The book reveals a secret history of Allied efforts to prosecute thousands of accused Nazi and Japanese war criminals, beginning long before Nuremberg and ending years after it, and shows how the vision of the lawyers who set it up could contribute to a far more effective prosecutions today.
Based on thousands of previously secret WWII war crimes files released after a public campaign led by the author, it tracks the history of Allied efforts to condemn the Holocaust, gather information about atrocities across Europe and Eastern Asia, and establish a strong, well-founded, and multilateral system of post-war prosecutions, providing a strong counterpoint to conventional wisdom about Allied attitudes towards postwar justice.
From the past, it moves to the present, examining how these legal precedents and this scholarship might inform current debates – from the prosecution of rape as a war crime to clear prohibitions on torture techniques such as waterboarding, and from crimes against humanity to the crime of aggression, these WWII practices are an inspiration for twenty-first century prosecutions and legal action. They represent a model for a system that prosecuted large numbers of war criminals – from generals to foot-soldiers – in a largely just, speedy, and cost-efficient manner.
1: Sexual violence in armed conflict
The book begins with a detailed examination of one area where the UNWCC was significantly ahead of its time – the prosecution of sexual violence. While the prosecution of sexual violence in armed conflict has become more widespread today – especially since prosecutions by the International Criminal Tribunal for the Former Yugoslavia, and recent international and national recognition on the topic – it’s not the first time that international law has addressed this issue.
Prosecutions and indictments for rape and sexual violence at the UNWCC were routine, unquestioned, and both sophisticated and sensitive in their approach to the crime of sexual violence, often addressing both criminal acts against individual women as well as mass rape and forced prostitution, and tackling the responsibility of commanders and the presence of coercive environments and threats as sites of sexual violence. Together, all of these not only represent an example and challenge to contemporary action on this issue, but also present important precedents for contemporary legal action.
2. A New Paradigm for Providing Justice for International Human Rights Violations
The UNWCC listed over 36,000 individuals and units as indicted war crimes suspects at the time of its closure, resulting in at least two thousand trials conducted in Allied courts from Oslo to Singapore. Additionally, the quality of the international legal debates and advisory opinions and the attention to fair trial processes adds a qualitative change of perspective at least as important as the sheer volume.
This sheer quantity of cases provides the basis for a very different paradigm than one which is based on the less than fifty cases at Nuremberg and Tokyo. Indeed, a comparison of the UNWCC’s work to its twentieth and twenty-first century equivalents highlights the sheer scale of the work that it supported, and the number of successful trials that its results indicted in – easily outnumbering the work of the International Military Tribunals at Nuremberg and Tokyo, the International Criminal Tribunals in the former Yugoslavia and Rwanda, the hybrid tribunals in Cambodia, Timor Leste, Sierra Leone, and Lebanon, and the entire caseload to date of the International Criminal Court.
This chapter looks at just how this was achieved – how was the UNWCC structured, and how was it created?
3: When the Allies Condemned the Holocaust: early condemnations of Nazi war crimes
The infamous Wannsee Conference of Nazi officials on the Final Solution took place in January 1942 – by the end of the year the secret was out, and the extermination of the Jews was publicly condemned in specific detail by the Americans, British, Soviets and others – a well-documented history that overturns the conventional narrative of the Holocaust not being accepted until the camps were liberated at the end of the war.
As well as open and public condemnations of killing, this also documents specific publicly offered descriptions of the killing, including the use of poison gas and descriptions of killing centres in Poland, with well-researched accounts being publicised by the Polish government in London as early as the summer of 1942, months before Stalingrad and two years before D-Day.
This chapter – and the documents it contains – open new questions about the failure of the Allies to help the Jews whom they publicly stated to be at risk of murder, and provides further material against Holocaust denial.
4: Prosecuting war criminals all over the world
The military defeat of the perpetrators of the war of aggression, and their massive crimes against humanity, were not merely accompanied by a public condemnation of their most extreme actions, but also by the prospect of (for the most part) legal rather than summary justice. By 1947, the Commission was supporting more than twenty war crimes courts and tribunals, from Oslo to Shanghai, providing legal and practical advice to national jurisdictions and international legal legitimacy to their trial processes. The Commission received cases from member states, ruling on whether there was a prima facie case to answer, and provided support for states to proceed with endorsed charges. Across Europe and the Far East, over 36,000 such defendants had been listed in this way by the time of the Commission’s demise in 1948.
This chapter explores how and why states large and small – from US military tribunals in Guam, thousands of miles from the Commission’s offices, to tiny magistrate courts in Luxembourg – considered it necessary and important to obtain international support for their actions. It charts their work all across the world, and investigates how the Commission addressed the issue of war crimes all around the world.
5: The Holocaust indictments: prosecuting the footsoldiers of atrocity
Many European states initiated prosecutions against Nazis for the extermination of the Jews while they were still under occupation, and continued to do so through the Commission until 1948. This contrasts with the general assumption that the main Nuremberg and subsequent Einsatzgruppen trials stand almost alone as attempts to bring justice for the Holocaust. A survey of the Commission’s records shows without doubt that in all the occupied states where the Holocaust occurred many Nazis were indicted for these exterminations of the Jews.
This chapter explores some of the trials of these thousands of soldiers that were tried for war crimes after World War Two, exploring the range of charges that were levelled against them and the approaches that the Commission took when investigating and examining these charges. It concludes by comparing these to the model used in trials today, such as those conducted by the International Criminal Court and those in Africa, which, like the Nuremberg trials, concentrates solely on the leadership of atrocities, and assessing the applicability of these historic approaches today.
6: Fair trials and collective responsibility
Was the UNWCC fair, or was it victors’ justice? How did the Commission deal with crimes of a nearly unprecedented scale, often prosecuting whole units of soldiers for crimes they had perpetrated as a group, or where the omission and negligence of organisations had played a major role in allowing crimes happen? The Commission wrestled with all these questions and more, addressing key questions of international criminal law and legal philosophy in its work.
This chapter will examine just how a group of refugee legal scholars established this basis for a world-spanning legal system, and also consider its relevance today. Modern prosecutions for conspiracies to commit crimes against humanity are often regarded by specialists as largely a creation of the International Criminal Tribunal for the former Yugoslavia (ICTY), and the narrow example of Nuremberg. This serves as an important corrective, and the examples it describes can be used to serve notice on members of today’s murderous organizations as well as their national leaders, as could the precedents for some other offenses that are much debated today.
7: Crimes against humanity - the Nazi leadership
War crimes are, by definition, committed in wars. But what about crimes committed against members of one’s own country? Some US leaders in World War II were adamant that international courts should no more have authority over Nazis crimes against fellow Germans than it would over Americans who had lynched their fellow citizens, but one of the greatest achievements of the Nuremberg tribunal was the prosecution of the Germans for crimes against their own citizens (particularly the prosecution of Jews). These achievements came about in part as a result of the political battles fought out within the UNWCC from 1943 to 1945, and that were then implemented more widely than is usually acknowledged, though at great political controversy.
This chapter tracks the political intrigues, conspiracies, and debates that occurred behind the scenes in Washington and London over this issue, examining how presidents, ambassadors, and journalists matched wits over the issue of accountability for Nazi crimes against German Jews, resulting the Charter for the Nuremberg and later Tokyo tribunals that finally encompassed crimes against humanity.
The great achievement of Nuremberg in finally giving crimes against humanity the power of international law did not stand alone. Building on the achievement at Nuremberg, the Commission and its some of its members used crimes against humanity in a variety of jurisdictions around the world that combine to give a more solid foundation to trials for crimes against humanity today.
8: ‘Liberating the Nazis?’
The UNWCC – and the broader cause of postwar justice – wasn’t without its enemies. British and US policy-makers both wanted to curtail prosecutions of Nazis in order to promote the battle against communism in Germany and beyond, with President Truman – a particular advocate of this – making an internal admninistration priority to close down the UNWCC and curtail its trials as fast as possible.
This chapter will explore this reticence around legal accountability – why and how were Truman and Roosevelt’s governments so divided over prosecuting Nazis, and where were battle lines drawn – and examine how this eventually led to vast numbers of SS men being released without charge. This will also consider the cover-up that led to US officials classifying the Commission’s archives in 1949, leading to it effectively being sealed until the campaign led by the author in 2011.
9: The UNWCC’s legacy today
The documents of the UNWCC describe a largely forgotten history that upends our understanding of wartime and postwar justice, casting new perspectives on the history of the Holocaust and the origin of human rights. But can they be relevant today?
This chapter explores what the rediscovered UN archives can do for international criminal law and legal organisations in the twenty-first century, offering alternative visions of international law as a multilateral, collaborative process that provides a strong test-case for the increasingly-well-recognised concept of ‘complementarity’ found in the foundational documents of the International Criminal Court.
A huge improvement in the prevention of human rights abuses in our own time through the more effective just punishment of violations can be achieved by drawing on the vast treasure trove of lost practices from the 1940s explored in this book.