05 May Symposium on the UNWCC: Defences and the UNWCC
[Dr Dawn Sedman is a Senior Lecturer at Nottingham Law School, Nottingham Trent University.]
How widely were defences deployed at the UN War Crimes Commission (UNWCC)? Using the 15-volume Official Reports as a preliminary indicator, around one quarter of the cases reported had defences raised and discussed. Only one of these defences was successful: the case of Weiss & Mundo [vol 13], who were accused of the war crime of wrongfully killing a POW. The facts are straightforward: the victim was an American parachutist who was captured in Germany in 1944 when his plane broke mid air raid. He was handed over to the local police – the two defendants – who on bringing him in, found themselves surrounded by a crowd hostile to the enemy parachutist. The POW moved suddenly, and the two police officers took this as a reach for a weapon (he had not yet been searched) and fired. The court accepted this was in self-defence. The police officers in those circumstances had acted reasonably necessarily in their use of force in order to protect themselves. This finding was exceptional; the only reported example of a successful defence argument in the 15 volumes. In another similar example where self-defence was attempted [Hangobl, vol. 14], involving an airman who had bailed from a faltering plane and found himself in Austrian territory in 1944, and a civilian who was part of the local defence force found him, the defendant reported that on seeing the airman reach towards his jacket, him shot him once as he faced him and once in the back as the airman turned to run away. This – the second shot – was not accepted as acting in self-defence.
What other defences were raised? Superior orders was the most common – bearing out a fear expressed during the UNWCC negotiations that it was this defence that would be used as an Axis exculpatory strategy: that familiar expression, “I was just following orders”. Other attempted defences included necessity, coercion, duress and intoxication as well as more technical defences such as the non-applicability of war crimes liability on civilians, violation of the ne bis in idem and legality principles and the existence of national law (as a legal justification for actions). Some defences were raised in combination with one another, with around half related to superior orders, which bears out von Lingen’s observation that this defence was “feared as a defence strategy of Axis officials” [2014 CLF 25: 45, 59].
Superior orders is the defence offered where an individual claims that the offence committed was a result of an order from a higher authority. Prior to IMTN, Jackson had compiled a report into superior orders and how it affected culpability and came to the conclusion that up until then there was a norm that recognised in international penal law that inferiors should not be held to account for “acts conceived and ordered by his superiors” [ref]. However there had been disquiet at this after the WWI, and the following was now true: the existence of a superior order does not automatically prove defence, rather evidence of superior order might allow a court to decide on acquittal after taking into account other factors such as the level of compulsion, membership of a criminal organisation and the nature of the act itself [ch 10; Lauterpacht, p276 p15 in pdf]. A further observation on superior orders came from the Justice case [vol 6], where all the defendants in this case had worked in various capacities for the Ministry of Justice, interestingly added a further dimension that the superior order defence does not sit well with a judicial office holder given the nature of an office that should imbue impartiality and independence, unlike a military officer within the constraints of a hierarchical organisation, requiring obedience, particularly in a conflict situation. From this then even less sympathy from the (military) court to use of this defence in this context; should then superior order defence in a civilian and non-civilian context be treated differently?
On the use of intoxication as a defence, this was raised unsuccessfully in the Yamamoto Chusaburo case [vol 3]. Here the defendant – a Japanese army sergeant – was charged with a war crime of killing a civilian whom he believed had stolen army-owned rice. He admitted to being intoxicated, but also to acting in self-defence. There had been looting previously, and on discovering several men in the process of stealing rice, the defendant felt under threat and so stabbed the victim with a bayonet. The military court did not accept either defence – ruling the intoxication did not affect his ability to form necessary intention and self-defence in the circumstances was not proven – leading to his conviction and sentence to death though with a recommendation for mercy, providing an example of the acknowledgement to challenging circumstances offered through mitigation in sentencing. Intoxication remains a potential defence under present day international court statutes but it is utilised very infrequently, and so its scope and application is under-examined in case law. What is interesting to observe here is the reliance on domestic law principles in deciding this case; likewise today’s international courts would review general principles of criminal law to flesh out a legal provision.
Finally, the defence of necessity: in Peleus [vol 1], the captain of a U-boat went back to the debris and life-rafts of a ship he had sunk and destroyed anything floating so as to avoid detection from an air strike, in order to protect his crew. He was unable to convince on the necessity of this as the operation took five hours and the court reasonably pointed out that “the operational aim, saving ship and crew, could have been achieved much more effectively [by speeding away at the earliest moment to the greatest possible distance] without as such acts of cruelty” however – most notably – the court refused to say that there might not be circumstances were necessity – the killing of an unarmed person for purpose of saving one’s own life – could successfully be argued.
The Peleus case offers a chance to consider the more nuanced aspect of the defence: how much resistance can the law expect of an individual in a circumstance of war? Consider the notable ICTY Erdemovic case. Here was a 19 year old solider who – when faced with an order to be part of a firing squad to shoot captured civilians – initially refused to which his commander responded that if he felt that way, he was welcome to line up alongside the civilians. He took part in the execution. If, in principle, the Peleus court recognised that it might be possible to argue successfully that taking another’s life to save your own was necessary, when would this apply? The judges in Erdemovic struggled with this: what would those circumstances be, is duress sufficient to absolve guilt entirely or a mitigation for sentencing? A split decision ensued; the question remains: how much resistance can the law reasonably expect of an individual in a circumstance of war?
That a lot of what is familiar today in terms of usage and discussions around defences in ICL occurred previously at the UNWCC: an informative precursor. At time of writing, Ongwen appeals his conviction in part on grounds related to duress and mental capacity defences. The influence of domestic legal principles remains important to international judicial reasoning, as it was in the 1940s. That there was an attempt to offer the defendants the opportunity to raise one or more defences, and there was reasoning in why they were (mostly) not accepted, suggests a fairness to the process, with concerted efforts to achieve a fair trial process, even before the formalised recognition of the right under international law.
To conclude, a moment to appreciate the recognition that the UNWCC jurisprudence gave in the development of the right to fair international trial, within which a right to raise a defence. These trials occurred just before or contemporaneously with the advent of key rights recognition, around the time of the UDHR, AmDHR, ECHR negotiations and agreements, roughly two decades before the ICCPR. The UNWCC case law offers insights into perceptions of what was necessary to guarantee a fair trial, based on common domestic legal principles of the time (and of the judicial background): the Altstotter and Fleisch cases [vol. 6] both reflectively examined the rights to fair trial and identified important characteristics of fair trials, characteristics which will now seem familiar under modern IHRL: right of accused to know charge against them, right to reasonable time to prepare for trial, right to be tried by unprejudiced judge, right to know evidence against them, right to counsel. These all point to a defendant being able to adequately and proficiently present a defence to the charge. Whilst in these cases the discussion around fair trials was in the context of the court assessing whether the defendants themselves had guaranteed a right to fair trial over those whom they had control, it followed that the same characteristics should be present within their own trials too. Would not calling out defendants for not providing fair trial, then not providing the same to the defendants be hypocritical?
Near contemporaneous accounts [ILQ 1947, 1:1; AJIL 1945, 39:3] of the UNWCC establishment and work emphasised the importance of the centrality of justice in the post-war multilateral project. Pertinent to that discussion was developing a doctrine of individual responsibility – to move away from “utter official irresponsibility” in the absence of penal responsibility and towards a recognition “that individuals could no longer shelter behind acts of State, and that the former were consequently to be held answerable for acts amounting to international crimes, in the same manner as any other individual was answerable for common crimes under municipal law” [Ch10]. Related to the advent of individual responsibility is how to adjudicate this – having a fair trial and recognising the opportunity for a defence. If achieving a just result is a central philosophy, then the recognition of rule of law and identifying appropriate (fair) culpability – taking into account rights of defence – are vital parts of this.