iOS app Android app More

Kip Hale

GET UPDATES FROM Kip Hale
 

Redefining the Past and Future Fight Against Atrocities

Posted: 09/03/2013 3:08 pm

It is truly remarkable when discoveries reshape history. When new information about the past comes to light that helps us better understand and define our collective story. Most importantly, these kinds of discoveries are rewarding not only because they create a more accurate history, but also because they enable us to chart a better future.

The recent expansion of access to the United Nations War Crimes Commission (UNWCC) archive in New York City is such a "discovery." Before thinking that this development should only interest college professors wearing elbow-patched blazers, access to the UNWCC archive matters to anyone who believes that mass atrocities are only truly deterred by the rule of law. It is for this reason that the SOAS, University of London's Centre for International Studies and Diplomacy has organized an UNWCC 70th Anniversary conference from September 10-11 to discuss exactly how this new access to the archive may reshape long-held understandings about international criminal justice.

Before discussing its importance, what was the UNWCC? As described by an Associated Press article and detailed in a law review by Professor Dan Plesch (credited with starting the movement to open the archive) and Shanti Sattler "Changing the Paradigm of International Criminal Law", the UNWCC predated the creation of today's United Nations as well as the renowned Nuremberg Tribunal. The UNWCC was created in 1943 by seventeen nations - including China, India, U.K., U.S., and Yugoslavia to name a few - all of who decided it was better to respond to the mass atrocities committed by the Axis Powers with the due process of law, not the business end of a pistol.

Unlike modern international criminal tribunals that are primarily courts of law, the UNWCC was an oversight mechanism that supervised and coordinated atrocity crime investigations and prosecutions in national jurisdictions around the world. Diplomatically, the UNWCC had regular meetings where national representatives discussed their country's opinion on a wide range of international criminal law issues. In terms of its substantive work, the UNWCC was divided into three committees: the first helped nations evaluate the import of evidence; the second assisted in apprehending suspects and punishing the convicted, amongst other duties; and the third provided advisory legal opinions to national jurisdictions as a way to harmonize the development of international criminal law.

This massive repository of World War Two-era mass criminal cases is important today because it is both an unique international legal institution of the past and a newfound source of information that will help the future of international criminal justice. Left mostly untouched for over six decades, the UNWCC archive is unparalleled in scope. While current access to it is unfortunately not yet unrestricted, the UNWCC archive contains thousands of cases that involved roughly 25,000 individuals accused and prosecuted for heinous atrocity crimes. With these numbers, the UNWCC's work dwarfs that of any international criminal tribunal to date.

Independent of its archive, greater recognition and appreciation of the UNWCC itself already revises history. Typically when discussing the beginning of international criminal justice, the conversation starts with the Nuremberg Tribunal of 1945-46 which tried the remaining then-living Nazi leaders, a full two years after the UNWCC started its work.

To be clear, the Nuremberg Tribunal, as the first international tribunal of its kind, is unequalled in prominence due to its numerous milestones in international criminal justice. Yet, the UNWCC is where this field of law laid it's first institutional "bricks and mortar." Furthermore, the UNWCC differs from Nuremberg and modern day tribunals in that it involved unusually active participation of countries like China and India, and the attention of other countries like Mexico and Ethiopia. With such diverse involvement, the UNWCC was a truly "international" effort.

The archive's thousands of pages of official diplomatic record as well as legal jurisprudence has the potential to alter the historical underpinnings of war crimes, crimes against humanity and genocide, and thus how these laws are interpreted in the future.

In reviewing just a sampling of its contents, it is clear that the archive contains then-unprecedented, high-level diplomatic discussions about several subjects of great interest to contemporary international criminal justice.

For instance, on February 21 1944, UNWCC delegates debated whether "crimes against humanity" was a category of crimes distinct from war crimes, and if so, how was it different. Judges and lawyers at modern-day international tribunals have argued extensively about when and to what extent crimes against humanity gained recognition distinct from war crimes. Here, the archive provides important insight on this issue.

Further, on September 26, 1944, UNWCC delegates agreed wholeheartedly that both Nazi leaders and on-the-ground perpetrators were "co-responsible for the criminal policy of Germany during the war in flagrant contravention of the rules and customs of war". This discussion amongst diplomats in 1944 relates directly to present-day debates about when international law recognized the idea that a collective of far-flung individuals of varying seniority can be jointly held responsible for the commission of equally far-flung atrocities. Here, the archive possesses some of the earliest iterations and discussion of this concept.

On December 18, 1946, the UNWCC delegates also endorsed the recognition of the then-novel "crime of genocide" as separate and distinct from all other international crimes. The Genocide Convetion was passed two years later in 1948.

While its historical significance is evident, the UNWCC can also help today's efforts to hold atrocity criminals accountable. The UNWCC's present-day application is best demonstrated by its potential influence on the work of the International Criminal Court (ICC).

Based in The Hague, The Netherlands, the ICC is the world's only permanent international criminal tribunal for genocide, crimes against humanity, and war crimes. It is true that the ICC has a prospective looking legal code - the Rome Statute - to follow and apply, thus limiting the application of any legal material that came before it. Nevertheless, the genesis of the ICC legal code is rooted in the UNWCC. In fact, the UNWCC assembled a draft convention for an international court. Most relevant, the cases and diplomatic record found in the archive can provide persuasive and helpful material for the ICC to use, such as how past diplomats, judges, and lawyers approached similar facts or interpreted similar legal language.

This new level of access to the UNWCC archive is not limitless, and governments of the seventeen member UNWCC States should expedite unrestricted access to the entire archive. Expanding access to the UNWCC archive does raise legitimate issues pertaining to the rights of victims, witnesses and accused, even seventy years later. Yet, the competence of these States to redact such sensitive information is manifest; domestic U.S. courts do so all the time to great effect.

The UNWCC redefines the human struggle to hold international atrocity criminals accountable. It is particularly refreshing to know it was not long ago that disparate nations - China and U.S. specifically - rallied around the fight against impunity for the worst crimes. As this fight continues, primarily at the burgeoning yet still young ICC, maybe the greatest impact of the UNWCC will be the inspiration that we can put aside differences and jointly support today's efforts to confront atrocities with the force of law.

 

Follow Kip Hale on Twitter: www.twitter.com/@kiphale

FOLLOW WORLDPOST