Assessing the Impact of the United Nations War Crimes Commission on the Principle of Complementarity and Fair Trial Standards

This article looks at the work of the United Nations War Crimes Commission (UNWCC), and its influence on the development of international criminal law. It examines the role the UNWCC played in prosecuting war criminals, and notes the similarities between the UNWCC’s mission and the current structure and role of the International Criminal Court, particularly its focus on the principle of complementarity. The article reviews fair trial standards at the time of the national trials, and provides that many of them are present in current international human rights instruments. Still, the author submits that many trial records are still inaccessible and, as a result, there is not enough evidence to fully analyze the Commission’s efficiency in providing for a fair and impartial trial.


I INTRODUCTION
The work of the United Nations War Crimes Commission (UNWCC or the Commission) has rarely been discussed in relation to the prosecution of war crimes during the Second World War. Recently released documents, however, have changed this and have subsequently shed light on the Commission's influence on the development of interna-tional criminal law. 1 In order to assist in the current effort to draw attention to the work of the Commission, this article discusses some of the early debates on both the principle of complementarity and the creation of an international court to try high-level war criminals. This article will also examine the provisions that afforded the accused the right to a fair trial. Although it is important to highlight the positive influence that the Commission had on the development of law, and the vital role that the Commission played in the prosecution of war criminals, it is also necessary to consider the trials themselves. Justice Richard Goldstone once said to me that the yardstick measure for an international court is not the number of convictions; it is whether the defendants received a fair trial. 2 The same should hold true for the work of the UNWCC. Given that many of the UNWCC trial records are still inaccessible, further research will be needed to fully assess the efficiency of the Commission in ensuring a fair and impartial trial.

II UNWCC: CREATION AND FUNCTIONS
The atrocities committed during the Second World War compelled the Allied nations to seek international prosecution for these crimes. In October 1941, Winston Churchill and Franklin D. Roosevelt condemned the acts which had been committed by Germany and threatened that there would be retribution for the actions of the German forces. 3  Declaration, the signatories committed themselves to ''the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them, or participated in them''. 5 The St. James Declaration established the UNWCC. However, it was the Moscow Declaration, signed in October 1943, which specified the scope of the Commission. The Moscow Declaration provided that: Those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein. 6 The signatories of the Moscow Declaration declared that those who had committed crimes, which had ''no particular geographical localisation'', would be punished by a joint decision of the Allied governments. 7 However, at the time of signature, there was no indication whether the joint action of the governments referred to judicial proceedings or simply a political declaration of guilt. 8 More than a year after the St. James Declaration was signed; the UNWCC was established on 20 October 1943 by seventeen Allied nations. 9 The Commission was tasked with the following: (i) To collect, investigate 10 and record evidence of war crimes, identifying where possible the individuals responsible.
(ii) To report to the Government concerned cases where the material available appeared to disclose a prima facie case.
(iii) To act as a Committee of Legal Experts charged with advising the Governments concerned upon matters of a technical nature, such as the sort of tribunals to be employed in the trial of war criminals, the law to be applied, the procedure to be adopted and the rules of evidence to be followed. 11 The UNWCC, located in London, established three committees: Committee I (Facts and Evidence) examined the charges filed by the Allied nations; Committee II (Enforcement) was concerned with ''the detection, apprehension, trial and punishment of suspected war criminals''; and Committee III (Legal Committee), which advised the Commission on legal matters. 12 Following calls from the Chinese government, an investigative branch of the UNWCC, the Far Eastern and Pacific War Crimes Sub-Commission was also created in Chungking, China. 13 The nations involved established National Offices for the purpose of preparing charges against alleged war criminals and ''transmitting them with the relevant information and 10 The investigating function of the UNWCC was envisaged in the Moscow Declaration; UNWCC, Annex V -Establishment of closer cooperation between the UNWCC and the National Offices, Doc. NOC.5 (2 June 1945) 1. 11  material for the substantiation of the charges for examination by the Commission''. 14 According to a letter written by Sir Anthony Eden, British Foreign Secretary, the Commission was an ''advisory body'', which was responsible for the ''classification of crimes'' committed by Axis forces, and made legal recommendations in line with ''Allied declarations''. 15 Although the UNWCC was tasked with the investigation of war crimes, the Commission had no executive power and no detective staff. The responsibility for apprehending suspected war criminals rested with the national or occupational authorities. 16 The Allied Powers simply did not provide the UNWCC with sufficient resources, nor with any real authority to conduct its work. 17 Unfortunately, the same deficiencies affected the National Offices, which also had inadequate staffing and which failed to exchange and coordinate information among themselves, or report all cases to the Commission. 18 Professor Cherif Bassiouni notes that despite ''high expectations'', this ''investigative body was subordinated to political considerations and ultimately relegated to a role far inferior to that which was expected by the Allies''. 19 Although the UNWCC listed the charges, it was not empowered to make binding decisions on the Allied nations, and cases against ''minor'' war criminals did not require authorization by the Commission. 20  mission would determine whether there was prima facie evidence that a war crime had been committed. If the answer was Ôyes' then it would justify the apprehension and prosecution of the individual accused, or at least consider the persons as suspects or material witnesses. 21 Once a prima facie case was established, the Commission added the accused's name to the ÔLists of War Criminals, Suspects and Witnesses', which were prepared and issued by Committee I. The national authorities would then proceed with criminal trials. 22 As mentioned above, in the early stages of its creation, the Commission struggled to gain momentum due to the lack of resources and funding. Sir Cecil Hurst, the first Chairman of the UNWCC, even expressed doubt that the Commission could fulfill its mandate. 23 In the first five months of its creation, the Commission had only received some 60 cases, most of which were considered as Class ÔC' cases (adjourned cases and cases whereby the accused was not identified) or were incomplete. 24 The low number of cases received by the Commission was also attributed to the high standards required by Committee I before accepting charges.
Following criticisms from various representatives on the Commission, it was decided that all members of a military would be listed if it ''appeared that crimes were committed on such a scale that it could be presumed that all members of the unit could be suspected of taking part''. 25 It was only after the Allied liberation of the occupied territories that the scale of the atrocities became clear, and the Allied nations could accordingly focus their attention on the punishment of war criminals. The Allied governments began to provide the Commission with more cases, and during its existence, the Commission received 36,810 cases from the National Offices. 26 However, given that the UNWCC was mainly comprised of representatives from exile governments possessing only limited powers, the UNWCC had ''little political influence and support''. 27 Consequently, support for the Commission dwindled and the focus of the Allied community shifted 21 Draft of a Note, Doc. A.32 (n 11) 8, 11; Memorandum, Doc. C.76 (n 15) 5-6. 22

III THE UNWCC AND THE PRINCIPLE OF COMPLEMENTARITY
For the purpose of this article, 600 Commission documents were reviewed. One of the most striking discoveries was the number of similarities between the Commission's mission and the current structure and role of the International Criminal Court (ICC). 28 The principle of complementarity embodied in the ICC seeks to ensure primary jurisdiction and accountability at the state level. The ICC is considered as a court of last resort. Its existence and codifying legislation are designed to support a cooperative process to end impunity for international crimes. Although the Rome Statute, the underlying legal authority for the ICC, does not offer a robust definition of the term Ôcomplementarity', the Statute does specify that the ICC ''shall be complementary to national criminal jurisdiction''. 29 Thus, the principle of complementarity places the ICC in a Ôcomplementary' role to the national courts and does not circumvent the intrinsic responsibility of states to prosecute international crimes. 30 The ICC is viewed as a secondary institution, which is empowered to act if and when domestic institutions are unable or unwilling to fulfill their obligation to prosecute international crimes. The history of the principle of complementarity is often viewed within the early drafting stages of the Rome Statute as embodied in Draft Statute for an International Criminal Court with Commentaries. 31 However, the majority of academics and commentators have said very little, if anything, about a much earlier debate on the 28 The principle of complementarity before the International Criminal Court and the creation of the UNWCC will be considered, in detail, in an upcoming publication by the author Dr Mark Ellis, entitled Sovereignty and Justice: Creating Domestic War Crimes Courts within the Principle of Complementarity, which will be released in 2014. 29  principle of complementarity during the creation and operation of the UNWCC between 1943 and 1948. It was actually the UNWCC that laid the ground for the current design and interpretation of the principle of complementarity.
The focus on complementarity was most prominent in the composition of the National Offices for each Allied country of the UN-WCC. National Offices operated within each country and were comprised of its own nationals, ''using its own endeavors to examine the atrocities and track the main offenders''. 32 As succinctly stated by Dr Marcel de Baer, a Belgian representative on the Commission, ''[i]t cannot enough be stressed that if the National Offices wish to see a just punishment imposed upon these men they should investigate these cases themselves and bring charges against them''. 33 His remarks demonstrate the high-level of responsibility that was afforded to the National Offices and echo the fact that the national courts should try the majority of cases. 34 De Baer's comments also reflected the essence of the Moscow Declaration, which stated: Those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein. 35 In line with this, the Commission expressed that: With the exception of major war criminals, whose offences have no particular geographical localization, war criminals, upon apprehension, will be sent back to the countries in which their crimes were committed in order that they may be judged by the courts of such countries. The mentioned countries thus have a paramount right to such criminals and their courts have primary jurisdiction. Thus, it was the national courts that had ''primary jurisdiction'' to try war criminals. 37 As mentioned earlier, the Commission was referred to as an ''arbitrator'', 38 an ''intermediary'' 39 and as an ''advisor'' 40 in the UNWCC documents. This demonstrates the ''root idea of selfhelp'' maintained by the UNWCC, that the Allied countries should each bring to justice those enemies who committed offences against their own nationals. 41 It is interesting to note that the responsibilities of the Commission extended only to war criminals and not to those individuals who committed atrocities against nationals of their own country. 42 This exception aimed to ensure that the Commission did not interfere with a nation and its own citizens 43 and sought to protect a State's right to punish its own nationals. 44 While recognizing that, in general, the ''appropriate tribunals for the trial and punishment of such crimes will (1) (4 August 1944) 1; ''Each of the United Nations has the right, either on the basis of its present criminal law or on the basis of new legislation, to punish its own nationals who became members of the S.A.; S.S.; or Gestapo, irrespective of their rank as members and of the territories in which they served. Each of the United Nations has also the right to punish German or foreign members of the above-mentioned organisations who have committed crimes in their territories'' (emphasis added). The term ''United Nations'' refers to the Allied nations following the adoption of the Declaration by United Nations (signed 1 January 1942). be national courts of the United Nations'', 45 the Commission went even further and noted that the national courts should decide what laws and what procedure were applicable. 46 Given that international law was still developing, members of the UNWCC argued for the importance of national jurisprudence and laws. Dr Radomir Zivkovic´, a Yugoslavian representative on the Commission, stated that: We should recognize clearly, in the first place, that there is no proper international law as there is a national law; and secondly, that there is, in a much lesser degree, an international criminal law. International law as a whole, as I have already said, is still in its infancy; and as regards international criminal law, it has not yet been born.
That is a position we should not forget even for a second, because it leads us to the fundamental conclusion that to think on the lines of national law, and more especially on the lines of national criminal law, in questions that relate to international law, and more especially to international criminal law, is neither an unavoidable necessity nor even a correct process of legal thinking. 47 Looking back to the discussions on complementarity at the UN-WCC, it is clear that the Commission afforded a high-level of responsibility to the National Offices and domestic courts. The Commission sought to assist States, not dictate to them. States had the primary jurisdiction over the prosecution of war crimes.

The Principle of Complementarity and the Creation of an International Court
The UNWCC can also be seen as a precursor to the current structural and statutory relationship between the ICC and State Parties to the Rome Statute. Although not notable in the eyes of the public, the UNWCC actually discussed the idea of an international court to try war criminals. And at the center of this debate was the principle of complementarity. Although national courts were afforded primary jurisdiction, the UNWCC called for close cooperation between the Allied Nations and the Commission. For instance, the Commission stressed that major war criminals, as defined by the Moscow Declaration, should be tried by an international court. On the subject of high-level perpetrators, the Commission stated that: 45 Draft Convention for the Establishment of a United Nations War Crimes Court, Doc. C.50(1) (n 37) 1 (emphasis added); Notes of Unofficial Preliminary Meeting (n 34) 3. 46 Annex VI, Doc. NOC.6 (n 41) 5. 47 UNWCC, Minutes of Thirty-sixth Meeting, Doc. M.36 (17 October 1944) 4 (emphasis added).
The judging of a certain, be it limited, number of the most prominent criminals, such as HITLER, HIMMLER, GOEBBELS, GOERING, MUSSOLINI, CIANO, etc., etc., could take place much better by an International Criminal Court than by any National Court of Law, however high its standing and however undoubted, its integrity might be. It can even be said that the trial of these individuals if it is to give general satisfaction, can and may only take place through the medium of an International Organ. 48 Furthermore, as the Allied courts were unable to try Germans who committed crimes in Germany, members of Commission argued that the creation of an international court would offer a solution; ''[t]he campaign of racial extermination of the Jews has special features which do not generally fall within the scope of the National Offices, as for instance the case of German Jews murdered in Germany''. 49 This same argument for an international court with jurisdiction over high-level perpetrators and over the most serious of crimes is also echoed in the Rome Statute. This point is expressly stated in the Statute's Preamble, as ''the most serious crimes of concern to the international community as a whole must not go unpunished'' and under Article 1 of the Statute, which states that the ICC ''shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions''. 50 The discussions on the creation of an international court followed an earlier debate in 1937 in the League of Nations, which focused on the creation of the Convention for the Creation of an International Criminal Court. 51 Under this Convention, the court would be a permanent body that would deal with willful acts against heads of states, destruction of public property of another State, terrorist activities and war crimes -when a State might ''prefer to surrender 48  that person to an international court''. 52 The Convention aimed to address ''offences of an international character''. 53 However, although the Convention was adopted, it never entered into force. 54 The London International Assembly adopted an initial draft of the proposed court -the Draft Convention for the Creation of an International Criminal Court -in February 1944. 55 In April 1944, the American delegates drafted the Draft Convention on the Trial and Punishment of War Criminals, 56 which took the London International Assembly's Draft Convention into account. 57 According to Mohamed El Zeidy, the Draft Convention on the Trial and Punishment of War Criminals ''retained the jurisdiction of national courts'', and the court was designed to try cases ''where national courts lacked jurisdiction under international law or as a result of a gap in domestic legislation''. 58 Importantly, this draft served as the basis of future discussions on the creation of a war crimes court. 59 The Draft Convention on the Trial and Punishment of War Criminals was redrafted following several recommendations. 60  Recognizing that in general the appropriate tribunals for the trial and punishment of such crimes will be national courts of the United Nations, Mindful of the possibility that cases may occur in which such crimes cannot beconveniently or effectively punished by a national court, Have decided to set up an Inter-Allied Court before which the Governments of the United Nations may at their discretion bring to trial persons accused of an offence to which the Convention applies in preference to bringing them before a national court. 62 As stated earlier, the Preamble to the Rome Statute affirms the same complementary principle, stating that the ''most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation''. 63 Thus, from the earliest stage of the modern drafting process for the Rome Statute, the conveners, knowingly or unknowingly, followed the precedence of the UNWCC and established that the ICC should have jurisdiction over only the most ''serious crimes'', emphasizing national prosecutions. 64  (1 September 1994), Preamble: ''The States Parties to this Statute; Desiring to further international cooperation to enhance the effective prosecution and suppression of crimes of international concern, and for that purpose to establish an international criminal court; Emphasizing that such a court is intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole; Emphasizing further that such a court is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective; Have agreed as follows…''. 65  Most important, and most relevant, to the current complementarity structure of the ICC is the fact that the UNWCC made certain that states that were unable or unwilling to try alleged war criminals could surrender the suspects so as to try them by an international court. The Rome Statute creates the same set of jurisdictional guidelines, which limits the authority of the ICC and ensures that the Court shall not hear a case if the relevant state has made a decision to act. Under the Rome Statute, the ICC gains jurisdiction over a situation if the State is unwilling or unable to carry out an effective investigation or prosecution of a case. 66 The same holds true for the UNWCC.
The Chairman of the UNWCC, Sir Cecil Hurst, stressed that: There was need of both courts, though not simultaneously. The cases so far could all be tried by national courts under the Moscow system; but there was a class of persons who had directed criminal policies on the high-level, or who could not be adequately punished by some national courts, and for them an inter-allied court was needed. 67 This was clearly demonstrated during Commission meetings, as some delegates raised concerns over the inadequacy of ordinary criminal law to deal with violations of the laws and customs of war. The French representative, Professor Andre´Gros, stated that: There is unanimous agreement as to the competence of the national courts; indeed that view is imposed on us by the Moscow Declaration. But there remain to be considered: (b) The criminals whom the governments are unable to punish (owing to the lack of national laws), or whom they do not wish to try in their own courtspreferring to send them before an international court. 68 The British delegates. 70 Although not adopted, the Draft Convention clearly illustrates that the drafters envisaged the principle of complementarity. The Commission recognized that national courts are the courts of choice, and specified that in cases where national courts are unable to deal with certain crimes, the Allied Nations may choose to bring such persons before an international court.

IV THE RIGHT TO A FAIR TRIAL AND THE UNWCC
The covenant right to a fair trial is protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and by other international instruments. 71 Under international human rights law, the accused is entitled to a fair and public hearing, within reasonable time, before an impartial and independent tribunal established by law and has the right to be presumed innocent until proven guilty. Today's fair trial rights also encompass the right to be informed of the charge, the right to legal counsel or the option of selfrepresentation, the right to have ''adequate time and facilities for the preparation of his defence'', 72 the right to trial without undue delay, the right to examine witnesses, the right to understand the trial in a language that he/she understands and the right to appeal. Given that most of the international human rights instruments that protect the right to a fair trial were written after the creation of the UNWCC, it is important to discuss the nature of the right to a fair trial at the time of the Commission's mandate. Judge Patrick Robinson argues that the ''roots of the basic principles of the right to fair trial'' date back to the first written code of laws, Lex Duodecim Tabularum, which was written around 455 BC in the Roman Republic. 73 Elements of the right to a fair trial are also found in the Magna Carta Libertatum (1215), the Sixth Amendment of the United States Constitution (1791), the French Declaration of the Rights of Man (1789) and in the Treaty of Versailles (1919). 74 Therefore, one could argue that the right to a fair and impartial trial was recognized by the Allied nations at the time of the trials.
The UNWCC documents show that 24,760 persons were tried in Europe and in the Far East between the summer of 1945 and March 1948. Of those tried, 71% (17,568) were imprisoned and 8% (1,999) were sentenced to death. This means that 79% (19,567) of those charged were convicted, and that only 21% (5,193) were acquitted. Consequently, I have some concerns over the rights of those accused during the war crimes trials. 75 The Moscow Declaration was a key document for the trial of ''minor'' war criminals, which declared that those who committed crimes will be ''judged and punished according to the laws'' of the countries where the crimes were committed. 76  mention of the rights of the accused in this declaration. The Allied nations were initially divided on the method of punishment for the Axis forces. One option was that those who were guilty of war crimes should be punished without trial. The Russian and British delegates were in favour of the summary execution of military leaders. However, the American delegates resisted this option and insisted that those accused should be given the opportunity to stand trial. 77 The National Offices submitted cases to the Commission, using a prescribed form that asked, ''what will be the probable defence?'' and ''can the offender be put on trial with a reasonable probability of conviction?'' 78 In determining whether a prima facie case existed, Committee I asked, ''is there good reason to assume that if put on trial, the alleged offender would be convicted?'' 79 However, Committee I did not ask whether the suspect would be afforded a fair trial. The fact is that the Committee had neither facilities nor authority to solicit refutable information or evidence from the accused or from those representing the accused. The Committee had to ''rely entirely upon the good faith, accuracy and diligence, of the various member Governments in presenting cases involving bona fide war crimes''. 80 Committee I examined 8,178 cases which listed nearly 37,000 persons. 81 However, only a small number of cases were reconsidered and only three names were removed from the list of war criminals. 82 This clearly indicated the high degree of presumption given to the National Offices.

Review of Fair Trial Standards During the National Trials
Despite the reliance on the National Offices to ensure fair trial standards, it is helpful to review several cases in order to ascertain the rights afforded, if any, to the accused in the minor war crimes trials  There are a number of elements of the right to fair trial that are not discussed in this article, for instance the right to a public hearing, equality before arms, the right to compensation for a miscarriage of justice, and the right to freedom from double jeopardy. Further study that deals with this issue should incorporate these elements to provide a better picture of the fair trial rights of the accused in the war crimes trials. 84  following the end of the war and such anti-Japanese sentiments were not repeated in other cases. 88 From the UNWCC documents reviewed for this article, it is evident that a number of the Allied Nations sought to ensure that the trials did not amount to victors' justice. For example, Dr H. V. Evatt, the Australian Attorney General and Minister for External Affairs, stated that the trials were ''actuated by no spirit of revenge, but by profound feelings of justice to ensure that the next generation of Australians is spared such frightful experiences''. 89 A Canadian Military Court found that: The accused is not to be prejudiced because he is a member of an enemy force and the Court is not concerned with public opinion expressed in the press or elsewhere or with questions of policy or expediency. This is a judicial enquiry conducted according to our conception of justice that is to say, conscientiously and impartially, without fear or favour. sion of the case and produce evidence to support it''. 92 However, the court may Ôproceed in the absence of the accused' if Ôthe accused has applied for and been granted permission to be absent; or if the accused is believed to be a fugitive from justice'. 93 After a review of nearly 600 documents for this article, there was no record of in absentia trials.

Presumption of Innocence
The right to be presumed innocent until proven guilty is a vital element of the right to a fair trial. The Judge Advocate, in Ohashi, stated that ''[t]he Court should satisfy itself that the accused is guilty before awarding punishment…'', but there must be ''consideration by a tribunal…who will endeavour to discard any preconceived belief in the guilt of the accused or prejudice against him''. 94 However, Professor Gavan McCormack has argued that, in the Burma-Thai Death-Railway trials, the presumption of guilt was strong.  97 However, in a number of cases, defense counsel raised the issue that some of the charge sheets were vague, not specific, and often duplicative of the charges. 98

Right to Counsel
The fundamental right to counsel was also prevalent in the trials. Under Regulation 7 of the Royal Warrant, counsel could represent a defendant before British Military Courts, while under Article 5(b) of the Pacific December Regulations the accused was entitled to representation or could conduct his own representation. 99 Similarly, under Article 14(b) of the China Regulations, the accused could represent himself or be represented by counsel of his choice or by a court appointed representative. 100 The United States Military Commission stated that ''[i]f the accused fails to designate his counsel; the commission shall appoint competent counsel to represent or advise the accused''. 101 However, there were issues associated with the right to counsel in some of the trials. For instance, in the Yamashita case ''[t]he only basic protection accorded to the petitioner had been representation by able Counsel: yet this had lost much of its value because of the denial of reasonable opportunity for them to perform their function''. 102 Richard L. Lael argues that given the ''unfamiliarity with war crimes proceedings'', ''questionable decisions'' were made during the Yamashita trial. 103 Lord Wright, Chairman of the UNWCC, also expressed concern over the capability of the defense counsel during one of the trials held in Yokohama, Japan. He stated that the ''defence counsel were much too slow and leisurely in their proceedings and were wasting a great deal of time''. 104 On the other hand, following a review of a number of cases before the Hong Kong war crimes courts, Dr Suzannah Linton found that assistance and time was given to the defense counsel to have documents translated and to locate witnesses and that the courts were patient with Japanese counsel who were unfamiliar with the adversarial system. 105 4.1.6 Adequate Time and Facilities for the Preparation of the Defense With regards to the right to have adequate time and facilities for the preparation of defense, British Military Courts favored an expeditious trial. It was stressed that ''[n]o attempt will be made, of course, to prevent anything being said which is in the interests of justice, but we wish to proceed with the greatest possible speed, because there are large numbers of other persons awaiting trial, and it is unfair that they should be kept in custody without trial longer than can be helped''. 106 The United States Military Commissions ''confined'' each trial strictly to a fair, expeditious hearing on the issues raised by the charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or interference. 107 However, this indict was not always followed. General Tomoyuki Yamashita was the first prisoner to stand trial before the United States Military Tribunal in Manila and General Douglas MacArthur was determined to speed up the trial of Yamashita following orders from Washington to proceed ''without avoidable delay''. 108 As a result, the court instructed the defense counsel to shorten the cross-examination of witnesses and ordered that criticisms of inaccurate translations were not to be discussed in open court. 109 In the Yamashita decision, Mr Justice Rutledge and Mr Justice Murphy both dissented and questioned the applicability of the Fifth Amendment of the United States Constitution to the case and the ''alleged denial of adequate opportunity for the preparation of Yamashita's defence''. 110 Mr Justice Murphy stated that: The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case…No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet [the] petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defence, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. 111 All of this was done without any thorough investigation and prosecution of those immediately responsible for the atrocities, out of which might have come some proof or indication of personal culpability on petitioner's part. 112 By this flexible method a victorious nation may convict and execute any or all leaders of a vanquished foe, depending upon the prevailing degree of vengeance and the absence of any objective judicial review. 113 Mr Justice Rutledge stated that: I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command. 114 It is outside our basic scheme to condemn men without giving reasonable opportunity for preparing defence; in capital or other serious crimes to convict on official documents…; affidavits;…documents or translations thereof; diaries…photographs, motion picture films and…newspapers; or on hearsay, once, twice or thrice removed, more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and crossexamination. 115 4.1.7 Rules of Evidence According to the UNWCC, the rules of evidence applied in minor war crimes trials were to be ''less technical than those governing the proceedings of courts conducting trials in accordance with ordinary criminal law''. 116 The UNWCC stressed that such measures did not 110 ÔThe Trial of Yamashita' (n 102) 2. 111 Ibid.
112 ÔThe Trial of Yamashita' (n 102) 54. 113 Ibid. 114 Ibid. mean that the trial against the accused should be unfair but the Commission did stress that its aim was ''to ensure that no guilty person escape[d] punishment by exploiting technical rules''. 117 Given that many witnesses returned to their homes, disappeared, or died, and the impracticability of transporting witnesses, 118 affidavit evidence was heavily relied on during the war crimes proceedings.
For the British Military Courts, Section 8(1)(b) of the Regulations Annexed to the Royal Warrant allowed for ''any document purporting to have been signed or issued officially by any member of any Allied or enemy force or by any official or agency of any Allied, neutral or enemy government, [to] be admissible as evidence without proof of the issue or signature thereof''. 119 The Regulations Annexed to the Royal Warrant also stated that a military court was permitted to ''take into consideration any oral statement or any document appearing on the face of it to be authentic, provided the statement or document appears to the court to be of assistance in proving or disproving the charge''. 120 Similarly, under Section 16 of the Regulations Governing the Trial of War Criminals, the United States Military Commission allowed the admission of any evidence which ''would be of assistance in proving or disproving the charge'', 121 ''without any of the usual modes of authentication''. 122 It was the Court's duty to determine the weight of the evidence. However, various defendants complained that the use of affidavit evidence meant that they were unable to cross-examine witnesses. 123 The UNWCC also supported the admission of hearsay evidence, as the war crimes trials were not held before lay jurors, but before judges who were capable of assessing the weight of the evidence before them. 124 A number of scholars have now accessed the overall evidentiary approach advocated by the Commission and their conclusions are mixed. For instance, Professor Gavan McCormack has argued that, in the Burma-Thai Death-Railway trials, the ''standards of proof were low…and the rules of evidence were applied to make a heavy burden for [the] defence''. 125 Arujunan Narayanan evaluated the fairness of four trials before the British Military Courts in the Far East; the Penang Kempetai case, the Double Tenth trial, the trial Gozawa Sadaichi and Nine Others and the Singapore Chinese Massacre trials. 126 Narayanan found that, in general, the trials were conducted fairly. However, there were issues relating to the admission of affidavit evidence and the subsequent lack of cross-examination. 127 An Australian military lawyer, Major George Dickinson argued that the relaxation of the rules of evidence for the Australian war crimes trials demonstrated ''the apparent intention of depriving an accused person of the safeguard recognized by reasonable men and eminent lawyers as the basis of a fair trial in the Western World''. 128 However, in the Hostages trial, the United States Military Tribunal stressed the right to a fair trial in relation to admittance of evidence and stated that: Any other interpretation would seriously affect the right of the defendants to a fair and impartial trial. The interpretation thus given and consistently announced throughout the trial by this Tribunal is not an idle gesture to be announced as a theory and ignored in practice -it is a substantive right composing one of the essential elements of a fair and impartial adjudication. 129 4.1.8 The Right to Comprehend Court Proceedings Considering the complexity of the cases and the diversity of nationalities among the accused, the right of the accused to understand the pro-  130 During the Belsen trial, held before a British Military Court, the Judge Advocate ''advised the Court that he did not think that anybody should waive the rights of a person who did not understand a language when serious accusations of fact were being made''. 131 Therefore, the evidence of a German witness was translated into Polish, so the defendant and his counsel could fully understand the testimony. However, Dr Taseusz Cyprian, a Polish representative on the Commission, noted that, during the Belsen trial, the defence ''were greatly hampered by the necessity of relying on interpreters''. 132 In the Scuttled U-Boats case, which was also held before a British Military Court, the defending Counsel sought the translation of the entire proceedings into German and expressed that the defense would address the Court in a language understood by the defendants. However, the Judge Advocate stressed that ''the language of the Court is English'' and, therefore, the Court would not normally be addressed in German or another language. 133 The Royal Warrant did not contain ''any express provision'' as to the language of the British Military courts or to the language in which the court should be addressed. However, the UN-WCC noted that the rules of procedure followed in British war crimes trials are in general those followed in English civil courts. 134 These two cases suggest that there were some inconsistencies in the way in which courts viewed the right of the accused to comprehend court proceedings.

Punishment
Those defendants who were convicted in the national trials were punished in a variety of ways. In reviewing the documents, it was clear that the defendants were sentenced to death (by hanging or by shooting), sentenced to life or shorter-term imprisonment, or instructed to pay a fine. The documents, however, show that the war crimes trials issued inconsistent sentences. For instance, Narayanan noted that there were disproportionate sentences in the British trials of Japanese war criminals in Malaya and Singapore. 135 The case of Yamashita, where the defendant was sentenced to death before the United States Military Tribunal, has been referred to as Ô''legal lynching''. 136 On the other hand, an Australian Military Court found Takehiko Tazaki guilty of cannibalism and of mutilating the dead and commuted his death sentence to only five years imprisonment with hard labor. 137 By the spring of 1947, there were calls within the British Parliament and press for the end of war crimes trials and the release of certain German war criminals due to the time that had elapsed since the capitulation of Germany. There were also reports that doubted the level of justice of the war crimes trials and the treatment of detainees held in custody. 138 For example, thousands of Japanese citizens and Christian organizations called for the release of Japanese war criminals who were viewed as ''sacrificial scapegoats for a war that all right-thinking people now deplored''. 139 Following the policy of rapprochement and appeasement with Japan and Germany after the end of World War II, many of those imprisoned received a reduction in sentence and were repatriated to Japan. By the late 1950s, there were no Japanese war criminals serving sentences that had been imposed by the various war crimes courts in Hong Kong. 140 cused. 147 Under Dutch law concerning the trials of war criminals, the accused had the right to appeal in cassation if the defendant was sentenced to death or to more than six years in prison or if the prosecution made an appeal in cassation. 148 Before the Polish Supreme National Tribunal, which tried persons accused of war crimes, those who were sentenced to death had the right to appeal for mercy to the President of the National Council. Appeals of the judgments of the Supreme National Tribunal were not allowed, as the decisions were final. However, a resumption of the trial was allowed in certain circumstances. 149 The UNWCC documents have demonstrated that a number of defendants filed petitions and appeals against their findings and sentences. However, further investigation is needed to determine whether those convicted were provided with the opportunity to appeal judgments and sentences and whether their petitions were fairly considered by the higher authorities.

V CONCLUSION
The UNWCC was seen as an arbitrator and as an advisor for the States who sought to hold war criminals accountable. The UNWCC delegates also acted as observers as they attended various trials, such as the Peleus trial, the Belsen trial, the Dachau trial and the Mauthausen trial. 150 For instance, Lord Wright, Chairman of the UNWCC stated that, during the Belsen trial, he ''occupied the seat marked for the British observer and could observe and admire the fairness of the trial, though [he] noted, as in other such cases, that fairness was not generally compatible with expedition''. 151 However, given that Lord Wright later stated that ''all the accused were entitled to was a fair trial and that they got'' 152 and that only 21% of persons were acquitted, begs the question of whether the UNWCC acted as an arbitrator in relation to fair trial rights.
I would argue that the UNWCC was responsible for advising Allied governments on matters of a technical nature. This included the type of tribunals to be employed for trying war criminals, the relevant substantive and procedural laws to be adopted, and the rules of evidence to be followed. 153 Therefore, the Commission should have been responsible for securing the rights of the accused in all aspects of the war crimes trials. Following a review of nearly 600 documents, I was unable to locate detailed information on the number of trials where the UNWCC delegates attended.
It is evident, however, that national trials did provide for various fair trial protections that are present in current international human rights instruments. This finding is consistent with the position taken by the UNWCC. The UNWCC argued that the ''basic elements of a fair trial'' for the accused were regularly stressed by the domestic systems. 154 In a report submitted to the United Nations Economic and Social Council, the UNWCC provided a detailed study of human rights, including a survey of the rights of the accused, in the trials of war criminals. The Commission recorded the characteristics of a fair trial before the national courts and noted the attempts of the national courts 155 to provide fair trial rights for the accused. In relation to the trials held by the Allied nations, the UNWCC reported that: The rules relating to evidence and procedure which are applied in trials by courts of the various countries … when viewed as a whole, are seen to represent an attempt to secure to the accused his right to a fair trial while ensuring that the guilty shall not escape punishment because of legal technicalities. 156 It is interesting to note that Lieutenant General Ito Takeo, who was sentenced to 12 years imprisonment, stated that he originally worried about the procedure of the court but ''began to feel more at ease with the President and the members of the Court because of the way the trial has been conducted''. 157 The defense counsel in the Gozawa Sadaichi trial also expressed that the court had conducted the trial with ''scrupulous fairness and impartiality''. 158 Linton argues that the British Military courts in Hong Kong were not ''kangaroo courts'' and that courts offered a ''broadly fair trial in difficult circumstances''. 159 154 Law Reports of Trials of War Criminals (Vol. III) (n 145) 189. However, given that there are still hundreds of documents that need to be reviewed, and that some documents remain unavailable for inspection, future scholars should accelerate their efforts to review the documents and examine the rights of the accused in greater detail. Regardless of the extraordinary efforts of the UNWCC to bring to justice those who committed heinous crimes during the War, its success can only be affirmed if the trial proceedings were fair to the accused. In light of the fact that various commentators have challenged the fairness of the minor war crimes trials, further examination of the documents released, and those that remain classified, will shed light on the fairness of the trials as a whole.
Notwithstanding the final judgment on the fairness of these trials, there can be no doubt that the UNWCC played a significant role in the development of international criminal law. The debates among the delegates on the primary jurisdiction of the national courts and the creation of an international court mirror the debates that would occur years later during the creation of the ICC. The principle of complementarity, which is the cornerstone of the Rome Statute, undeniably has its roots in the mission and aspirational goals of the UNWCC.

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