and bent on conquest (this was exacerbated by Charles’s own efforts to accede to the imperial throne). And in levying taxes to pay for good government, Hagenbach stoked local fears of financial servitude and ruin. But in doing the Duke’s bidding, he did not have the Duke’s support. So he was left to flounder, his undoing hastened by his admitted crass and prurient behaviour. They point out that his trial, a marketplace spectacle based on torture-extracted confessions, was little more than drumhead justice. It was akin to executing Charles the Bold in effigy. Peter von Hagenbach may not have been the most adroit governor and perhaps he did manifest contempt for the rising merchant and urban classes. But, the revisionists would contend, his final deserts were not just at all.

Digging deeper still, the bottom layer of historiography consists of the journalistic rough draft and the first generations of historians that followed. It is largely consistent with the modern ICL expert view but without the larger historical perspective and legal focus. And it is more regionally tinged and archaic. This layer is at once more reliable, given its comtemporaneity or relative proximity, and less reliable, given the inherent biases of its initial chroniclers and the disproportionate influence they exerted on sixteenth- to eighteenth-century historians.

But this piece has demonstrated that each layer is not necessarily inconsistent with the others. In fact, there are many points of convergence. And it is there that a unified, coherent narrative can be stitched together. Hagenbach was coarse and confrontational. But he was also hardworking and loyal and wanted to do right by his master. His entire career had been built on pleasing Charles the Bold. He undoubtedly meant to reform and upgrade the administration of his Alsatian fiefdom. And, consequently, resentment of the bailiff grew over the years as he pushed (p.48) while the Alsatians pulled. Hostilities boiled over in 1473 and matters came to a head in 1474. Charles’s loyal lieutenant with a criminal past and odd sexual predilections felt increasingly boxed in and he eventually lashed out. The almost exclusive procedural focus of his defence at trial strongly supports accounts of the resulting crime spree.

It should also be noted that modern Hagenbach scholarship is characterized by a certain horizontal dissonance as well—between jurists and historians. Given the historical points of convergence just noted, however, these two schools ought to find common ground too. Certain views of the revisionist historians concerning the Hagenbach judicial proceedings are not without merit. The Breisach ad hoc tribunal may not have been a kangaroo court but it bears no resemblance to the comparatively well-oiled machine of modern international criminal justice administration. The defendant was hideously tortured for days before the trial. He was given no notice of the charges or allegations against him in advance of the hearing. He had no time to speak with a lawyer before standing in front of the judges. The proceeding itself was held on a market square in a circus atmosphere and concluded within a matter of hours. He was not able to call his most important (and only) witness to the stand—Charles the Bold. And there is no indication of a high burden of proof or that any such burden even rested with the prosecution. The Breisach Trial was certainly not the paragon of due process.

On the other hand, this was the late Middle Ages—centuries removed from our modern notions of due process. Torture was part of standard pre-trial procedure at that time. And the trial itself seems relatively fair for that era. Hagenbach was represented by a zealous advocate in Hans Irmy and he was given two additional lawyers of his choice. There is as well a flip side to the ‘public spectacle’ aspect of his trial—transparency. Hagenbach could have been summarily condemned in front of a secretive Star Chamber but his trial was held in public (and that was consistent with local custom). He was able to confront witnesses called against him. He had twenty-eight finders of fact (compared to twelve in the modern jury system). And Charles the Bold, his sole designated witness, was not allowed to testify because the defence of superior orders was rejected ab initio. As well, the proceedings lasted from early in the morning until late at night—which could equate to two or three modern court days. There seems to have been significant deliberation among the twenty-eight judges suggesting that a consensus was cobbled together after carefully sifting through the evidence. In an age of witch-hunts, trials by ordeal, the Star Chamber, and the Inquisition, this was an exceedingly fair trial.

And in many ways it seems inappropriate to use twenty-first century ICL terminology to analyse a fifteenth-century judicial proceeding. But if that terminology is used, this chapter has demonstrated that the Breisach Trial has many of the hallmarks of a modern international atrocity adjudication. As a threshold matter, regardless of anything else, it is the first recorded case in history to reject the defence of superior orders. In itself, that distinction invests the trial with universal historic importance in the development of atrocity law.

But has the Hagenbach inquest left a larger legacy? Is it the world’s first international war crimes trial? Did it bequeath us the first primitive formulation of (p.49) crimes against humanity? As this chapter has demonstrated, given the relatively circumscribed writ of the Holy Roman Empire by the late fifteenth century, it is not unreasonable to classify the trial as ‘international’. And Burgundy’s hostile occupation of the Sundgau in the first part of 1474 means Hagenbach’s transgressions may arguably be recognized in contemporary terminology as war crimes. Moreover, the bailiff’s apparent widespread and systematic attack against the Alsatian civilian population (most clearly via rape and murder)—made with his commander’s knowledge of the attack—seems to qualify as crimes against humanity as it is understood today.

Whether, on that fateful Monday morning in the spring of 1474, Heinrich Iselin spontaneously and intuitively attempted to vocalize the raw concept of a new kind of atrocity crime—offences violating ‘the laws of God and man’—may never be known for sure and, in any event, is beside the point. Since the modern birth of international criminal law in 1945, experts have perceived that the Swiss procurator articulated a new juridical concept that morning—crimes against humanity. That perception has undoubtedly had an influence, however nuanced or attenuated, on the modern development of ICL. And it has lent the subtle sanction of ancient pedigree to jurists attempting to blaze new trails with respect to ICL theories of liability, defence, and procedure. This chapter has shown that though they might be grounded in inaccurate or superficial understandings of history, modern perceptions of the trial are at least not based on unsubstantiated myth. Perhaps this chapter will disabuse ICL of its one-dimensional portrait of Hagenbach as history’s consummate bogeyman. But it should also enhance appreciation for the important semiotic and iconographic space the Breisach Trial now inhabits in transnational legal discourse.

The case did set an epochal precedent. Nothing in history leading up to that moment in 1474 would have suggested the remarkable course of action taken by Sigismund. It is tempting to see that decision as an historic anomaly that would not be repeated for centuries to come. But on closer inspection, Sigismund’s choice to hold a trial before an international court fits well within the historical narrative of that era.

It was a time of religious and political disintegration. The Holy Roman Empire was fading into irrelevance and the Catholic Church was on the verge of losing its European hegemony. It was the eve of the nation-state—a unique moment when the old collective structures were dying and the new ones had yet to be born. Given the interstitial political turbulence, the time was ripe for a plural approach to law enforcement in the cosmopolitan geographic centre of Europe. Hagenbach’s inter-regional depredations, which helped forge a rare pan-Germanic consensus, provided the perfect forum to experiment with international justice during that fragmented time. The Westphalian order, already on the horizon, would foreclose any such future experiments until Nazi brutality put a chink in the Westphalian armour and inspired an unprecedented transnational justice operation in the wake of a truly global war. In that sense, although on much different scales, Breisach and Nuremberg have much in common. And should the nation-state ever manage to reassert its absolute supremacy again, Breisach will undoubtedly be on the lips of future international jurists seeking, as before, to end impunity at the expense of sovereignty.

Notes:

(1) See, for example, Georg Schwarzenberger, ‘A Forerunner of Nuremberg: The Breisach War Crime Trial of 1474’, The Manchester Guardian (London), 28 September 1946, 4; L.C. Green, Superior Orders in National and International Law (Leiden: Sijthoff, 1976), 263; Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005).

(2) See, eg, Richard Vaughan, Charles the Bold: The Last Valois Duke of Burgundy (Suffolk: The Boydell Press, 2002), 283–86.

(3) Vaughan, above n 2.

(4) Vaughan, above n 2, 266–85.

(5) Hermann Heimpel, ‘Mitelalter und Nürnberger Prozeß’ in Festschrift Edmund E. Stengel: zum 70. Geburtstag am 24. Dezember 1949 dargebracht von Freunden Fachgenossen und Schülern (Münster [u.a.]: Böhlau, 1952), 449.

(6) Hermann Heimpel, above n 5.

(7) Schwarzenberger, above n 1, 4.

(8) Schwarzenberger, above n 1, 4.

(9) Schwarzenberger, above n 1, 4.

(10) Schwarzenberger, above n 1, 4.

(11) Schwarzenberger, above n 1, 4.

(12) Schwarzenberger, above n 1, 4.

(13) Schwarzenberger, above n 1, 4.

(14) See US v Ernst von Weizsaecker (Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10) (International Military Tribunal, Ministries case No 11/Vol 13, October 1946–May 1949) 96–7. See also US v Von Leeb (The High Command Case No 12/Vol 11, October 1946–May 1949), 476.

(15) US v Von Leeb (The High Command Case No 12/Vol 11, October 1946–May 1949), 476.

(16) Georg Schwarzenberger, The Law of Armed Conflict (London: Stevens and Sons, 1968), 462–6.

(17) Schwarzenberger, above n 1, 462–6.

(18) Green, above n 1, 263.

(19) Green, above n 1, 264.

(20) Cryer, above n 1.

(21) See, eg, Michael P. Scharf and William A. Schabas, ‘Slobodan Milosevic on Trial: A Companion’, Continuum, 39 (2002) (‘The history of international war crimes trials begins with the 1474 prosecution of Peter von Hagenbach’); Jules Deschenes, Toward International Criminal Justice, in Roger S. Clark and Madeleine Sann (eds), The Prosecution of International Crimes: A Critical Study of the International Tribunal for the former Yugoslavia (New Brunswick and London: Transaction Publishers, 1996), 30; Cherif Bassiouni, ‘Perspectives on International Criminal Justice’, Virginia Journal of International Law, 50 (2010), 298.

(22) See, eg, Gary D Solis, ‘Obedience to Orders: History and Abuses at Abu Graib Prison’, Journal of International Criminal Justice, 2 (2004), 990 (‘He [Henry Wirtz, Commandant of the Andersonville prisoner-of-war camp] pleaded superior orders and, like von Hagenbach nearly 400 years previously, the plea was rejected’).

(23) See, eg, Evo Popoff, ‘Inconsistency and Impunity in International Human Rights Law: Can the International Criminal Court Solve the Problems Raised by the Rwanda and Augusto Pinochet Cases’ (Note), George Washington International Law Review, 33 (2001), 364 (‘Aside from the Hagenbach case, efforts to create and enforce international crimes against humanity were mostly unsuccessful prior to World War II’).

(24) See Thom Shanker, ‘Sexual Violence’ in Roy Gutman, David Rieff, and Anthony Dworkin (eds), Crimes of War: What the Public Should Know (New York, NY: 2nd edn, W.W. Norton, 2007), 323.

(25) Cryer, above n 1, 20.

(26) See, eg, Gregory S Gordon, ‘Complementarity and Alternative Justice’, Oregon Law Review, 88 (2009), 662 (‘Self-generated referrals, on the other hand, do not inspire the same kind of confidence [and find] no support in the Rome Statute’s “(travaux préparatoires)”…[essentially, they] represent a government’s request for ICC help in dealing with rebel groups’).

(27) Mohamed M. El Zeidy, The Principle of Complementarity in International Law: Origin, Development and Practice (Boston, MA and Leiden: Brill, 2008), 211.

(28) Timothy L.H. McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (Alphen aan den Rijn: Kluwer, 1997), 38.

(29) Gabrielle Claerr-Stamm, Pierre de Hagenbach: Le Destin Tragique d’un Chevalier Sundgauvien au Service de Charles le Téméraire (Riedisheim: Société d’Histoire du Sundgau 2004), 11.

(30) Claerr-Stamm, above n 29, 11.

(31) Claerr-Stamm, above n 29, 11 (author’s translation).

(32) Werner Paravicini, ‘Hagenbach’s Hochzeit: Ritterlichhöfische Kultur zwischen Burgund und dem Reich im 15. Jahrhundert 41’ in Konrad Krimm and Rainer Brüning, Zwischen Habsburg und Burgund. Der Oberrhein als europäische Landschaft im 15. Jahrhunderts (Ostfildern: Thorbecke, 2003). Paravicini points out that the Reimchronik may also have been written by Berthold Stehelin, the mayor of Breisach.

(33) Claerr-Stamm, above n 29, 11.

(34) Werner Paravicini, ‘Parler d’amour au XVe siècle: Pierre de Hagenbach et la dame de Remiremont’, Comptes-rendus des séances de l’année, 147 (3) (2003), 1277, 1278. Paravicini has devoted much time to reversing this perception of Hagenbach, including publication of a book containing a series of love letters exchanged between Hagenbach and an anonymous paramour. See Werner Paravicini, ‘Un Amour Malheureux du XVe Siècle: Pierre de Hagenbach et La Dame de Remiremont’, Comptes-rendus des séances de l’année, 147 (3) (Journal des savants (2006) 105–81.

(35) Claer-Stamm, above n 29, 11–12.

(36) See Andrew Richard Scoble, ‘Life of Philip de Commines’ in The Memoirs of Philip de Commines: Lord of Argenton: Containing the Histories of Louis XI. and Charles VIII., Kings of France, and of Charles the Bold, Duke of Burgundy (London: Henry G. Bohn, 1856), vol 1, xi–xx.

(37) Scoble, above n 36, 8.

(38) Henri Martin, The History of France from the Earliest Period Until 1789 (Furne et Compagnie, Librairies-Éditeurs, 1841).

(39) P.E. Tueffert, Pierre de Hagenbach (Strasbourg: Revue d’Alsace 1878), 210.

(40) Amable-Guillaume-Prosper Brugière de Barante, Histoire des ducs de Bourgogne de la maison de Valois: 1364–1477 (Paris: Librairie Le Normant, 1854).

(41) Georges Bischoff, ‘Noblesse, Pouvoirs, Société: Les Pays Antérieurs de l’Autriche (Milieu XIVe Siècle—Milieu XVIe Siècle)’, Doctoral Dissertation (University of Paris, 1996), 34. See also Joseph Billioud, Les États de Bourgogne aux XIVe et XVe siècles (Dijon: Académie des sciences, arts et belles-lettres 1922), 151 (stating that Barante relied on the Alsatian history of Daniel Specklin (1536–1589) whose manuscript disappeared in 1870).

(42) John Foster Kirk, History of Charles the Bold, Duke of Burgundy (Philadelphia, PA: J.P. Lippincott, 1864).

(43) Charles Nerlinger, Pierre de Hagenbach et La Domination Bourguignonne (Persée, 1890), 156.

(44) Hildburg Brauer-Gramm, Der Landvogt Peter von Hagenbach (Northeim and Zurich: Musterschmidt Verlag, 1957), 48.

(45) Vaughan, above n 2, 84.

(46) Paravicini, ‘Parler d’amour au XVe siècle’, above n 34, 1278.

(47) Christopher Hare, The Life of Louis XI: The Rebel Dauphin and the Statesman King (London and New York: Harper & Brothers 1907), 99–100.

(48) Hare, above n 47, 102.

(49) Hare, above n 47, 102–09.

(50) Heinrich Witte, ‘Zur Geschichte des burgundischen Landvogts Peter von Hagenbach’, Zeitschrift für die Geschichte des Oberrheins, 8 (1893), 646.

(51) Brauer-Gramm, above n 44, 12.

(52) Brauer-Gramm, above n 44, 12.

(53) Brauer-Gramm, above n 44, 12–13.

(54) Brauer-Gramm, above n 44, 14.

(55) Brauer-Gramm, above n 44.

(56) Paravicini, ‘Parler d’amour au XVe siècle’, above n 34, 1277.

(57) Paravicini, above n 34, 1277.

(58) Paravicini, above n 34, 1277.

(59) Brauer-Gramm, above n 44, 14.

(60) Brauer-Gramm, above n 44, 14.

(61) Brauer-Gramm, above n 44, 14.

(62) Brauer-Gramm, above n 44, 14. This seems a foreshadowing of Hagenbach’s future interaction with Swiss citizens and his eventual trial and execution as Charles’s Alsatian Bailiff. It should be noted that Hagenbach subsequently wrote a letter to the local Habsburg bailiff attempting to justify his actions.

(63) Brauer-Gramm, above n 44, 14.

(64) Brauer-Gramm, above n 44, 14, 16.

(65) Vaughan, above n 2, 255. This is certainly ironic in light of later events.

(66) Vaughan, above n 2, 255.

(67) Richard Vaughan, Philip the Good: The Apogee of Burgundy (Woodbridge: The Boydell Press, 2002), 391.

(68) Vaughan, above n 67, 256.

(69) Vaughan, above n 67, 256.

(70) Vaughan, above n 2, 255.

(71) Vaughan, above n 2, 255.

(72) Vaughan, above n 2, 255.

(73) Barante, above n 40, vol 9, 405.

(74) Barante, above n 40, vol 9, 406.

(75) Barante, above n 40, vol 9, 406.

(76) Barante, above n 40, vol 9, 406. These killings would eventually be the basis of one of the counts against Hagenbach at his 1474 trial.

(77) Barante, above n 40, vol 9, 406. A point that supports the revisionists is that other specific examples of murder are not given. It would seem that Hagenbach’s chief atrocity crime was mass rape.

(78) Barante, above n 40, vol 9, 406.

(79) Barante, above n 40, vol 9, 405–6.

(80) Barante, above n 40, vol 9, 406–7.

(81) Johannes Knebel, Chronicle of the Chaplain Johannes Knebel from the Time of the Burgundian Wars (Bahnmaier, 1851), 49.

(82) Knebel, above n 81, 49.

(83) Knebel, above n 81, 49.

(84) Knebel, above n 81, 49.

(85) Knebel, above n 81, 49.

(86) Knebel, above n 81, 49, 49–50.

(87) Barante, above n 40, vol 9, 407.

(88) Barante, above n 40, vol 9, 407.

(89) Barante, above n 40, vol 9, 408.

(90) Barante, above n 40, vol 9, 408.

(91) Barante, above n 40, vol 9, 408–9.

(92) Barante, above n 40, vol 9, 410.

(93) Barante, above n 40, vol 9, 411.

(94) Barante, above n 40, vol 9, 411.

(95) Kirk, above n 42, 471.

(96) Kirk, above n 42, 471, 472.

(97) Kirk, above n 42, 471, 475.

(98) Vaughan, above n 2, 286.

(99) Vaughan, above n 2, 91–5.

(100) Vaughan, above n 2, 99.

(101) Vaughan, above n 2, 261.

(102) Vaughan, above n 2, 105.

(103) Georges Bischoff, ‘Preface’ to Claerr-Stamm, above n 29, 8–9.

(104) Bischoff, above n 103, 9.

(105) Heimpel, above n 5, 444.

(106) Nerlinger, above n 42, 148.

(107) Nerlinger, above n 43, 95.

(108) Nerlinger, above n 43, 95.

(109) Vaughan, above n 2, 283.

(110) Vaughan, above n 2, 278.

(111) Vaughan, above n 2, 278.

(112) Vaughan, above n 2, 284.

(113) Vaughan, above n 2, 286; Kirk, above n 41, 478–9.

(114) Vaughan, above n 2, 283.

(115) Kirk, above n 42, 477.

(116) Kirk, above n 42, 477.

(117) Vaughan, above n 2, 283.

(118) Vaughan, above n 2, 283. See also Kirk, above n 42, 484.

(119) Kirk, above n 42, 487.

(120) Kirk, above n 42, 488. See also Bernhard Emanuel von Rodt, Die Feldzüge Karls des Kühnen, Herzogs von Burgund (Schaffhausen: Hurter, 1843), 221.

(121) Von Rodt, n 120 above, 221.

(122) Kirk, above n 42, 488.

(123) Hermann Heimpel, ‘Das Verfahren gegen Peter von Hagenbach zu Breisach 1474’, Zeitschrift für Geschichte des Oberrheins, 55 (1942), 321, 346–7.

(124) Heimpel, see above n 123, 347, 349. In all likelihood, according to Heimpel, the primary torture position consisted of Hagenbach being hanged by his bound hands with rocks tied to his feet.

(125) Heimpel, see above n 123, 348–9. See also Kirk, above n 42, 489.

(126) Heimpel, above n 123, 349; Kirk, above n 42, 488 (Kirk suggests the prisoner was transferred to the tower because it offered superior torture facilities).

(127) Von Rodt, above n 120, 223.

(128) Heimpel, above n 123, 348. The record is not entirely clear as to which crimes he would have confessed.

(129) Claerr-Stamm, above n 29, 171.

(130) Claerr-Stamm, above n 29, 171.

(131) Heimpel, above n 123, 345.

(132) Von Rodt, above n 120, 223.

(133) Heimpel, above n 123, 338.

(134) Schwarzenberger, above n 16, 463.

(135) Schwarzenberger, above n 16, 463.

(136) Claerr-Stamm, above n 29, 175; Kirk, above n 42, 494.

(137) Vaughan, above n 2, 285.

(138) Heimpel, above n 123, 325.

(139) Schwarzenberger, above n 16, 463.

(140) Claerr-Stamm, above n 29, 175.

(141) Claerr-Stamm, above n 29, 175.

(142) Claerr-Stamm, above n 29, 175.

(143) Heimpel, above n 123, 324–5.

(144) Kirk, above n 42, 435.

(145) Claerr-Stamm, above n 29, 175.

(146) Claerr-Stamm, above n 29, 175.

(147) Heimpel, above n 123, 325.

(148) Schwarzenberger, above n 16, 465. Heimpel disputes that Iselin used the expression ‘trampled under foot the laws of God and man’. See Heimpel, above n 5, 450 n 1 (‘I find nowhere that the prosecutor said: [in English from newspaper article] “Hagenbach’s deeds outraged all notions of humanity and justice and constituted crimes under national law” [in German] and that he [in English] “trampled under foot the laws of God and men and had committed what would be called today crimes against humanity”’). On the other hand, French historian Prosper de Barante and British historian John Foster Kirk support Schwarzenberger’s account of Iselin’s opening statement regarding Hagenbach’s trampling ‘under foot the laws of God and men’. See Barante, above n 40, vol 9, 15 (‘Pierre de Hagenbach, chevalier, maître d’hôtel de monseigneur le duc de Bourgogne, et son gouverneur dans les pays de Ferrette et Haute-Alsace, aurait dû respecter les privilèges réservés par l’acte d’engagement; mais il n’a pas moins foulé aux pieds les lois de Dieu et des hommes que les droits jurés et guarantis au pays.’ [emphasis added]); Kirk, above n 42, 435 (‘the accuser demanded that Hagenbach should be adjudged worthy of death, as a murderer, perjurer, and a general transgressor of the laws both of God and men.’ [emphasis added]).

(149) Vaughan noted that the beheadings were in response to an alleged uprising in Thann against the Duke of Burgundy on 3 July 1473. See Vaughan, above n 2, 285.

(150) The indictment appears not to have used the term ‘conspiracy’ but this was the gist of the charge.

(151) Kirk, above n 42, 494–5; Claerr-Stamm, above n 29, 177; Vaughan, above n 2, 285. For the fourth count of the indictment, the historians do not actually use the word ‘rape’ in describing Hagenbach’s transgressions with women in the region. Still, that appears to be the clear import of the charge. See Von Rodt, above n 120, 224–5 (‘noting that Hagenbach violently mishandled honourable women, including virgins and nuns.’). Claerr-Stamm also points out that all the charged conduct was of relatively recent vintage (within the previous year) and did not cover most of the period of Hagenbach’s governorship.

(152) Claerr-Stamm, above n 29, 177.

(153) Von Rodt, above n 120, 224.

(154) There is no indication that the tribunal elaborated or provided specific reasons for its rejection of Hagenbach’s jurisdictional challenge.

(155) Von Rodt, above n 120, 225.

(156) Claerr-Stamm, above n 29, 177.

(157) Claerr-Stamm, 177–80, n 29.

(158) Claerr-Stamm, 180, n 29.

(159) Schwarzenberger, above n 16, 465.

(160) Schwarzenberger, above n 16, 465.

(161) Schwarzenberger, above n 16, 465.

(162) Schwarzenberger, above n 16, 465.

(163) Heimpel, above n 5, 331. Of course, that does not touch on the fact that any such additional criminal conduct was not even charged.

(164) Kirk, above n 42, 498.

(165) Claerr-Stamm, above n 29, 180. The crime of lèse-majesté consists of affronting the dignity of the monarchy. See Frank Munger, ‘Globalisation, Investing in Law, and the Careers of Lawyers for Social Causes: Taking on Rights in Thailand’, New York Law School Review, 53 (2008–09), 770, n 109 (‘The critical element is an affront to the monarchy, usually through speech, rather than the veracity of the representation. The crime has long since ceased to be meaningful in Europe, but continues to play a role in Thai politics.’).

(166) Claerr-Stamm, above n 29, 180.

(167) Claerr-Stamm, above n 29, 180.

(168) Claerr-Stamm, above n 29, 180.

(169) Schwarzenberger, above n 16, 466.

(170) Schwarzenberger, above n 16, 466.

(171) Nerlinger, above n 43, 131.

(172) Kirk, above n 42, 499.

(173) Kirk, above n 42, 499.

(174) Kirk, above n 42, 499.

(175) Kirk, above n 42, 499–500.

(176) Kirk, above n 42, 499–500.

(177) Claerr-Stamm, above n 29, 182.

(178) Kirk, above n 42, 500.

(179) Kirk, above n 42, 500.

(180) Kirk, above n 42, 500.

(181) Kirk, above n 42, 500.

(182) Claerr-Stamm, above n 29, 186.

(183) Kirk, above n 42, 502.

(184) Kirk, above n 42, 503–4.

(185) Vaughan, above n 2, 285.

(186) Kirk, above n 42, 505–6.

(187) Nicholas A. Hooper, The Cambridge Illustrated Atlas of Warfare: The Middle Ages, 768–1487 (Cambridge: Cambridge University Press, 1996), 150.

(188) Vaughan, above n 2, 375–8.

(189) Vaughan, above n 2, 390–5.

(190) Vaughan, above n 2, 429–32.

(191) Vaughan, above n 2, 432.

(192) George Ripley and Charles Anderson Dana, The American Cyclopaedia: A Popular Dictionary of General Knowledge (New York, NY: D. Appleton, 1873), 451.

(193) Carlos Ramirez-Faria, Concise Encyclopaedia of World History (New Delhi: Atlantic Publishers and Distributors 2007), 683.

(194) Encyclopaedia Britannica, ‘House of Habsburg’ (11th edn, 1910), vol 12, 789.

(195) Encyclopaedia Britannica, above n 194, 789.

(196) See Vaughan, above n 2, 255 (‘the course of events and with it the entire destiny of Charles the Bold and of Burgundy was decisively affected by the attitudes and antics of Peter von Hagenbach [who] made a [great] impact on history.’).

(197) See Claerr-Stamm, above n 29, 112.

(198) Ruth Putnam Charles the Bold, Last Duke of Burgundy (New York, NY: G.P. Putnam’s Sons, 1908), 380. As mentioned previously, rape, as opposed to murder, appears to have been Hagenbach’s preferred weapon of terror and atrocity.

(199) See Rinat Kitai-Sangero, ‘Detention for the Purpose of Interrogation as Modern “Torture”’, University of Detroit Mercy School of Law Review, 85 (2008), 156.

(200) On the other hand, it would appear the torture ended once Hagenbach ‘confessed’ to his crimes.

(201) See The Caputo Family Association, ‘Knighthood and Noble Titles’, Noble Dynasty [website], <http://www.nobledynasty.com/knighthoodandnobletitles.htm> (accessed 28 February 2013) (‘In extreme cases…a knight…could lose his honour by formal degradation—a public ceremony in which his accoutrements were taken from him.’); Jeri Westerson, ‘Degradation of Knighthood’, Getting Medieval [blog], <http://www.gettingmedieval.com> (accessed 28 February 2013) (‘It’s something in the history of chivalry that doesn’t often come up’).

(202) Émile Toutey provides a plausible explanation for why Hagenbach would have wanted to murder the citizens of Breisach. Hagenbach was aware of other towns that had plotted to kill him during the previous year and, when requesting entry to create defensive fortifications in anticipation of an attack by the League of Constance, he had already been denied admittance with his troops into Thann and Ensisheim. He was only able to gain entry into Breisach because his mercenaries were already there. Given the animosity shown him in these other towns and the previous conspiracy to kill him, Hagenbach did not want to take any chances. Killing Breisach’s citizens would have permitted him to use the town as a defensive fortification without the risk of an uprising from its citizens. Émile Paul Toutey, Charles Le Temeraire et La Ligue De Constance (Paris: Hachette, 1902), 136–7.

(203) It seems quite implausible to accept that women of the cloth, supposedly among Hagenbach’s victims, would have accepted payment for sexual services.

(204) See Hugh Chisolm, Encyclopaedia Britannica (1910), 824 (describing Charles as ‘violent, pugnacious…treacherous’).

(205) See Bruce D. Porter, War and the Rise of the State (New York, NY: Free Press, 2000), 29. (‘Charles the Bold…waged a decade-long war (1467–77) aimed at carving out a separate Burgundian Kingdom.’).

(206) ‘Dinant Travel Guide’, Eupedia [website], <http://www.eupedia.com/belgium/dinant.shtml> (accessed 28 February 2013) (describing the siege as ‘the darkest moment in local history’ wherein the ‘city was completely pillaged and burnt down’); Mark Twain, Personal Recollections of Joan of Arc (San Francisco, CA: Ignatius Press, 1989) (recounting the ‘unspeakable atrocities which Charles the Bold inflicted upon the men and women and children of Dinant’); Vaughan, above n 2, 40 (explaining that Charles the Bold ‘sacked Dinant and demolished Liège’); Nicholas Michael, Armies of Medieval Burgundy 1364–1477 (Oxford: Osprey Publishing, 1983) (detailing that at the halfway point of a year-long siege, ‘the gates of Neuss had been reduced to rubble by Charles’s 229 guns [and] everything down to the last rat had been eaten’).

(207) See Vaughan, above n 2, 255.

(208) See Vaughan, above n 2, 99.

(209) Toutey, above n 201, 102.

(210) Toutey, above n 201, 101.

(211) See Heimpel, above n 5, 449.

(212) See, eg, Heimpel, above n 5, 449.

(213) Tony Allan et al, World and Its Peoples, Germany and Switzerland (Tarrytown, NY: Marshall Cavendish Reference, 2009), 318.

(214) Roderick Stackelberg, Hitler’s Germany: Origins, Interpretations, Legacies (London: Routledge, 1999), 26.

(215) See ‘Profile: The Commonwealth’, BBC: News [website], <http://news.bbc.co.uk/2/hi/europe/country_profiles/1554175.stm> (accessed 28 February 2013). In fact, two members of the Commonwealth were not formerly part of the British Empire—Mozambique and Rwanda.

(216) As Heimpel points out, ‘[t]‌he staffing of the court was noble-Austrian’: above n 5, 446.

(217) US v Ernst von Weizsaecker above n 14, 96–7.

(218) Vaughan, above n 2, 403.

(219) Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), 31.

(220) Dinstein, above n 219, 35.

(221) Heimpel, above n 5, 450 n 1.

(222) Barante, above n 40, vol 9, 14–15 [emphasis added]—author’s translation. ‘More or less’ might also be translated as ‘approximately.’ The original French text reads as follows: ‘Pierre de Hagenbach, chevalier, maître d’hôtel de monseigneur le duc de Bourgogne, et son gouverneur dans les pays de Ferrette et Haute-Alsace, aurait dû respecter les privilèges réservés par l’acte d’engagement; mais il n’a pas moins foulé aux pieds les lois de Dieu et des hommes que les droits jurés et guarantis au pays.’

(223) In addition to Knebel’s diary and the previously mentioned Reimchronic (see above n 32), Richard Vaughan cites Die Berner-Chronik by Schilling and Die Strassburgische Chronik by Trausch. See Vaughan, above n 2, 262 n 1. The author has not read the latter two, which are not widely available and kept in locations not currently accessible to the author. Of course, it is possible Barante relied on the manuscripts of Schilling or Trausch but this seems unlikely given that he cites neither in his treatise.

(224) Nerlinger, above n 43, 127 n 1. Some consider Knebel the sole source of reportage on the trial. John Foster Kirk refers to Knebel as ‘the chronicler’. Kirk, above n 42, 494 [emphasis added].

(225) Knebel, above n 81, 86 [emphasis added]. The original Latin reads: ‘Et judicio bannito cepit Heinricus Ysenlin nomine domini Hermanni de Eptingen balivi contra dominum Petrum de Hagenbach querulare et quatuor articulos contra eum proposuit: [1]‌ primo: quod anno preterito, videlicet 73, in Tannis quatuor cives, probos et honestos viros, absque judicio et justicia fecisset decapitari, unde contra legem divorum imperatorum fecisset.’ Scott Farrington translated the Latin into English.

(226) Knebel, above n 81, 86–7 [emphasis added]. The Latin reads: ‘Multas eciam in civitate Brisacensi mulieres maritatas, virgines, eciam moniales vi oppressisset et contra ipsarum voluntatem, et similia non solum ibi, verum eciam in multis aliis opidis et villis fecisset contra deum, justiciam et omnem honestatem.’ As before, Scott Farrington translated the original Latin into English.

(227) Claerr-Stamm, above n 29, 186 (‘Barante…relied on the chronicle of Daniel Specklin, which has disappeared’).

(228) Barante, above n 40, vol 9, 405.

(229) Claerr-Stamm, above n 29, 186. See also Rodolphe Reuss, Les Collectanées de Daniel Specklin, Chronique Strassbourgeoise du XVIème Siècle (Strasbourg: Librairie J. Noiriel, 1890); Georges Delahache, ‘La Cathédrale de Strasbourg: Notice Historique et Archéologique (1910)’, University of Toronto Libraries: Internet Archive [website], <http://www.archive.org/stream/lacathdraledes00delauoft/lacathdraledes00delauoft_djvu.txt> (accessed 28 February 2013) (‘Specklin left a manuscript that was partially destroyed in a fire of the city’s library during the 1870 bombardment and that was published in retrievable fragments by Rod. Reuss’) (translated by the author).

(230) Barante, above n 40, vol 9, 14.

(231) Another possible source of the phraseology is suggested by historian Ruth Putnam. She explains that the anti-Burgundian alliance sent Emperor Frederick III a letter in August 1474 explaining why Sigismund had reasserted dominion over the mortgaged Alsatian territories. In particular, she recounts the letter informed the Emperor that Charles the Bold’s ‘appointed lieutenant had been peculiarly odious and had broken the laws of God and men’ (Putnam, above n 198, 394 [emphasis added]). To support this, Putnam cites to page 442 of the 1902 treatise Charles le Téméraire et la ligue de Constance by French historian Émile Paul Toutey. But the cited language in French reads as follows: ‘Il a inquiété gravement les prêtres, dans leurs corps et dans leurs biens, honteusement outragé des femmes et des filles, fait passer de vie à trépas beacoup d’innocents, contre Dieu et le droit, sans acun jugement.’ Émile Paul Toutey, Charles le Téméraire et la ligue de Constance (Hachette, 1902) 442 [emphasis added]. The author translates this passage as follows: ‘He seriously harassed the priests, with respect to both their persons and possessions, shamefully offended women and girls, and put to death many innocent persons, against God and the law, without judicial sanction.’ Putnam’s translation seems a stretch and the language quoted by Toutey is not even close to Barante’s formulation of ‘les lois de Dieu et des hommes’. Even if Putnam’s translation is accepted, it is quite possible that that letter’s authors were merely quoting Iselin’s words at trial.

(232) Rome Statute of the International Criminal Court, 2187 UNTS 3, opened for signature 17 July 1998 (entered into force on 1 July 2002), Art. 7.

(233) Given the widespread and systematic attack, Heimpel’s assertion that the trial involved only garden variety charges of murder and rape is ill considered. See Heimpel, above n 5, 450.