The list of internationally approved war crimes indictments drawn up by the commission cover important modern categories of crimes, including aggression, genocide, crimes against humanity, modes of liability – including that of mid-level perpetrators – and international procedures, as well as the development of international criminal justice as a whole.
Had the archive been more widely known, international law enforcers say it would have given them new understandings and legal precedents to use in international criminal justice trials. For example, rape and enforced prostitution were successfully prosecuted as war crimes in UNWCC-supported trials. But those sitting on tribunals set up after the genocides in Rwanda and Yugoslavia believed international law did not recognise those acts as war crimes and so were unable to extensively prosecute perpetrators.
“As the first chief prosecutor of the international criminal tribunal for the former Yugoslavia, I would have benefited immeasurably from access to this rich material,” said Justice Richard Goldstone. “The fact was that the statutes for the two ad hoc tribunals did not refer to rape as a war crime save in the definition of crimes against humanity. In some cases we resorted to charging rape as a form of torture and in others as inhumane treatment.
“Had we been able to access the ample records of the UNWCC, our approach would have unquestionably been influenced by the careful analyses that emerged from its deliberations and decisions,” he added.
The UNWCC formed and began defining a list of new, internationally agreed war crimes at the Foreign Office on 20 October 1943. After the war, sufficient evidence of those crimes was found against 36,800 people, leading to trials by the US and major European nations, as well as China and India between 1945 and 1948. At least 2,700 accused persons eventually faced trial, receiving sentences ranging from imprisonment to the death penalty.
The commission, however, was hastily wound up in 1948 and quickly forgotten – thanks to the US, which believed the trials were impeding Germany’s rehabilitation. Since then, the UN archives have been accessible only to those who received personal authority from their government and permission from the UN secretary general.
“Even then, you weren’t allowed to make notes or take copies of the documents,” said Dan Plesch, director of the centre of international studies and diplomacy at Soas, formerly known as the School of Oriental and African Studies.
Plesch, alongside Shanti Sattler, initiated the fight for the release of the UN archive in 2007. “There are many hidden histories in international criminal justice,” he said. “But the record and practice of the UNWCC is the best-kept secret in the field. Scholarship and historical writings are typically focused on the legacy of the Nuremberg or the Tokyo trials or contemporary courts and tribunals. But the thousands of cases we can now access can reinforce international political will and practice in facing the crimes now being perpetrated in the Middle East and elsewhere.”
Plesch is seeking funding to make the 900-gigabyte archive available to the public. “Public access to trials of Nazis and Japanese for torture including stress positions and water boarding is likely to increase support for civilised values today,” he said.