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

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

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ISBN-13: 9781626164338
Publisher: Georgetown University Press
Publication date: 03/21/2017
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 272
File size: 10 MB
Age Range: 18 Years

About the Author

Dan Plesch is director of the Centre for International Studies and Diplomacy at SOAS, University of London. He is the author of America, Hitler and the UN, coeditor of Wartime Origins and the Future United Nations, and has been a frequent contributor to the Guardian and other media.

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Human Rights After Hitler

The Lost History of Prosecuting Axis War Crimes

By Dan Plesch


Copyright © 2017 Dan Plesch
All rights reserved.
ISBN: 978-1-62616-433-8




In the twenty-first century there is a concerted international campaign to end sexual violence in war. Sometimes this is falsely characterized as an invention of the late twentieth century. In fact, these types of acts were prosecuted as crimes all over the world in the 1940s, sometimes by states that are reluctant to do so today. This chapter is based largely on earlier work written with Susana SáCouto and Chante Lasco of the War Crimes Project at American University, to whom I am indebted. If there was ever a tendency to dismiss as irrelevant the attempt to draw on musty, generations-old legal papers for use in the world of the Internet, then these World War II examples of prosecutions for crimes of rape and forced prostitution provide the necessary shock needed to show the importance of recovering all the lost wisdom. Recorded at the time with the plain language of "rape" and "forced prostitution," today the terminology has changed to include these crimes within the overarching description of sexual and gender-based violence.

Sexual and gender-based violence (SGBV) is not limited to rape and forced prostitution; it also includes a wider range of violence, persecution, and poor treatment directed against people (usually women) because of their gender. Gender-based violence was widespread throughout the Second World War, and many UNWCC cases covered violence that specifically targeted women or that disproportionately affected them. Both crimes were prosecuted in the UNWCC-supported trial of Auschwitz commandant Rudolf Hoess, for example, which addressed the forced sterilization of Jewish men and women (which, from distressing medical reports, seems to have been particularly injurious for female victims) as well as forced insemination and other medical experimentation targeting women. While sex-selective violence often targeted adult men (who were singled out to be killed), there are also a number of cases in which Nazi officials were charged with targeting women to be rounded up and sent to camps; this, too, can be considered gender-based violence. While the UNWCC did address a wide range of what would now be identified as SGBV, this chapter will focus on the particular issue of rape and other forms of sexual violence, because it is through these cases that one can see how the commission was most dramatically ahead of its time and where its work is particularly relevant to contemporary debates.

Important legal precedents and practices can be found in the legal processes of the 1940s and the actions of nations to criminalize sexual violence in war. This evidence effectively rebuts the idea being proposed by defendants in the twenty-first century that these acts are not crimes at all — the so-called nullum crimen sine lege challenge to bringing SGBV cases to court at all. The definitions of SGBV offenses in the domestic and military codes of the 1940s — and especially how prosecutors approached issues of consent and coercion — can guide present-day tribunals dealing with these issues. These offenses were included in the list of war crimes agreed upon by UNWCC member states. Charges for these crimes were brought by prosecutors in a wide range of jurisdictions across Europe and Asia, resulting in many successful convictions and providing an important precedent.

It is not just the types of crime but also the types of responsibility for crimes in UNWCC-supported cases where the roots of the current concepts of criminal culpability are much stronger than previously supposed. Today there is a tendency to require higher standards of evidence for SGBV crimes than for other offenses, but the practices at work during the 1940s support requiring the same and not higher standards. UNWCC-supported cases also indicate that the tradition of protecting witnesses from degrading questions was being followed as early as the post–World War II era, which reinforces rulings issued by modern tribunals and offers some important examples to tribunals that have not yet codified such rules.

The importance of having UNWCC-supported cases to refer to during the prosecution of SGBV cases before contemporary tribunals cannot be overstated. For centuries, acts of sexual violence were viewed as "a detour, a deviation, or the acts of renegade soldiers ... pegged to private wrongs and ... [thus] not really the subject of international humanitarian law." Indeed, such crimes were often perceived as "incidental" or "opportunistic" in relation to a war zone's "core" crimes. Even when recognized as criminal, SGBV offenses committed in the context of conflict or mass violence are often tacitly encouraged or tolerated, which makes it challenging for prosecutors to link the perpetrator with the crime. Not surprisingly, commentators have noted that while significant improvements have been made in the prosecution of SGBV crimes by contemporary tribunals, particularly in the last fifteen years, these cases continue to be plagued by prosecutorial omissions and errors as well as a tendency on the part of judges to require higher evidentiary standards. That UNWCC member states investigated and prosecuted similar crimes nearly seventy years ago — holding both the direct and the indirect perpetrators responsible for such crimes and offering some level of protection to witnesses participating in these cases — is incredibly significant.

In addition to the value the UNWCC archives afford for tribunals prosecuting conflict-related SGBV cases today, the jurisprudence that emerged from UNWCC cases is of great importance to contemporary policy debates. Indeed, the active role states took in pursuing crimes of sexual violence in the 1940s provides a strong foundation for pursuing such crimes today, likely more than prosecutors may realize. Four permanent members of the UN Security Council — China, France, the United Kingdom, and the United States — were members of the UNWCC, and, along with Russia, were party to the Hague Conventions, which were relied upon by many states to prosecute rape and forced prostitution during and after the war. Similarly, a number of European Union member states — including Belgium, France, Greece, Italy, and Poland — endorsed the identification of rape and forced prostitution as war crimes as early as the 1940s. Since the issue of sexual violence committed in the context of conflict or mass violence continues to be the subject of debate within UN and European Union forums, the valuable work carried out in the 1940s should be applied in detail to these debates.

The documented work of the UNWCC revolutionize our understanding of the legal precedents and practices that can be used in the prosecution of sexual violence. However, the data presented here are incomplete, as the commission records, though extensive, have gaps, especially in the reports of national prosecutions.

Key Issues of Prosecuting SGBV Crimes Today

Several issues still obstruct more effective prosecutions today. Among them are:

1. Whether acts of sexual and gender-based violence committed as part of a conflict are in fact crimes under national or international law;

2. The definition of SGBV crimes, including how they incorporate the idea of physical or mental force, that is, coercion;

3. What theories of criminal responsibility can be used to identify perpetrators — particularly top leaders — who are accountable for SGBV crimes;

4. The treatment of victims and witnesses involved in these crimes.

An examination of archives from the United Nations War Crimes Commission and the many associated tribunals overturn conventional wisdom on all these topics.

The UNWCC's Recognition of Sexual Violence Offenses as War Crimes

The UNWCC was the first multinational criminal law organization to endorse treatment of SGBV crimes as international crimes. It recommended to member states a working list of offenses to use in their military or domestic penal codes.

According to the commission's official minutes, it considered three lists late in 1943, at a time when the Nazis were still firmly in control of continental Europe and committing crimes with impunity. Notably, rape was explicitly included as a war crime in all three draft lists of offenses considered by the commission; forced prostitution was included in two of the three. Both were included in the final list sent to UNWCC member states and used by the organization to coordinate its review of cases. Of the thirty-two crimes listed by the UNWCC, rape appears as number five and forced prostitution as number six. Hence, there was consensus among the Allied powers that an act of sexual violence committed against one of their nationals by enemy forces constituted an international crime. The minutes echo this consensus: the index contains neither a reference to rape nor to prostitution, indicating that no state's representative considered the issue controversial.

World War II Case Files Involving Sexual Violence

Rape, attempted rape, and forced prostitution were all subject to internationally supported legal proceedings, as seen in UNWCC-supported charges being brought and in the national trials conducted across Europe and South and East Asia. Furthermore, France, Poland, and the United States charged individuals with forced prostitution.

Countries that prosecuted cases of sexual and gender-based crimes before national tribunals or military tribunals (or both) include Australia, Belgium, China, Denmark, France, Greece, Italy, Poland, and the United States, as well as the UNWCC itself. Australia, China, Denmark, France, Greece, Italy, Poland, the United States, and Yugoslavia all prosecuted individuals for rape. Reports of some of these prosecutions were submitted to the UNWCC by the national jurisdictions that carried them out, while many trial records survive in countries' individual national archives (a small portion of which have been reviewed for this book; many are yet to be retrieved from these archives).

Figure 1.1 summarizes the number of rape and forced prostitution cases based on an analysis of the UNWCC charge files. Charge files are the dossiers of evidence prepared by national governments and submitted by them to the commission for its judgment as to whether the commission supported the indictment. Not all cases that were brought to trial or reported to the commission appear to have been processed as charge files, particularly those conducted in the Pacific region. The sheer volume of material in the UNWCC archive can give the impression of completeness. However, it is important to realize that the circumstances of war and the immediate postwar period placed huge obstacles in the way of keeping complete and accurate records.

"Rape Is Not a War Crime": Nullum Crimen Challenges to Prosecution of SGBV Crimes

The legal basis for prosecution of crimes of sexual violence as serious international crimes is well established. The statutes of both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), for instance, explicitly recognize rape as a crime against humanity. Similarly, the law establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC) includes rape as a crime against humanity. Article 7(1)(g) of the Rome Statute, which established the International Criminal Court, goes further and lists additional acts of sexual violence as crimes against humanity, including: "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparative gravity." So-called hybrid courts, which combine national and UN authority — such as the Special Court for Sierra Leone (SCSL) and the Special Panels for Serious Crimes in East Timor (SPET) — have followed the ICC's example by explicitly recognizing several sexual and gender-based crimes as crimes against humanity, including rape, sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence. Moreover, the ICTY, ICTR, SCSL, and SPET have all convicted individuals of rape and sexual violence as crimes against humanity, among other SGBV crimes.

While these developments demonstrate a strong precedent for the prosecution of SGBV crimes as serious international crimes, challenges to such prosecutions continue to arise. One such challenge is based on the legal principle of nullum crimen sine lege, which holds that persons cannot be held criminally accountable for conduct that did not constitute an offense at the time it took place. A contemporary example of such a challenge occurred relatively recently at the ECCC. As indicated earlier, the law establishing the ECCC provides it with jurisdiction over, inter alia, the crime against humanity of rape. The closing order in Case 002, a prosecution of several of the surviving senior leaders of the Khmer Rouge government, charged each of the accused with rape based on a finding that, "by imposing the consummation of forced marriages, the perpetrators committed a physical invasion of a sexual nature against a victim in coercive circumstances in which the consent of the victim was absent."

On appeal, however, the pretrial chamber replaced the charge of rape as a crime against humanity with the "crime against humanity of other inhumane acts (sexual violence)" based on the same facts, after finding that "rape did not exist as a crime against humanity in its own right in 1975–1979." In other words, the chamber determined that the prosecution of rape as a crime against humanity was barred before the ECCC by the principle of nullum crimen sine lege. The chamber acknowledged that rape existed as a war crime during the relevant time period and based its finding on the inclusion of this offense in several instruments that predate the work of the UNWCC, including the US Army's Lieber Code of 1863 and the Hague Conventions of 1899 and 1907. However, the chamber was not convinced that rape constituted a crime against humanity during the same period. In support of its conclusion, the chamber stressed the inconsistency between the law issued by the occupying Allies in Germany, Control Council Law No. 10 — which explicitly recognized rape as a crime against humanity — and the charters of the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE) — the Nuremberg and Tokyo tribunals, respectively — which did not. The chamber also stressed that there was scant evidence of prosecution of rape as a crime against humanity in the post–World War II period.

Had the ECCC been aware of the UNWCC-supported cases, it might have come to a different conclusion by the time the Khmer Rouge came to power in 1975. Many of the post–World War II tribunals focused on rape as a war crime — which arguably has a stronger basis under customary international law (since aspects of international law derive from state practice, custom, tradition, and the unwritten rules by which states usually behave). Other post–World War II tribunals, including the IMTFE, treated crimes against humanity as essentially subsumed within war crimes. The distinction between the two centers primarily on the nationality of the perpetrator vis-à-vis the victim. Significantly, in at least one UNWCC-supported case brought by the Chinese War Crimes Military Tribunal, against Japanese officer Takashi Sakai, the tribunal referred to the offenses at issue as both "war crimes" and "crimes against humanity." In the trial record submitted by the tribunal to the UNWCC it noted:

In inciting or permitting his subordinates to murder prisoners of war, wound soldiers, nurses and doctors of the Red Cross and other non-combatants, and to commit acts of rape, plunder, deportation, torture and destruction of property, [Sakai] had violated the Hague Convention concerning the Laws and Customs of War on Land and the Geneva Convention of 1929. These offences are war crimes and crimes against humanity (emphasis added).

As will be discussed in more detail later, rape was charged in UNWCC-supported cases, including ones prosecuted in Australia, China, Italy, the United States, Yugoslavia, Denmark, France, Greece, and Poland. Although the records reviewed to date are unclear regarding whether the tribunals adjudicating these cases similarly considered rape to constitute both a war crime and a crime against humanity, records from UNWCC-supported trials that have yet to become public might well reveal this to be the case. Moreover, the fact that rape that occurred in the context of a conflict or mass violence was prosecuted widely, albeit infrequently, lends support to the argument that rape was clearly recognized as a serious crime in the post–World War II era.


Excerpted from Human Rights After Hitler by Dan Plesch. Copyright © 2017 Dan Plesch. Excerpted by permission of GEORGETOWN UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents


1. Prosecuting Rape: The Modern Relevance of World War II Legal Practices

2. A New Paradigm for Providing Justice for International Human Rights Violations

3. When the Allies Condemned the Holocaust

4. Pursuing War Criminals All Over th World

5. The Holocaust Indictments: Prosecuting the "Foot Soldiers of Atrocity"

6. Fair Trials and Collective Responsibility for Criminal Acts

7. Crimes against Humanity: The "Freedom to Lynch" and the Indictments of Adolf Hitler

8. Liberating the Nazis

9. The Legacy Unleashed

AppendixesIndexAbout the Author

What People are Saying About This

G. Daniel Cohen

The extraordinary trove of cases (above thirty-five thousand) that Plesch helped uncover reveals a far-reaching, daring, indeed radical attempt at promoting human rights as a standard for the postwar era. . . I also find a lot of bravery in a book that forcefully claims, against recent revisionist literature, that the formation of the UN was epoch-making and a moment worthy of reexamination.

Richard Goldstone

The history recounted in this book has remained hidden since soon after the end of World War 2. It has been retrieved and meticulously researched by Dan Plesch and calls for a major revision of the history of international war crimes. This is essential reading for students, researchers or practitioners of international humanitarian law. Apart from that, it is a fascinating, accessible and well written account.

Geoffrey Robertson Q.C.

This important and revelatory book examines the remarkably prescient work of a UN Commission, in the years before the end of the war, to prepare legal doctrines and trial procedures by which perpetrators of the Holocaust and of Japanese army barbarities could be brought to justice. Its precedents have a resonance and relevance today, as we grapple with how to prosecute the crimes of ISIS and Assad. The book is clearly and comprehensibly written for a general readership, but will be of professional value for historians and lawyers involved in the sadly increasing business of punishing crimes against humanity.

Geoffrey Robertson

This important and revelatory book examines the remarkably prescient work of a UN Commission, in the years before the end of the war, to prepare legal doctrines and trial procedures by which perpetrators of the Holocaust and of Japanese army barbarities could be brought to justice. Its precedents have a resonance and relevance today, as we grapple with how to prosecute the crimes of ISIS and Assad. The book is clearly and comprehensibly written for a general readership, but will be of professional value for historians and lawyers involved in the sadly increasing business of punishing crimes against humanity.

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