Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948.
Dan Plesch and Shanti Sattler.
Plesch and Sattler’s first publication on the UNWCC, this provides an initial overview of the UNWCC’s work and history based on the authors’ research. While predating the full release of the archives, Plesch and Sattler had at this point been granted personal access to the Commission’s archives at the UN. A free/open access version can be found here.
Symposium: The United Nations War Crimes Commission and the Origins of International Criminal Justice
The discovery of so much new material from the UN War Crimes Commission archive and its history has led to new perspectives, understandings, and legal precedents in the field of international criminal justice, and the history of the United Nations.
Much of this took place during and in the months following a two-day symposium organised by the Centre for International Studies and Diplomacy at SOAS, and chaired by Justice Richard Goldstone. Responding to the UNWCC’s ‘hidden history’ – ‘one of the best kept secrets in the field’ – a number of leading international academics and practitioners contributed a series of articles on the theme of the UNWCC to the Criminal Law Forum, one of the principal journals on comparative and international criminal law.
All of these publications are relevant to the study of the Commission’s work – with many of them freely accessible without a university or Criminal Law Forum account. A link to the whole issue can be found here. Below is a summary of each article’s scope.
- The United Nations War Crimes Commission and the Origins of International Criminal Justice. William Schabas, Carsten Stahn, Joseph Powderly, Dan Plesch, Shanti Sattler. Provides an overall survey of the articles in the symposium and an overview of the topics it covers.
- United Nations War Crimes Commission Symposium. Justice Richard Goldstone. Drawing upon his experience as Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, Goldstone discusses the contemporary relevance of the UNWCC’s work, and the bolstering effect its structure and precedents could have (and could have had) on modern-day legal projects.
- A New Paradigm of Customary International Criminal Law: The UN War Crimes Commission of 1943–1948 and its Associated Courts and Tribunals. Dan Plesch, Shanti Sattler. Plesch and Sattler further explore the structure and operations of the Commission, based on newly released documents from its archives, and set out a future research agenda focusing on some of the key debates in the field such as crimes of aggression, defences of superior orders, and environmental crimes.
- Setting the Path for the UNWCC: The Representation of European Exile Governments on the London International Assembly and the Commission for Penal Reconstruction and Development, 1941–1944. Kerstin von Lingen. Kerstin von Lingen examines the early history of the wartime effort for criminal justice, discussing the noteworthy and major role played by exiled states such as the Dutch and Czech governments-in-exile.
- Seeking Justice for the Holocaust: Herbert C. Pell Versus the US State Department. Graham Cox. Cox examines the work of sometime ambassador, sometime US congressman, and US representative to the UNWCC Herbert Pell ins ensuring that crimes against humanity (particularly crimes against minorities – especially Jews – inside Germany) were prosecuted. Pell was often at odds with the State department, which was very cautious about such a rigorous approach to justice. This provides the other (US government-focused) side to the history presented in Human Rights After Hitler, which focuses on the public and UNWCC-related side of the events.
- China, the Chinese Representative, and the Use of International Law to Counter Japanese Acts of Aggression: China’s Standpoint on UNWCC Jurisdiction. Wen-Wei Lai. The UNWCC was not merely a European projects, as Wen-Wei Lai relates – China, too, was highly active in kickstarting the project as a way of formally seeking justice for its invasion by Japan and the resulting war crimes committed by the Japanese military.
- Shutting Down the United Nations War Crimes Commission. Christopher Simpson. For all its efforts, the UNWCC faced significant political opposition from some of its ostensible sponsors. In this article, Simpson explores factional conflicts over the Commission in the post-war US executive branch; how legal and moral thinking about war crimes, crimes against humanity, and national jurisdiction were affected by the emerging Cold War (especially with growing tensions over Germany), and the eventual closure of the Commission in 1948.
- The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice After World War II. Harry M. Rhea. While it may have been the largest war crimes commission in the first half of the twentieth century, the UNWCC was not the first. After the First World War, the Allied states established the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, and discussed the possibility of establishing an international criminal court. Rhea discusses how discussions in this context, and in the UNWCC, informed postwar developments in international criminal law.
- The United Nations War Crimes Commission’s Proposal For An International Criminal Court. William Schabas. Since discussions following the 1919 Paris Peace Conference, there have been a number of proposals for the establishment of an international criminal court. Schabas examines this history and the debates surrounding it, with a particular focus on the central role played by the UNWCC, and links it to the recurrent themes that would re-emerge during the drafting of the Rome Statute some 50 years after the conclusion of the UNWCC’s activities.
- Assessing the Impact of the United Nations War Crimes Commission on the Principle of Complementarity and Fair Trial Standards. Mark S. Ellis. Ellis traces the history of the complementarity debate in the UNWCC, relating it to more modern debates surrounding the ICC. Ellis also examines the quality of the cases that the Commission undertook, engaging in a thorough and wide-ranging assessment of the degree to which standards of evidence and fair trial were upheld throughout the Commission’s work, finding that – despite a number of irregularities and questionable practices – what documents are currently available suggests that good standards at trials were broadly upheld.
- Complementarity and Cooperative Justice Ahead of Their Time? The United Nations War Crimes Commission, Fact-Finding, and Evidence. Carsten Stahn. In this article, Stahn examines the relationship between the UNWCC and domestic jurisdiction – the ways in which the Commission balanced (and sometimes failed to balance) its mandate, capacities, the interests of major powers, and principles of ‘cooperative justice’ – with a comparative approach to modern-day issues surrounding the International Criminal Court.
- Holding Collectives Accountable. Kip Hale, Donna Cline. Hale and Cline assess the work of the UNWCC in fleshing out ideas of joint criminal enterprise, and the potential impact of this for contemporary legal thinking on the subject. The authors explore the ways in which the UNWCC has influenced subsequent national policies on this issue, and suggest how the UNWCC’s archive may be a valuable resource for the interpretation and assessment of collective responsibility under the Rome Statute.
- From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment. Lutz Oette. In this article, Oette illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. He goes on to examine its contribution to relevant international law, and its contribution to the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.
- UNWCC Policy on the Prosecution of Torture 1943–1948. Wolfgang Form. Form examines the UNWCC’s role in changing attitudes towards torture in international law, looking particularly at the UNWCC’s own internal debates over the crime and its definition, as well as its scrutiny of the national war crimes prosecution programmes of its members. Form goes on to lay out a future research program for comparative research on the Commission.
- The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today. Dan Plesch, Susana Sácouto, Chante Lasco. The authors examine the considerable legal discussion and jurisprudence produced by the Commission on the prosecution of rape and sexual violence as war crimes, contrasting the successful postwar prosecutions – many of which were prosecuted alone, and were sensitively and carefully prosecuted – with the comparative absence of prosecution later. This chapter was adapted in Human Rights After Hitler with more of a focus on 1940s archival documents.
This is a detailed (and influential for subsequent scholarship) examination of prewar, wartime, and postwar relations between US and German sponsored businesses and governments. Drawing upon primary sources and government records, Simpson describes how lawyers, diplomats, and State department functionaries organised a concerted campaign of leniency for Nazi war criminals and others involved in the Holocaust, in order to support a resurgent anti-Communist West Germany. One of the first major targets of this effort was the UNWCC.
Arieh Kochavi. University of North Carolina Press.
Arieh Kochavi examines the early history of war crimes policy, accountability for atrocities, and international humanitarian law among the Allied wartime governments. One of the early historical treatments to treat the UNWCC seriously, Kochavi examines the history of the Commission, paying particular attention to the activities of US representative Herbert Pell, the emergence of the new concept of ‘crimes against humanity’, and the domestic politics of war crimes prosecutions.
Edited by Dan Plesch and Thomas G. Weiss
This edited volume on the UN during the Second World War contains a chapter by Dan Plesch looking at Commission and its work. As well as a broad overview of its history, this also assesses the utility of looking at what the UNWCC did as a possible model for contemporary action.
As well as the UNWCC, it also covers a wide range of other less well-known UN organisations, including UNIO (the UN’s early public information/public diplomacy coordination wing) and UNRRA, United Nations Relief and Rehabilitation Administration, responsible for the coordination of humanitarian and immediate postwar relief.
Historical Origins of International Criminal Law (volumes 1, 2, 3, 4)
This series of collected articles on the early history of international law contains a wealth of material on the UNWCC, with particular focus on the situation in specific countries and on specific institutional arrangements around particular regions and countries. All of the four volumes contain significant amounts of relevant material, but below are a selection of particularly relevant articles:
- Before Nuremberg: Considering the Work of the United Nations War Crimes Commission of 1943–1948. Dan Plesch and Shanti Sattler, p437.
- Defining Crimes Against Humanity: The Contribution of the United Nations War Crimes Commission to International Criminal Law, 1944–1947. Kerstin von Lingen, p475.
- Late Republican China and the Development of International Criminal Law: China’s Role in the United Nations War Crimes Commission in London and Chungking. Anja Bihler, p507.
- The War Court as a Form of State Building: The French Prosecution of Japanese War Crimes at the Saigon and Tokyo Trials. Ann-Sophie Schoepfel-Aboukrat, p119.
- From Tokyo to the United Nations: B.V.A. Röling, International Criminal Jurisdiction and the Debate on Establishing an International Criminal Court, 1949–1957. Lisette Schouten, p177.
- The Evolution of Persecution as a Crime Against Humanity. Helen Brady and Ryan Liss, p429.
- Article 17 of the Rome Statute of the International Criminal Court: Complementarity – Between Novelty, Refinement and Consolidation. Patricia Pinto Soares, p235.
- The Historical Contribution of International Fact-Finding Commissions. Mutoy Mubiala, p513.
- China and the War Crimes Far Eastern and Pacific Sub-Commission. Marquise Lee Houle, p661.
When Institutional Design Is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943–1948
Narrelle Morris and Aden Knaap, European Journal of International Law Vol. 28 no. 2, 2017.
In this article, drawing upon heretofore unseen archival documentation, Morris and Knaap explore the reasons for the organisational difficulties and failures of the UNWCC. How did cooperation and information-sharing problems affect its ability to coordinate prosecutions of Nazi war criminals? How did this affect the ability of Allied governments to set it aside after the war? Morris and Knaap also examine the failed attempt to develop independent investigatory powers for the UNWCC.
Narrelle Morris, chapter of forthcoming book.
In this chapter from a book detailing Australian records on war crimes investigations and prosecutions, Morris provides an extremely detailed examination of Australian archival holdings on the UNWCC. This includes a range of documents not available elsewhere, as well as specific archival file numbers necessary to find them.