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The United Nations War Crimes Commission (UNWCC), 1943–1948, and the Codification of International Criminal Law: An Introduction to the Special Issue

In: Journal of the History of International Law / Revue d'histoire du droit international
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Sabina Ferhadbegović
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Kerstin von Lingen
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Julia Eichenberg
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‘Crimes against peace’ and ‘crimes against humanity’ are two elements of international law which acquired enormous resonance in the legal and moral discussions in the aftermath of the Second World War. The origination of these concepts is often attributed to the International Military Tribunal at Nuremberg and the American chief prosecutor at Nuremberg, Robert Jackson, and Hersch Lauterpacht.1

However, this approach, quite widespread among international lawyers, overlooks the significant impact of the United Nations War Crimes Commission (UNWCC) which, since its foundation in 1943, had paved the way for the London Charter. The UNWCC and its predecessors, the Cambridge Commission and the London International Assembly (LIA)concerned itself with legal questions relating to war crimes, to which its copious minutes testify. It had been established by seventeen of the Allied nations, initiated by representatives of occupied European countries, such as France and Poland, the Netherlands and Yugoslavia, but also included Australia, New Zealand and China and was thus one of the first global endeavours. The UNWCC’s main function was to formulate and implement general measures for trial and punishment of alleged Axis war criminals. When central aspects of their findings were discussed at the London Conference in the summer of 1945, Robert Jackson was present as the head of the American delegation. The ideas shaping Nuremberg predominantly originated within the debates of the UNWCC, contributed to not only by the few known central figures (Jackson, Lauterpacht, Lemkin) but by the cooperation, exchange and transfer of knowledge between a larger community of legal experts, many of whom are rather forgotten or hidden in the history of international law (and transitional justice).

In this special issue we will highlight some of those ‘hidden figures’ active within the various circles and commissions, and inquire into the agency of their members, torn between internationalist concepts and national missions.

Who were the representatives to the Commission? How did these representatives participate in the development of the concepts of ‘crimes against peace’ and ‘crimes against humanity’? What were the practical aspects of their cooperation? How did their engagement with the UNWCC influence the work within their national war crimes commissions and the national prosecution of war criminals? What role was reserved for ‘the absent player’, the Soviet Union? And why did they remain hidden for so long?

1 The Overdue Rediscovery of the UNWCC

Research on the UNWCC has flourished within the last decade, following an initial seminal study by Arieh Kochavi in 1998.2 The work of the UNWCC, however, remained a side topic and is still, as William Schabas stressed in 2014, the ‘best kept secret in the field’.3 Its significant impact on the development of international criminal law was often overlooked.

One reason for the long neglect of the UNWCC was the fact that its archive remained closed for decades and was opened for public access only due to the campaign led by Dan Plesch.4 This was followed by a conference hosted by Dan Plesch at SOAS in September 2013, from which a special issue within the Criminal Law Forum originated.5 Some of the contributing authors to this volume have led or participated in research projects analysing the UNWCC’s work and impact within recent years, and contributed to the field.6

New publications have shifted the focus from the Nuremberg Tribunal and Robert Jackson to the role of a larger group of international law experts. It was not just Philippe Sands’s fascinating monograph East West Street which aroused interest in Hersch Lauterpacht and Raphaël Lemkin and their contribution to the development of international criminal law.7 As Dirk Moses highlights in his review of Sands’s book, various publications devoted to Lauterpacht and Lemkin have been published since the 1990s, when the United Nations established the International Criminal Tribunals for the former Yugoslavia and Rwanda, referring to grave breaches of the Geneva Conventions, genocide and crimes against humanity.8 Ana Vrdoljak contrasted their different contributions to international law,9 others, like Moses, focused either on Lemkin or on Lauterpacht and their biographies and provided excellent insights into their lives, their work, their thoughts or their Jewish origin.10 The growing scholarship on Lauterpacht and Lemkin turned them into major figures of humanitarian law and genocide studies. But, as Francine Hirsch emphasizes, other key figures and key players remained hidden. Hirsch, for her part, has stressed the role of the Soviet Union at the Nuremberg Tribunal and revealed the significant contribution of Aron Trainin in developing the legal framework used at Nuremberg,11 as does Valentyna Polunina in her reassessment of Trainin’s role for the Soviet Far-Eastern tribunal at Khabarovsk.12 And Michelle Jean Penn presented Trainin’s work in relation to Lauterpacht and Lemkin’s ideas.13 Anja Bihler brought China back into scholarly focus, linking the war crimes trials with earlier legal problems, especially the issue of extraterritoriality for foreigners (including Japanese) in China.14 Recent research on émigré jurists has opened new perspectives on how transnational actors, who operated behind the scenes, influenced the development of international criminal law.15 But remaining in the shadow of Nuremberg, in the shadow of prosecutors and judges, in the shadow of exceptional jurists were other engaged people and institutions. We still do not have a full picture of the UNWCC history, including the role of the different representatives or their contribution to the development of modern norms, a lacuna which this work will start to fill, in the anticipation that other publications will follow.

2 The UNWCC at the Crossroads of National and International Interests

The UNWCC was at once a very national and a very international endeavour. Post-war war crimes trials formed a central war aim of all occupied European nations, from a very early point in the war: to prosecute the (mostly German) perpetrators of radical transgressions of all that was considered the basic rules of the laws of warfare.16 At the same time, they wanted to hold responsible collaborators who had joined or supported the German side. Transnational exchange about legal options for this kind of extensive transitional justice in wartime London thus served national interests; by engaging in legal debates and forming international (United Nations) commissions to further pursue this aim, the governments were able to display their agency in this field. Considering their isolated position in exile, it was important both on a realpolitik and on a symbolic level to communicate to their populations suffering under occupation and Nazi suppression that they (the governments and representations) had their back. The UNWCC was also an internationalist view into the future: in the midst of war, this joint commission promised the legal equivalent to the military alliance in the Allied fight against Hitler.

Researchers have long criticized the ‘Westernization of scholarship’ and called for a ‘provincialization of European perspectives’ (Chakrabarty), as well as greater involvement of non-Western actors. Existing literature often focuses predominantly on the impact of experts from the US and UK on the debate and overlooks the extent to which the smaller Allied states contributed to the conception of post-war justice. This publication will close this lacuna and explore these questions, focusing on different actors operating in diverse contexts (League of Nations, governments in exile, non-European governments, occupied states active in Europe or Asia) in order to reassess the impact of the UNWCC on the codification of international criminal law, and to highlight the networks and entanglements between actors, international and national legal concepts, and policies. ‘Small’ does not refer here to geographical size, but more to access to diplomatic and political power; as Madeleine Herren has argued, smaller states, as for example Switzerland, developed engagement within transnational organizations like the League of Nations (or the later UNWCC) into a ‘backdoor to power’, a tool to make their voices heard in the international arena.17

Another lacuna existing scholarship left for us to tackle is the re-calibration between western and eastern legal voices, and a truly global approach to the history of international law in the age of cold war. Above all, this implies a re-assessment of the role of a powerful ‘absent player’, the Soviet Union. The Soviet Union was a global player, and provided quite substantial impetus in the field of war crimes trials (even if partly through a kind of rather politically motivated Cold War competition). Although Moscow refused to join the UNWCC for political reasons, it was nevertheless an important impulse giver either academically (for example through the writings of Aron Trainin), either due to strong bilateral contacts towards Eastern European countries. Therefore, scholars who read Russian and English acted as real intellectual transmitters between the two spheres of interest, and will be given special credit in this volume, in order to start writing a real global history of international law.

3 The UNWCC: Culmination of an Epistemic Community

The UNWCC was a hub of transnational legal thought during the war, an epistemic community initially formed from European protagonists forced into exile by German occupation, as well as from Chinese representatives who suffered under Japanese occupation.18 A transnational circle of lawyers followed their aim of prosecuting violence against civilians, thereby forming an epistemic community of lawyers, which Lingen understands as agents of a new, supranational policy.19 This volume proposes to zoom in on the epistemic communities involved, characterized by the intellectual history of the emergence of concepts relating to crimes against civilians, and the actor-centred network behind these debates. Three groups can be distinguished: high-level diplomats and statesmen at diplomatic conferences, legal scholars interested in the advancement of international law in an orthodox sense, and national civil servants and mid-level internationalists, who were open to compromise and not limited by a too narrow interpretation of international law. Remarkably, in these committees it was often representatives of small states, as well as lower-level social activists representing international NGOs, that really influenced opinion, working in harness with law enforcement officials rather than diplomats, and using campaign techniques such as press interviews and lobbying in parliament to achieve their goal. Knowledge transfer from the earlier days of the League of Nations is clearly visible.

Occupied countries and their governments in exile had driven the political agenda for war crimes punishment in London since 1941. Their representatives to the UNWCC, among them Bohuslav Ečer and René Cassin, advocated strongly for the establishment of an international tribunal to prosecute war criminals and for a new interpretation of war crimes.

Most of the representatives in the UNWCC had been taking part in its forerunners’ semi-official committees: the International Commission for Penal Reconstruction and Development (known as the Cambridge Commission) and the London International Assembly (LIA). Some members shared even older ties: the list of representatives who drew on their former experience within the League of Nations includes the Australian representative Stanley Melbourne Bruce, the Chinese representative Wellington Koo, the Czech minister Edvard Beneš and the French representative René Cassin.

4 Structure

The assemblage of exile lawyers in London and their long and intense collaboration during the war years in the context of the UNWCC created an epistemic community, as examined by Kerstin von Lingen (Wien) in ‘Epistemic Communities of Exile Lawyers at the UNWCC’. Many of these legal experts acted in close collaboration with the European exile governments situated in London, whose exchange and lobbyism for war crime trials paved the way for the creation of the UNWCC, as analysed by Julia Eichenberg (Bayreuth) in ‘Crossroads in London on the Road to Nuremberg: The London International Assembly, Exiled Governments and War Crimes’. While the Soviet Union preferred to maintain a distance from the immediate collaboration, Valentyna Polunina shows that their influence was greater than was obvious at first sight in ‘The Soviet Union – an “Absent Player” at the UNWCC’. The contributions which follow turn to the national case studies, introducing the ‘hidden figures’ who acted on behalf of their (small and bigger) states within the epistemic community of the UNWCC. Sabina Ferhadbegovic (Jena) explores the connections between national and international debates in ‘The Impact of the United Nations War Crimes Commission on the Yugoslav Prosecution of War Criminals in the Aftermath of the Second World War’. Sara Weydner (Berlin) examines the agency of individual European legal experts with her case study ‘A Lawyer in Exile: Johannes M. de Moor and the Circulation of Legal Knowledge in Wartime London’. The colonial sphere is explored with regard to French legal debates on legal and imperial aspects by Ann-Sophie Schoepfel (Harvard) in ‘The Internationalist Precipice: Jurists and Diplomats of the French Empire at the United Nations War Crimes Commission’. Last but not least, Narrelle Morris (Perth) adds to the global perspective by introducing non-European participants of the UNWCC in ‘Australian Representatives to the UNWCC, 1942–1948’.

This volume closes a gap in scholarship, by reassessing actors within their agencies during the war years in London and beyond, and zooming in on the forgotten history of war crimes policy to settle accounts after the war in Europe as well as in Asia, and to highlight the networks and entanglements between actors, international and national legal concepts, and policies.

When examining the ‘hidden figures’ behind the history of the UNWCC, it becomes apparent that for legal experts of the governments in exile and other non-European states the participation in the UNWCC represented a rare chance to influence the prosecution of war crimes and advocate their concepts of international law. The results of their debates formed the guidelines for the legal framework of the London Charter, the basis of the later Nuremberg International Military Tribunal and its sister court in Tokyo.

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1

Compare amongst others Vrdoljak, Ana Filipa. ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’. European Journal of International Law 20(4) (2009), 1163–1194, doi 10.1093/ejil/chp090. King, Henry T. Jr. ‘Robert H. Jackson and the Triumph of Justice at Nuremberg’. Case Western Reserve Journal of International Law 35(2) (2003), 262–273.

2

Kochavi, Arieh J. Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill: University of North Carolina Press, 1988). For an overview on the UNWCC see Plesch, Dan. America, Hitler and the UN: How the Allies Won World War II and Forged a Peace (London: Tauris, 2011); Kochavi, Arieh J. ‘Britain and the Establishment of the United Nations War Crimes Commission’. English Historical Review 107 (423) (1992), 323–349, here 323. For a historical account see Schwelb, Egon. The United Nations War Crimes Commission, British Year Book of International Law 23 (1946), 363–364, and United Nations War Crimes Commission. History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HMSO, 1948).

3

Schabas, William, Carsten Stahn, Joseph Powderly, Dan Plesch and Shanti Sattler. ‘The United Nations War Crimes Commission and the Origins of International Criminal Justice’. Criminal Law Forum 25(1–2) (2014), 1–7, doi 10.1007/s10609-014-9220-5.

4

Regarding the campaign see Plesch, Dan and Shanti Sattler. ‘Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948’. The International Community Law Review 15 (2012), 203–223.

5

Plesch, Dan and Shanti Sattler. ‘A New Paradigm of Customary International Criminal Law: The UN War Crimes Commission of 1943–1948 and its Associated Courts and Tribunals’. Criminal Law Forum 25(1) (2014), 17–43.

6

To name is the Research project at the Cluster of Excellence Asia and Europe in a Global Context at Heidelberg University, entitled: ‘Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1945–1954’ (www.transcultural-justice.uni-hd.de), which ran from 2013 to 2017. Publications include for example Lingen, Kerstin von. ‘Setting the Path for UNWCC. The Representation of European Exile Governments on LIA and Cambridge Commission, 1941–1944’. International Criminal Law Forum 25(1) (2014), 45–76; Lingen, Kerstin von. ‘Defining Crimes against Humanity: The Contribution of the United Nations War Crimes Commission to International Criminal Law, 1944–1947’, in Historical Origins of International Criminal Law, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic E-Publisher, 2014), 475–506, available at: https://www.legal-tools.org/doc/8eb79b/ (last accessed on 01 August 2022); Bihler, Anja. ‘Late Republican China and the Development of International Criminal Law: China’s Role in the United Nations War Crimes Commission in London and Chungking’, in Historical Origins of International Criminal Law, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic E-Publisher, 2014), 507–540, available at: https://www.legal-tools.org/doc/136644/pdf/ (last accessed on 01 August 2022).

7

Sands, Philippe. East West Street: On the Origins of ‘Genocide’ and ‘Crimes against Humanity’ (London: Weidenfeld & Nicolson, 2016).

8

Moses, A. Dirk. ‘Popularizing the History of International Criminal Law’. Lawfare (3 June 2016) available at: https://lawfareblog.com/popularizing-history-international-criminal-law (last accessed on 01 August 2022).

9

Vrdoljak, ‘Human Rights and Genocide’ 2009 (n. 1), 1163–1194.

10

Koskenniemi, Martti. ‘Hersch Lauterpacht and the Development of International Criminal Law.’ Journal of International Criminal Justice 2(3) (2004), 810–825; Moses, A. Dirk. ‘Raphael Lemkin, Culture, and the Concept of Genocide’, in Oxford Handbook of Genocide Studies, eds. Donald Bloxham and A. Dirk Moses (Oxford: Oxford University Press, 2010); Irvin-Erickson, Douglas. Raphaël Lemkin and the Concept of Genocide (Philadelphia: University of Pennsylvania Press, 2017); Siegelberg, Mira. ‘Unofficial Men, Efficient Civil Servants; Raphael Lemkin in the History of International Law’. Journal of Genocide Research 15(3) (2013), 297–316. See also the recent special issue of Genocide Studies and Prevention ‘Revisiting the Life and Work of Raphaël Lemkin’ 13(1) (2019), available at: https://doi.org/10.5038/1911-9933.13.1 (last accessed on 01 August 2022); Loeffler, James and Moria Paz, eds. The Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century (Cambridge: Cambridge University Press, 2019).

11

Hirsch, Francine. Soviet Judgment at Nuremberg: A New History of the International Military Tribunal after World War II (Oxford: Oxford University Press, 2020). See also her earlier assessment in Hirsch, Francine. ‘The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’. American Historical Review 2 (2008), 701–730.

12

Polunina, Valentyna. ‘The Human Face of Soviet Justice? Aron Trainin and the Origins of the Soviet Doctrine of International Criminal Law’, in Stalin’s Soviet Justice: ‘Show’ Trials, War Crimes Trials, and Nuremberg, ed. David Crowe (London: Bloomsbury, 2019), 127–144.

13

Penn, Michelle Jean. ‘The Extermination of Peaceful Soviet Citizens: Aron Trainin and International Law’ (University of Colorado at Boulder, PhD Manuscript, 2017). Another approach is presented by Kirsten Sellars’ ‘Treasonable Conspiracies at Paris, Moscow and Delhi’, in Trials for International Crimes in Asia, ed. K. Sellars (Cambridge: Cambridge University Press, 2018), 25–54.

14

Bihler, Anja. ‘The Legacy of Extraterritoriality and the Trials of Japanese War Criminals in the Republic of China’, in War Crimes Trials in the Wake of Decolonization and Cold War in Asia, 1945–1956: Justice in Time of Turmoil, ed. Kirsten von Lingen (Basingstoke: Palgrave, 2016), 93–116.

15

Loeffler/Paz, The Law of Strangers 2019 (n. 10). Weinke, Annette and Leora Bilsky. Jewish-European Émigré Lawyers. Twentieth-Century International Humanitarian Law as Idea and Profession (Göttingen: Wallstein 2021).

16

Cf. Gumz, Jonathan. ‘International Law and the Transformation of War, 1899–1949: The Case of Military Occupation’. The Journal of Modern History 90(3), 621–660.

17

Herren, Madeleine. Hintertüren zur Macht. Internationalismus und modernisierungsorientierte Außenpolitik in Belgien, der Schweiz und den USA 1865–1914 (Munich: De Gruyter, 2000).

18

Lingen, Kerstin von. ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864–1945 (Paderborn: Schoeningh, 2018), 23.

19

Lingen, Kerstin von. ‘Transnational Epistemic Communities: From the League of Nations to the United Nations War Crimes Commission’, in Histories of Transnational Criminal Law, eds. Neil Boister, Sabine Gleß and Florian Jeßberger (Oxford: Oxford University Press, 2021), 57–69, DOI:10.1093/oso/9780192845702.003.0005.

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