06 May Symposium on the UNWCC: 21st Century Value of the 1943-1948 UN War Crimes Commission
[Dr Plesch is Professor of Diplomacy and Strategy at SOAS University of London and a member (door tenant) of the chambers of Stephen Kay QC at 9 Bedford Row. He is the author of Human Rights After Hitler.]
The Russian aggression against Ukraine has created fresh interest in international criminal justice. Vital support for this next phase in the application and development of international criminal law is offered by the precedents and practice of the 1943-1948 sixteen nation United Nations War Crimes Commission. While the ICC follows the Nuremberg model of prosecuting senior leadership. Events on the ground most recently in Ukraine beg for the prosecution of perpetrators and their commanders. At present the international community offers little in this respect, and here the UNWCC can be of particular help.
36,000 individuals, including Adolf Hitler, were charged by the UNWCC’s member states with the Commission’s advice and support.
Notably, the United States voluntarily submitted some 600 cases including subsequent proceedings at Nuremberg to the Commission for its advisory opinion, to ensure that the accused were included in a central record and to record the trials. These procedures resulted in some 10,000 convictions in over 2,000 trials in Europe and Asia.
As a formally constituted diplomatic body, the UN War Crimes Commission, provided international legitimacy, and legal and technical support to domestic judicial processes. Its leadership included British chairmen, Sir Cecil Hurst a member of the International Court of Justice and Lord Wright, a former Master of the Rolls, Renee Cassin, a future Nobel Peace Prize winner, and Congressman Herbert Pell, Franklin Roosevelt’s Ambassador. It fulfilled the objectives set by the refugee governments in London in their Declaration of St James’s on punishment for war crimes and the Moscow Declaration.
Overshadowed by the Nuremberg trials of top Nazis, and rapidly closed down in the interests of anti-communism, the member states of the UNWCC created substantial precedent and practice. The UNWCC included China and India and eventually supported Ethiopia’s own War Crimes Commission, which develop numerous cases against Italian officials. One result of this process was that Chinese and Indian representatives providing opinion on cases submitted by their European allies and the United States. All somewhat at odds with conventional assumptions of power structures in ICL in this period. A point reinforced by the 1944 Oscar-nominated movie None Shall Escape which envisaged Asian and African justices adjudicating on Nazi crimes in Poland.
The war against Ukraine has produced calls for assistance from the government of Ukraine and debates on the best international legal response. The Ukraine government calls out individual actions conducted by soldiers and pilots as war crimes, as well as the actions of Russian President Vladimir Putin.
States and legal professionals seek the further engagement of the International Criminal Court or a special tribunal or both with a focus on the Crime of Aggression. These debates flow around political obstacles where leading powers have succeeded in restricting the mandate of the ICC and in some cases arguably conducted a war of aggression themselves against Iraq.
Today’s political obstacles would be familiar to those working in the UNWCC, for the US State Department blocked President Roosevelt’s efforts in 1944 to establish an International Criminal Court with jurisdiction over broad definitions of Crimes Against Humanity and the Crime of Aggression. It was only a year later after an intense inter-agency and public dispute that President Truman dispatched Justice Jackson to London.
In 1944, undaunted by resistance from their own diplomatic superiors, the Commissioners focused on providing international support and legitimacy for domestic prosecutions under domestic legislation and existing customary international law. Through the UNWCC, states had their war crimes indictments validated at a pre-trial stage by a panel drawn from fellow member states creating a type of “peer review‟ system to encourage fair trials. Such a system could provide independent expert advice to domestic justice institutions in Ukraine and elsewhere, an approach that remains undeveloped in existing judicial structures and treaty regimes today.
The government of Ukraine has primacy in considering crimes against Ukraine and its citizens, international criminal processes are designed to ‘complement’ national processes where they are inadequate, or assistance is sought. Ukraine has recognised the jurisdiction of the ICC in its submissions to that Court, However, as neither Russia nor Ukraine are parties to the Rome Statute, ICC jurisdiction over its citizens with respect to action in Ukraine leaves room for doubt as to its legitimacy.
The problem of legitimacy of international justice is critical to resolve. Unfortunately, leading Western states have a mixed record and their actions following Russian aggression are unconvincing to some. In contrast a resilient Ukrainian internationally supported jurisdiction would not be so encumbered and could supplement the proposed Aggression Chamber for Ukraine.
If the government of Ukraine considers Russian officials and ordinary soldiers have carried out murder, serious injury, destruction of property and other crimes then they have a clear option to simply use existing domestic legislation to do so. They may wish to add international crimes from the Rome Statute, the Hague Conventions and even the neglected Versailles list of 1919. Such a domestic process offers a route to justice for those beyond the scope of Nuremberg model courts and tribunals aimed almost exclusively at national leaders.
The Ukraine government may consider that it wants international support and legitimacy to prosecute its invaders in its own courts. It is to be hoped that Ukraine wins a military and political victory in as short a time as possible, however even in a worst case of a refugee government having to find succour in the West, the UNWCC provides practical precedent. For the refugee European governments of the 1940s combined in London to create the Commission, bring cases to it and then prosecute the occupiers in their own domestic courts after liberation.
It may be argued that the highest crimes need to be tried before international courts. There is precedent and practice to a supplementary effect. Genocide has been applied in domestic courts. While Hitler as Head of State of Germany was indicted with international support through the UNWCC in 1944 under domestic and international law by several European states.
In the 1940s, as international policy, the trials of ‘lesser’ criminals took place in the regions where the crimes had taken place, including concentration camps and cities in Europe. State practice in the 1940s provides ample examples of effective, large scale prosecutions in the localities were the crimes occurred. Modern German use of Universal Jurisdiction against a Syrian national for acts in his own country, provides an example of another basis for prosecution of the invaders of Ukraine.
The UNWCC members systematically debriefed refugees and liberated prisoners and populations about war crimes they had suffered. Today, states that support international criminal justice need to remember that in the Second World War they operated a far more systematic effort to collect evidence than exists today. Nowadays each horror attracts an international non-governmental response – falling far short of the integrated process of evidence collection conducted in the most adverse circumstances at the height of the analogue age.
The legal and state practice of the 1940s is far richer than usually assumed, with policy, indictments and convictions for rape, forms of criminal conspiracy and early definitions of genocide. Nowadays there is attention to a new convention on cultural war crimes, it is apparently blind to the widespread state practice of prosecution for cultural crimes under the Hague Conventions.
The UNWCC enacted a range of inexpensive but effective measures such as legal advice, sharing best practice and even specimen forms detailing the information necessary for Member States to report war crimes. This provides several useful functions that could be drawn upon in modern international criminal justice – either individually by existing bodies, or in a new organisation such as a technical assistance organisation that could be called upon, when needed, to play an intermediary role between states and the ICC. It could provide tailor-made packages of support to strengthen the capacity of domestic judicial systems.
As Phil Clark and others have demonstrated there are already a variety of domestic justice systems ranging from peace and reconciliation processes, through traditional systems such as those in Rwanda to mobile courts attached to UN peacekeeping missions. Using these models, the international community can positively complement the court in The Hague with internationally supported local practices. We need to bring present practitioners together with historians to discuss means of more prompt and effective justice for both high ranking and lower level perpetrators.
The practices of the UNWCC and its member states are were not perfect, but this is not a reason to neglect their value, after all twenty first century ICL is scarcely perfect. For example, possible deficiencies in Ethiopia’s legal pursuit of Italians for fascist crimes, should not obscure the revolutionary discovery of African agency in international criminal justice in the 1940s. The UNWCC minutes, history and law reports also reveal a degree of self criticism amidst a driven imperative to provide legitimate justice.
Looking ahead we can envisage systematic collection of evidence from victims, legal and technical assistance, and advice to local and national courts. At present each conflict attracts its own civil society effort for evidence collection, often using digital open sources which Bellingcat exemplifies. The UNWCC provides a distant model of international diplomatic practise of war crimes evidence collection that should at the very lest spur states who participated at that time to support the creation of a permanent system of evidence management.
We cannot wait or be complacent. The gains of civilisation made in the decades after the Cold War are under threat everywhere, and not least in international criminal justice. A group of investing states and experts need to rapidly review the reform agenda with a view of enhancing the ability of states to conduct their own legal processes. It is timely that we now have new analysis both of historical resources and precedent and experience of domestic justice mechanisms today.