Symposium on the UNWCC: The Exercise of Universal Jurisdiction by the Post-war Occupying Powers in Germany Under the UNWCC

[Dr Amina Adanan is an Assistant Professor in Law at Maynooth University, National University of Ireland.]

The UNWCC is the name of the formal multilateral organisation that facilitated a network of tribunals in which war criminals were tried for international crimes committed during WWII. It was a UN agency that operated from 1943-48 to support localised prosecutions of international crimes by the war Victors and victim States. The Commission was composed of representatives from 16 Allied States and through its work war crimes and crimes against humanity were prosecuted in tribunals located in Europe and the Far East.  Its purpose was to try enemy nationals who had committed offences against Allied nationals. Although it was beset with difficulties from its inception, some of the prosecutions under the UNWCC provide the first instances of the exercise of universal jurisdiction over war crimes, crimes against humanity and aggression. It should be noted that universal jurisdiction was not the main type of jurisdiction relied on in the UNWCC case law, as the passive personality principle was more commonly used. This blog post illuminates the scope of the principle of universal jurisdiction under the UNWCC case law that took place in Germany under the authority of the post war occupying powers.

Prior to the establishment of the UNWCC, the principle of universal jurisdiction had been exercised over international piracy and on limited occasions, over the slave trade at sea. In the early 20^th Century, a group of European scholars (Raphael Lemkin, Vespasian Pella and Henri Donnedieu de Vabres) professed the application of universal jurisdiction or ‘universal repression’ to a specific list of offencesdeemed delicta juris genitium [crimes against the law of nations]. Here, universal repression is framed in terms of the (what is now) the obligation to prosecute or extradite. However, it wasn’t until the establishment of the UNWCC that the principle was applied to ‘international crimes’ in the modern conception of the phrase.

The idea that persons would be held criminally responsible for the atrocities committed during the war was suggested before the Second World War had ended. This possibility was particularly pursued by the Governments in exile. In January 1942, the St James’ Declaration was signed by signed by Belgium, Czechoslovakia, Free France, Greece, Holland, Luxembourg, Norway, Poland and Yugoslavia and was the first multilateral statement to specifically refer to the prosecution of atrocities. This action was followed by the Moscow Declaration of October 1943, agreed on by the US, UK, Soviet Union and China, who ‘pledged for the prosecution of the war against their respective enemies’. Notwithstanding the statements of the main Four War Victors, there was considerable reluctance on the part of the US and Great Britain to establish the war crimes tribunals that later became the UNWCC. Indeed, as Professor Kirsten von Lingen has shown, it was the work of the occupied States and their exiled Governments that really influenced the creation of the Commission.

The legal basis for the operation of the UNWCC came from its Constitution, which was created at a sixteen nation meeting at the British Foreign Office in October 1944. Meanwhile, the post-war occupying powers of Germany who drafted the Nuremberg Charter also codified,  Control Council Law No. 10 (CCL), which was in effect a national law that authorised localised prosecutions conducted by those powers in Germany, within their zones of occupation. The purpose of CCL was ‘…to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal…’ Article 2 (1) stated that four crimes were to be prosecuted by the member States: war crimes, crimes against humanity, crimes against peace and membership of a hostile organisation. Importantly, it further declared that the occupying powers had the jurisdiction to punish ‘any person without regard to nationality’ (Art 2(2)), but in practice this was not the case. The occupying powers did not have jurisdiction to try offences committed by Germans against other nationals or stateless persons. In practice, Germans and other enemy nationals were prosecuted. Article 3 of CCL recognised the power of the occupying authority to punish war criminals found (or detained) within its zone of occupation. As was stated in The Trial of Hadamar, which took place in the US Military Commission in Wiesbaden in Germany in 1945:

…[E]very independent State has, under International Law, jurisdiction to punish not only pirates but also war criminals in its custody, regardless of the nationality of the victim or of the place where the offence was committed, particularly where, for some reason, the criminal would otherwise go unpunished.

Universal jurisdiction was further discussed in The Hostages Trial, in the US Military Tribunal in Nuremberg, where it was affirmed that jurisdiction attached to war crimes by virtue of the commission of the act and the classification of a war crime as an international crime:

An international crime is such an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances. The inherent nature of a war crime is ordinarily itself sufficient justification for jurisdiction to attach in the courts of the belligerent into whose hands the alleged criminal has fallen.

There are two items to be noted here. First, it is clear that the presence of the accused in the hands of the forum state was required, which was the practice in most of the UNWCC prosecutions. Second, it is clear that the right to exercise universality belonged to belligerents. However, the US Military Tribunal acknowledged that not all war crimes warranted universality, for example spying.

Throughout the operation of the UNWCC, Member States were given much autonomy as to the crimes they legislated for and the crimes they prosecuted, which meant that the exercise of universal jurisdiction over international crimes was not uniform during this period. For example, some countries legislated for the prosecution of war crimes only (for example, Britain’s Royal Warrant dated 14th June, 1945, Army Order 81/45, with amendments ). In practice, war crimes were the most criminalised international crime prosecuted under the principle of universal jurisdiction by the UNWCC. For example, in addition to Britain, Australia, Canada and the US also criminalised war crimes under the principle of universal jurisdiction. Some of the acts punished as war crimes under UNWCC case law were: murder, ill-treatment, torture, inhumane treatment, attempted murder, rape, ‘systematic terrorism’, destruction of towns and villages. Of course, the post war concept of a war crimes required that the acts be committed against the nationals of Allied States.

Some occupying powers criminalised crimes against humanity in their laws in order to give effect to the UNWCC mandate (e.g. Poland, Netherlands, US and China). However, some Allied Powers did not criminalise the crime (e.g. Canada and Britain) and in practice, few States relied on universal jurisdiction to prosecute crimes against humanity. As I have argued elsewhere, one of the likely reasons for this position was the reluctance of the post-war Allies to open their respective colonies or domestic situations to the judicial scrutiny on foreign courts. As US Chief Prosecutor at the IMT in Nuremberg, Robert Jackson, famously declared, ‘[w]e must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well’. For the most part, the cases where universal jurisdiction was used to prosecute crimes against humanity coincide with the war period. Examples of such cases are the Hadamar Trial, Justice Trial, Hostages Trial before the US National Military Tribunals and the Chinese prosecution of  Takashai Sakai.

The UNWCC identified genocide as a type of crime against humanity linked to war (see for example, the commentary on the Rusha Trial). In addition, Lord Wright, former chairman of the UNWCC, acknowledged the connection between genocide and universality. Citing Lemkin, he stated that genocide, ‘…becomes a delictum iuris gentium alongside offences such as piracy, trade in women and children, trade in slaves, the drug traffic, forgery of currency and the like’. As Prof. Kevin Jon Heller has recorded, genocide was prosecuted as a type of crime against humanity in a minority of cases before the US National Military Tribunals.

Notably, some UNWCC member States enacted laws allowing for universal jurisdiction over crimes against peace, for example the US and China. US law permitted prosecution of ‘the planning, preparation, initiation or waging of a war… or participation in a common plan or conspiracy’. In addition, universal jurisdiction was used by the US National Military Tribunals to punish individuals in corporate entities who were involved in committing crimes against humanity and other international crimes.

To conclude, it is clear that the UNWCC provides evidence of state practice of the exercise of universal jurisdiction over war crimes, crimes against humanity and genocide. However, it is important to note that the principle of universal jurisdiction then was exercised on a subsidiary basis, as it is today. The majority of UNWCC cases were not prosecuted on the basis of universal jurisdiction.  By its conclusion, in 1948 approximately 1600 trials were completed under the UNWCC. However, with the beginning of the Cold War many German war criminals were released from prison in order to win West German support.