Justice before Nuremberg: findings from the French trial reports

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