COMPLEMENTARITY AND COOPERATIVE JUSTICE AHEAD OF THEIR TIME? THE UNITED NATIONS WAR CRIMES COMMISSION, FACT-FINDING AND EVIDENCE

Abstract

Today, many international criminal lawyers claim that the future of international law is domestic. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the future, but also the past. This article analyzes the practice of the Commission (1943–1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many World War II accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of United Nations (UN) peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has got lost in the course of the second half of the twentieth century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labelling and origin of core crimes (e.g. aggression, crimes against humanity), the treatment of group criminality (e.g. attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g. ‘mutual trust’ under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court (ICC). But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.