Statement by Ambassador Asoke K Mukerji, Permanent Representative, at the Panel Discussion on ‘United Nations War Crimes Commission Records: Past, Present and Future’, United Nations  Headquarters, on  November  11, 2014

In my remarks today, I would like to touch upon the context in which the UN War Crimes Commission functioned, in order for our panelists to elaborate on the role of the Commission in terms of subsequent institutions created to deal with war crimes, and the implications of the Commission’s work for the future.

2.  The United Nations, of course, did not exist when the War Crimes Commission was established. However, the call for the United Nations had been made on 1 January 1942 in Washington DC by 26 Allied nations, who signed the Declaration of the United Nations (and consequently, became ‘original’ members of the organization under Article 3 of the United Nations Charter). India was one of these 26 nations.

3.  The UN War Crimes Commission, which was established by 17 of the United Nations governments, with its headquarters in London, was a unique endeavor.[1] The Commission functioned between 1943 and 1948, when it was wound up because ‘the laws concerning war crimes had (now) become standardized’.[2]

4.  India was one of founder members of the Commission. At the Commission’s first meeting in October 1943, Sir Samuel Ranganathan, India’s High Commissioner in London, represented India.  China offered to host a Far Eastern Sub-Commission of the UN War Crimes Commission in May 1944. India was among the 11 United Nations governments represented in this Sub-Commission. 

5.  The Economic and Social Council (ECOSOC) of the United Nations, under its first President, Sir Ramaswami Mudaliar of India, requested for the Report of the War Crimes Commission. This Report was titled ‘Information concerning Human Rights Arising from Trials of War Criminals’, and circulated to the member states as document No. E/CN.4/W.19 dated 15 May 1948.

6.  I think it would be fair to point out that the issue for which the Commission was established, i.e. the investigation of war crimes, was an open-ended one. It is clear from the Commission’s records that war crimes were occurring even as the Commission conducted its work.  It is possible to deduce from the authoritative account of the work of the Commission, published by the ECOSOC, the dilemma faced by the Commission in arriving at any actionable conclusions on its investigations of war crimes. Apart from the immediacy of these criminal acts, there was also the pressure from within certain of its more powerful member governments to limit the authority, or question the effectiveness, of the Commission. The most compelling example of this tension is related to two areas of the Commission’s mandate:  apprehension and extradition.

7.  During the four and a half years of its existence, the Commission examined 8,178 charges, involving over 36,000 persons and issued 80 Lists of War Criminals. The limitations of the Commission became evident when the Belgian representative observed that the number of persons apprehended was absurdly small compared with the number of persons listed.[3]

8.  The Commission’s ineffectiveness was apparent when it agreed that each Occupying Authority reserved the right to inquire into each case and make its own decisions as to whether or not a transfer was to be made.[4] Conditions were thus created for individual governments to restrict the publication of information gathered by the Commission on grounds of their own national interests. Such restrictions played a major role in an uneven global record after the Second World War in prosecuting (and thereby deterring) war crimes.

9.  The recent front page revelations in The New York Times [5] of how many war criminals in the lists were apparently allowed to escape in order to be exploited in the Cold War, which flowed out of the Second World War, place these issues in context.

10.  One of the issues confronting the Commission, which resonates in similar enterprises even today, was how to balance the scope of its remit with the availability of its resources. It is worth noting that the Commission functioned during a period when fresh data was being continuously provided to it, making it difficult to limit its scope. On the other hand, the financial resources available to the Commission were fixed at a yearly contribution of 400 Pounds Sterling from each of its 17 members. In order to generate additional resources, the Commission fixed on 21 March 1944 what we would call today a ‘scale of assessments’ to meet the Commission’s expenses beyond its budgetary limits. Out of a total unit system of 1583 units, the units assigned to China were 100, 80 units each were assigned to France and India, while Canada had 60, and Australia and the Netherlands 30 each! This weightage reflected the contribution that these individual governments made to the work of the Commission.

11.  In keeping with its mandate, the Commission’s work gave rise to efforts by governments to use the rule of law to prevent genocide and war crimes. This was perhaps the single most important outcome of the legal work of the Commission. The idea of Military Tribunals to prosecute and penalize war crimes was mooted jointly in the Commission by the United States and India in August 1944,[6] when the Commission was discussing the establishment of an International War Crimes Court. Two major military tribunals were established at the initiative of the United States to prosecute war crimes, viz. the Nuremburg International Military Tribunal in November 1945, and the International Military Tribunal of the Far East, which conducted the Tokyo Trials, in April 1946.

12.  Apart from motivating governments to set up specific judicial structures to adjudicate war crimes, the Commission catalyzed legal principles on the substantive law on war crimes. It had been agreed to by the Commission on 26 September 1943 that a war crime ‘is a violation of the laws and customs of war’. By the end of its work, however, the Commission had significantly developed the legal concept of ‘crimes against humanity’, which is its enduring achievement.

13.  This was reflected in the political discourse in the United Nations even while the Commission was entering into the final phase of its work. At the United Nations General Assembly, in late 1946, a draft resolution was presented by Cuba, India and Panama, that eventually resulted in the negotiation and adoption of what has been called ‘the first human rights treaty’[7] of the United Nations, the Genocide Convention of 9 December 1948.

14.  It was on 10 December 1948 that the United Nations General Assembly adopted the Universal Declaration of Human Rights in the UN General Assembly. On this occasion, India expressed the hope that the Declaration would pave the way to a new era of international solidarity.[8] Subsequently, the United Nations adopted the Geneva Conventions of 12 August 1949 relating to the treatment of armed forces on land and at sea, prisoners of war, and civilians, which have been accepted by almost all member states of the United Nations. Taken together, these legal instruments gave substance to the work of the Commission, and provided the modern framework, especially with regard to obligations and responsibilities of states, on preventing and prosecuting war crimes.

15.  The successful effort of many in this room to use the work of the United Nations War Crimes Commission, and the release of the records of the Commission to the United States Holocaust Memorial Museum in July this year, therefore deserve to be highly appreciated and lauded by all those who look to using the ‘organized channels of justice’ to prevent and prosecute war crimes.

Thank you.