Behind the Headlines Unlocking UN War Crimes Files

Yad Vashem researchers who have examined 300 files from the United Nations War Crimes Commission (UNWCC) archive have discovered a significant body of new information on the Holocaust, including lists of people who ran the camps, official reports previously unknown detailing Nazi policy on European Jewry and the camps, and new information on Nazi medical experiments.

Yad Vashem researchers also noted that the files are especially valuable to English-speaking researchers because they are a rare source of first-hand information on the Holocaust in English.

The researchers concluded that maintaining the current level of confidentiality of the files seriously hinders research, publication and dissemination of this information and consequently impedes a more accurate record of the Holocaust and Nazi era.

Greater access to the files would also assist government agencies seeking to locate and prosecute Nazi war criminals by providing new legal documentation and new evidence, the Yad Vashem researchers found.

Despite the findings which indicate the immense historical value of the archive, its 40,000 files on suspected Nazi war criminals and witnesses remain closed to the public, press and historians because of the UN Secretary General’s reluctance to amend the access rules set down four decades ago.

LEGAL AND MORAL QUESTIONS RAISED

The archive first came to the attention of most Jewish organizations and the Israeli government after the World Jewish Congress (WJC) revealed last year that one of the files charged then Austrian Presidential candidate Kurt Waldheim, the former UN Secretary General, with war crimes.

Since this discovery, legal and moral questions about barring public access have been raised while others have puzzled over how this vital source of war crimes evidence escaped notice for so many years.

In spite of demands by the Israeli government and Jewish groups to open up the archive, the UN Secretariat and legal advisors have decided to maintain limited access for UN member governments only. The regulations keep the files effectively closed to researchers, journalists and historians, locked away in a Manhattan basement that houses the UN Archives.

ORIGINS OF CONFIDENTIALITY EXPLAINED

The Swedish UN Chief Archivist, Alf Erlandsson, who has been caretaker of the UN Archives since 1971, explained the origins of the confidentiality over the war crimes files.

About 80 percent of the material in the UNWCC archive has never been secret and is available to the public, Erlandsson said. The unrestricted part includes the memos, minutes and general descriptions of the commission’s work from 1943 to 1948.

The other 20 percent of the archive holds some 40,000 charge files on individuals, 25,000 of whom the commission accused of war crimes and recommended be prosecuted. It is this slice of the pie which became the subject of controversy in the spring of 1986.

Before disclosure of the Waldheim file, Erlandsson said, there was a minute amount of interest in the archive or rules governing it. But that changed with the publicity over Waldheim.

When the UN became custodian of the archive in 1949, the then Secretary General Trygve Lie and his legal advisors decided that the sensitive charge files should be available for “UN purposes only,” which came to be interpreted as for UN member governments only. Access for private persons or groups was strictly prohibited.

NO TIME FRAME FOR DECLASSIFICATION

Unlike most UN material which became declassified after 20 years, the UNWCC charge files have remained secret for 38 years. Erlandsson explained that because the commission did not set a time frame for declassification when it deposited the material, it remained classified indefinitely.

The Israeli government has asked the current UN Secretary General, Javier Perez de Cuellar, to grant public access.

“Whom does this confidentiality protect?” asked Eyal Arad, a spokesman for Israel’s UN Mission. “The worst criminals in history. There was an international consensus that these people should be prosecuted.”

UN legal advisors and international law experts agreed that the Secretary General has the authority to alter the access rules. It was, after all, his predecessor, Lie, who laid down those rules in 1949.

UN Senior Legal Advisor Alexander Borg Olivier said, “The Secretary General definitely has the power and authority to change the rules… But he has to consider the political consequences and respect the views of those most interested.”

REASONS FOR CONFIDENTIALITY STILL VALID

Oscar Schachter, professor emeritus in international law at Columbia University and a former UN legal counsel, concurred. “It is certainly within the UN’s authority to meet unforeseen conditions in general keeping with its objective to make the (UNWCC) materials available to people and bodies they are relevant to,” Schachter said.

There is some reluctance because, according to Olivier, the reasons for confidentiality cited in 1949 are still valid. One reason, Olivier said, is that the majority of the persons accused in the charge files have never been brought to trial nor undergone a judicial review. Most do not even know of the charges against them.

Olivier added that the commission returned the bulk of evidence used in its evaluations to the member governments that provided it. For these reasons, “It would be most unfair to make the information public,” he said.

But UN legal advisors also considered the public interest in the archive. They reasoned that enough time had passed to declassify the materials, Olivier said.

Also, a master list of names of persons in the charge files and their UNWCC rating (war crimes suspect, accused, witness) is publicly available in the U.S. And finally, Olivier said, “Why restrict access to the public if governments already have it?”

Faced with Israel’s request, de Cuellar called a meeting of the 17 countries represented originally in the UNWCC although many of the governments involved are radically different from the governments that made up the commission some 40 years ago. Regardless of this historical gap, the 17 representatives met last October 28 at the United Nations in New York to discuss a possible revision. The vote, according to Olivier, was 15 against, one for moderate revision, and only one, Australia, in support of Israel’s request to abandon the confidentiality.

Last week, the United States, Holland and Yugoslavia reversed their positions and are now supporting Israel’s request, according to Israel’s UN Mission.

“The governments cannot understand why there is this demand to open it,” Olivier said. “There is consensus that it would do more damage than good. After all this time it’s more important to protect the innocent than uncover matters that have not come up before. The information is available to governments.”

THE REAL QUESTION

But for many, the real question is how and why this vital source of information on Nazi war crimes went unnoticed for four decades.

Erlandsson pointed the finger at the governments who knew about the files and the existence of the archive, the same governments that sent representatives and evidence to the UNWCC.

“The War Crimes Commission was not involved in prosecuting,” Erlandsson said. “Especially the requests from Czechoslovakia and Poland to extradite people went unanswered because the cold war had already started and the West was reluctant to send anyone over to the East,” he said.

Both Arad and Olivier agreed there was a significant loss of interest in prosecuting war criminals on the part of the international community, and thus the archive escaped the attention it merited.

Although the Waldheim case has brought the attention of the Western world back to the Nazi era, it may be too late for justice in many of the cases. Israel has requested 2,000 additional charge files. Erlandsson, who prepared the 300 files for Israel, said he estimated that about 80 percent of the people named in the charge files have died.

“It’s a bit of a tragedy that only now the archive is being discovered,” Erlandsson said. “Twenty years ago, it would have been of considerably more value.”

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