Dan Plesch is the director of the War Crimes Project at SOAS University London, where the archives of the little-known United Nations War Crimes Commission (UNWCC) are stored and being examined. The records are of the thousands of national trials held just after the Second World War for international crimes: war crimes, crimes against humanity and the crime of aggression.
“As early as 1942, seventeen countries came together, including four of the current permanent members of the United Nations Security Council – France, the United Kingdom, China and the United States, but not the Soviet Union – and they said: after we beat Hitler and the Japanese, we need international legitimacy to restore the rule of law.
“Rather than have lynch mobs after our victory, we want to put the people who have committed these terrible crimes against us to be put on trial.
“Political leaders declared during the Second World War that the Nazis would have to stand trial for their crimes after the war. There was no sense that these processes emerged only after the war. The Nazis were repeatedly put on warning that they would face trial.
“These archives are the records of those countries, and they include the pre-trial charges for 36,000 cases against Nazis, Japanese and other alleged war criminals, the thousands of resulting trials, the legal opinions of the states on what constituted crimes of aggression, crimes against humanity and war crimes from the perspective of 1940s.
“In contrast, the International Military Tribunal at Nuremberg – which made law, while the Commission was restricted to advise – was held by four states, and it tried 24 individuals, the top leaders of the Nazi regime.
“The relevance of these local trials today is best illustrated by the issue of sexual violence. It’s hard to prosecute, although it’s now on the statute of the ICC. It dropped off the charges in the court’s first case, the Lubanga case, but sexual violence is now on the docket in a number of other cases.
“The general assumption is that somehow prosecuting sexual violence is a politically correct late 20th century notion and that in the past there was an acceptance that it was an inevitable part of war.
“The reality is that many states determined that rape and forced prostitution were war crimes – international war crimes – in the 1940s. As a result, dozens and dozens of prosecutions took place in maybe 20 different jurisdictions across Asia and Europe for crimes of rape and forced prostitution.
List of war crimes
“This Commission had a list of twenty-five crimes. Rape is at number four and five in their list of war crimes. We don’t quite know why. It’s not alphabetical or any other order. Forced prostitution is at six. So I think it’s important to see the continuity just on this one point alone. And that can change how we look today at prosecuting sexual violence.
“Justice Richard Goldstone, who was the first chief prosecutor of the ICTY and ICTR, has said explicitly that he would have been able to prosecute crimes of sexual violence much more rigorously if he had had this material available to him.
“Which means that one can say to the countries which are still permanent members of the Security Council and to a large number of other states who prosecuted this in the 1940s, that having prosecuted in the 1940s, you should do so again today.
“Prosecuting sexual violence in war is not some kind of Western notion because this was prosecuted by India and China in the 1940s.
“Those arguments can also be used in relation to prosecuting low-level people – those with no rank at all, members of militias – for committing crimes. So, not just the Nuremberg model of only targeting top leaders. It’s critically important, I think, to have legal processes that victims can see will address the individual perpetrators who came into villages and massacred people, raped people – not just their commanders.
“Indeed these arguments also apply to prosecuting groups of people – that it’s legitimate to prosecute people for their general collective responsibility. Because you were part of the group that did this to this village, therefore you are guilty. We cannot prove that you set light to this church or you raped those particular women, but you went to this village to carry out those acts.
“These kinds of collective responsibility prosecutions were held in Greece and the former Yugoslavia and large parts of western and central Europe by this international commission. At the ICTY, they developed a way of prosecution called joint criminal enterprise for the former Yugoslavia. But the prosecutors had no conception that this had already been prosecuted on a large scale just after the Second World War.
Legacy of the Commission’s work
“All of these types of crimes were legitimated by states that are now part of the UN Security Council and India, states that are not all now perhaps so comfortable with such a rigorous approach to the prosecution of war crimes today as they were in the 1940s. So for advocates of war crimes prosecutions, the Commission’s work is a wealth of material to be brought to bear upon the political processes in their own countries to argue for the conduct of more effective war crimes prosecutions today.
“The information has been wiped out from the general discourse about the history of war crimes prosecutions because the principle priority for the US after the Second World War became anti-communism and the rehabilitation of Germans and Nazis to rebuild Germany. As a result, all of this material was closed down and suppressed and the prosecution of war crimes was brought to an abrupt halt. If you wished for American support then you forgot about war crimes prosecutions. ‘Bury the past’ became the mantra of Western governments because of the McCarthyite polices being conducted by Washington.
“We’ve been working with the International Bar Association and understand that there are many people nowadays looking for a middle way between local national prosecutions and the huge process of The Hague. And the Commission is a very good example of providing advisory opinion and advisory standards for investigation and trial processes.
“What we need to see is a positive system of support and complementarity from the ICC and its member states. There are a range of ways one can provide advice and support to local prosecutions, and I think that has to be the way forward. The UNWCC provides a lot of interesting examples for contemporary discussions.
“Nobody is suggesting, least of all myself, that the Commission’s work be copied or applied uncritically and wholesale. In a sense what one needs is a UNWCC 2.0. Because what they had was a system of positive complementarity – as it’s now called – and it worked extraordinarily effectively.”
Lead image: Dan Plesch (Janet Anderson/Justice Hub)
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