Human Rights after Hitler

The Lost History of Prosecuting Axis War Crimes

Dan Plesch

• Publisher: Georgetown University Press
• Year: 2017
• Print ISBN: 9781626164321
• eBook ISBN: 9781626164338
• Topic: Politica e relazioni internazionali
• Subtopic: Storia dell'Olocausto

Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.

From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.

1

PROSECUTING RAPE

THE MODERN RELEVANCE OF WORLD WAR II LEGAL PRACTICES

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.¹ 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.² 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.”³ Indeed, such crimes were often perceived as “incidental” or “opportunistic” in relation to a war zone’s “core” crimes.⁴ 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,⁵ 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.⁶ 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.⁷

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.⁸ It recommended to member states a working list of offenses to use in their military or domestic penal codes.⁹

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.¹⁰ Notably, rape was explicitly included as a war crime in all three draft lists of offenses considered by the commission;¹¹ forced prostitution was included in two of the three.¹² Both were included in the final list sent to UNWCC member states and used by the organization to coordinate its review of cases.¹³ Of the thirty-two crimes listed by the UNWCC, rape appears as number five and forced prostitution as number six.¹⁴ 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.¹⁵ 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.¹⁶

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.¹⁷ Australia, China, Denmark, France, Greece, Italy, Poland, the United States, and Yugoslavia all prosecuted individuals for rape.¹⁸ 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...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• List of Illustrations
• Foreword
• Acknowledgments
• Abbreviations
• Introduction
• 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 the 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
• Appendixes
• Index
• About the Author