The United Nations War Commission in the

former Yugoslavia - a discussion draft L Owen

While the International Tribunals at Nuremberg and Tokyo are the most well-known in-ternational trials following World War II, they were not the first, nor were they the largest. The United Nations War Crimes Commission - an internationally-organised, locally-delivered criminal justice effort - investigated over 30,000 international criminal cases of war crimes submitted to it by its sixteen active member states - Australia, Belgium, Canada, China, Czechoslovakia, Den-mark, France, Greece, India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, the United Kingdom, the United States, and Yugoslavia. It operated between 1943 and 1948.

Yugoslavia played an active part in the UNWCC’s operation, submitting its first charge file sixty-nine days before the end of the conflict. It would eventually submit 834 cases to the commission, each listing one or more alleged war criminals and containing details of at least 1,100 separate instances of criminality. These varied considerably, ranging from comparatively small-scale war crimes, such as an incident where a Serbian prisoner was beaten until his arm broke and was then deprived of food and medical attention, to large-scale prosecutions of Axis troops and per-sonnel for mass deportations of thousands of Jews to Jasenovac death camp, to the massacring (and subsequent looting of the bodies of) hundreds of Serbian civilians, to the indiscriminate bombing and razing of numerous Slovenian villages. This shows the scope and ambition of the UNWCC and of Yugoslav prosecutors at the time - they were keen to ensure justice was done both in cases of mass murder and also in individual instances of ill-treatment, even despite signif-icant political changes in the Yugoslav government going on at the time.

For the most part, researchers only have access to the charge files - documents listing the initial case and evidence against the accused, that were submitted by the Yugoslav Representative to the Commission - rather than the trials records themselves (the former are only preliminary steps in the trial process). While the former are useful in getting a sense of the Commission’s work, it im-portant to link these with trial records as is being done in other states, especially since several states now occupy the territory of the former Yugoslavia. These issues continue to have relevance today; several of these states have responsibility for cases arising from the ICTY, which bear many salient parallels with those Yugoslavia addressed in the UNWCC - both dealt with issues of collective responsibility, sexual violence, forced conversion and other types of crimes. These archives provide interesting material on the legal practice of the time with implications for the social, political and legal debates today.

Contents

1. The Distribution of UNWCC cases in Yugoslavia 2

2. The Yugoslav representative(s) to the Commission 4

3. Sexual violence and the UNWCC 5

4. Criminal responsibility and the UNWCC 11

5. Yugoslav Law and the UNWCC 13

6. Contact details 17

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1. The Distribution of UNWCC cases in Yugoslavia UNWCC charges in the former Yugoslavia are more complex than those of many of the other member states, since they span a wide range of zones of control by occupying powers, are directed at five different external Axis/Axis-affiliated powers that held territory in the region (Albania, Bulgaria, Germany, Hungary, and Italy), and correspond to a country that has since split into the former Yugoslav republics. Furthermore, many of the war crimes that the charge files detail in-volve the razing of villages and towns by Axis powers, meaning that, even if rebuilt, the precise coordinates of many of the locations they detail are not certain today.

Nonetheless, as can be seen in the below map, there was a wide distribution of war crimes across Yugoslavia as a country, with the Axis powers - particularly Italy and Germany (initially in the west and north-west respectively) committing a wide range of actionable offences across the coun-try and throughout the course of the war. In some areas, these were more concentrated than oth-ers - Belgrade and its environs saw several dozen war crimes that are not particularly apparent on a map of the whole country - and in others, a single charge accounted for an extremely large-scale crime, such as the charge against Dr. Alfred Heinrich, head of the Sarajevo Gestapo, for the de-portation of 14,000 Jews to Jasenovac death camp and the massacres and looting of hundreds of Serbs. Nonetheless, this does demonstrate the widespread nature of war crimes in Yugoslavia dur-ing this period.

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Serbia

Bosnia and Herzegovina

Croatia

Slovenia

Montenegro

Kosovo

As with many other member countries, the Yugoslav representative to the UN-WCC also submitted a number of cases that had occurred outside Yugoslavia, as show on this larger map (left). These largely represented charges of mistreat-ment of POWs from mixed groups of Yu-goslav Partisans and the National Libera-tion Army, who had been sent to concen-tration or labour camps in Norway and Germany, or (particularly in Croatia, Slovenia, and Montenegro) hostages exe-cuted in Italian camps or special courts.

Intelligence produced by investigations in the former Yugoslavia also contributed to the trials and convictions of high-ranking Nazis involved in other country’s cases, such as the Polish trial of Amon Göth, commandant at Kraków-Płaszów concen-tration camp.

For a more detailed and searchable ver-sion of both of these maps (due to space constraints, they map has difficulty de-picting areas with large numbers of charges in a certain area, such as Bel-grade and its suburbs), please visit https://goo.gl/maps/RzKU7 for a digital version.

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2. The Yugoslav representative(s) to the Commission

Along with the USA and UK, the various European governments-in-exile in London played a ma-jor role in founding the Commission, with each country beginning to compile cases and charges even while their territory was still under German or Axis occupation. The Yugoslav government-in-exile was no exception, and found its way to London by 1941, where it began work with the UNWCC and on its own investigations into war crimes to be prosecuted after the conflict had been won. At the same time, however, Josep Broz Tito and his Partisans were also working with-in the country - as well as fighting against the various occupying powers, the Partisan forces also kept their own records of war crimes that they had observed, and were also keen to cooperate with the UNWCC. These two tracks - royalist and Marxist - persisted into the joint government (the Democratic Federative Yugoslavia), and beyond into the Socialist Federal Republic of Yu-goslavia.

L: the front cover of the Royal Yugoslav Government’s collected set of reports establishing the scale of war crimes in the former Yugoslavia, and the extent to which they were premeditated/represented a criminal conspiracy. This was submitted to the UNWCC as one of the general ‘country background’ documents used to build a national background by the Commission.

R: an affidavit from a senior Partisan/JNA officer attesting that a war crime had taken place (judging by the reference to the Democratic Federative Yugoslavia, this would have been between March and November 1945). These, along with longer witness statements, were commonly sub-mitted as the basis for trials to begin, and were submitted to the UNWCC to gain their approval.

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3. Sexual violence and the UNWCC

One particularly significant discovery in the UNWCC archives has been the readiness with which rape and sexual/gender-based violence was prosecuted. Until recently, the International Criminal Tribunals in Rwanda and the Former Yugoslavia were seen as the first serious large-scale efforts to prosecute rape as a war crime, with the crime being previously seen as an ‘unfortunate but in-escapable’ part of many conflicts, with little accountability.

The UNWCC archives, however, show that rape was an internationally recognised war crime in the 1940s, and was the subject of numerous charges and prosecutions. The Yugoslav government filed at least 40 cases each containing at least one rape charge.

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The willingness to prosecute rape and sexual violence often went further than simply recognising that rape was a war crime. Apparent from many UNWCC cases is the fact that prosecutors had a highly progressive and sensitive approach to sexual and gender-based violence, examining issues of consent beyond forcible rape. Researchers on the UNWCC have found examples of cases which took into account other forms of sexual violence, including rape as a result of intoxication, the existence of coercive circumstances, and threats to family members (http://www.unwcc.org/wp-content/uploads/2014/11/Plesch-Sacouto-Lasco.pdf, p361-370). Another approach - one adopted by Yugoslav prosecutors - was the inclusion of attempted rape as a prosecutable war crime under Yu-goslav law. This was enabled by the inclusion of attempted war crimes in the 1945 Yugoslav War Crimes Law, and represented a strong commitment to opposing sexual violence in armed conflict. The names of the victims in both cases have been blacked out, to protect their identity.

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It is unknown what the result of these trials were (although the UNWCC’s legal body, Committee I, determined that there was a prima facie case to be answered for both rape charges). Based on access to the trial reports from these cases, if successful, these trials would be particularly signifi-cant not only as evidence of historical legal thought, but also perhaps today.

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4. Criminal responsibility and the UNWCC

Deciding who to prosecute in a case of war crimes - whether or not to prosecute high-ranking officials, mid-ranking directors and leaders, or front-line members of military units - has been a significant challenge for international tribunals across the twentieth century, with the In-ternational Criminal Tribunal for the Former Yugoslavia’s conception of ‘Joint Criminal Enter-prise’.

While the Yugoslav cases submitted to the UNWCC tended to take the conventional approach of trying the commanding officer of a battalion or military group for crimes committed by their sol-diers, there are a number of suggestions that they were moving towards such a model, with sever-al cases ascribing wide ranges of charges to all accused (from prison guards to high-ranking SS men), on the grounds that their work required all of their participation - direct or indirect to be effective.

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While Oberhausen - the SS Commandant in this trial - was listed as the only accused, it is note-worthy that the other four were still determined to be suspects by the UNWCC’s Committee I, suggesting that the Yugoslav representative’s argument - that, on basic organisational grounds, the other four would have to have been ‘accomplices, responsible as instigators, initiators, perpe-trators or participants in the crimes committed’ - was given some credence. As with the rape cases above, however, it is difficult to make any final judgements about the historical and legal impor-tance of this case without the corresponding trial record.

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5. Yugoslav Law and the UNWCC

How would war crimes be prosecuted? Under what laws would courts in newly liberated countries operate? Would an ‘ordinary’ murder charge capture the gravity of the crimes that had been committed, or would new charges need to be brought - and if so, would these be retroactive? Many postwar UNWCC members faced these questions, and their responses to them were exam-ined in a report by the UN Economic and Social Council on ‘Information Concerning Human Rights Arising From Trials of War Criminals’ in 1948.

Yugoslavia in particular was cited for a number of its decisions and approaches adopted in its own approach to this problem, through its War Crimes Law of 25 August 1945. While the Law shared many elements of its contents with similar pieces of legislation, ECOSOC’s assessment highlight-ed several notable elements:

- Yugoslavia specifically declared deportation and compulsory recruitment of civilians to be a war crime (Article 3(3)). While many countries did prosecute deportation and forced armed service as war crimes, not all specifically included it under their domestic legislation.

- Yugoslavia was the only UNWCC member state to class ‘forced conversion to another faith’ as a war crime (Article 3 (3) of the Yugoslav War Crimes Law of 25 August 1945.

- Yugoslavia, along with Norway and Canada, were some of the only countries to address the pos-sibility of prosecuting ‘persons guilty of attempted crimes’, noting, in Article 13(1) that ‘an at-tempt to commit acts outlined in this Law shall be punishable as a complete criminal act’.

While Brigadier-General Telford Taylor, addressing the Fifth International Criminal Law Con-gress noted that ‘international penal law with respect to [attempted war crimes] is most unset-tled’, he nonetheless strongly argued in favour of this approach as a logical extension of the con-cept of conspiracy:

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- The possibility for a right of appeal was detailed in Article 16 of the Yugoslav War Crimes Law of 25 August 1945. While it would seem a basic element of

- While this brief (and the work of the UNWCC itself) did not address these sorts of crimes, the 1945 Law also addressed the issue of treasonable activities, seeing them as part of a similar class of crimes that hurt Yugoslavia, its people, and its political institutions.

Many of these developments - most obviously the establishment of forced conversion as a war crime - can arguably trace their origins back to Yugoslavia’s specific wartime experience (which explains why they were not included in other countries’ responses to war crimes). Many Orthodox Serbs (and more than a few Jews) were forced to convert to Catholicism under the Ustase regime, and faced severe religious persecution. While Yugoslav Muslims often fared a little better, Ger-many enforced religious violence on them too - as one case against a trio of SS-leaders relates, Muslim military ‘volunteers’ were forced to execute the Muslim inhabitants of a village in order to brutalise them into loyalty to their military unit. Likewise, the close linkage between Yugoslav concerns regarding ‘treasonable activities’ and war crimes may be seen in light of the complex web of allegiances, collaboration, and external influence in the territories that would go on to make Yugoslavia. Thus, not only does the 1945 Law represent a highly sophisticated legal code, but it also represents an important document of Yugoslavia asserting its place in the world, as well as its self-image.

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For further information, or to assist with the research program: please email dp27@soas.ac.uk, or visit our site at unwcc.org.

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