Drawing upon newly-unsealed UN documents, Human Rights after Hitler describes a proven alternative model for international law today.The post WW2 system of human rights and security is under threat, and despite its flaws, nothing better is on offer. It is very timely to discover that the post-war system of values rests on a far larger, richer and more relevant paradigm than we normally understand.
The role of great people – the Roosevelts, Lemkin and Lauterpacht in building post-war human rights standards has been over emphasized at the expense of the global popular, political and governmental that motivated the war effort and propelled the creation of the post war institutions.
My recent analysis of the long-suppressed files of the 1943-1948 UN War Crimes Commission (UNWCC) provides the evidence of the global effort to enforce Human Rights standards. 36,000 Nazis and their allies were indicted as war criminals by this international body at the end of World War Two, resulting in over two thousand internationally supported trials before courts across Europe and Asia.
The records of this organization were finally released by Ambassador Samantha Power in 2014. They provide an overwhelming amount of evidence both for use as precedent in today’s efforts to prosecute international crimes and to combat Holocaust denial. In the 1940s a few UNWCC cases were published and were used as precedent in the Yugoslavia trials of the 1990s, validating the wider archive as legal sources.
Even while the Nazis still ruled, the resistance in occupied Europe began war crimes indictments. These included 1944 charges for the extermination of the Jews at Treblinka and Auschwitz, of Hitler himself. Prosecutions included crimes of rape, attempted rape and forced prostitution, water boarding and other torture along with mass murder and systematic terrorism. Prosecutions included crimes of rape, attempted rape and forced prostitution, water boarding and other torture along with mass murder and systematic terrorism.
Nevertheless, our historical memory is based on the narrow paradigm of a few dozen top officials tried before the international tribunals in Nuremberg and Tokyo. We all learnt that despite heroic efforts of individuals the Holocaust was never officially condemned while it was under way, let alone prosecuted. This is false.
These thousands of indictments were considered by a Commission of seventeen Allied nations – including the United States, China and pre-independence India, but not the USSR – each state brought its national cases to the Commission for approval, which acted as a pretrial examining magistrate. Although it drew up its charges in secret because of the pressures of war and could not therefore include neutral states, let alone the enemy, it sought to apply the highest international standards of law and had diplomatic status as an international organization. Its chairmen were leading British judges of the day, Sir Cecil Hurst and Lord Wright and the Commissioners included Renee Cassin.
The United Nations War Crimes Commission, was set up in 1943, begging the question of how there could be a UN body before the UN Charter. The United Nations alliance of the Second World War has only recently been given attention by scholars. However, the UN Charter of 1945 is explicit that the first members of the United Nations were those that signed the Declaration by United Nations of 1942 which is the first international political agreement supporting Human Rights. The war crimes commission was one of several pre-Charter UN bodies.
Today, disillusionment with the baroque and biased practices of the ICC has led to renewed interest in the role of national courts in applying international criminal legal standards. The Commission offers a model of a cooperative approach to justice and sovereignty where the international advises and supports national efforts delivered with fairness, speed and economy. Low level soldiers did then and should now face trial along with their leaders.
Amal Clooney leads the call for justice for the crimes of Daesh and for the collection of evidence. This case is made more powerful by calling on the example of the UNWCC. For example, many members of the EU, China, India and the US and UK created a system for gathering war crimes evidence through debriefing refugees and released prisoners in the mid-1940s. If they could do that in the 1940s with all the other pressures upon them, they have even less excuse now. UNWCC precedents on crimes of sexual violence as war crimes outside the context of Crimes Against Humanity and for conspiracy are other examples of what can be used today.
Writing off human rights
Nuremberg is usually presented as a lone star of international justice, it is better to see it as the jewel in the crown of the global movement.
The work of the UNWCC also counters the intellectual trend to write of the end of human rights and at the same time to place their origins in the post-war period, sometimes as late as the 1960s or 1970s. The various arguments state that the post-war agreements were worth little more than the paper they were written on, that the writers of the texts were in any case ‘western intellectuals’, or that human rights have a singularly western and modern source. Samuel Moyn maintains that the texts of Raphael Lemkin on genocide and Hersch Lauterpacht on crimes against humanity were stillborn creations that had to be reborn in the 1970s. Lynn Hunt argues that human rights only started with the American-French political enlightenment.
Yet the Golden Rule – “do unto others as you would wish them to do unto you” –encapsulates the core of human rights values and their importance in a just society. Pop into undergraduate classrooms, or indeed grade school classes on religion and civics, nowadays and you will find a chart of this precept common to philosophies and religions around the planet.
Many writers have detailed these globally socially embedded universal values of human rights. Eric Helleiner and colleagues provide a thorough overview of “The Neglected Southern Sources of Global Norms.” The connection of non-western thinking and participants in the post-war agreements described above has also been illuminated in an elegant article by Bertrand Ramcharan, a former director of the UN Human Rights Division, in which he details the people from outside the west who shaped key components in the modern human rights agreements.
The UNWCC agreed on a definition of Crimes Against Humanity proposed by the US Ambassador Congressman Herbert Pell as early as March 1944, though failing to gain support from his own State Department, more than a year before its supposed inception in a Cambridge garden in a conversation between Lauterpacht and US Justice Jackson. In general terms though Anglo-American leaders had begun to speak of crimes against humanity in response to the Armenian massacres and then in response to the crimes of Nazi Germany. They adopted the term humanity as a diplomatic replacement for Christianity in deference to Jewish sensitivities in the 1940s; in this, they echoed the actions of British and French diplomats, who, in their 1915 response to the unfolding Armenian Genocide, persuaded their Russian allies to replace the condemnation of crimes “against Christianity and civilisation” with the universal term “against humanity and civilisation”, in order to be more sensitive to potential Muslim allies in the conflict. Thus, on two occasions when Anglo American officials had to form policy in response to atrocities, they found it necessary to move beyond Christianity to an all-encompassing description of humanity. There was a clear operational need to provide a universal discourse, that required a shift in language from specific protection of “Christians” to a broader notion of “humanity.” On two occasions when Anglo American officials had to form policy in response to atrocities, they found it necessary to move beyond Christianity to an all-encompassing description of humanity.
The foundational and operational role of China and India in the UNWCC’s debates and decisions, and the engagement of Ethiopia and the Philippines, provide further reinforcement of non-Western activism in agreeing and enforcing international human rights standards.
This denial that scholars and politicians from the Global South helped create and value human rights is also extremely dangerous. It permits a flow of self-serving political thought amongst western elites. Just as seriously, it provides legitimacy for repressive governments outside the west to denounce human rights as imperial impositions: I characterize the argument this way; “We are civilised, they are barbaric, so when faced with barbarism we too must from time to time lower our civilised standards – but we get to decide when that is.”
This is the road to the water-torture at CIA-run black sites. This too was part of the rationale for letting key Holocaust perpetrators go free in the 1950s on grounds of political expediency, and for the suppression of the records of the UNWCC to supposedly enable the rebuilding of Germany and Japan.
In the 1940s, the US, largely in the form of the State Department, did its best to stop any war crimes effort, it was only the isolated efforts of Franklin Roosevelt and his Ambassador to the UNWCC, Congressman Herbert Pell that created the conditions in which President Truman summoned Justice Robert Jackson to convene what became the Nuremberg trials. Nuremberg is usually presented as a lone star of international justice, it is better to see it as the jewel in the crown of the global movement. With the war over and rebuilding Germany and Japan the priority the State Department along with Allen Dulles acted to shut the Commission down and have its archives sealed. Then led by Senator Jo McCarthy there was a campaign to vilify the prosecutors and release imprisoned Nazis. By the late 1950s all imprisoned Nazis had been ‘liberated’. Led by Senator Jo McCarthy there was a campaign to vilify the prosecutors and release imprisoned Nazis. By the late 1950s all imprisoned Nazis had been ‘liberated’.
A fundamental and positive shift in understanding the role and potential of human rights after Hitler comes from understanding the work of the UNWCC. Let us compare the UNWCC to the Nuremberg Tribunal, the Universal Declaration of Human Rights, and the Genocide Convention:
• The Genocide Convention was put into cold storage by the major powers almost as soon as it was created in 1948. It has only been in recent decades that it has provided the basis for prosecutions..
• The Nuremberg IMT tried twenty-four people, and set the example for the subsequent trials at Nuremberg and for those conducted in the tribunals for crimes in Rwanda, Sierra Leone, and the former Yugoslavia concerning Balkan and African cases, and the eventual creation of the ICC.
• The Universal Declaration of Human Rights provides a standard, a norm, that human rights advocates can use.
• The UNWCC facilitated the conviction of thousands of war criminals, developed a system of global criminal justice, and helped provide the intellectual, institutional, and political momentum that contributed to the creation of all three of the above, with exemplary economy of time and money.
Lest we forget UNWCC
For US officials opposed to universal human rights at home and abroad, the crippling, and then closure, of the UNWCC, and its erasure from political memory were a triumph, while non-binding declarations and unratified treaties were a far lesser problem.
Consider the counterfactual, a well-resourced UNWCC continuing into the 1950s with the Genocide Convention reinforcing the pursuit of all those indictments processed by the Commission. Would such processes have undermined democracy in West Germany and driven German elites into Stalin’s arms? That is hard to imagine, and it is far easier to see this encouraging human rights globally. FDR’s anti-colonial policy abroad, and the related issue of African American rights could have grown from this too. During the war, African Americans had campaigned on the “Double V,” signifying the victory of “Democracy at Home and Abroad.” membership of the National Association for the Advancement of Colored People (NAACP) had grown fifty-fold to 500,000, and black voter registration in the South from 2 percent to 18 percent. The continuation of prosecutions outside America for human rights abuses would have likely fed back positively into US politics in the manner feared by Henry Stimson who argued against Crimes Against Humanity on the grounds that they could be used by foreigners to prosecute the US for lynchings.
We should now recall the value of the UNWCC , having fished it out of the Orwellian “memory hole” into which its contemporary detractors cast it, and reflect upon the missed opportunity of the last seventy years, or bring its values and prototypes to life using them to inspire a new generation. Henry Stimson… argued against Crimes Against Humanity on the grounds that they could be used by foreigners to prosecute the US for lynchings.
The international legal response to human rights abuses was, and can be, the achievement of victims and their witnesses, and was not and should not be the preserve of great powers, great leaders, and great thinkers. It was and can be the creation of normal people in abhorrently abnormal conditions.
Auschwitz was not, and should not be regarded as, beyond human response, as negating the human condition. It was, with the other death camps, responded to as best they could by victims, and government officials high and low in peril of their lives and in the relative safety of missile-bombarded London. “We” did know, “we” did condemn, “we” did indict and “we” did prosecute.
“We” did know, “we” did condemn, “we” did indict and “we” did prosecute. The argument that “we” did not know and so could not condemn or act until it was too late is shown conclusively to be a lie, that suits those who did not care and wished an opportunity to ally with the perpetrators against what they saw as the greater enemy –communism. The critiques of the 1940s human rights agreements as still-born, or solely western-driven, are founded on a narrow view of that inheritance.
Once again, xenophobia, Holocaust denial, antisemitism and anti-Muslim prejudice are on the march. Some of their proponents – as Herbert Pell feared – look back with nostalgia to the achievements of the Nazis. Sadly there can be little comfort in the warming thoughts of political philosophers such as Steven Pinker, who see present society as continually improving, albeit with setbacks. Rather, the frightening lesson of the demise of the UNWCC is how easily great successes can be lost: we don’t need a fictional dystopia such as the Handmaids Tale.