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Center Preserves War Crime Records
by Naomi Lubick

The Berkeley War Crimes Studies Center collects trial documents from World War II war crimes trials and modern day trials.

The Nuremberg trials were not the only effort to bring justice for the crimes of the Second World War. Soon after the war, some 20 countries embarked on their own war crimes trials against collaborators and Axis military and civilian personnel. Yet most of these trials, which took place from China to France to Australia, are virtually forgotten. The Berkeley War Crimes Studies Center recently established an archive, so that the legal precedents of the past can aid war crimes prosecutions today.

David Cohen founded the Berkeley War Crimes Center.
There are shocking details to be found in these trial records, says David Cohen, a lawyer and professor of rhetoric at the University of California at Berkeley. But secrecy and lack of documentation of past legal precedents have been detrimental to the practice of international war crimes law today. To that end, Cohen established the Berkeley War Crimes Studies Center, an archive of war crimes trials documents, in December 2000.

"We haven't had cases on these issues since World War II," Cohen said, sitting among stacks of papers in his office during a recent interview. The variety of cases and defendants in that long and large conflict, he said, included government officials, military commanders, bureaucrats, and other individuals who "were implicated in state-sponsored violence and criminality. And so, they're a kind of storehouse of experience, and they're the only storehouse of that kind of experience that we have."

The most immediate value of the archives is for international tribunals weighing precedents set by World War II criminal trials, Cohen said. Though recent war crimes may seem novel, he said, "The kinds of crimes that are being committed by military organizations and governments against civilians, whether in Rwanda, East Timor, Sierra Leone or Bosnia, are not particularly new." The resolve to bring international justice to bear upon these crimes was new after World War II, and the arguments made in defense or prosecution varied widely, more so than indicated by cases cited in current trials. In these cases, Cohen said, "It's particularly helpful to go back and see the range in how courts have dealt with these kinds of situations."

Cohen estimates that the judges and lawyers at international tribunals have access to less than one percent of the World War II criminal trials. "Their generalizations are based upon a very tiny and random selection of the cases," he said, "and as a result, they make many erroneous statements about World War II jurisprudence and what doctrines the World War II cases support."

For example, in cases regarding command responsibility, which holds commanders responsible for the acts of their subordinates, case precedents most frequently cited by the Rwandan and Yugoslav tribunals present a very simplified view. "In fact there are a wide variety of approaches in the World War II cases on the issue of command responsibility, and some of these different approaches directly contradict each other," Cohen said. "What's needed is not easy generalizations that this is a precedent from World War II, but rather clear analytical and conceptual thinking about what the standard on command responsibility should be."

Cohen gives as an example the trial of Japanese general Yamashita, whose show trial in Manila is often cited. Yamashita was convicted for responsibility for the activities of different branches of the military in his command during the rape of Manila, for which he was executed. But the actual trial documents show there may not have been enough proof from the prosecution to justify the judgment, according to Cohen. "It's a terrible case to use as precedent, and it's always cited," he said. Having the previously unpublished trial documents in hand, Cohen said, "should stop people from citing the Yamashita case as a precedent."

But the first hurdle is to obtain the trial documents, and this has proven difficult, for different reasons in different countries. Though France's war crimes trials of the 1940s and 1950s were of public record and reported in newspapers, Cohen said, the French have sealed the documents for 100 years from the date on which the trials ended, to the middle of this century.

"The law that sealed the records was passed in the mid-1960s, when scholars were looking into issues of collaboration during World War II," he said. "There are these problems in many countries outside the Anglo-American world." Mostly the issues are political, although the justifications given often have more to do with privacy than politics.

The archives eventually will hold a complete collection of World War II war crimes trials, as well as trial documents from modern tribunals such as East Timor, Rwanda, and Bosnia.
Long negotiations gave Cohen access to the French files as an individual, for research purposes but not for duplication, and so the negotiating continues, he said. Individuals associated with the Wang Family Foundation, a financial supporter of the War Crimes Archive, have contacted officials in China to negotiate for access to the approximately 650 trials known to have occurred in that country.

The Berkeley archive has also gotten a grant from the Volkswagen Foundation, and is working with International Documentation Center for War Crimes Trials (Frankfurt, Germany) to locate, reproduce and collect the records of war crimes trials in Asia and Europe. Volkswagen AG, the foundation's establishing company, has made reparations to surviving slave laborers, but, unlike some other German corporations from World War II, the company was never brought to trial.

In Italy, the war crimes trial files were removed from the national archive, to be stored in military archives across the country. The military judiciary required much negotiation to even see indexes of the documents. To obtain records of USSR-led trials of Axis war criminals, Cohen has relied on the services of a historian from the former East Germany, whose contacts and previous activities gained him access to documents in Russia.

But even this German historian cannot find documentation of the Russian trials of Japanese war criminals, which may exist somewhere in the Soviet far east, Cohen said. "No one knows where or how many took place," he said. "We know some of them were very important because they involve the Japanese program of biological warfare and medical experimentation."

The Soviet Union held at least one show trial of a Japanese military doctor to embarrass the United States (which had granted immunity to doctors in the Tokyo International Tribunal in exchange for their research). The Soviets published that trial in English, but otherwise, Cohen said, "those trials are almost completely unknown, and so the medical experiments are almost completely unknown." Experts have been astounded to learn that Japanese doctors in Southeast Asia and other places initiated experiments with infectious diseases, usually on Australian, British, American, Chinese, or Indian prisoners of war.

These experiments were equal to the Nazi program, which gave rise to the Nuremberg principles for doctors and medical experimentation, Cohen said-and "another example of the kind of important historical material with resonance for the present that can come out of this kind of research."

Stored for now in a spartan room in a corner of the U.C. Berkeley rhetoric department, the archives eventually will hold a complete collection of all World War II war crimes trials, as well as other supporting documentation and trial documents from modern trials from tribunals such as East Timor, Rwanda, and Bosnia. The documents will be digitized and accessible to anyone online, to serve a variety of purposes, from historical research to documentation for issues of jurisprudence.

Cohen estimates the final count will be about five million pages of correspondence, transcripts, and other supporting papers, which would be possible to contain in fewer than a dozen cabinets. And, of course, the digital versions will take up less physical space.

The papers are in various states of decay, and digitization has proven lengthy and difficult, particularly for handwritten notes, photos, and faded ink on World War II-era paper. "In addition to collecting these documents," Cohen said, "we're preserving them. In 50 years, there will be nothing to conserve."

Berkeley War Crimes Center

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