HUMAN RIGHTS AFTER HITLER This page intentionally left blank HUMAN RIGHTS AFTER HITLER The Lost History of Prosecuting Axis War Crimes Dan Plesch Georgetown University Press Washington, DC © 2017 Dan Plesch. All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher. The publisher is not responsible for third-p arty websites or their content. URL links were active at time of publication. Library of Congress Cataloging-i n- Publication Data Names: Plesch, Dan, author. Title: Human Rights after Hitler : The Lost History of Prosecuting Axis War Crimes / Dan Plesch. Description: Washington, DC : Georgetown University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2016031003 (print) | LCCN 2016040144 (ebook) | ISBN 9781626164314 (hc : alk. paper) | ISBN 9781626164338 (eb) Subjects: LCSH: United Nations War Crimes Commission—History. | War crime trials—History—20th century. | World War, 1939–1945—Atrocities. | Holocaust, Jewish (1939–1945)—Historiography. Classification: LCC KZ1174.5 .P58 2017 (print) | LCC KZ1174.5 (ebook) | DDC 341.6/9—dc23 LC record available at https:// lccn .loc .gov /2016031003 c This book is printed on acid-f ree paper meeting the requirements of the American National Standard for Permanence in Paper for Printed Library Materials. 18 17 9 8 7 6 5 4 3 2 First printing Printed in the United States of America Cover design by Charles Brock, Faceout Studio. Cover image by Anastasiya Piatrova / Alamy (Auschwitz- Birkenau concentration and extermination camp). Contents List of Illustrations ix Foreword by Benjamin B. Ferencz xi Acknowledgments xv Abbreviations xix Introduction 1 1 Prosecuting Rape: Th e Modern Relevance of World War II Legal Practices 11 Key Issues of Prosecuting SGBV Crimes Today 13 Conclusion 29 2 A New Paradigm for Providing Justice for International Human Rights Violations 46 Legal and Political Amnesia 48 Creation of the United Nations War Crimes Commission 48 Offi cial Resistance to Prosecuting War Crimes 50 Chinese and Indian Leadership 51 A Global System of Complementary Justice 53 Th e Development of Key International Legal Principles 59 Conclusion 62 3 When the Allies Condemned the Holocaust 69 Early Allied Condemnations of the Holocaust and Nazi Atrocities 70 Th e Declaration 75 vi Contents Abandonment of the Jews Nonetheless 82 Conclusion 83 4 Pursuing War Criminals All Over the World 87 A Global Achievement 90 Commission Members and Court Structures 92 Conclusion 104 5 Th e Holocaust Indictments: Prosecuting the “Foot Soldiers of Atrocity” 112 Belgium 114 Czechoslovakia 117 Denmark 118 France 118 Greece 119 Luxembourg 120 Th e Netherlands 120 Norway 122 Poland 122 Yugoslavia 128 United Kingdom 128 United States 129 Conclusion 129 6 Fair Trials and Collective Responsibility for Criminal Acts 138 Th e Fundamentals of Fair Trials 141 “It Wasn’t Illegal When the Action Was Taken” 143 Hearsay 145 Th e Rights of the Accused 145 Command Responsibility 146 Superior Orders 147 Group Responsibility 148 Conspiracy and Common Design 149 Reprisals and the Execution of Hostages 150 Securing the Rights of the Accused 151 Conclusion 152 7 Crimes against Humanity: Th e “Freedom to Lynch” and the Indictments of Adolf Hitler 158 Crimes against Humanity 160 Th e Crimes of Aggression and Genocide 171 Contents vii Universal Jurisdiction 173 Conclusion 174 8 Liberating the Nazis 178 Forgetting the Nazi Past to Build a West German Future 178 Early Protests against Prisoner Release 180 Hostility to the Commission 180 Opposition to the Commission’s Closure 182 Ongoing Prosecution of War Crimes 185 Prisoner Release 185 Conclusion 189 9 Th e Legacy Unleashed 192 Th e People’s Human Rights 192 Th e UNWCC as an International Human Rights Agreement 195 Complementarity and the UNWCC 198 Toward a “UNWCC 2.0”? 202 Conclusion 205 Appendixes A. Timeline of the Allies’ Principal Political Responses to Axis Atrocities 211 B. A Note on the UNWCC’s Archives and Related Material 214 C. Th e Role of the UNWCC in Obtaining ICTY Verdicts 218 D. An Early UNWCC Charge File against a Group of Germans Involved in the Treblinka Death Camp 222 E. An Early Polish Charge File against a Group of Germans Involved in the Concentration Camp System 231 Index 241 About the Author 251 This page intentionally left blank Illustrations Figures 1.1 Rape Cases Documented in the UNWCC Archive 16 2.1 Number of Trials Carried Out by International Military Tribunals, by UNWCC Supported Tribunals, and by UN-Supported Judicial Bodies 49 2.2 Th e Structure of the UNWCC 57 6.1 Th e “Versailles List” of War Crimes Used by the UNWCC 144 7.1 UNWCC Indictment of Adolf Hitler, Rudolf Hess, Heinrich Himmler, and Other Nazis 159 Tables 4.1 Total Number of Persons Charged by the Governments and Listed by the UNWCC 90 4.2 Number of German Persons Charged by the Governments and Listed by the UNWCC 91 4.3 Number of Italian Persons Charged by the Governments and Listed by the UNWCC 92 4.4 Number of Japanese Persons Charged by the Governments and Listed by the UNWCC 100 4.5 Far East Sub Commission Lists of Japanese War Criminals 103 4.6 Joint Trials Conducted in East Asia by British and Indian Judges 105 5.1 Charges Brought for Anti- Jewish Persecution Submitted by UNWCC Member States 115 6.1 Progress Report of War Crimes Trials from Data Available as of March 1, 1948 140 8.1 Individuals and Units Charged by National Offi ces, by Year 179 ix
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