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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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October 1942: Establishment of the United Nations War Crimes Commission

The second major diplomatic step toward Nazi accountability occurred a few months later. On October 7, 1942, the United States and the United Kingdom jointly proposed the establishment of the United Nations Commission for the Investigation of War Crimes (also known as the United Nations War Crimes Commission, or UNWCC),8 which would identify suspected war criminals and collect evidence about their alleged atrocities.9 Specifically, FDR declared that day: “It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith.”10 FDR’s vice president, Henry Wallace, publicly and dutifully echoed FDR’s sentiment. On December 28, 1942, Wallace declared:

A special problem that will face the United Nations immediately upon the attainment of victory over either Germany or Japan will be what to do with the defeated nation. Revenge for the sake of revenge would be a sign of barbarism—but this time we must make absolutely sure that the guilty leaders are punished, that the defeated nation realizes its defeat and is not permitted to rearm.11

The U.S. Congress later announced its support for FDR and Wallace’s position, declaring in a March 9, 1943 U.S. Senate resolution, with which the House of Representatives concurred, that “it is the sense of this Congress that those guilty, directly or indirectly, of these criminal acts shall be held accountable and punished in a manner commensurate with the offenses for which they are responsible.”12 Although the specific transitional justice option the USG would pursue remained vague, the legislative branch at this point affirmed its commitment to punishing suspected atrocity perpetrators and ruled out the possibility of inaction or other alternatives that would bar accountability, such as unconditional amnesty and exile.

As the major Allied powers (the United States, the United Kingdom, the Soviet Union, and France) sought to retain control over addressing Nazis suspected of perpetrating the most egregious atrocities, the UNWCC’s mandate was narrow. To that end, the UNWCC’s activities were limited as soon as it was established in London on October 20, 1943, and held its first meeting six days later. An internal U.S./DoS document provides the following description of the UNWCC:

The [UNWCC], which started its work in 1943, developed and maintained individual case files concerning alleged war criminals. Fifteen nations participated in the [UNWCC]. The [UNWCC] served primarily as a clearinghouse for information provided by countries concerned; it also made recommendations concerning the tribunals to be established, procedures for the tribunals, and the definition of war crimes. It concluded operations in 1945, having submitted its files and recommendations to the participating governments, which had decisionmaking authority.13

The Soviet Union never participated in the UNWCC’s activities, opting instead to establish, on November 2, 1942, its own agency with a similar mandate: the Soviet Extraordinary State Commission to Investigate War Crimes.14

Despite statements by the Big Three (the United States, the United Kingdom, and the Soviet Union) in support of the Declaration of St. James’s apparent prosecutorial approach, the United Kingdom harbored a desire to address major Nazi war criminals through an alternative transitional justice option. On November 12, 1942, a month after the UNWCC proposal and just before the Naval Battle at Guadalcanal between the United States and the Japanese, Ivan Maisky, the Soviet ambassador to the United Kingdom, sent British foreign secretary Anthony Eden a memo suggesting that an ICT be established to try the “major war criminals.”15 But Churchill, Eden, and other senior British officials opposed the Soviet proposal, instead favoring lethal force through extrajudicial execution for addressing major Nazi war criminals. The reason, Eden argued, was that “[t]he guilt of such individuals is so black that they fall outside and go beyond the scope of any judicial process.”16 The British were also concerned about repeating the failure of bringing suspected war criminals from WWI to justice.17

 
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