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Hitler in the charge files of the UNWCC

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:

The five pages of indices for charges against Hitler. Most of this is self-explanatory; the ‘File No.’ refers to the UNWCC’s own charge number, then an abbreviation for the accusing country, then an abbreviation for the defendant’s country, then that country’s charge number. Click for more detail!

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).

The front page for just one of the many charges against Hitler, this one levelled by noted Czech jurist Bohuslav Ecer in December 1944. Click for more detail!

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.

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US book launch: Human Rights after Hitler – April 19th 2017, Mott House

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.

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Presentation by Dan Plesch at the US State Department

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.

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UK book launch: Human Rights after Hitler – May 4 2017, Wiener Library

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.

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Archival research: Yugoslavia, the Netherlands, and France

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.

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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

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Oskar Groening – ‘the accountant of Auschwitz’ – in the UNWCC’s archives

In what is likely to be one of the last trials for involvement in the Holocaust, Oskar Groening – a guard at the Auschwitz death camp – was recently jailed for his role in the killings of over 300,000 Hungarian Jews.

Research by Dr Dan Plesch into the UNWCC’s archives has shown that legal charges against him are not new, however. In 1947, the Polish government charged Groening and several hundred other camp personnel at Auschwitz for a range of crimes including ‘common design’ (participation in the overall running of the death camp), as reported here in the Guardian.

The Commission, after assessing his case, categorised him as a ‘war crimes suspect’ for his involvement in the running of the camp in March 1947. These charges never came to anything, however – postwar Cold War tensions and the uncomfortable questions raised surrounding the prosecution of ex-Nazis (many of whom were in West Germany) meant that the Commission closed down a year later. The records survived, however – and following their declassification last year, research on them has unearthed these early attempts to prosecute Auschwitz staff ranging from camp commandants to individual prison guards.

To read the original files listing Groening’s charging by the Commission, see below:

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The National Offices Conference

Recently in the CISD office, we’ve been looking through the minutes of the National Offices Conference. This 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. You can see some footage of the NOC here and here, although in both cases, the sound track has been lost (if you know of any Movietone or British Pathe archives that might have intact sound, get in touch!).

One of the major occasions for the conference was the tide of the war. While the UNWCC had been founded back in 1943, when the outcome of the war was still not certain, by May 1945, much had changed. Concentration camps – and entire occupied countries – had been liberated, and a few weeks before the National Offices Conference met, VE day had been celebrated. The chairman of the Commission – Lord Wright – stated the new direction that the organisation would take:

‘The time had come when the mere collection of information must be changed into action, and action meant the trial of criminals and their conviction, sentence, and punishment where appropriate. To be effective, justice had to be expeditious. Punishment of the criminals would serve the double purpose of retribution to satisfy the people’s demand for justice and of warning and example to deter such crimes in future.’

A bold, blunt, statement of what the Commission sought to do, and why it sought to do it. While there are parts of its phrasing that sit uncomfortably with modern criminal justice – the idea of war crimes trials as ‘retribution’ has (at least in part) given way to a greater focus on justice and reconciliation, for example) – it nonetheless touches on many issues faced in international criminal justice today, such as the need for information gathering as a basis for action, and the importance of speedy, authoritative trial proceedings.

Despite its short length (only 97 A4 pages – fairly light compared to the thousands of pages of charge files we’ve been sifting through), it’s still a fairly dense document, and so we’re still working our way through it, chasing up the references it makes, and placing it in its historical context. Nonetheless, a few interesting issues relating to the participating countries have emerged.

The documents provide an interesting perspective on the growing independence of India, for example. While much of India’s participation in the Commission was closely linked with that of the UK, it’s particularly notable to observe the way that India is increasingly treated as an autonomous state throughout the Commission’s work, and how it’s acting as a state in its own right, a full two years before independence. We’re also looking into crimes against Indian troops, which largely took place in North Africa, and often seem to have involved particular singling out of Indian soldiers:

‘… So far as Indian cases are concerned, the majority of war crimes against Indian troops have been committed in the course of the campaigns in North Africa. Unfortunately the refusal of the Axis powers to allow the Protecting Power and the Red Cross to function in the North African war zone has cut off important channels of information. In consequence until the end of hostilities the best results cannot be expected.’

The NOC minutes also raise interesting questions about the USSR’s participation in postwar justice, and the links between its efforts and those of the UNWCC. The Soviet Union was not a UNWCC member, instead handling postwar criminal trials through its Extraordinary State Commission. Many members of the Conference bemoan this state of affairs, mentioning the mutual desire for cooperation and the ‘diplomatic reasons’ that foiled it, as well as their own efforts to maintain contact between the two Commissions. It will be interesting to trace these debates through the machinery and records of the early UN.

With the 70th anniversary of the NOC coming up, we’re also planning a series of events around the Conference, so watch this space!

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Women leaders in international criminal law

Check out this op-ed by War Crimes Project Assistant Director Shanti Sattler and former International Criminal Tribunal for the former Yugoslavia war crimes prosecutor Eliott Behar about the recent election of an all-female presidency at the International Criminal Court and the history of women in leadership roles in international criminal law, including women who represented their countries at the UNWCC.

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Touching a piece of history

This is a guest post by Ana-Carolina Sarmento, one of our project volunteers, about her experiences delving into the UNWCC archives.

There is one question every historian I have ever met has always asked me. How can one fully understand the present and wonder about the future, without ever looking back and contesting the past? The truth is that we seldom find the time to stop for a minute or two and think about the origins of many things in the world that we tend to take for granted.

One such origin that we often take for granted is that of the UN. From history books, political science articles, and even the odd undergrad essay done as part of the week spent studying political institutions, we often unknowingly repeat the big misconception that the United Nations was born in the aftermath of World War II. Through the ‘United Nations in the World’ course at SOAS, though, we’ve had a chance to examine the wartime origins of the UN and its important role in defeating the Axis Powers. The assessment of the processes by which this important organization came into existence shed light on many important issues regarding its role in the contemporary world. From the conferences that led to its creation, to the visions, expectations and hopes placed on the UN by colonial Western powers and their , and even the struggles of a handful of women in San Francisco to make the UN Charter even a little gender-inclusive back in 1945, we’ve learned how many of the issues we face today aren’t comprehensible from a presentist ‘last ten to twenty years’ approach, but go back far further, with their roots in old yellowing documents and archives describing near-forgotten conferences.

And then I learned that Nuremberg and Far East trials – often deemed as the first and most notable international tribunals, that were the sole predecessors in the to subsequent tribunals in the former Yugoslavia and Rwanda, actually had a predecessor themselves: the United Nations War Crimes Commission. This little-known UN agency operated with the goal of identifying, classifying, and making pre-trial assessments of alleged war criminals in Europe and Asia, and assisting national governments in prosecuting them. This wasn’t just the usual Britain, France, and America, either – a range of states including Yugoslavia (both royalist and communist), China, and a nascently independent India all took part. SOAS’ UNWCC Research Project is dedicated to the study of this organisation’s role in postwar justice, and to the promulgation of many of its archives, many of which have only been made public recently.

And so, it was, one Friday afternoon, that we came up to the CISD Study room only to find six giant packing crates addressed to Dan Plesch, directly from the late 1940s. On the face of it, perhaps not the most exciting extracurricular activity – but fascinating to look through and pore over.

A sample of the files found in the archive, these from Committee III examining the scope of war crimes prosecutions. Not pictured: the bugs who had to be shoo-ed out of the old boxes they were found in!

These boxes were in the basement of the EU Head of Delegation to the UN, Thomas Mayr-Harting, whose father worked for the UNWCC. As we opened the boxes – taking good care to air them out and evict the hectic colonies of insects that had taken up residence over the decades – we held dusty pieces of forgotten history right there in our hands. I touched a piece of paper that declared Adolf Hitler a war criminal in 1942, indicting him for a trial that would never happen. I touched a piece of paper explaining the legal basis for trying rape as a war crime in 1945, much earlier period than most people are aware of – an area of law that would not really be re-explored for fifty years, until the ICTY. I touched a piece of paper that established that “just following orders” could not excuse any liability of war criminals. These weren’t just dry, sterile records of events and proceedings – many of them were filled with hand-written amendments, allowing you to get a sense of the processes, debates, and human efforts that went on behind the scenes. Wrapped around those documents were newspaper pages from that time. I was able to read who had gotten married, the newest products being advertised, but also to analyse the rhetoric being used at the time. Not only did these help us understand the lived reality that those involved in the early UN, but they also showed how much the organisation was the centre of media attention at the time, with dozens of insights into its history in the wrapping paper alone. For instance, I would have never guessed that the USSR opposed calling the today so well known veto power as such and that the UK media would criticize it for it. Perhaps I could have found much of this information in history books and on the Internet, but there is something special and intriguing about these archives because you can see in such a vivid manner the processes, opinions, peoples’ work and efforts that laid the foundations of things that today we simply take for granted.

One of the most interesting things about this particular archive has been the way it’s shone a light on the politics behind the UNWCC’s work, and international criminal justice more generally. The US representative, Herbert Pell, can here be seen pushing for the Court to examine domestic crimes against humanity (such as the persecution of German Jews) alongside interstate war crimes; Pell’s activism on this played a major role in promoting the domestic components of the Nuremberg trials.

Digging up things from the past is not a task executed primarily out of curiosity – though the sheer enjoyment of opening an old archive shouldn’t be under-estimated but also due to its potentially useful value for today’s world. The next stages of the Research Project will allow us to engage with the archives in greater depth, and perhaps help us do exactly that.