By Luke Johnson

Human Rights After Hitler: The Lost History of Prosecuting Axis War Crimes

Written by Dan Plesch

Washington: Georgetown University Press, 2017. 240pp.

It is perhaps not as commonly known as it should be that the movement for international justice emerged during World War II for crimes committed by the Axis Powers. World War II, after all, ended more than seventy years ago and is often confined to the subject of history. Therefore, the temptation is to point the origins of the human rights movement to the 1970s and the presidency of Jimmy Carter, when it became a pillar of American foreign policy.

Enter Dan Plesch. The Director of the Centre for International Studies and Diplomacy at the School of Oriental and African Studies at the University of London has written a short book called Human Rights After Hitler: The Lost History of Prosecuting Axis War Crimes that corrects the above notion.

Plesch focuses on the drive to prosecute war criminals starting during the Second World War. He traces the history of the United Nations War Crimes Commission (UNWCC), set up in the early 1940s to help national courts prosecute war criminals. This body was distinct from the Nuremberg Trials, a separate international court set up to prosecute high-level officials associated with the Nazi regime. With a paltry budget and a mission to assist national courts, the UNWCC’s work was inherently less public than Nuremberg; it also focused on lower-level officials, or as the book refers to them, “foot soldiers of atrocity.” Cold War politics and the desire not to punish West Germany too harshly to bring the country into Western institutions sealed the archives from the commission until Plesch’s lobbying effort to release them in 2011.

The book reveals that many of the current debates about global justice –whether to prosecute or forgive officials for their crimes, whether national courts can successfully prosecute alleged war criminals, how to define and prosecute the crime of aggression, the debate over universal jurisdiction, and how to prosecute crimes of sexual assault and rape during wartime –were present in UNWCC debates. This fact alone makes the book relevant to the present day. Unlike today’s global justice debates, most of the defendants were overwhelmingly German but also included Italians, Japanese, and some of the smaller allies to the Axis Powers.

The setup of the UNWCC as an aid to national courts, its small budget, the fact that it charged more than 22,000 suspected war criminals, and that national courts convicted about 85 percent of them, make it an appealing model to replicate in the present day, as the author suggests. First, the court offered legal, political, technical, and administrative advice to national courts. Importantly, the court did not serve as a stand-in for national justice. This model of justice allowed national courts to lead while assuring that the justice rendered would be fair and in line with international standards. This model is in contrast to the International Criminal Court (ICC), which usually only prosecutes war criminals when a national body is unable or unwilling to do so. Second, the UNWCC was an inexpensive model: the budget of UNWCC was about $2.6 million in today’s dollars. The ICC, by contrast, has an annual budget in the hundreds of millions and only four convictions to show – far off from a goal by its former prosecutor, Luis Moreno Ocampo, of being a “sexy court” that brings a prosecution every year.[i] A modern UNWCC would clearly cost more than its predecessor, but likely not in the hundreds of millions. Third, it assisted in the convictions of far more officials than other international bodies have with a conviction rate similar to the International Criminal Trial for the former Yugoslavia (ICTY). The advantage of a modern UNWCC over the ICTY or other conflict-specific bodies is that its mandate would be open-ended, and it would not be a substitute for national justice.

The book also argues against the conventional wisdom that the Allies did not know about the Holocaust, or at least did not know about its scale. Plesch is right to put this notion to rest, as some in the U.S. and UK governments did know and attempts to intervene were ignored.

While they did know of the Holocaust, the Allies’ public statements were comparatively weak. The statements presented by Plesch fall short of the title of his chapter on them, ”When The Allies Condemned the Holocaust.” He points to a 1942 Allied statement declaring the “regime of terror characterised…by imprisonments, mass expulsions, the execution of hostages and massacres.” This statement also suggested that acts of violence against civilians were not legitimate acts of war. Tellingly, the Jews were not mentioned in this public statement that Plesch cites as proof that the Allies truly condemned the Holocaust.

Plesch reveals that 761 individuals were prosecuted for anti-Jewish violence with the UNWCC, conceding that the indictments did not constitute an adequate response to the Holocaust. Why mention it? He argues that it makes Allied inaction to intervene worse. That is true. The statistics make a larger point: the UNWCC had limitations, specifically seen in the low numbers of lower level officials prosecuted for crimes against Jews. The indictments should have been much higher in number had the UNWCC been a model of global justice that Plesch makes it out to be. While a small budget has virtues, it can only do so much. Hence, trials of the most high-level officials in Nuremberg, which Plesch does not focus on, had value in instituting the principle that no one is above the law. One of the limitations of the book is that Plesch emphasizes the work of the UNWCC, but a discussion of how the UNWCC fit in with Nuremberg would have strengthened the argument.

The book is a short one with just over 200 pages and nine chapters. Given Plesch’s apparent trove of new archival information, he misses an opportunity to discuss these archives at length. The book’s structure also seemed disjointed, and I found myself hoping for a more logical path. The book discusses sexual violence, to the setup of the UNWCC, its rules of evidence, and the Holocaust, but not in an order that is obvious.

The strongest point of the book is that the UNWCC offers a way forward to prosecute many lower-level human rights abuses. An international body supporting the work of fair local courts would offer a reasonable model for postcolonial countries that see the ICC as too foreign. If the regime of Bashar al-Assad falls in Syria, a UNWCC-like body might carry out the prosecutions of lower-level Syrian officials in a neighboring country such as Jordan, ensuring fair, international standards, but making the proceedings closer to Damascus, and in a country where many Syrian refugees reside. The higher-level prosecutions might take place in The Hague, but the ICC has not shown itself to be capable of prosecuting very many offenders. Most of all, a permanent body of judicial support for war crimes prosecutions might ensure that fewer happen in the first place. Such a functioning organization may well be more of a deterrent than lobbing fifty-nine Tomahawk Missiles at an airfield.

About the Author

Luke Johnson is an M.A. student in Global Affairs at Yale University's Jackson Institute focusing on Europe and transatlantic affairs. Prior to coming to Yale, he worked as a reporter and editor for Radio Free Europe/Radio Liberty, The Huffington Post, and The American Independent.

Endnotes

1. Jess Bravin, “For Global Court, Ugandan Rebels Prove Tough Test” June 8, 2006. https://www.wsj.com/articles/SB114971481626174102.