Building on the 1943–48 United Nations War Crimes Commission

4   Building on the 1943–48 United Nations War Crimes Commission

Dan Plesch

A renaissance in international criminal justice drawn from lost lessons of World War II can empower the international community of states today.1 The seemingly unstoppable war crimes in Africa and the Middle East and the turgid performance of the International Criminal Court (ICC) invite a defeatist response. Barbarism triumphs in the face of ineffectual justice. The lessons of this chapter are partly that the United Nations at war achieved far more in this area than is remembered, but more importantly that especially at a time when Nazi victory seemed almost certain, the Allies put legal justice among their war aims. Faced with comparatively minor adversaries today, those who advocate abandoning international criminal justice are at best encouraging simple defeatism and at worst encouraging would-be perpetrators.

The four-country Nuremberg International Military Tribunal considered 24 cases. In contrast, cases involving 30,000 individuals were approved for prosecution at a score of national civil and military tribunals by the 17-country UN War Crimes Commission (UNWCC) in the period 1943–48. The commission’s member states submitted thousands of cases to the UNWCC, and when their charges were approved, they acted to pursue prosecutions in their own jurisdictions, which happened in countries as far apart as China and Norway.

This body of legal practice changes the paradigm of international criminal justice.2 The breadth and depth of the UNWCC’s work provides a far stronger basis in political practice and law than has been the general assumption for decades. The UNWCC should be considered as a massive platform on which to build international criminal justice compared to the narrower ones of Nuremberg and Tokyo.

This chapter summarizes the work of the United Nations War Crimes Commission and its associated courts and tribunals, but emphasizes the commission’s potential to contribute to international criminal justice in the twenty-first century. The discussion of the UNWCC’s contribution begins with the issue of whether international criminal justice should be seen as a Western creation and highlights Chinese and Indian contributions. It then details the global system of international criminal justice created in the mid-1940s and the lessons for the key contemporary debate on the relationship between the ICC and local jurisdictions, be they in Libya or under the auspices of a regional body such as the Arab League or African Union. Several specific issues are then analyzed: the crimes of aggression; the defense of superior orders; collective responsibility for crimes from being part of a group; and the prosecution of gender-based violence. The chapter concludes by outlining a research agenda on both the specific politico-legal issues and on the wider question of why experience of such value has been neglected by so many for so long.

Legal and political amnesia

Before launching into this analysis, it is worth pondering a question that only becomes clear as a result of probing the past: “Why was the UNWCC neglected for so long?” Then as now some states were hostile to the idea of war crimes trials. In the United States, an interagency conflict slowed the UNWCC’s creation, limited its scope, and led to its premature closure. Chris Simpson3 and Graham Cox4 provide illuminating accounts of the opposition by die-hard realist opponents of war crimes trials to the leadership of President Franklin D. Roosevelt and of his Ambassador Herbert Pell. As a former congressman and US ambassador to Portugal and Hungary, Pell came from a similar class background as FDR and was a vocal opponent of racial discrimination in the United States. As a diplomat in Hungary during the war, he had the then rare experience for an American of seeing the impact of fascism first hand.

Cox makes a compelling argument that absent the public campaign by Pell after his dismissal, it is unlikely that Nuremburg would ever have happened. Supporters of the absolute right of states to govern their internal affairs combined with those who prioritized alliance with Germans against Soviet communism staunchly blocked efforts at retributive justice. However, the alliance of some sections of the US government and civil society with the leadership of smaller states led to progress. As Kerstin von Lingen5 has reminded us, in the early 1940s it was the exiled governments of states under Nazi control—notably Belgium, Czechoslovakia, and Poland—that (along with China) combined with legal scholars and nongovernmental organizations (NGOs), including Jewish ones, to keep the issue of war crimes on the US and UK agendas.

Contemporary jurists including Justice Jackson and David Maxwell Fife were clear that the UNWCC played an important judicial role and helped develop the London Charter for Nuremburg. The commission’s members included such leading international jurists and diplomats as René Cassin, Marcel de Baer, Bohuslav Ecer, André Gros, Cecil Hurst, Wellington Koo, Herbert Pell, and Lord Wright.

The UNWCC’s mostly secret work was overshadowed by the resources and publicity accorded to the trials at Nuremberg. Subsequently, the US priority of rebuilding Germany required the closure of the commission and its files. A story became prevalent that its ineffectiveness meant that it warranted little more than a footnote in accounts of the development of international criminal justice.

Part of the background work to this research project resulted in 2011 in the UN agreeing to de-restrict partially the UNWCC’s minutes and then the Prosecutor’s Office of the ICC placing a good deal of this material online, helped by roughly parallel processes of digitization in the archives of the Australian, British, and US governments among others. In 2014, the US Holocaust Memorial Museum obtained a full copy of the until-then restricted sections of the archive, notably the 36,000 pre-trial dossiers sent to the commission by its member states.6

The UNWCC was created on the initiative of victim states to provide a global system of complementary justice to reinforce and legitimate the actions of these countries after liberation and to act as a warning to perpetrators and a glimmer of hope to victims that justice would be done. This alone is a useful example for our own time. Moreover, with respect to contemporary debates, a number of precedents stand out and can be headlined. Rape was prosecuted routinely. Legal responsibility was attributed routinely to those with collective or command responsibility and low-level functions. A uniform system of facts and evidence collection was developed and implemented. Torture, including waterboarding and stress positions, was prosecuted in a considerable number of cases. Prosecutions took place in the states where they occurred and were pursued with urgency and economy. The commission’s minutes show multilateral debates and decisions about such contemporary headlines as collective responsibility, the mandate of an international criminal court, and the crime of aggression.

In brief, the political debates of the 1940s resonate today. The state-interest pragmatists in Washington and London were opposed to any legal process resembling Nuremburg. How would we fare today without Nuremberg? As Herbert Pell alleged at the time, there was no evident political will in Washington for the International Military Tribunal (IMT) that was established eventually at Nuremberg as late as May 1945. It was only a coalition of small states, civil society, and leading actors, notably President Roosevelt, that saw the creation of any war crimes processes. Resistance by traditionalist lawyers to legal innovation was a problem at the core of the UNWCC’s work but the national representatives pioneered constructive innovation.

Before surveying the commission’s value for our own time, it is important to specify a few caveats. Some of the conventions of the time, notably the use of the death penalty, are not practices that fit with twenty-first-century practice. The commission’s remit was limited and could only support prosecutions of enemy personnel for offences committed against the United Nations during World War II. It had no role in respect of actions by personnel of its own members. It also sought jurisdiction over crimes committed by the Germans against their own people, notably the Jews; however, this unsuccessful pressure still contributed to the adoption at Nuremburg of crimes against humanity, a term used in formal debate in the UNWCC more than a year earlier, in the spring of 1944.

Chinese and Indian leadership

There is a tendency to view international criminal law, indeed international human rights in general, as a Western or even an Anglo-American invention. The records of the 1940s show a very different picture. Of the big four powers, it was China that was the first to adhere to the seminal declaration of January 1942 on the “Punishment for War Crimes” by the exiled governments in London—some months before Washington, London, and Moscow.

China went on to become a founding and prominent member of the UNWCC. It proposed and created in Chunking a sub-commission for the Far East that indicted thousands of Japanese for crimes in China. Chinese representatives proposed that the use of narcotics to subdue a population be a war crime and helped lead the effort to create a crime of aggression or crimes against peace. The Chinese role in developing the UNWCC and then applying it in its conflict with Japan has been the subject of a number of recent studies that confound the notion of international criminal law as a Western concoction.7

The representatives of the Imperial government of India sat alongside their British and Dominion colleagues on the UNWCC in London and in China, often taking different positions from the British. It appears that an Indian official, Niharendu Dutt-Majumdar, in the London meetings wrote the first main draft of a proposal for joint military tribunals. This form of justice is best known today under the titles of concentration camps where trials were held: the British at Belsen and the Americans at Dachau. The commission, thwarted by both Whitehall (the Foreign Office) and Foggy Bottom (the State Department), was unable to get support for a permanent UN criminal court. The proposal for military tribunals under the authority of commanders, including Dwight Eisenhower in Europe and Douglas MacArthur in Southeast Asia, was drafted by Dutt and appears to have been adopted and put into effect in a dozen or more tribunals. Certainly no other source of this system is clear.

Chinese and Indian judges were also active in tribunals across the Pacific and mainland China. The debate on Asian involvement in the post-World War II trials usually goes no further than the rejection of the crime of aggression as imperial hypocrisy by the Indian judge Radhabinod Pahl at the Tokyo trial. Yet from the earliest moments, the ideas and practices of international criminal justice that exist today had significant and at times leading input from the representatives of non-Western states. The leading role of China in developing the crime of aggression provides overriding empirical contradiction to the views of a single Indian judge at Tokyo. Scholars who rely exclusively on Pahl to support their arguments might explain why they overlook the position of the Chinese government, when it has been a matter of public record these last seven decades. China’s experiences with aggression were far more severe than India’s, but the Chinese nationalist government used the experience of World War II to draw a line against further aggression—in parallel with its successful efforts to overturn the unequal treaties governing many Western concessions in China.

A global system of complementary justice

The lack of a system of complementary justice in which international bodies support national legal efforts is one of the key problems in twenty-first-century international criminal justice. Yet where a state is struggling to implement its own legal measures there is no global system of support. The varied circumstances of Cambodia, Rwanda, and Libya illustrate the difficulties. While the ad hoc tribunals created in response to events in Africa and the Balkans set important precedents, they have limited mandates and are coming to the end of their lives.8 Although the ICC exists to prosecute cases when national legal systems fail to prosecute and has a mandate to develop a system, it has thus far failed to do so.

The UNWCC was created by its member states to provide international legitimacy through legal, political, and administrative support for trials that they wished to conduct themselves. The great power decisions in Moscow of November 1943 mandated that, aside from the Nazi leadership, war criminals would face justice in the territories where they had committed their crimes. In contrast, today’s criminal trials are conducted in the Netherlands even when the accused are not from the highest levels of government. The Hague is remote, both geographically and culturally, from the site of the crimes. The “gacaca” trials in Rwanda according to national practice echo the intent of Allied practice in World War II.9 A reading of the debates among commissioners reveals vigorous arguments over points of law and evidence as they sought to develop best practice. There is little sense of a “kangaroo court” to just rubber stamp cases put before them.

The UNWCC provided legal and practical advice to national jurisdictions and legal legitimacy, even authority, to national legal processes that is a useful model for the twenty-first century. The process developed in 1944 was that a country would send to the commission charges to determine whether there was a case to answer—that is, on prima facie grounds—and after endorsement, a trial. By the commission’s demise in 1948, this process was used across Europe and the Far East, with over 30,000 cases being considered, many against multiple defendants. On this basis, weak states today might bring cases to the ICC for validation of their own processes rather than simply handing them over to the ICC. Regional organizations such as the Arab League and the African Union—where currently an important push-back against the emphasis on African cases is obvious—might develop regional courts that similarly operate with the voluntary legitimation of the ICC.

States large and small considered it necessary and important to obtain international support for their national actions in the 1940s. This precedent should lend weight to legitimating such a relationship for our own era. The UNWCC member states were: Australia, Belgium, Canada, China, Czechoslovakia, Denmark, France, Greece, India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, the United Kingdom, the United States, and Yugoslavia. The commission had three specific duties: to investigate and record the evidence of war crimes; to report to the governments concerned cases in which it appeared that adequate evidence existed to support a prosecution; and to make recommendations to member governments concerning questions of law and procedure as necessary for them to be able to fulfill their role of conducting trials.10 The UNWCC had three committees that met weekly in the British Royal Courts of Justice in London to implement these mandates: Committee I, Facts and Evidence; Committee II, Enforcement; and Committee III, Legal Affairs.

Member states set up national offices within their governments to liaise with the commission, coordinate investigations, collect evidence, and create new legal structures to handle war crimes where necessary.11 All national offices reported directly to the main UNWCC headquarters in London as they conducted investigations and constructed lists of suspected war criminals for review from 1944 to the end of 1947. A National Offices Conference was held in London in May and June 1945,12 which discussed policy and practice for the pursuit and trial of war criminals, and its papers include a number of municipal statutes for war crimes trials.

The UNWCC conducted the only comparative analysis of the different national practices to take place during this time in a report to the UN Economic and Social Council (ECOSOC) in 1948.13 Until recently, virtually no additional research on the work of the many national offices had been conducted over the last seven decades.14

In addition to setting up national offices, some Western European governments in exile in London created enabling legislation for war crimes courts. For example, by August 1943 Belgium and the Netherlands had passed laws creating courts to try war crimes in their own countries following liberation.15 Through its committee structure, the UNWCC supported the national offices in conducting their investigations and also investigated some cases on its own by maintaining a small staff team that also liaised with governments through the national offices.16 The UNWCC was ultimately responsible for issuing prima facie decisions on the cases brought to it by the national offices that resulted from their investigation efforts.17 The United Kingdom provided facilities for the commission, but the staff was international and all member states contributed to its funding on the same basis as had been agreed for UNRRA, although the United States and United Kingdom limited the budget to around $60,000 (1940s prices) a year.18

Where national prosecutions resulted, states were encouraged to send trial reports to be recorded by Committee I. This process was incomplete at the time of the UNWCC’s hasty closure in 1948, with many countries being unable to complete and process their reports in time to be included in the commission’s publications. Nevertheless, over 2,000 trials were recorded at this point.

The efforts by the national offices and Committee I were complemented by the enforcement work of Committee II, which was led by former US Congressman Herbert Pell.19 In short order in the spring of 1944, it developed mechanisms for a war crimes office in the territory of defeated enemies,20 which contributed to the creation of the Central Register of War Criminals and Security Suspects (or CROWCASS) under the command of General Eisenhower, Supreme Commander Allied Expeditionary Force.21 Other initiatives include a detailed proposal for mixed military tribunals under the major Allied commands that was later adopted22

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