Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948

in International Community Law Review
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More than 2,000 international criminal trials were conducted at the end of World War II in addition to those held by the International Military Tribunals (IMTs) at Nuremburg and Tokyo. Fifteen national tribunals conducted these trials in conjunction with an international war crimes commission established by these same states in October 1943 under the name, The United Nations Commission for the Investigation of War Crimes, that soon became the United Nations War Crimes Commission (UNWCC). The extensive work of the UNWCC and these tribunals serves as a source of customary international criminal law that relates directly to the current work of the International Criminal Court and the ad hoc tribunals in operation since the 1990s.




See Schwelb, ibid., pp. 363–364.


The Moscow Declaration of October 1943, available at


Schwelb, supra note 12, p. 368.


Schwelb, supra note 12, p. 368.


See Plesch, supra note 12, at Chapter 5.


See Schwelb, supra note 12, p. 373. “From the very beginning, the UNWCC was advocating for the extension of the scope of retributive action of the United Nations beyond the traditional notion of war crimes in the technical sense, i.e. of violations of the laws and customs of war. The UNWCC’s endeavours in this respect were twofold: on the one hand, they concerned the interpretation of its own terms of reference; on the other, they consisted in recommendations concerning the trial and punishment of crimes committed in territories occupied before the actual outbreak of war, or on Axis territory against Axis nationals and stateless persons. The great controversial question whether the initiation of a war of aggression was a crime was much discussed within the UNWCC, with outside assistance from academic circles. The UNWCC’s deliberations and proposals had considerable influence on the inclusion, in the Charter of the International Military Tribunal, in the documents modelled after it, and in the draft peace treaties, of provisions for the punishment of “crimes against humanity’” and the discussions within the UNWCC were one of the factors which contributed to the inclusion in the different agreements and instruments of provisions against crimes against peace.


See Plesch, supra note 12, Chapter 5, Arieh Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (1998); Leonard Backer, Brahmin in Revolt: A Biography of Herbert C. Pell (1972) pp. 290–310.


See Schwelb, supra note 12, at pp. 368–9, “This interpretation appears to have been confirmed by the Judgment of the International Military Tribunal at Nuremberg, where it is said that to initiate a war of aggression is the supreme international crime which differs from other war crimes in that it contains within itself the accumulated evil of the whole, and according to which the crime against humanity is a subsidiary type of war crime. This interpretation is further borne out by the Charter of the International Military Tribunal of the Far East and by the Indictment against the persons accused as the Japanese major war criminals. Moreover, Article 5 (VII) (b) of the quadripartite Vienna Agreement on the Machinery of Control in Austria of 28 June 1946, enumerates among the activities reserved to the Allied Commission ‘the tracing, arrest and handing-over of any person wanted by other United Nations’ (than the four occupying Powers) for ‘war crimes and crimes against humanity’ and ‘included in the lists of the United Nations Commission for War Crimes.’”


Schwelb, supra note 12, p. 224.


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