The International Criminal Court has just acquired a huge trove of nearly all the unrestricted records of the United Nations War Crimes Commission and is now making them available to the public. The records include more than 2,240 documents, totaling about 22,000 pages of meeting minutes, working documents, research documents and war crimes trial reports from various national authorities. Most documents will be fully searchable, with translations provided on the Web in Arabic, Chinese, English, French and Spanish.
“Without us, this would never had any attention,” Dan Plesch, the director of the Center for International Studies and Diplomacy at the University of London, said of the data release by the United Nations archives unit to the court.
As head of the UN War Crimes Commission project, which is based at the university’s School of Oriental and African Studies (or SOAS) and the City University of New York, Plesch and his colleagues, Shanti Sattler and Greg Chaffin, had been researching the archive at the UN headquarters in November 2011. Their access to the documents, however, was deeply restricted and only Plesch was allowed into the archive room to read the papers. He was not permitted to take notes or photocopies, so he memorized what he could and dashed out to his colleagues waiting at a café near the UN to type the information into their laptops.
Soon the “lower level people” at the UN Archives and Records Management Section, Plesch said, banned even that behavior. After a quick review by the head of archives, the policy was changed to more accurately reflect the rules, and the restrictions were partly lifted. The change eventually enabled the International Criminal Court, based in The Hague, to gain access to the unrestricted data once it became aware of the documents through Plesch’s instigation.
The files contain records of thousands of charges against Nazi and Japanese war criminals from World War II and the seeds of the global criminal justice system being developed today. The information was fed from the 17 nations that instituted the War Crimes Commission, which contributed to the eventual creation of the Nuremberg International Military Tribunal and other post-war tribunals in the 1940s, including the International Military Tribunal for the Far East in Tokyo.
The commission, operating from 1943 to 1948, began working before the formal establishment of the UN. The member countries provided their pretrial charges to the commission as a clearinghouse; the commission then made prima-facie decisions as to whether the countries, local military tribunals or national war crimes tribunals should proceed with trials. The commission had no power to prosecute war criminals.
The war crimes trial reports came from such member countries as Australia, Canada, China, Czechoslovakia (now the Czech Republic and Slovakia), France, Greece, the Netherlands and Norway. The United States was also a member of the commission.
In a phone interview from London this month, Plesch said that the documents revealed war crimes never before released to the public. Some of the records had been secret — like proceedings related to the beginnings of international law. His work as a guest lecturer at the International Criminal Court’s research office in March 2012 sparked the move to provide the court access to the documents.
Some of the material Plesch read involved cases of rape. One case, for example, was brought by the French government in spring 1944 against a German officer and his unit, accusing them of criminal conspiracy for a range of crimes committed in Nazi concentration camps in France.
“What’s interesting,” Plesch said, “was that from a modern perspective rape was being pursued as an international crime, as a war crime, and not as a crime against humanity and pursued as one of many crimes.” He also pointed out that the crimes that were charged involved “collective responsibility and command responsibility” and that rape was deemed on par with other war crimes, like torture.
“It was not a superfluous crime,” Plesch said of the rape charges. “It also pushes a half-dozen buttons today” among the international justice systems’ active pursuit of rape as a war crime.
“The cases were pretty gruesome,” he said.
Plesch also noted other examples in the documents: cases tried in the Philippines by the US government against Japanese war criminals of water torture and “torture through stress positions,” drawing parallels to the use of water boarding by the US against detainees in Guantánamo Bay, Cuba, for terrorism investigations. (Pioneering research on water torture and rape cases in the US trials in the Philippines, Plesch noted, has been done by Wolfgang Form at the University of Marburg in Germany.)
Plesch and his team are striving to open access to more than 30,000 UN War Crimes Commission pretrial documents under restriction. Many files contain details of crimes that are still not widely prosecuted internationally, like forced prostitution.
He said that after his team petitioned the UN to release the initial batch of documents to the International Criminal Court, the US government began making a copy of the entire archive for its own use, including the restricted data parked in the UN. It has not, however, announced whether the restricted portions will be released for public or specialist consumption, once they come under full US jurisdiction, Plesch said.
In an e-mail to Plesch, Patricia O’Brien, the UN under secretary-general for legal affairs, confirmed that a consensus of all 17 nations in the commission would have to be met for the UN to release the restricted documents to the public.
The archive is managed by the International Criminal Court Legal Tools, which is financed through a voluntary trust fund. Currently, the project is supported 80 percent by the European Union and the remainder by separate contributions from Denmark, Finland and the Netherlands. The court would not make the financial amount available.
The legal tools database holds 63,798 documents, ranging from court publications to international criminal legal decisions and now the War Crimes Commission records. The digitization of all the documents has been done at no cost by the project team, the UN archives unit and the New York City Office of Legal Affairs.
The Legal Tools and its database were created to assist court counsel, especially defense lawyers, to quickly research legal materials relevant to the hearings, trials and appeals at the ICC, said John Washburn, the convener for the American Nongovernmental Organizations for the International Criminal Court (AMICC) in New York at Columbia University.
“Since the court is new, lawyers practicing there cannot draw on their experience in analyzing its law and preparing their submissions to the court,” Washburn wrote in an e-mail. “At the same time, much of the court’s jurisprudence is the outcome of evolutions in what is now called international atrocity law, which began with the Nuremberg and Tokyo trials at the end of the Second World War.”
The War Crimes Commission documents, Washburn added, will therefore help counsel understand the background to the most important parts of the law the court will now put to use. “At the same time, these materials are a compelling reminder of how far international law has come in confronting and punishing mass atrocities.”
The research by Plesch and his team will be presented at a SOAS conference in London in September on the War Crimes Commission, to be chaired by Richard Goldstone, the South African judge who was a prosecutor in the former Yugoslavia and Rwanda tribunals.
The SOAS-City University of New York war crimes project (which is also connected to the Ralph Bunche Institute for International Studies at the City University) is financed by the Carnegie Corporation of New York, the Oak Foundation and the International Bar Association.
Dulcie Leimbach contributed reporting to this article.