CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE UNITED NATIONS WAR CRIMES COMMISSION… by Raphael Lemkin and published in late 1944 60 was probably not considered part of international law at that time (moreover, the Genocide Convention was adopted on 9 December 1948 61 ). Nevertheless, there is nothing about crimes against humanity in these charges too, although this concept was known during the Second World War and incorporated into the Charter of the Nuremberg Tribunal (still linked, however, to “war”). 62 The answer to this question can be found again in the History of the Commission. Shortly after the Commission was established on 20 October 1943, there was a debate on the scope of its competence. The British representative, Sir C. Hurst, outlined two options: the first one was to use the list of thirty-two war crimes prepared by the Commission on Responsibilities established at the Preliminary Peace Conference in Paris in January 1919, 63 while the second one was to create a new general definition of a war crime. The Commission chose the first alternative. One of the reasons for this was the fact that Italy and Japan participated in the preparation of this list and Germany never questioned it. The list of war crimes was, however, amended in May 1944 on the basis of the Polish proposal to include “indiscriminate mass arrests”. 64 In spite of this, it was clear that many offences could not be regarded as war crimes stricto sensu, e.g. , the murders of German, Austrian, Hungarian and Romanian Jews. Although being technically “enemy nationals”, they were victims of the same crimes like the nationals of the Allies. In this context, the United States presented a view in the Legal Committee, in relation to the atrocities committed against German Jews and Catholics, that “crimes committed against stateless persons or against any persons because of their race and religion represented crimes against humanity which were justiciable by the United Nations or their agencies as war crimes”. This proposal of the United States met with many objections; however, it was strongly supported by Czechoslovakia and the Netherlands. Subsequently, the Czechoslovak delegate submitted a report that the persecutions carried out by the Nazis in Germany against their own nationals should no longer be regarded as the internal affairs of those countries, pointing to the declarations of the Allies calling for punishment of these crimes. The Legal Committee then prepared a draft resolution for the Commission to expand its competence beyond the war crimes stricto sensu and 60 LEMKIN, R. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress , Washington, D.C., 1944, p. 79-95. 61 See supra note 44. 62 See supra note 33, Charter of the International Military Tribunal, Art. 6(c): Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 63 See supra note 4, p. 32-36. 64 Ibid. , p. 170-172.

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