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Getting it wrong: the ICC’s headquarters in The Hague. EPA/Martijn Beekman

Long-hidden World War II files offer another way to prosecute war crimes

This is not a golden age for international justice. Donald Trump’s secretary of state, Rex Tillerson, has reportedly decided to close the US’s war crimes office. China, Russia and South Africa, among others, continue to resist the International Criminal Court (ICC), while the world has yet to see proper legal proceedings against war crimes in Syria, Yemen and elsewhere.

Some argue that the whole war crimes process may turn out to be futile, and that Tillerson may be just keeping up with reality. Even advocates of international criminal justice would admit that reinforcements are needed to combat impunity for rights violators.

At the root of the problem is that today’s courts and tribunals were all created in the tradition of the post-World War II Nuremberg trials, in which top leaders alone were held accountable by an elite of Western and US-led intellectuals, leaders and judges. This elite-centric method of seeking justice for war crimes is profoundly limited. But newly available documents from World War II show that an entirely different approach was tried years before the Nuremberg process began – and that it was unduly closed down for political reasons.

In the early- to mid-1940s, the refugee governments of continental Europe began setting up a large-scale war crimes prosecution effort based in London. By 1944, 16 allies had created the UN War Crimes Commission (the UN being the formal name for the Allies), a mechanism to provide legal advice to states and offer peer review of national prosecutions.

It worked well. The commission supported national indictments against 36,000 people and military units, resulting in some 10,000 convictions in 2,000 trials from Shanghai to Oslo. Its 8,000 “charge files” included indictments of Adolf Hitler himself and of the death camps and deportation system of Jews across Europe – many of them written even while the Holocaust was still underway.

But in 1949, at the US’s insistence, the commission’s charge files were closed even to its own members. They were not even provided to federal German prosecutors until the 1980s, and it was only in 2014 that they were made public by the US and UK governments. Why?

Forgotten history

In part, for pragmatic reasons. As West Germany was built up to withstand and fight the Cold War, Nazi party officials and members were rehabilitated on a large scale to ensure the state could be staffed with competent bureaucrats and professionals. This meant closing down war crimes prosecutions, and ultimately releasing all those the UN commission had convicted.

The British notoriously released Nazis awaiting trial for the “Great Escape” murders of RAF officers, while anti-communist US Senator Joe McCarthy came to the aid of SS men convicted of murdering US prisoners during the Battle of the Bulge.

But besides these short-term concerns, the US and UK had another reason for undermining the commission’s achievements: a resistance to enforcing human rights from those who might themselves be guilty of violating them.

US Senator Joseph R McCarthy. Wikimedia Commons

This hostility was what stymied Franklin Roosevelt’s war crimes ambassador Herbert Pell. Sent to London in March 1944, Pell proposed a legal definition of crimes against humanity, garnering the support of a majority of the 16-nation commission, which included representatives of China and still-imperial India.

But Pell had not only sought help for German Jews, he had campaigned for African-American rights as a member of Congress. And in 1944, Henry Stimson, then US secretary of war, argued against US support for the concept of crimes against humanity on the grounds that to do so would leave the US open to prosecution for the lynchings of blacks in the South.

Pell was ultimately cast aside after an inter-agency Washington power struggle, and President Harry Truman dispatched Justice Robert H. Jackson to set up what became the Nuremberg trials. By that time, hundreds of German and Japanese defendants had already been indicted by nations working through the UN War Crimes Commission, but it was Nuremberg that stuck in the public and legal imagination.

Reality check

The commission’s work was very advanced for its time, in particular its advanced polices on rape and forced prostitution and its ambition to try not only military and political elites, but thousands of low-level perpetrators. These are lofty goals by the standards of today’s international justice systems – and now the relevant files are out in the open again, their example must be taken seriously.

For a start, the lament that prosecuting rights violators is somehow just too difficult today rings hollow. As early as January 1942 – with VE Day more than three years away – the refugee governments of Europe, along with the Chinese, declared in London that they would create a new system of international justice.

While smoke still poured from Auschwitz’s chimneys, the Polish government systematically collected evidence of Nazi war crimes; the Norwegians in neutral Sweden gathered evidence from refugees, and the Belgians and Czechs were assured that their charges against Hitler would eventually be supported.

Yet today, there isn’t even an international system for collecting evidence and preparing charges. Can today’s governments really claim to be harder-pressed than their predecessors were while fighting the Axis powers?

Remembering and recognising this history can also help circumvent some difficult political terrain. A modern setup more closely resembling the commission would be harder for the likes of China, India and Ethiopia to disdain. These same countries were instrumental in creating a similar and clearly effective model 70 years ago; international prosecution need not be some neo-colonial “Western” device.

Meanwhile, the story of the commission’s hidden legacy is a cautionary tale in itself. Joe McCarthy and his ilk obscured this work from view so effectively that it remained hidden even when the international criminal justice project was revived in the 1990s. Rex Tillerson’s decision to close the US’s war crimes mechanism is deeply troubling – and it could help set the world back even as a way forward becomes clear once again.

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