United Nations War Crimes Commission archive

By Mr. Ewan Lawson

The legacy of the Paris Peace process at the end of World War I is usually portrayed as one of unmitigated failure and indeed creating the conditions that ultimately led to the outbreak of the next war in Europe twenty years later. Despite calls for ‘justice’ from the outset of the war and a Commission being established to address war crimes and the responsibility for initiating the war as part of the process, formal justice gently petered out with some trials in a German court in Leipzig in 1921. However, the discussions in Paris in late 1918 and early 1919 played a significant role in creating the conditions that led to the establishment of the UNWCC in London in 1943, prosecutions for war crimes from Europe to the Far East as well as the tribunals in Nuremburg and Tokyo. Indeed, in considering what constituted a war crime in 1943, the UNWCC drew directly on those identified during the Paris process. Key to my ongoing research on the ways in which sexual violence became identified as a war crime is that this list produced in 1919 referred explicitly to the crimes of rape and enforced prostitution and indeed identified cases which might be suitable for investigation and prosecution.

In Britain, outrage at the violation of Belgian neutrality became intertwined with allegations of mistreatment of Belgian and French civilians including murder and rape. Given refutation of these allegations by the German authorities, the British government appointed a committee under Viscount Bryce to consider ‘outrages alleged to have been committed by German troops during this present War, cases of alleged maltreatment of civilians in the invaded territories, and breaches of the laws and established ways of war’. The Bryce Report which is also known as the Blue Book was based on evidence collected from refugee Belgian soldiers and civilians as well as diaries taken from dead German soldiers. The Report documented a range of atrocities including ‘murder, rape, arson and pillage’ which ‘began from the moment that the German army crossed the frontier’. Similar reports were produced by the French government and the Belgian government-in-exile.

Whilst not a member of the Bryce Committee, J H Morgan a legal scholar who was subsequently a member of the British military delegation during the Paris Peace process wrote to the Government from HQ British Expeditionary Force in France in March 1915 describing ‘honour outrages against women’ illustrating this with the case study of the town of Bailleul in northern France which had been occupied by German troops for 30 days in October 1914 and reporting some 30 cases of outrages against girls and young married women based on sworn statements and medical certificates. Morgan was subsequently involved in the work of another committee established under Lord Birkenhead in late 1918 which sought to identify evidence of war crimes having been committed by the Germans throughout the war. It is interesting to note that this committee primarily focused on crimes committed against British citizens and in particular the treatment of prisoners of war, unrestricted submarine warfare and armed raiders at sea and the indiscriminate bombing of towns and cities from the air. After four years of war which had nearly broken Britain it is perhaps unsurprising that the focus for justice looked inward.

These activities in Britain were reflected across the continent and as a result the Preliminary Peace Conference which met in Paris in January 1918 established a Commission to examine the ‘Responsibility of the Authors of War and the Enforcement of Penalties’. In addition to effectively attributing blame as to who started the war, this Commission was also to examine ‘the facts as to the breaches of the customs of war committed by the forces of the German Empire and their allies on land, on sea and in the air’. It was also to seek to identify individuals to be held responsible for these breaches and to consider what sort of tribunal would be appropriate.

Most of the attention to the work of the Commission has focused on the war guilt clauses in its final report. In particular the disagreements between some of the nations as to whether the Kaiser as a head of state should have some form of immunity. However, in Chapter II of its Report which focuses on Violations of the Laws and Customs of War, the Commission referred to a ‘outrages without regard…for the honour of individuals’ and in its list of charges includes rape and the abduction of girls and women for the purposes of enforced prostitution. In an Annex to the Report there is a table that lists the infractions linked to each of the crimes identified. In the case of rape these are identified as being committed by Germans in Belgium in 1914, Bulgars and Turks in Greece in 1916-18 and by Bulgars in Serbia between 1914 and 18. Enforced prostitution is specifically identified as having been committed by Bulgars and Turks in Greece throughout the war. It is this list that contributed to some of the early thinking of the UNWCC in 1943.

The Paris Peace process therefore has a more significant legacy than is perhaps usually considered, at least as far as the intent to prosecute sexual violence in conflict as an international crime is concerned. In Britain there is a further legacy with J H Morgan writing to His Majesty’s Government at the beginning of the war to remind them of the important legacy of the efforts that culminated in Paris.

The National Offices Conference was one of the key events in the history of the UNWCC – a summit bringing together representatives of all sixteen national offices that worked with the Commission in the Royal Courts of Justice, in May/June 1945, with the aim of coordinating and giving impetus to the unprecedented set of war crimes trials planned.

Indian and Chinese officials proposing path-breaking models for military justice tribunals rubbed elbows with US Navy officers describing their practical systems for mapping alleged war crimes (down to the colours of pins they used), as well seminal figures in the history of human rights like René Cassin.

Below, we present footage from the Conference – sadly without sound – showing this momentous event.

Dr Dan Plesch’s research cited in The Guardian once again – The author of a new history on the UN War Crimes Commission, concluded, “Right now, you see a German chancellor and public who are ironically more alive to the dangers, more willing to share the past, than some of the countries that fought them.”

Read the full story at: theguardian.com

Following the release of Human Rights After Hitler, we’ve been delighted at the extensive positive press coverage – including an interview NPR, and articles in Chicago Tribune, The Guardian, the Independent, the Deutsche Welle, CBS, Radio News ABC Australia, PassBlue and a whole host of other media outlets. For more details, check out Georgetown University Press’ media and review page here!

The story of the UNWCC’s work is extremely important, both for reasons of historical record, and for its relevance today. For nearly 70 years, it was an untold (and suppressed) story, but it is an honour to discuss and recognise – at last – its work in trying to bring Nazi war criminals to justice.

Of the many surprising documents in the UNWCC’s archive, one of the most striking would be the indictment for Adolf Hitler.

The idea that ‘ordinary foot soldiers’ were accused in detailed, secret, well-documented files is one thing; seeing the preparatory trial documents for infamous high-ranking Nazis (many of whom never stood trial) is quite another. With this in mind, here’s some of the sample indictment documents for Adolf Hitler:

As might be expected, Hitler was listed as a defendant for a great many Nazi crimes – most accused war criminals only have one or two entries – but it’s striking that Hitler’s actions were addressed in the same regularised legal system.

Let’s take a closer look at one (or at least, its front page).

Like with the index above, a few thinks are striking about this page. It is an extremely ambitious case – addressing several leading Nazis, for a wide range of crimes – but it is also a very ‘normal’ one by the standards of the UNWCC. Hitler’s crimes – great as they were – were recognised to be prosecutable within the framework of complementary international/domestic law, even while the war in Europe was still raging.

Dan Plesch will present Human Rights after Hitler at a US book launch hosted by the Centre for International Policy and Georgetown University Press on Wednesday April 19th, 6pm-8pm, at Mott House, Washington DC.

This book reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. The cases described within – described in archives that have not been opened for over half a century – provide a great foundation for twenty-first-century human rights, and provide a valuable complement to the achievements of the Nuremberg trials and postwar conventions. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.

For more details, and to register, please click here.

Dan Plesch will be giving a talk on Human Rights After Hitler, in the Ralph Bunche Library of the US State Department (invitation only) on April 18th.

The launch of Dan Plesch’s book – Human Rights After Hitler – The Lost History of Prosecuting Axis War Crimes (Georgetown University Press) – will be hosted at the Wiener Library on May 4th 2017.

Human Rights After Hitler reveals the work of the United Nations War Crimes Commission – the forgotten Allied prosecutions of thousands of Axis war criminals (high and low), the indictments of Holocaust perpetrators made while the death camps were still operating (at a time that conventional wisdom says there was no official Allied response to these mass killings), and the first proposals to prosecute crimes against humanity before an international criminal court. It also details the US response to this; how growing Cold War tensions undermined and eventually prematurely halted these efforts.

It expands on the material already on this website, shedding light on a vast archive of material that has languished in a sealed UN archive for nearly 70 years to weave together a largely untold story of the origins of modern-day international criminal justice.

For more information, and to book tickets, click here.

The UNWCC was active in coordinating war crimes prosecutions across Europe and beyond, but much of this history has gone unremembered. This post gathers together research on the UNWCC’s actions across France, the Netherlands, and Yugoslavia, unearthing intriguing insights on early charges for mass killings of Jews and for sexual assault, domestic war crimes law, and the surprising scale and geographic distribution of prosecutions.

We’ve put together brief ‘taster’ dossiers of key issues of interest to the study of international criminal law, detailing UNWCC activities in the Netherlands and Yugoslavia. Originally prepared by former project assistant, Leah Owen (Oxford) for a presentation by Dan Plesch at the Hague Institute for Global Justice, these two dossiers compile basic information about the UNWCC in each country, as well as selections from the UNWCC archives on a wide range of topics including Holocaust-related charges, criminal and command responsibility, and the role played by national legal codes.

We also have the raw data for the previous post, by former project intern Christelle Meda (Panthéon-Assas). In this spreadsheet, Christelle delves into the 242 UNWCC cases prosecuted in French courts, examining their defendants, charges, sentences, issues of note, and more.

Ed: The charges levelled through the UNWCC led to nearly two thousand trials from among member states. What follows is an analysis of UNWCC cases prosecuted after the end of the war by French courts, conducted by Christelle Meda, former project intern with the UNWCC research project. In it, she finds that these cases addressed many highly important aspects of international criminal law, often predating the tribunals in Nuremberg and Tokyo. These show the surprisingly advanced legal structures and reasoning associated with this postwar justice project. You can read more on the judgements and cases Christelle refers to in our online archive, here.

‘I commend this important meeting and welcome your efforts to delve more deeply into the origins of the United Nations. That pre-history was a period in which states and peoples responded to grave threats with remarkable vision and resolve… Let us learn what more there is to know.’

— Ban Ki-moon

In France, master students in international criminal law are taught that the origin of the International Criminal Court is to be found in the Nuremberg and Tokyo military tribunal jurisprudence. What we are not taught is that there was a previous organisation to those tribunals the United Nations War Crimes Commission. I was then surprised to find out at a presentation of D. Plesch at the International Bar Association Conference last year, that there was a Commission prior to those tribunals which was organising the adjudication of international crimes where they were committed, with no regard to the position of the defandant in the hierarchy and whose aim was also to keep a record of those decisions to be used as materials in future endeavor of international criminal law. Those records are massive they concern at the last counting 1993 known affairs on 31178 accusation sheet approved by the Commission and 36529 defendants. They are also interesting because they come from all over the world not only the most powerful State: among them was the French free government, the clandestine government of Poland, China, Yugoslavia and the Raj or India. The presence of so many “little state” was also a reason of its downfall as the powerful State were afraid of the “little States” activism in the interpretation of International Criminal Law. The United States were an important member of this Commission which foreshadowed their role in the Nuremberg and Tokyo tribunals..

Many decisions were not communicated to the Commission once judged and then stayed in their original language. Concerning French decisions it was the case for 243 of them that can be found on the Legal Tool Database. This number shows that a load of accusations were admitted by the Commission from France which benefited from a large International support. I had the task to make an index out of them to simplify research, to analyse what I thought was interesting from a legal point of view and compare them with the act of accusations kept at the Commission. The range of crimes I encountered was broad from theft of curtains[1] to mass murder in working or concentration camps.

Even if those decisions are ancients they are striking by their modernity on some points which make them interesting today as persuasive precedents as they have no legal authority now. This is a list of the points I found interesting.

The superior’s order defense was admitted

The superior’s order defense was in debate before the French courts at that time. It was admitted in some instances[2] rejected in others based on unquoted French precedents[3]. The order in question do not have to be from a direct superior it could be “an order from the Furher[4]”. It was considered an absolute defense[5]. This defense would not apply if the act constituted a manifest illegality[6].

Victims perpetrators

In multiple cases the tribunal took into account the fact that some perpetrators were also victims and were minor when they committed their crimes. In the Natzweiler Concentration Camp trial, the defendant Markus was a Jewish Kapo and only 15 when he was deported, it was considered a mitigating circumstances but he was still sentenced to life penal servitude. A parallel can be made with the Ongwen case in front of the ICC in which an ex child soldier have been considered victim perpetrator. No minority defense was admitted for a defendant who was enrolled by force in the SS when he was 15 and under 18 when he committed murder[7].In another case, for a Belgian, to be enrolled by force in the army was taken into account as mitigating circumstances not an absolute defense[8].

No defense of minority over 16

Minority was an absolute defense under 16 and not a defense over 16[9].

Foreign civilians were judged by French military tribunals

The military tribunal judged foreigners who were not in the military and some French who collaborated with the Germans[10]. This adjudication of foreigners could be seen as a form of precursor of universal jurisdiction.

Judgment by default

While judgments by default are a time old practice in the Roman Law System, it is to be noted that it was applied to foreigners in humanitarian law cases. When the defendant was caught if he asked for a re-judgment the judge would consider the necessity of it and sometimes allowed it[11]. It is interesting if we compare it with the practice in international criminal tribunals, only the Special Tribunal for Lebanon has this practice and it is criticised.

Rape as a war crime :

A soldier who committed rape was sentenced to a military dishonorable discharge and the charge of rape was characterised as a war crime[12].

Commander responsibility :

A commander’s responsibility was retained for an abstention[13].

Waterboarding is torture :

Waterboarding was considered a torture[14] which is interesting as there was a United States memo putting this qualification in doubt and the presidential candidate Donald Trump relaunched the debate when he said he would authorise it as a technic of interrogatory if he was elected.

Pleading guilty possibilities :

There was pleading guilty possibilities before the Rastatt tribunal in the French administered German zone while it is not a practice in Roman Law System[15].

Large discretionary powers of the judge :

The judges had discretionary powers to allow an unplanned witness to appear[16] or to add subsidiary charges[17].

A law of amnesty :

An amnesty law was passed the 16/08/1947 for battery, the problem being that some pretty serious crime which would be considered torture or voluntary wounding were considered battery at that time. If this amnesty was to remove the less serious case to discharge the court one has to wonder why common theft were not amnestied as well.

[1]   N°105 annual order and N°2548 general series.

[2]   Montpellier military tribunal n°225 annual order and 343 general series; n°329 annual order and n°6367 general series (arson).

[3]   N°144 annual order and n°449 general series.

[4]   N°724 annual order and 766 general series.

[5]   Ibid

[6]   N°617 annual order and n°1769 general series.

[7]    N°333 annual order and n° 1485 general Series

[8]   N°30 annual order and N°2006 general series

[9]    N°132 annual order and N°2575 general series

[10]  N°587 annual order and N°3030 general series

[11]  N°983 annual order and N°3426 general series and N°986 annual order and N°3429 general series

[12]  N°497 annual order and 538 general Series

[13]   N°87 annual order And 5506 general Series

[14]  N°372 annual order N°5791 general series and 7068/FR/G/2160

[15]   judgment n°51

[16]  N°55 annual order and n°961 general series

[17] N°997 annual order and N°2974 general series