The Lost History of Prosecuting Axis War Crimes, with Dan Plesch

February 27, 2018

Defendants at the Nuremberg trials, including Hermann Göring (at the left edge on the first row of benches), 1945/1946.
CREDIT: U.S.Government/Public Domain

MAGALIE LAGUERRE-WILKINSON: Welcome to Ethics Matter. I'm Magalie Laguerre-Wilkinson. Joining us today is Dan Plesch, who is an author and also the director of the Centre for International Studies and Diplomacy at SOAS University of London. His new book is Human Rights After Hitler: The Lost History of Prosecuting Axis War Crimes.

Thank you for joining us today.

DAN PLESCH: Thank you, Magalie.

MAGALIE LAGUERRE-WILKINSON: You went diving into the United Nations War Crimes Commission (UNWCC), which was a precursor to what we know today as the International Criminal Court (ICC) in The Hague. What was your discovery? Tell me about your book. Tell me how this was born out of a chapter from your previous book.

DAN PLESCH: That is kind. The earlier book, America, Hitler, and the UN: How the Allies Won World War II and Forged a Peace—I never thought I would find myself writing so much about World War II—what we discovered early in the aftermath of 9/11 trying to look at more positive visions for how we could run the world, I started looking at the World War II period and discovered that the official name for the Allies was in fact the United Nations, and that from 1942, just after Pearl Harbor, Franklin Roosevelt, much criticized for his lack of foreign policy vision, in fact created the UN brand to hold the Allies together and build the postwar world, and there was a whole range of multilateral organizations. People listening or watching may have heard of the Bretton Woods Conference, which actually was a UN conference before we ever got to San Francisco.

MAGALIE LAGUERRE-WILKINSON: Before there was a United Nations.

DAN PLESCH: Before there was a United Nations. The official history, even of the San Francisco conference, does not actually tell you, nor most of the good books on this, that the San Francisco conference was also a UN conference with its own phone book and a first-day postage stamp in the United States. One of these multinational, multi-governmental agencies with strong U.S. leadership was a War Crimes Commission.

We have grown up knowing about Nuremberg and maybe Tokyo, which tried 20, 40 top-level Nazis, a few other trials. And there was a very nice piece in The New Yorker a couple of years ago which said, "Well, nothing much happened until they started dragging old concentration camp guards out and bringing them into court on their walkers, and that was it." Not a bit of it. This Commission brought charges against 36,000 individuals which resulted in 10,000 convictions before 2,000 trials in the immediate aftermath of World War II, and all that advance work was done while London was under Nazi bombardment from the Luftwaffe and the V missiles.

MAGALIE LAGUERRE-WILKINSON: That is an interesting part, too, is that this is happening, indictments are happening, trials are taking place, while the war is going on. It is strange.

DAN PLESCH: Indeed. Given some of the ironic positions of the Polish government today, there was strong Polish leadership, saying: "We can't wait until afterward. We need the rule of law with international support to come in."

But then, of course, with the onset of the Cold War and the repression of civil rights in America, this whole Commission was shut down. Frankly, the Central Intelligence Agency (CIA) and the American right had the key turned on this whole archive, and quite an effective smear job was done to say that all the work was useless and should not be looked at. But once you see the documents you see how lively it is and how important it is.

MAGALIE LAGUERRE-WILKINSON: You touched on the smear campaign in the United States. Was this a way to deflect from certain domestic human rights violations versus international human rights violations? Talk a little bit about that.

DAN PLESCH: There was a combination of reasons that other scholars have also looked at. Certainly after the war it was rebuilding Germany, bury the past, deal with the Soviets. But also part of this was as the secretary of war for FDR Henry Stimson wrote, "We can't have crimes against humanity pursuing the Germans for what they do to the German Jews in their own country because then the international community will come after us about the lynchings."

That dynamic within the U.S. government, you might have to say quite a modern one, and Franklin Roosevelt's ambassador, an old classmate and somebody who had seen Nazi Germany up front before Pearl Harbor, Congressman Herbert Pell—your older viewers and listeners may know his son Claiborne Pell and the Pell Grants—went off to Europe. He had been a defender of African American rights and refugees, and he wrote, "We have to stop a Nazi romantic revival in the way in which the Confederates have managed to achieve a romantic revival in the South." And he said, "I may have to sacrifice my reputation, but we have to stop—in years to come, we are going to win this war but afterward—the Gestapo sitting around the parish pump and the village green regaling the boys of the joys of looting France and gassing Jews."

If there is one thing you can say that that generation did do, is that we have to deal with Holocaust denial, we don't have to deal with romantic triumphalism about the extermination of the Jews.


DAN PLESCH: It is a bit of a mouthful. Certainly as we went through these documents, we were astonished to find that this man Pell is proposing, in London at a time when they were meeting in air raid shelters because of Nazi missile attacks, crimes against humanity months even before D-Day, not after the war as historians tell us happened. But this whole effort, as I say, was deeply resisted in the State Department.

MAGALIE LAGUERRE-WILKINSON: You mentioned also that it took time for them to even send him abroad to see this himself.


MAGALIE LAGUERRE-WILKINSON: It was thwarted in many different ways.

DAN PLESCH: After the war he sent an extremely caustic and lengthy memo to President Truman, who succeeded Roosevelt, explaining how Roosevelt appointed him, but then for six months the State Department told him he was not needed in London. He finally gets there, and they're all going, "What kept you?"

The early minutes of the Commission say, "Well, we're trying to get started, but we're waiting for the Americans to come." So they did their best to run defense of any kind of prosecution of the Nazis because they were already looking to the postwar world and the need, frankly, to use the Nazis against the Russians.

MAGALIE LAGUERRE-WILKINSON: Having access to this archive as I am reading it seems like peeling back layers of an onion. It could actually be a book on its own, your own story researching this book. Can you just give us a little bit of background of how it was? I realize that you could not take pictures or photocopies, you would have to dictate at some points to your colleagues from memory what you were reading in the beginning.

DAN PLESCH: There was an initial point when we first encountered it, my colleagues and I encountered the rule which they subsequently revised, but this had been applied for decades, which was, "In order to read this archive, you need to get official approval from your own government, you have to get personal approval from the UN secretary-general, and then you may not make any note or copy of what you read."


DAN PLESCH: Because I think you could say, and they would say: "Well, because these are unsubstantiated allegations. Many of them have not seen their day in court." But the idea of an accusation is not a secret in a normal judicial process, so these are absurd standards. And the idea that somehow some innocent Nazi might have been accused as being a reason—and in fact once we got hold of it, we gave a digital copy to the German prosecutor's office, and that was the first time they had ever had a digital copy. They only got one some 30 years after the war. They were not ever given one by the Allies when they opened up their effort to prosecute their own nationals for war crimes.

But the motivation is partly, as I said, anti-communism, but also a general sense that you cannot pursue really crimes against humanity and reinstitute suppression of the African American community. I think people forget how much of an uprising of African Americans took place in World War II—the March on Washington [Movement] in the war years. I think some 18 percent of African Americans were registered to vote in Georgia in the 1944 election, and of course this was a deep challenge to white southern Democrats.

MAGALIE LAGUERRE-WILKINSON: To the Commission itself, how are the findings in that archive relevant to today? How can they be adapted to the 21st century, because you do talk about that a lot?

DAN PLESCH: There are many lessons, and I will try not to be too long-winded here, Magalie. The first is that countries such as India and China are front and center in this process, even before independence. India was involved, and the most unfashionable Chinese Nationalists had a much more advanced position on war crimes than did either Washington or London.

Then the continental Europeans, including the Poles—and the Poles were launching astonishing charges against the Nazis for the death camps long before D-Day. The smoke is coming out of the chimneys at Auschwitz, and the Polish government has launched international indictments against the Nazis at Auschwitz and other camps in this period. So I think one of the lessons is don't wait for the end of the conflict, and we should have an international system to gather evidence for war crimes, not just wait around for our courts.


DAN PLESCH: None at all.


DAN PLESCH: None at all.

MAGALIE LAGUERRE-WILKINSON: Even with everything that we are seeing now with—

DAN PLESCH: There has been an attempt to recently, with respect to Syria and the Yazidis, but there is no systematic effort. And there is no system for low-level prosecutions. The whole focus—

MAGALIE LAGUERRE-WILKINSON: And by "low level," you mean?

DAN PLESCH: What I call the "foot soldiers of atrocity": soldiers, militiamen, colonels, majors carrying out these crimes. There is no system to really bring them forward into local trials. There has been some excellent work by the United Nations in the Congo, which I think has been very useful, but again there is no system. And if we look at what many states were doing, including the United States, we can see that these are great lessons.

The United States conducted more than 500 military tribunal trials of the Nazis and Japanese, and to this day the U.S. Judge Advocate General's office has not published them. On my website you are welcome to read them, but the U.S. government should—because this is international law, this is precedent. But of course it can be embarrassing because they were prosecuting the Japanese for waterboarding, a technique now somewhat getting back into fashion.

MAGALIE LAGUERRE-WILKINSON: You are talking about waterboarding. It sounds to me like a 21st-century term, but yet it isn't, is it?

DAN PLESCH: They called it "the water treatment."

MAGALIE LAGUERRE-WILKINSON: The water treatment. Okay, there is the word "water" in there.

But also another surprise was rape as a weapon of war. These are two terms that were discovered in the archive that existed 70-plus years ago that are applied today. Were you surprised, oddly relieved, that those terms existed then?

DAN PLESCH: I would not say "relieved." The whole issue has been a surprise. I thought I knew about this subject, and I never thought that any of this material existed until we turned the pages and found it.

But I am pleased to say we are now working with the University of California, Berkeley, and the international sexual violence unit there to try to bring this evidence from the many prosecutions that we have uncovered showing sexual violence to be a war crime dating back really to the First World War, that this was established as an international crime, and to use these in briefs in international trials today. So that is a way that this material is becoming practically and systematically applied into the modern period.

It is such a transformation, I would say, from thinking of the whole basis of international criminal law is 20-odd people in Nuremberg and a few other bits and pieces to talking about an international system that dealt with some 36,000 cases in a five-year period.

MAGALIE LAGUERRE-WILKINSON: Syria, Yemen, the Democratic Republic of the Congo (DRC) just to name a few—

DAN PLESCH: Not to mention Iraq.

MAGALIE LAGUERRE-WILKINSON: —not to mention Iraq, have conflicts that let's hope will one day end that are going on as we speak. We are already witnessing the horrors just through social media. You cannot avoid it. And I am sure much worse will be uncovered when these things one day end. What type of commission should be in place for what is to come? It cannot be a one-size-fits-all type.

DAN PLESCH: No. I think we are having discussions with some countries and non-governmental organizations (NGOs) to look at a technical assistance operation to provide peer-review support to what people want to do in their own countries or what regional bodies want to do, because clearly the ICC in The Hague is a very important jewel in the crown, but it should not be the only effort. There needs to be a broader, dare I say more economical, financially economical, mechanism to deal with low-level crimes.

But I think it is a mistake, if I may say, to think, Oh, well, it's all terrible, there's nothing we can do, because I have to say if people escaping from the death camps we now know who think it was worth their while to bring prosecutions—many of which did take place—for the crimes of the Nazis while they were still going on, I do not think we have any excuse now to say, "Oh, it's all too difficult" or "Just be pragmatic."


DAN PLESCH: Or "Let's wait," because to be frank, Magalie, the pragmatists never wanted Nuremberg in the first place. They just wanted to maybe shoot a few Nazis and then go after the Russians, turn the Werhmacht tanks around and send them east. That was the pragmatic view, all too common, frankly, in Washington in 1945, and the fact that we even got Nuremberg was a miracle and would not have happened, I think, without the Commission members. This is, by the way, 16 countries, not just the United States and the Allies. Not the Soviet Union, your people will be relieved to know, but the Western Allies—the Chinese, the Indians—in this process.

MAGALIE LAGUERRE-WILKINSON: Were you surprised at the discovery that the Allies knew as much as they did about the atrocities taking place against the Jewish people going back as far as 1940?

DAN PLESCH: There was a key moment in 1942, and I have to say that I find it a bit of a mystery that even Holocaust scholarship does not notice that there was a big public statement really ignored in the United States, but the United States took part in it and the Soviet Union, the British, and the occupied countries. At the time of the Battle of Stalingrad there was an international statement which said in terms: "The Nazis always said they were going to kill the European Jews. Now they are killing them. They are taking them to Poland, and they are killing them all in Poland." This was said categorically at that point in public in 26 languages on the BBC. That is a very clear position.

What we see, though, from this Commission's work is that from early 1944 they have affidavits, detailed evidence from the resistance, showing that what was going on in the camps was known and itemized. People who look or read about the Holocaust will know the names Drancy, Treblinka, Auschwitz. All of these places are subject to national and internationally supported war crimes indictments from before D-Day. That was suppressed at the time. It was known within some sections of the governments, others did not want it out. But it is categorical that it is there.

MAGALIE LAGUERRE-WILKINSON: What was your biggest discovery or uncovering, if you will, in the archive?

DAN PLESCH: I think the sheer scale of war crimes prosecutions, that this is a popular movement, this isn't a few bureaucrats, that you have Special Forces troopers in the Allies who go on to become war crimes prosecutors after the conflict.


DAN PLESCH: Well, one should see it. But perhaps I suppose one showstopper was the fact that the Czechs had brought 700 pages of indictments against Adolf Hitler himself at the time of the Battle of the Bulge in 1944.


DAN PLESCH: This is utterly unknown, and probably only 30 people in the history of the world had seen these, and I published some examples of these prosecutions in my book.

MAGALIE LAGUERRE-WILKINSON: Is it because people would think it is just absurd to try to even indict him? Is that why this did not even come out at the time?

DAN PLESCH: No. There was a lot of public pressure to indict at the time and to indict the Nazis. The British were reluctant. The deputy führer had parachuted in on some quixotic mission in 1941 into Britain and had been kept prisoner, but the British never charged him as a war criminal. He was there as a kind of diplomatic card possibly for after the war.

You can't second-guess people that much in retrospect, but you can see that there were powerful advocates for human rights and for war crimes prosecutions in all the Allied governments during the conflict. As I say, until I opened up the first pages, my colleagues and I had no idea that any of this material was there.

MAGALIE LAGUERRE-WILKINSON: I have to say that it must take your breath away when you think that for three or four more years the exterminations were continuing in the camps while people knew in full view that this was going on.

DAN PLESCH: One has to say, "Well, what more could they have done?" is the question that is hanging there. The first time that [question was asked], we, the good guys, were losing the war. Stalingrad was in the balance; there was a famous man, Jan Karski, who goes to see Franklin Roosevelt at one point, and he is well known, but at that point the Nazis are 100 miles from Cairo.


DAN PLESCH: So winning the war is the priority. Later in the war, when the tide is turned, I think Special Forces, Special Operations could have used a lot of money to smuggle people out through France, Spain, the Balkans, out of Hungary, that that could have been done if it was a priority. But it wasn't.

MAGALIE LAGUERRE-WILKINSON: You also discovered—it seems as though, anyway—that U.S. leaders during World War II did not believe there should be an international criminal court. In other words, let one's own country be judge and jury. That was because?

DAN PLESCH: There was a decision the key Allies—the Big Three (the United States, Great Britain, the Soviet Union) took in Moscow in the middle of the war that the top leadership would be tried by them, and that was what became Nuremberg. But they also said that lower-level perps should be tried in their countries.

But this Commission, as I say, particularly led by the continental Europeans, proposed an International Criminal Court. Harvard's own Sheldon Glueck is at the forefront of this. He is the mentor of Ben Ferencz, among these—

MAGALIE LAGUERRE-WILKINSON: Who wrote your foreword.

DAN PLESCH: Very kind of him indeed.

But to be frank, Harvard should honor Sheldon Glueck, the State Department should honor Herbert Pell, and we need to restore these ideas and these people into popular consciousness. We should not just be, as it were, tearing down statues, we should be putting a few more up.

MAGALIE LAGUERRE-WILKINSON: Today the United States is still one of the few countries that has not ratified the ICC treaty. What are your thoughts on this? Is that going back to this idea that one's own country should be judge and jury?

DAN PLESCH: I think it is. There is a question as to how far we cooperate together in the modern world. I guess I would just say unilateralism is not a long-term strategy. We have to cooperate for pragmatic reasons. Cooperation is a realist necessity, not some kind of liberal accessory within this interconnected world, and that was the lesson of the wartime generation which we have lost unfortunately today.

So yes, I think the United States should join the International Criminal Court. There are enough protections that countries have that the United States does not have to be concerned that itself or its allies are going to be vilified. There are enough checks and balances in the system, I think.

MAGALIE LAGUERRE-WILKINSON: I have to ask you. You brought up Poland, about how it was one of the first countries to want to indict during the war and to prosecute Nazis. But today it is a different Poland. There was actually a declaration recently by the new government that people who associate Poland with Nazi war crimes should be jailed. It feels like it is a step back now.

DAN PLESCH: If I can put a very personal opinion here.


DAN PLESCH: I personally think it does not help to make Holocaust denial a crime because that then sets you on this road. I think it is unfortunate and wrong that the Polish government did this, but to some extent I can understand because this phrase "Polish death camps" is out there, and it is deeply offensive to Poles, and rightly so. While there is widespread anti-Semitism then and now in Poland, there wasn't the kind of systematic collaboration with the Nazis that you saw in Ukraine, for example.

I think one can understand where Polish opinion is coming from. I would much rather that they triumph and uphold their role in prosecuting the Nazis for Auschwitz during the war, which was led by—initially this whole Commission is led by a Pole, General Sikorski, a wartime leader who tragically died during the war. And Poland has a very honorable record which I think it could do better to rediscover in pursuing these issues. But I understand where the Poles are coming from because of the unfortunate phraseology, but criminalization is not a good idea.

MAGALIE LAGUERRE-WILKINSON: In this era also of social media and catchphrases, nobody really thinks of digging into, really knowing, its history, so it is unfortunate.

DAN PLESCH: Also, people learn it. I have to say you journalists have got to be to blame because you could say "the camps in Poland," not "the Polish camps," even on the aston line (usually called the lower third, or caption in the U.S.) on the screen. It doesn't take that much more space in a headline, and then perhaps we would not be in this problem.

MAGALIE LAGUERRE-WILKINSON: That is certainly a fair point.

On a personal note, you are the son of a refugee.


MAGALIE LAGUERRE-WILKINSON: You say that you were raised "to remember but move on."


MAGALIE LAGUERRE-WILKINSON: But after discovering this trove of information, can you move on?

DAN PLESCH: I hope so. There are sunnier things to think about.

MAGALIE LAGUERRE-WILKINSON: But these are important things to bring to the fore, to bring to light.

DAN PLESCH: Yes. I have to say I think it was having an understanding of the context of the Second World War made me realize how important this archive was when I discovered it. But really these are the sewers of the human soul, and I personally don't want to have to spend the whole of my life down them.

My father and grandfather were—in fact, my grandfather was Einstein's doctor and deeply involved in internationalism. Einstein was a pacifist and an internationalist and hopeful for the future, and I think that's what we have to focus on.

People said to my father, "Well, you're a bit of a party chap, a party man in England."

And he said: "Well, the least we can do is live life to the full. That's the least we can do for the people who died."

And I think live life to the full, but on this I think actually we need to remember the lessons of the people who did seek justice. It was the pragmatists who suppressed this information, the pragmatists who did not even want Nuremberg, and the pragmatists today who say we should not be bothered about human rights, whether it is in our own neighborhoods or internationally, and I think this story shows how costly that is and how heroic those people we should honor were.

MAGALIE LAGUERRE-WILKINSON: This year we celebrate the Universal Declaration of Human Rights, which is celebrating a significant anniversary. Human rights is not just this Western elite idea, right? Was that your discovery as well?

DAN PLESCH: I think anyone—you think about the Golden Rule in philosophy, "Do unto others as you would like to be done to," which is in all world religions and philosophies. That simple phrase shows this idea that human rights is just a Western elite intellectual invention to be nonsense, to be polite.

But what you see from the pages of this archive, that Indians, Chinese, resistance fighters in Poland, in France, in Yugoslavia, are all pursuing a common agenda of holding the Nazis to account for these crimes which go beyond normal warfare barbarism. There is this meeting in a palace in London during the Blitz where they come together, and the Anglo-Americans did not want to come, but the occupied countries and the Chinese are there, and they say: "We need to restore civilization after we win. We can't just rely upon mob rule, and we need international support to install human rights standards."

The tragic irony is that those opposed to war crimes had this Commission shut down when it was going full tilt, getting Nazis tried in court, in 1948 on the grounds of rebuilding Germany. And the same year, many of the same officials are involved in negotiating the Universal Declaration of Human Rights.

The contrast to people who perhaps are thinking about this year is that the Commission is an effective executive function of states working internationally to indict, try, and convict war criminals. The Universal Declaration is an aspirational nonbinding agreement that anybody can sign, and of course 70 years later it is treasured, it has become customary law.

But in remembering the Universal Declaration, remember what we lost, how much stronger things would have been if the Commission had not been crushed in the interests of domestic suppression of the African Americans and anti-communism. I think it is important to elevate the Commission its own pillar in the pantheon of human rights treaties and legislation. It has been missing too long, and I think in an exercise of restorative archeology we need to put the Commission back, these 17 countries, these heroes like Herbert Pell and Ben Ferencz, who did this work, up there alongside the Universal Declaration of Human Rights.

MAGALIE LAGUERRE-WILKINSON: Speaking of Ben Ferencz, who wrote the foreword to your book, he is 98 years old. He was probably the youngest prosecutor at Nuremberg, and he has made it his lifelong mission to prosecute and to stop war, and he is a huge human rights advocate. I know that it saddens him greatly that these atrocities are still taking place in other parts of the world. But even for him, when you uncovered this archive, this was news. He did not know.

DAN PLESCH: He said in my foreword that this was an eye-opener, and I have to say that was deeply heartening because I was worried that I was going over old ground or that there was some fundamental thing I got wrong, but he said: "No, no. I had no idea that all of this work was going on. We were operating in our U.S. military prosecutions unit and weren't aware of what had been going on."

At that time in the U.S. government there are these different agencies. It is one of the benefits of the U.S. government, you do not have this total centralization.

MAGALIE LAGUERRE-WILKINSON: But still, one is not talking to the other.

DAN PLESCH: The military prosecutors are going flat out to prosecute Nazis in Germany, whereas the State Department and the White House under Truman are doing their best to stop the whole thing, and they are writing memos saying: "Well, we can't stop it quite yet because it's got too much momentum and it'll upset too many people. Give it another year, and we can shut it all down" are the memos that are going back and forth in the State Department.

MAGALIE LAGUERRE-WILKINSON: Why do you think that they could not come to an agreement on this? Why?

DAN PLESCH: You look at U.S. politics, international politics today. There are similar dynamics, those people who favor an old-style realist approach who thought it was important to bolster Germany against communism, those people who wanted to suppress African American rights, that you could not go around doing that at the same time as pursuing Nazis for comparable crimes. If the Nazis are hanging people from lampposts, what are you going to say when they are hanging people from lampposts in the South, to be blunt? If one is a crime, the other is a crime. I think that is at the root of it.

My hero, Congressman Ambassador Pell, the hero in this story for America, he wrote to Congress and he said—he did not mention the African American issue—"Well, they are very conservative in the State Department, and they are anti-Semitic, and the secretary of state owns a large part of the German car industry."


DAN PLESCH: That was not me writing that, that was a former member of Congress saying that was what the motivation was.

MAGALIE LAGUERRE-WILKINSON: Dr. Dan Plesch, thank you very much.

DAN PLESCH: Thank you, Magalie.

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