In his new book Human Rights after Hitler, Dan Plesch makes a case for rewriting the history of human rights and international criminal law using the declassified archives of the United Nations War Crimes Commission (UNWCC). In view of 36,000 indictments against Nazi and Japanese war criminals facilitated by the UNWCC, he argues that the Allied nations’ response to the Holocaust was more committed than most accounts – focussing on the International Military Tribunals at Nuremberg and Tokyo – acknowledge. His study thus carries on his own already extensive work on the UNWCC and complements publications on the Subsequent Nuremberg Trials, such as Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography by Kim Priemel and Alexa Stiller.
In nine chapters (see http://www.unwcc.org/chapters/ for short summaries), Plesch seeks to fish the UNWCC “out of the Orwellian ‘memory hole’ into which its contemporary detractors cast it”. He outlines its establishment and the commission’s work, underlining that not only the Nazi leadership was brought to justice, but many more who were responsible for the Holocaust in occupied countries. He also highlights that the UNWCC, in responding to Nazi atrocities, was an important forum for innovations in international law with regard to aggressive war, the defense of superior orders, prosecution of sexual violence etc., and that these innovations were the result of the contributions of non-Western intellectuals and officials as well as the exile governments in London. He strongly criticizes scholarship that overlooks the “international, grassroots-driven campaign to formalize and enforce global norms” (p. 193) and that denies the liberal and global origins of human rights in the 1940s (e.g. Samual Moyn).
The UNWCC’s effectiveness, he puts forward, should be proof that war crimes should and can be prosecuted effectively. Plesch is convinced that there are “moral and practical lessons we can learn from the heroes of this unsung political movement for international justice.” (p. 2) He agrees with Carsten Stahn that we are in need of a “UNWCC 2.0” that enables complementary prosecution of war crimes by national courts while applying international criminal legal standards. Instead of betting on “large-scale, expensive, drawn-out trials of leaders conducted by international (overwhelmingly Western) lawyers and officials”, the UNWCC is an example for effective prosecution of war crimes on a national level “through existing judicial systems.” (p. 204)
Plesch justifies his object of study with the usefulness and applicability of UNWCC practices and norms, e.g. for prosecuting Syrian war criminals. This should be kept in mind when reading his book. Understanding the “past as prelude” always risks downplaying developments that do not fit our narrative in favor of a teleological explanation of the historical past. However, this is a well-researched and well-argued book with a strong appeal for more studies on the UNWCC.
Listen to an interview with Dan Plesch on NPR (4:24 min)
Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge, MA: Harvard University Press, 2010.
Plesch, Dan. Human Rights after Hitler: The Lost History of Prosecuting Axis War Crimes. Washington, D.C.: Georgetown University Press, 2017.
Priemel, Kim C., and Alexa Stiller. Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography. New York: Berghahn Books, 2012.
Stahn, Carsten. “Complementary and Cooperative Justice ahead of Their Time? The United Nations War Crimes Commission, Fact-Finding and Evidence.” Criminal Law Forum 25 (2014): 223–260.
On February 10, 2017, the GRR Legal History Research group at Humboldt University turned its attention toward the history and historiography of European law. Philip Bajon (Frankfurt/M.) presented his research project on the Luxembourg Compromise, asking whether it propelled a change in decision making patterns in the Council of the European Union. He posited that although the Luxembourg Compromise was not necessarily hard law, it established an informal veto culture that shaped the constitutional practice in the years to come. Manuel Müller (Berlin; www.foederalist.eu) discussed why the Maastricht Treaty did not turn into a “constitutional moment” and argued that while the political system became more integrated, the European public sphere did not: The main frame of reference, in which European politics and policies were discussed and legitimized, remained national. Finally, Anna Katharina Mangold (Frankfurt/M.) made a plea from a jurist’s perspective for a critical turn in the historiography of European Law. From her point of view, a teleological narrative of European integration continues to shape the work of legal historians. Therefore, she calls upon them to reveal historical contingencies and path dependencies as well as their own bias in prioritizing a specific narrative or subject matter over another in their research.
The presentations served as a departure point for a more general discussion about (legal) history. While Philip Bajon argued that a historical approach can uncover source material from actors other than official personas and institutions, Anna Katharina Mangold contended that contemporary historians can be too close to the individual whose motivations and actions they want to analyze. To resolve these issues, the participants agreed that both historians and jurists need to contextualize authors and their work by situating them in a specific historical context. A lively discussion followed on the question how researchers should deal with their own positionality and political leanings: While the jurists regarded normativity as essential for a future-oriented research that suggests improvements to today’s legal system from a historical perspective, the historians in the room interjected that a political standpoint – especially if not clearly indicated – can undermine an impartial analysis of belief systems and discourses of the past. This discussion also tapped into the recent public debate on “post-truth politics” and the role of academia within it, raising the question of the meaning of factuality in (deconstructivist) research projects – a concern not just for legal historians.
Review of: Hoffmann, Stefan-Ludwig (Hrsg.): Moralpolitik. Geschichte der Menschenrechte im 20. Jahrhundert. Göttingen : Wallstein Verlag 2010; Prost, Antoine; Winter, Jay: René Cassin et les droits de l’homme. Le projet d’une génération. Paris : Libraire Arthème Fayard 2011; Spiering, Menno; Wintle, Michael (Hrsg.): European Identity and the Second World War. Basingstoke : Palgrave Macmillan 2011; Plesch, Dan: America, Hitler and the UN. How the Allies won World War II and forged a Peace. New York : I.B. Tauris 2010; Láníček, Jan; Jordan, James (Hrsg.): Governments-in-Exile and the Jews during the Second World War. Edgware : Vallentine Mitchell 2013; Frei, Norbert; Weinke, Annette (Hrsg.): Toward a New Moral World Order?. Menschenrechtspolitik und Völkerrecht seit 1945. Göttingen : Wallstein Verlag 2013.
Full review (in German) on HSozKult: http://www.hsozkult.de/searching/id/rezbuecher-20869?title=geschichte-der-menschenrechte&q=Eichenberg&sort=&fq=&total=77&recno=2&subType=reb