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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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The Finnish War-Responsibility Trial in 1945–6

The Finnish War-Responsibility Trial in 1945–6

The Limits of Ad Hoc Criminal Justice?

Chapter:
(p.430) 21 The Finnish War-Responsibility Trial in 1945–6
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Immi Tallgren

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0021

Abstract and Keywords

This chapter examines the Finnish war-responsibility trial in 1945–6. The trial demonstrates the difficulty of the national exercise of jurisdiction based on an international obligation; how limited and contingent the instrument of criminal justice may prove to be in elucidating historical contexts or addressing collective loss; and the far-reaching and powerful effects criminal trials.

Keywords:   Finland, war crimes trials, international criminal law, criminal responsibility, jurisdiction

(I) Global and Local Histories

(1) Tell me a story

The story of the Finnish war-responsibility trial in 1945–6 may be untold elsewhere, but in Finland it is difficult to hide from that part of history.1 The trial has remained a sore point, at any time susceptible to controversy and vivid emotions. For some of the contemporaries, the trial was part of the preparation for revolution, behind which the whole of international communism was mobilized.2 For others, criminal responsibility was simply evident and the absence of pre-existing national legislation on the crimes a detail.3 In the midst of the claims on violation of the legality principle, victors’ justice or national political vengeance, the story of the trial became a battlefield of political, ideological and generational conflicts and identification.4 Commentaries, legal actions and political motions have proliferated (p.431) throughout the decennia. Recently, an annulment claim in the Supreme Court of Finland, followed by a complaint in the European Court of Human Rights, brought the trial into the limelight again.

In this sense, the story of the Finnish trial situates its narrator directly in the middle of the questions of (collective) memory and its politics: what does the memory of the trial represent and to whom? Why does the story of this trial matter so much? Likewise, the teller is confronted with the discussion on the judicial treatment of (legal) history: can the past be redone, improved the second time? How should today’s democracies look back to legally deficient past trials, if at all? Should controversial judgments be annulled or public apologies presented, as is frequently proposed in Finland? What messages would the annulment or excuse send to the society concerned? What would it tell about that society?

This is clearly one important way to look at the Finnish story, and this chapter will address it. Another way to make sense of telling this story today, in 2013, is to search for lessons for the current international criminal justice project,5 of which today’s Finland is one of the most unconditional supporters. This approach situates the story in our current interrogations on the legality and rationality of ad hoc or hybrid trials, as well as on the complementarity of national jurisdictions and the International Criminal Court (ICC). Generally in that project, a criminal trial is seen both as an accomplishment as such, and as having the potential of delivering positive results. This chapter examines this assumption in the context of the Finnish trial that we could—stretching our imagination and tolerance to anachronism—see as a predecessor of a national trial replacing an international one in the spirit of complementarity. But let us start at the beginning.

(2) Of a tiny, young state in world wars from 1939 to 19446

The winter had been frightful; the terrible cold, hunger, hardships and toil had shrunk the faces of the Finnish people. The hard, bony features of the Kalevala heroes, as painted by Gallen Kallela, were showing again in the pale fleshless faces.7

(p.432) In 1938, the Soviet Union, threatened by Germany, started to pressure Finland with territorial claims to gain space for its defence, in particular to protect the city of Leningrad. After failed negotiations conducted under tense circumstances and repeated threats on Finland’s territorial integrity, the Soviet Union attacked Finland in November 1939. Finland was requesting help from its Nordic neighbours and beyond. It received mainly moral or political support, including the exclusion of the Soviet Union from the League of Nations. Promises of military help by the UK and France did not materialize.

Finland’s army was small, unprepared and poorly equipped compared to the Red Army, but managed to defend its territory longer than expected. However, by the end of February 1940 Finland was at the point of military collapse. On the Finnish side, some 26,000 military were dead or missing, and 44,000 wounded. On the Soviet side, 127,000 military were dead or missing, and 190,000 wounded.

Finland and the Soviet Union concluded the Moscow Peace Treaty in March 1940.8 The conditions of peace were considered extremely hard by the Finns, forcing Finland to cede some eleven percent of its territory and some thirty percent of its economic assets, to accept a Soviet military base on its coast, and to evacuate and resettle over 400,000 persons from the lost territories.

Despite the peace treaty, the Finnish government continued to keep the army on war alert, referring to the tense situation in the widening Second World War. It undertook important fortification and rearmament projects. As a result, Finland’s military preparedness was remarkably higher soon after the Winter War than before it.9

Establishment of good relations with Germany became a priority for the government, while the relations with the Soviet Union were tense, with several minor conflicts arising from the implementation of the peace treaty. In September 1940, an agreement with Germany was concluded, granting troop transfers in Finland to supply the German troops in Northern Norway. At the latest in spring 1941, Finland was negotiating its participation in Germany’s war effort on the Finnish front and thus preparing for the war that was generally considered as a continuation of the Winter War, and by many as an opportunity for seeking compensation for the losses of it.10

The Continuation War started in June 1941. By September, Finland had reached its previous borders. In Eastern Karelia, it crossed the pre-war borders and occupied areas that had never been part of the Finnish territory, but were populated by peoples linguistically related to Finns.11 Occupation of these territories meant (p.433) interning a significant number of Soviet civilians of mainly Russian or Ukrainian origins in concentration camps. The total death toll amongst camp inmates is estimated at 4,000–7,000. The treatment of civil population considered as representatives of the kindred peoples of Finland was preferential in the occupied territories.

Occupation of the Soviet territories was condemned by several states previously on friendly terms with Finland. The widespread international empathy Finland had benefited from as the tiny victim of the Soviet aggression in the Winter War started to fade away. This development isolated Finland internationally, thus making it even more dependent on Germany for food and military supplies. A further point of international criticism was the treatment of Soviet prisoners-of-war (POWs). Some thirty per cent of the estimated 64,000 Soviet POWs died in Finnish prison camps.12

After a two-and-a-half-year standstill in the hostilities, during which Germany’s future defeat started to become evident, the Soviet Union intensified its counter-offensive in summer 1944. It drove the Finns back to behind the 1940 borders and forced Finland to accept an armistice. Finland had lost 63,000 military and some 160,000 were wounded. On the Soviet side, some 200,000 military were dead or missing, and almost 400,000 wounded.

The Moscow Armistice between the Soviet Union and the UK with Finland in September 194413 meant ceding Finnish territories even further than in the 1940 peace treaty, as well as massive reparations to be paid to the Soviet Union, the dismantlement of Finnish ‘fascist-minded’ organizations and the handing over to the Soviets various categories of persons. Most importantly, the Armistice obliged Finland to actively disarm and remove German troops from Finland. In the Lapland War between Finland and Germany that followed from this obligation in 1944–5, Northern Finland was devastated. The Paris Peace Treaty in 194714 confirmed the conditions of the Moscow Armistice.

(3) Of how stories matter

Soldiers! The ground you are stepping on is holy ground, impregnated by the blood and suffering of our people. Your victories will free Karelia, your accomplishments will bring Finland a great, happy future.15

(p.434) One of the most controversial questions in recent Finnish history deals with the character of the Continuation War: was Finland an ally of Nazi Germany or merely fighting a ‘separate war’ on the side? Proponents of the latter maintain that while participating in the German invasion of the Soviet Union in 1941 (Operation Barbarossa), Finland was solely engaged in its own fight to restore the injustice and the lost territories of the Winter War. In Finland, the ‘separate war’ has been part of the dominant narrative about the geopolitical and historical context of World War II (WWII).16 Finland was victim of the 1939 aggression by the Soviet Union, and the following years of WWII are seen in this light. The situation was simply too difficult for a young, tiny, pacific state caught in the middle of two dangerous giants: its communist neighbour, the Soviet Union, and its historical, cultural ally Germany, now ruled by an aggressive dictator. There were no alternatives to the Continuation War: it was a political necessity, a battle for survival. In this light the war begins to look like self-defence since, the argument goes, the Soviet Union (or Germany) would have attacked Finland in any case.

To support this narrative of a separate war, it is often stated that Finland did not sign the Tripartite Pact, unlike the Axis Countries (of course, the Tripartite Pact did not as such contain any obligation to fight a common war). Finland adhered to written and oral agreements on practical cooperation with Germany and de facto acted as its ally, allowing, for example, for the presence of some 200,000 Wehrmacht soldiers in Finland. Based on this, it has been maintained that as a military ally Finland’s position can be qualified as an independent co-belligrent of Germany, not decisively different from Hungary, Italy or Romania.17

The idea of a ‘separate war’ also tacitly emphasizes that for Finland’s part, the war was ‘as clean as warfare could be’.18 Finland was neither a totalitarian dictatorship like Nazi Germany, nor involved in formulating its imperialistic territorial objectives or its ideology of racial dominance aiming at destruction of others. It is commonly maintained that the Finnish government or administration refrained from the extermination campaign against Jews. While notorious examples of deplorable treatment of foreign Jews, either as refugees or Soviet POWs in Finnish custody, exist19, Jewish citizens of Finland were in general well integrated in the society and not discriminated against, including in the army.20 As a result, Finnish (p.435) Jews fought in the Finnish army together with the Germans in the Continuation War.21 A few Finnish Jews were granted German decorations for their acts in the front, but declined to accept them.

A few post-war studies and some recent ones have criticized the ‘separate war’ narrative.22 Other studies suggest that the walls separating Finland from its Nazi ally in military and executive activities may not have been as water-tight as is often maintained.23 This chapter is neither intended nor equipped for taking a position in this debate. These controversies are evoked simply because they have a decisive effect on the way the object of our story—the war responsibility trial—is seen in Finland: if the war was separate and ‘clean’, why did the Allies insist on trials in Finland, just as in the Axis countries? While keeping these sensibilities concerning the Continuation War in mind, we will now turn to the trial itself.

(4) Of the law establishing the Tribunal and criminal responsibility

We will take the matter out of its own hands, the list of accused will be prolonged, and the punishments hardened.24

The Moscow Armistice between the Soviet Union and the UK with Finland in 1944 stated in Article 13: ‘Finland shall co-operate with Allied Powers to arrest and pass judgment on those accused of war crimes’. The Finnish leadership understood the obligation to concern prosecution of conventional war crimes only.25 As (p.436) the Allies developed their plans concerning the ‘major war criminals’ of the Axis, they made it clear that they expected the highest leadership of wartime Finland to also face criminal liability for the war of aggression.26

The Allied Control Commission, established to supervise the implementation of the Armistice in Finland, exercised considerable influence. Throughout its activity, the leadership and power of the Allied Control Commission were in Soviet hands, and the British members of the Commission were not always informed of events. When they were, even if only retroactively, they generally supported the Soviet position. They explicitly made the Finns understand that any hope of more favourable treatment from the Western powers was futile.27

The Allied demands for a trial created public controversy in Finland. Parliamentary questions, authoritative legal opinions and committee reports addressed the issue.28 Overwhelmingly, the impossibility of such retroactive criminal trials in Finnish law and legal tradition was highlighted. However, there was also internal political support for them, demanding the clarification of political and legal responsibility for the war.29 The Allied Control Commission’s impatience with the Finnish Government culminated in the approval of the London Agreement of 8 August 1945, containing the Charter of the International Military Tribunal (IMT). As a reaction to the escalating external and internal pressure, two weeks later the government presented the draft law on the responsibility for war. The Government threatened to step down if the Parliament failed to adopt it.30

The draft law established the criminal responsibility of individuals having, as part of the Government, ‘in a significant manner contribut[ed] in Finland’s engagement in the war…or prevent[ed] peace’ in 1941–4. With the explicit temporal limitation included in the law, the trial could address the Continuation War of 1941–4 only. The preceding Soviet attack on Finland and the Winter War of 1939–40 were left outside its scope. The draft law created a special tribunal to conduct the trial, consisting of the presidents of the Supreme Courts, a law professor from the University of Helsinki and twelve Members of Parliament (MPs) appointed by the Parliament. The prosecution was to be carried out by the Chancellor of (p.437) Justice. There was no mention of a right of appeal, but amnesty was possible. The draft law contained no reference to the context of the war, in the sense of Finland having fought as an ally of Nazi Germany. The Chairman of the Allied Control Commission later referred to this tactful omission as a sign of the extraordinary tolerance accorded to Finland in letting it organize its own trial.31

The special character of the draft law was made evident in the government bill in two main aspects. Firstly, the law was to be adopted according to the special legislative procedure for the enactment of constitutional legislation (where a regular law is considered to deviate from the constitutional order). In essence this means applying the highest qualified majority voting rule (five to six). According to the bill, the deviations concerned the constitutional prohibitions of retroactive criminal law and of establishing special tribunals. Secondly, the bill, as well as the preamble of the draft law, made direct reference to Article 13 of the Moscow Armistice, thus positing the international legal obligation binding on Finland as the reason behind the proposal.

Serious controversies persisted throughout the parliamentary procedure. Many concerned retroactivity: the draft law created the tribunal, established penal responsibility, and defined the crimes ex post facto. The government bill proposing the law acknowledged this retroactivity but referred to the example of the IMT Charter to argue that the responsibility for war could now entail individual criminal responsibility.32

Opinion was divided. The Supreme Court, following a request from the Constitutional Law Committee of the Parliament, declared that the draft contained so many fundamental deviations from the Constitution and the general principles of law that it could not be regarded as compatible with the Finnish legal order.33 The Court observed that Article 13 of the Armistice referred to ‘war crimes’ that the IMT Charter defined as a separate category (Article 6(a)) from the ‘crimes against peace’ (Article 6(b)). The wording of Article 13 on ‘war crimes’ could therefore not also cover the ‘responsibility for war’ of the Finnish draft law, which was more properly understood as a ‘crime against peace’ according to the logic of the IMT Charter.

A professor of constitutional and international law of the University of Helsinki, Kaarlo Kaira, argued that the wording ‘war crimes’ in Article 13 of the Armistice had to be interpreted in a restrictive manner, to include only crimes against the laws and customs of war, although a broader interpretation could not be totally excluded. The London Agreement was not binding on Finland, since it was concluded after the Moscow Armistice. Professor Kaira emphasized that although the London Agreement dealt with those guilty of aggressive war, this type of individual responsibility was novel in international law and should therefore be interpreted narrowly. The Constitutional Law Committee concluded that the London Agreement and the responsibility for crimes against peace concerned (p.438) the leadership of the Axis only; it could not be applied to the political leadership of Finland.34

Just before the decisive vote in the parliament, the Allied Control Commission published its view on the validity of the draft law in the major newspapers. It claimed that the Constitutional Law Committee and the Supreme Court had interpreted Article 13 of the Moscow Armistice erroneously and arbitrarily. It further argued that the Moscow Armistice superseded any contradictory Finnish legislation and therefore sufficed in itself as a necessary basis for the trial of leaders.35 The parliament finally accepted the logic of political necessity behind the government proposal and adopted the law with votes 129 to 12.36 The President ratified the law on 12 September 1945. The nomination of the members of the tribunal, pre-trial investigations and the preparation of the charges began shortly thereafter.

(5) Of how some characters are given a special role

Backs were turned to eight men, of whom we knew that they had tried their best for their nation. Their services were compensated by hard labour and prison.37

The exceptional character of the trial is demonstrated by the fact that the indictments were made by the Council of State, and the prosecution was led by the Chancellor of Justice. The scope of the accused and the details of the charges followed in large terms the approach of the first investigatory committee in the matter, but in the subsequent investigations the minister of justice in person exercised an important role.38 The war-time President Risto Ryti, six members of the government and the ambassador in Berlin were prosecuted, but the military leadership was left out of the scope of the prosecutions entirely. The Allied Powers, in particular the Soviet Union, played an important role in determining the scope of the prosecutions. This may have been most obvious in the decision not to indict wartime hero and post-war president, Mannerheim.39

The prosecution detailed the charges in seven counts.40 The first two covered the acts of engagement in the war: having left the country in a state of war alert after the Winter War; having allowed the German forces to trespass and to settle in Finland; having de facto given a declaration of war to the Soviet Union; having (p.439) occupied the territories lost in the Moscow Peace in 1940; and, having penetrated into and occupied territories in Eastern Karelia beyond previous borders. The third count covered government conduct in relation to the state of war with the United Kingdom.

The three first counts comprise conduct that falls under ‘crimes against peace’ according to the London Charter. The latter four counts concerned the ‘preventing peace’ part of the tribunal’s material jurisdiction (see above). This was interpreted by the prosecution as consisting of decisions or acts having caused Finland to stay in the war from 1941 to 1944 despite several opportunities to seek a separate peace settlement.41

This understanding of crimes against peace as consisting also of acts of preventing peace departs from the definition of the Nuremberg Charter and appears to be a Finnish particularity. It can be questioned whether this special approach resulted from the efforts of the Finnish legislators and prosecution to make the crime against peace retroactively fit the events in the predefined period of 1941–4. Since the circle of government members that were publicly singled out by the Allies and the government as guilty of war—those planned to be prosecuted—had actually entered the government only after the decisive steps of engagement to war, the way to target these individuals was to include in the indictment acts committed after the start of war in 1941 as well.

(6) Of a trial with the big bad wolf

Finland had to be declared the aggressor, and the Soviet Union had to be pictured as a peace-loving, violated victim of an unjustified attack.42

The trial was conducted exclusively by the Finns, but the Allied Control Commission exercised considerable influence and interfered at numerous occasions in the work of the tribunal. Its members—the presidents of the two Supreme Courts, a law professor from the University of Helsinki and twelve MPs appointed by the Parliament—worked under heavy pressure, and at least two of the MPs have been, in later analyses, considered biased and sources of leaks of secret deliberations of the tribunal. The trial was public and the accused had defence attorneys but the defence did not have access to all files it requested and was allowed to present the defence to a limited extent only.43 As a result, no references to the (p.440) preceding Winter War were allowed, although the war and the harsh Moscow Peace Treaty of March 1940 were part of the context in which the subsequent acts leading to the Continuation War took place.

Major incidents of interference with high tensions between the Control Commission, the Finnish government and the tribunal occurred. The decision of the tribunal to set four of the accused free was a red rag to the Soviet chairman of the Allied Control Commission, Zdanov. In response to his virulent protestations, he succeeded in persuading the tribunal to reconsider its decision, and all but one were arrested again.44 Zdanov also strongly criticized the soft and courteous ‘club-like’ way the trial proceeded. The accused were allowed to interact with members of the public while entering and leaving the courtroom, receiving expressions of support, and were addressed respectfully with their previous official titles. Some restrictions were introduced at his request.

The most flagrant interference by the Allied Control Commission concerned the judgment itself. The Commission had previously signalled its expectations as to the gravity of the sentences. The draft version of the judgment was leaked to the Commission two days before it was due to be declared. The draft convicted seven of the accused to prison sentences ranging from two to eight years, and acquitted one (the ex-ambassador in Berlin). Early one Sunday morning chairman Zdanov presented himself at the home of the prime minister and angrily protested against the fact that the Commission had not been consulted on the judgment. He criticized the lack of control by the Finnish government over the proceedings and requested that the announcement of the judgment be postponed. He referred to his instructions from the highest military leadership of the Allies. The British also exerted pressure on the Finnish government to have the sentences toughened. The government took these interventions very seriously and passed them on to the tribunal both formally and informally. After painful manoeuvres amongst the members of the tribunal to satisfy the demands of the Commission, the judgment was rewritten.45 In the revised judgment, all the accused were found guilty. The most severe sentence was given to the war-time President Risto Ryti—ten years’ hard labour. The other accused were sentenced to prison sentences from two to six years. The ambassador acquitted in the original judgment was now condemned to five years in prison.

(7) Of ‘real persons going to real prisons’46

This is the most noble deed I have been involved in in the last five years…it partly gives redemption to the shameful act…that we felt obliged to commit in 1945.47

(p.441) The enforcement of sentences took place in a prison in central Helsinki. The condemned had material conditions of relative comfort, considering the general deprivation and shortages in the post-war period. Generous food packages and other material support arrived at the prison in a regular manner. The condemned were allowed to wear civilian clothing and had opportunities for sport and socializing. They used most of their time for literary and scientific work, and one convict drafted legal expert opinions on command. Dozens of books were published by the convicts. Most of the work undertaken by them was remunerated.48

As soon as the Allied Control Commission left Finland in September 1947, paroles and pardons of the sentences began, in accordance with the law in force at the time. The last group of condemned were pardoned by President Paasikivi in May 1949, including the President Ryti, who was hospitalized with a serious illness.

Those former convicts who were in good health were integrated back into society. Expressions of respect and new professional opportunities were presented to them. They received academic honours and leading posts in academia. Two of them were re-elected as members of parliament. One regained his position as the chairman of the social-democrat party. When President Ryti died in 1956, he was given a state funeral. Huge crowds of Finns followed the funeral. Most of the condemned are buried in the national honorary cemetery in Helsinki.49

(II) Today’s Eyes on the Past

(1) Sixty-five years of controversy

If it is a crime to love one’s home country and people more than one’s own right to life, condemning [president] Risto Ryti has been just. If one regards it as a virtue, a judicial murder has been committed against him.50

The political and legal polemics surrounding the Finnish war responsibility trial have remained vivid since 1945. The trial has been subject to a wealth of publications, political activity such as parliamentary motions and public statements, and, on several occasions, judicial action (appeal claims to the Chancellor of Justice, extraordinary appeals, as well as a complaint to the European Court of Human Rights (ECtHR)).51 In this climate, a new episode suffices to revive the public discussion and the controversies: Was the entire trial actually orchestrated by the domestic left and centre, without any real international obligation or pressure (p.442) behind it, as a recently published study claims?52 Should the judgment be annulled, or simply accepted as a political necessity of its time?

In this context, successive Finnish governments, the judiciary, academia, media and the public have been wrestling with the same questions of memory, history and justice as known in many other states.53 Firstly, how to relate to history by legal means? This question typically appears in the form of how far in history does it make sense to hold a criminal trial, when individuals concerned age and the gathering of evidence becomes increasingly problematic.54 Secondly, how to relate to embarrassing legal history, to procedures that are gravely deficient either in accordance with current law or already with the law of their time?

In the case of the Finnish trial, serious criticisms can and have been levelled. There is no doubt that the law on war responsibility and the trial itself were in clear violation of the Finnish legal order of the time. A retroactive law created a special tribunal and defined the material [applicable?] law. The prosecution’s choice of the accused was selective and strongly influenced both by the Allies and by national politics (see section I.5). As has been discussed above (see section I.6), insufficient rights were granted to the defence. Some members of the tribunal were most likely biased, and both the Allied Control Commission and the Finnish government interfered seriously throughout the trial and with the judgment. The list goes on, but we will leave it here for now.55

Compared internationally to other trials directly after the war56 or, as today’s example of an exceptional situation with exceptional legal needs, to the ‘war on terror’ from 2001 onwards—the anachronism and absurdity of the comparison notwithstanding—the Finnish story appears in a very different light: There was a public trial, based on a parliamentary law. There was no arbitrary detention, no allegations of torture or other mistreatment, no transfer to a foreign state, neither for investigations, trial nor for enforcement of sentences. Nobody died in custody or in prison. Considering the widespread damages of the war, the punishments were lenient, both compared to those for serious crime in the regular national context and to other comparable trials of the time. The prison conditions were comfortable considering the standards of the difficult time. Paroles and pardons were granted. Although the convictions must have been a tremendous burden to the individuals and their families, there was no general rejection of the condemned by the society and their reintegration proceeded smoothly.

(p.443) Based on the story so far, we could tentatively conclude here that the Finnish trial represented exceptional justice following WWII. Compared to the aftermath of WWII internationally, Finland may appear as a special case: why were there so few accused, and why were the punishments so lenient compared to other countries in a similar position? How was it that everything was so calm and controlled, with no self-inflicted justice or scandals? In this respect, it would be a mistake to point to a general consensual and lenient climate in Finnish legal culture and criminal policy, in particular in conditions of political instability or war. Only some twenty-five years before the war responsibility trial there was a wave of legal and extra-legal retribution during and after the 1918 Finnish civil war, with violence on both sides (though predominantly on the side of the Whites, the conservative coalition).57

Seen through modern eyes, this becomes intriguing. Why was the war responsibility trial so shocking? Where does the lasting sense of tragedy and injustice come from? It seems we need to dig deeper to fully understand the trauma of the trial.

(2) Legal treatment of past legal treatment

The most recent legal action concerning the trial that had considerable public attention was an annulment claim to the Supreme Court of Finland in 2008. Mr Ilkka Tanner, grandson of the social-democrat wartime minister Väinö Tanner, requested annulment of the 1946 judgment by which Tanner had been declared guilty of ‘misuse of official authority to the detriment of the nation’, and the annulment of his five-and-a-half-year prison sentence.

In its decision, the Supreme Court analysed the law of 1945 and the trial in considerable detail. It unequivocally stated that the trial violated many of the essential principles of the Finnish legal order. It went on to declare that its establishment and activity took place on grounds and in circumstances that must be regarded exceptional. The Court pointed out that the law of 1945 did not contain provisions on ordinary or extraordinary means of appeal. Highlighting the special circumstances, the Court concluded that a retroactive examination of the judgment and the procedure leading to it on the basis of the general Finnish law on annulment of judgments or extraordinary appeals for procedural fault was not within its competence.58

Mr Tanner then brought the case before the ECtHR. He based his claim on Article 13 of the European Convention of Human Rights (ECHR), which sets out the ‘right to an effective remedy’, and on Article 2 of Protocol No. 7 on the ‘right of appeal in criminal matters’. In his complaint, the applicant claimed that since (p.444) annulment of the war responsibility judgment was not explicitly excluded in the law of 1945, the Supreme Court could have considered itself competent. The lack of any means of appeal violated his rights.

In the wake of these domestic and European legal procedures, active public discussion followed, prompting the Ministry of Justice to react. Different means to redress the situation were considered, including legislative means, either to open a possibility for extraordinary appeal or to directly annul the judgment.59 The Ministry commanded a report on the legal aspects of the past trial and the potential options for an official reaction to it outside the sphere of legal remedies, such as a public apology or a statement.

In the meantime, the ECtHR, by a committee of three judges, including the Finnish judge, declared the application inadmissible on 23 February 2010. The basis of incompatibility evoked in the decision was that of ratione personae, ie, the appellant could not be considered victim of a violation in the sense of Article 34 of the ECHR.

The report commissioned by the Ministry of Justice was published on 12 March 2010. It states without ambiguity that Finland’s military activity in the Soviet Union fulfilled the material elements of crimes against peace.60 The report questions whether international law was already at the time of the trial considered to supersede potentially contradictory national law, and whether the London Agreement (together with the IMT Charter) formed a sufficient basis for the individual criminal responsibility imposed on the eight accused in the Finnish trial in accordance with Article 13 of the Moscow Armistice. With strong reservations, it concludes in the positive,61 while at the same time highlighting in detail the serious breaches of the Finnish constitution and the other highly problematic aspects of the trial.62

In conclusion, the report emphasizes how the war responsibility trial is not the only controversial or questionable legal episode in Finnish history, and invites examination of the (legal) past using a global approach. The report cautions against using legislative means to redress the outcome of the war responsibility trial, but otherwise refrains from recommendations on whether a political reaction, such as a public apology or a statement aimed at nullifying the judgment would be advisable.63 As the report points out, the practice of expressing public apologies by the government is almost unheard of in Finland.64 The public apology by Prime Minister Paavo Lipponen in 2000 concerned the handing over by the Finnish State Police to the German authorities of eight Jewish refugees, including two children, all but one of whom died in Auschwitz.65 This is so far the only precedent against which to measure the gravity of wrongs necessitating a public apology.

(p.445) In 2008, the Finnish judiciary chose to remain silent. Now that the ECtHR has declared the case inadmissible, the executive is likely to remain silent as well, at least until the next major eruption. Let us profit from the calm to try to make some sense of the story.

(3) Why criminal justice?

In the aftermath of WWII, the sense of the trials did not attract much explicit analysis. Considering the large-scale violence and destruction experienced, elaborate debates on justifications for punishing the perpetrators may have seemed irrelevant or even absurd.66 As Robert Sloane writes, ‘[a]‌t the time, the very notion that the most culpable Axis leaders and war criminals, men like Göring, should be subjected to the unwieldy and costly processes of the law proved controversial’.67

Some recent studies have started to sketch the outlines of a criminological approach to international criminal justice, by analysing the justifications for and legitimate goals of punishment.68 Here it is enough to say that punishment is conventionally justified either by its presumed positive functions in controlling future crime (by general and specific deterrence, incapacitation or rehabilitation of the offender) or by retribution.69 Additional expectations of positive effects justifying international criminal justice frequently evoked include the expression70 (or communication, implying interaction and inclusion71) of values of the international community, reaction to the expectations of the victims, contribution to establishing or maintaining peace or the rule of law (locally or internationally), establishment of historical understanding and a record of the dolorous past, or performance of a ceremony or service advancing reconciliation and the feeling of closure in a community.72

(p.446) Assuming a set of rational objectives exists, one should, in theory, be able to evaluate the usefulness of criminal justice by seeking to understand how far it enhances these objectives. Criminological research is challenging, even in established, stable domestic legal systems. Concerning international criminal justice, the difficulties grow exponentially: what area, which actors, what timeframe? How to obtain empirical evidence? Focusing on isolated trials such as the Finnish one hardly makes any sense at all. We do not have opinion surveys, statistics or other material. On prevention of future crime, we could hardly say more than that wars of aggression have been waged in the world since, although none with the involvement of Finnish government members. When it comes to the other potential positive effects referred to above, however, we might for the sake of our story sketch some observations. What sense may the trial have had, what purpose may it have served, and what kind of effects—if any—may it have on the society?

The trial derived from the same origins as the London Agreement and expressed the condemnation of the emerging international community of 1945 (itself in transition) of the violation of the principles of territorial sovereignty and the prohibition of wars of aggression that was more explicitly expressed the same year in the Charter of the United Nations (UN). However, in 1945–6, crucial years for the further development of international criminal justice, the trial was often seen in Finland as a separate issue from the trials in the Axis states and their satellites, as discussed above. For Finns, it was all between Finland and the Soviet Union. Any expression of values must have suffered from this: it was not clear to Finns who was behind the trial. The international community had a Soviet face and a Soviet voice. Further, the fact that the law on war responsibility, enacted under constraint, still underwent careful scrutiny involving not only the parliament but also the judiciary and academia (discussed above) could be seen as a strong sign that Finland had remained an independent democracy with a legalistic political culture. The military defeat was unambiguous, and the Soviet threat was felt strongly, in particular in the light of what was simultaneously occurring in the neighbouring Baltic States. Nevertheless, an important part of the society rejected a trial that they saw as unfair. In that sense, the resistance to the trial became a heroic continuation of the war. From the criminological point of view, however, the conditions for communicating values in a criminal trial were clearly not optimal; the messages got blurred.

With regard to establishing a historical understanding of a difficult past, or advancing reconciliation and the feeling of closure in a community, we are again facing large-scale and complex sociological phenomena. The trial and its effects form a piece in the puzzle of the evolution of today’s Finland, and we are unable to see clearly how. We have observed the repeated demands for annulment of the judgment, for public apologies to the condemned or their families and for other gestures countering the judgment. As the latest developments show, these demands enjoy widespread support and perhaps a tacit approval from the government, but they also have opponents. Has the trial contributed to reconciliation, social peace and establishing a historical record, or might it have played its part in hindering open, honest analysis of past traumatic events? Rather than serving as a forum for bringing light to the shared (p.447) experiences of the people and its leadership, could the ‘shameful trial’ have turned the accused leaders into martyrs?

We might then reflect upon whether, rather than bringing the transitional society towards understanding and acceptance of the past, the trial might have contributed to creating a taboo: that Finland, after its war of self-defence against the Soviet Union in most unequal conditions, turned into an ally of Nazi Germany and attacked the Soviet territory beyond its previous borders, with major damage to human life, society and economy on both sides. Further, that although the Finnish army did not directly participate in the siege of Leningrad, by holding positions close to the city it contributed to its immense losses of life.73 The taboo might have rendered some questions inappropriate or ‘political’, such as: was the conduct specified in the charges merely—as presented by the defence and in many commentaries—patriotic acts by rational, law-abiding leaders, solely driven by the salvation of an independent Finland? Had the Finnish leaders not, by engaging in the war, firmly counted on the future victory of Nazi Germany in WWII? If that was not the case, does their choice of alliance not appear self-destructive? What was the ideological drive behind this choice? Had the leaders not thereby accepted the consequences of Hitler’s victory worldwide, in Europe, and in Finland, including the racial policies and the persecution of political opponents? What kind of an independent Finland did they envisage?

We may also inquire about the judicial treatment of the war crimes outside the jurisdiction of the special tribunal, such as the treatment of the Soviet POWs or civilians in occupied territories and the summary executions, or handing over Jews, presumed communists and other individuals to the Germans.74 Although a number of trials took place after the war, primarily concerning the treatment of the Soviet POWs, the legal responsibility at the decision-making level for the various crimes was not addressed at that time, and has not been addressed since.75 It seems as if the war responsibility trial exhausted any will and confidence in legal treatment of the difficult past.

These questions are by no means secret. However, public discussion and research on them seems to remain prone to stigmatization and dramatization. Claims of ‘dirtying the nest’, ‘insulting the veterans’ or ‘bowing in the direction of Moscow’ are not infrequent. We have no intention to engage further in counterfactual history-writing here, but it is difficult to resist the following query: Would the understanding of history, as well as of the political or legal responsibilities for (p.448) eventual mistakes or crimes committed, not have come to light in a democratic society more easily had the trauma of the trial not frozen opinions and rendered open questioning unpatriotic? In that sense, the rejection of the trial may have been a way to deny or obscure the damages of the war that encompassed the society, political culture and economy, as well as Finland’s identity as a democratic and peace-loving state. By victimizing and traumatizing the trial may thus have, for its part, slowed down the mourning, healing, and closure after the wars.

We may today feel inclined to include this failed experience among many other controversial post-WWII examples that belong to the stone age of international criminal justice—as part of the unfortunate but necessary local problems that are a turning point in global history. This is why we will proceed to briefly examining how far criminal justice in comparable situations today has evolved in a direction that guarantees more favourable preconditions.

(4) Limits of ad hoc criminal justice

The ICC was created to remedy the existential deficiency of international criminal justice, either totally absent or relying on ad hoc foundations, such as peace treaties or UN Security Council resolutions. The adoption of the ICC Statute76 in 1998 carried the promise of a major change: a permanent, independent and impartial judicial organ was empowered to decide on individual criminal responsibility, even at the level of heads of state.

As our Finnish story and so many other stories demonstrate, the basic ideology of international criminal justice has by definition a tense relationship to the dominant political entities controlling the use of force in their territory and to their citizens or interests, ie, states. The prerogative of states includes criminal law, understood to embody the most coercive norms in a society. In that sense, international criminal justice is not meant for peaceful, healthy democracies where individuals enjoy rights effectively protected by the national legal system. Its landscape is rather that of conflict, crisis, war, regime changes, or totalitarian governments with legal systems harnessed to further their objectives.

International criminal justice thus typically actualizes in a broader context of condemning the past and reorienting for the future, whereas national criminal justice operates in existing domestic constellations: the law in force, the judiciary in function, the executive in power. By its name and definition, and following from this basic setting, international criminal justice contains non-national influences, actors, and involvement. Seen from the perspective of a state, international criminal justice can stand for various degrees of foreign intrusion in national legal systems and power structures. The transforming potential of international criminal justice in this optic is part of the more general leverage potential of international law, human rights law or the ideology of internationalism in general. International criminal justice belongs to the package of international instruments and effects to incite, (p.449) bring about or even violently force societies towards political change, revolution and reorientation. This partly explains why international criminal justice is constantly faced with conflicts and criticism, be it on its legitimacy, independence or methods of proceeding.

In today’s international criminal jurisdictions, and at the ICC in particular, this ‘revolutionary element’, a sort of inbuilt incitement to reconsider the existing power structures of a state, is clearly present. Instead of mission statements, it appears in jurisdictional mechanisms or legal principles. This was evident in the establishment of the ICC, in the sense that the states negotiating the Rome Statute did not seem to consider its creation as anything that should ever concern them directly. On the contrary, utmost care was taken by all states in the position to play a role to make sure it never would.77 The Statute thus underlines that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.78 The ICC’s proper jurisdiction is meant as a mere safeguard system that—in the optic of the negotiating states—was meant for others: for aggressive or disruptive states, for failed states, or for weak states that lack a functioning legal system.

The delicate relationship of national and international criminal jurisdictions in the context of the ICC is referred to as the complementarity of international criminal jurisdiction. The complementarity is anchored in Articles 17 and 20 of the ICC Statute, and can be condensed as follows: the ICC may proceed with a case only if the state or states with jurisdiction are unwilling or unable to genuinely carry out the investigation or prosecution.79 In order to determine whether this is the case, independence and impartiality of national proceedings are evaluated, as well as whether the national proceedings or decisions were made with the purpose of shielding the person concerned from criminal responsibility. In the Finnish story, we can see elements of a comparable evaluation exercised by the Allied Control Commission and the Finnish executive, albeit awkwardly and illegally.

Compared to the time of the post-WWII trials such as the Finnish one, the role of the principle of legality (nullum crimen sine lege, nulla poena sine lege), (p.450) too, has evolved dramatically, in two directions. It has been further clarified and strengthened in the sense that it has been encoded in human rights conventions and innumerable national constitutions.80 The existence of individual criminal responsibility solely based on customary or treaty-based international law for the most serious international crimes has been firmly established. We can thus see more clearly today than in the 1940s the coexistence of a legality principle of general international law, ‘broader and considerably more tolerant of imprecision’81 and of the particular forms of the same principle either in national legal systems or in specific treaty-based contexts, such as the ICC.

The ICC Statute contains articles on the nullum crimen sine lege (Article 22), nulla poena sine lege (Article 23) and on non-retroactivity ratione personae (Article 24). The ICC is clearly meant as a permanent jurisdiction, not as a special tribunal created for a limited period of time, a particular chain of events, or even a particular group of individuals, as was, for example, the Finnish tribunal. However, from the perspective of the states or individuals concerned, this may in some cases be less clear. The most evident case encompasses non-State Parties and their nationals. Out of the 193 UN member states at the time of writing, 119 states are members of the ICC. The non-members include China, India, the United States, Russia, Indonesia, Pakistan, Thailand, Vietnam, and Sudan, to name a few. In terms of population, a majority of the world’s population today are citizens of states not parties to the ICC.

In accordance with the ICC Statute, the ICC Prosecutor can initiate an investigation on the basis of a referral from any State Party or from the UN Security Council. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC received from individuals or organizations. For alleged crimes taking place in non-State Parties or by their nationals, the most likely way to end up in the ICC is by a referral of the Security Council.82 The referral takes place either after or in the midst of the situation in which crimes have been allegedly committed (examples of Darfur and Libya). Considering that the permanent members of the Security Council have a right to veto (p.451) these decisions, some states are able at their will to permanently keep their citizens and leaders, as well as those of their allies, outside the ICC jurisdiction (the current example being Syria).

The rainbow of expectations in international criminal justice thus ranges from (i) a national jurisdiction to (ii) ICC jurisdiction on alleged crimes in a State Party or by its nationals, further to (iii) ICC jurisdiction established retroactively in a non-State Party, to (iv) the establishment of an ad hoc tribunal, and finally, at the other end, to (v) total impunity for ‘the most serious crimes of concern to the international community as a whole’.83 Even if we may wish to see as ‘one of the most valuable effects of international criminal law…its contribution to the creation of a sense of a cosmopolitan identity, an identity which values all human beings equally, independent of their national or other ties’,84 the status of international criminal justice today rather confirms striking inequalities—of both victims and suspects—that define international legal space.

An additional challenge to the predictability of the ICC jurisdiction is presented by the crime of aggression. Following the Diplomatic Conference of Kampala in 2010, the ICC may one day be tasked to exercise jurisdiction over the crime of aggression. The revisions adopted in Kampala introduce complex rules on the entry into force and application of the jurisdiction for the crime of aggression and thereby accentuate the tailor-made character of ICC’s jurisdiction.85 The individual criminal responsibility for the crime of aggression in international law, first expressions of which formed the basis of the Finnish trial and so many others after WWII, now becomes subject to consent-based treaty law mechanisms, including opt-out, in the revised ICC Statute.86 Furthermore, for aggression, the exercise of national jurisdiction in compliance with the complementarity principle presents supplementary challenges.87

The challenges of predictability and clarity of individual criminal responsibility, derived from the legality principle, as well as the expectation of equal treatment, consistency and coherence might suggest that the ICC era in some respects remains close to the previous era of ad hoc jurisdictions, established in the aftermath of the acts allegedly committed, as in Finland. Even in the ICC era, the determination of the existence and the exercise of jurisdiction—national, international or nothing—often takes place retroactively, and the applicable law follows from this choice. The ICC, as its predecessors, is not necessarily able to address the chronology of causalities of a larger conflict, nor does it always manage to address all sides.

(p.452) From Articles 17 and 20 of the ICC Statute (discussed above), we can derive independence, impartiality and integrity as criteria that define whether national justice is deemed ‘sufficient’.88 If the ICC, other international tribunals and national courts are understood to act together with the goal of ending impunity, it is all of them together that face quality requirements that we could understand as preconditions for the presumed positive outcomes of criminal justice. How much independence, impartiality and integrity, then, can today be expected of national jurisdictions, acting in the aftermath of war (as in the Finnish trial), or other major crisis, such as a wave of large-scale terrorism?89 How far can national trials based on an international obligation be detached from their cultural roots, public expectations and power-relations? Had the Finnish war responsibility trial been conducted by the Allied Powers directly, by a hybrid tribunal or an international one, what would be different?

Having come this far in our story, we start to acknowledge that the efforts undertaken earlier to examine the Finnish trial in the light of the different conceptions of positive effects to be gained by criminal justice seemed disturbingly artificial. Of course we knew the consequential theories could not really match, of course we knew those WWII trials were held for so many other reasons and served other purposes that we cannot address within the criminal law discourse only. The trials for wars of aggression, in particular, helped to mark the changes of power and of the identities of suitable allies, by explicitly condemning the acts of the previous leaders and making them bear the responsibility for the lost wars and the decline of the states. Individual criminal responsibility contributed to a speedy change of decor in the public scene: transforming powerful leaders into criminal convicts symbolized both the victory of the Allied and a new start in a new direction for many states, including Finland. By performing a series of familiar acts (criminal procedure), in a familiar forum of public power (criminal court), the trials amalgamated the lived and imagined worlds, and emphasized the power of the new normative system behind the trials. Seen from this perspective, the trial in Finland was a tiny link in a chain of public rituals of reorientation after WWII. We can question the technicalities of the trial, argue on many issues, but we cannot deny that there was this one function it completed with efficacy.

(p.453) (III) Concluding Remarks: Never-ending Stories?

So much time has passed since the end of the war that we must, if only for the sake of our own mental state, take into an honest examination also this issue which at its time dramatically affected the Finnish public opinion. We have to get so close to this sensitive issue that it stops bothering our movements as a chip of stone in the sock.90

Is there a lesson to the Finnish trial story? We might see it as an example of how difficult the national exercise of jurisdiction based on an international obligation can be. It reminds us of how limited and contingent the instrument of criminal justice, intended for determining individual criminal responsibility in particular cases, may prove in elucidating historical contexts or addressing collective loss. We may also observe how far-reaching and powerful effects criminal trials may have, at many levels and in many directions. We are reminded of how they may awaken strong emotional and societal reactions, even in a context that could, in comparison, seem relatively successful or at least harmless in the eyes of the outside world.

International criminal justice is far more entrenched today than in 1945–6, in many important respects. No matter the lists of ratifications, the concept of international crimes and individual responsibility for them can no longer be ignored. Nevertheless, the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and other ad hoc or hybrid tribunals have faced and continue to struggle with comparable dilemmas in a variety of contexts. Even the permanent ICC, due to the inherent fragility of its jurisdiction, acts at times in conditions resembling those of an ad hoc tribunal: competent on a retroactively determined slice of time and space, with strong expectations of prosecutorial discretion. Regardless of the way its jurisdiction is launched, the ICC is in its daily work obliged to manoeuvre between parties and take sides in a critical manner, as the examples of ongoing cases suggest.91

The perceived legitimacy and credibility of international criminal justice are thus constantly questioned. A highly publicized criminal trial is a powerful instrument for stating or affirming beliefs and directions, of establishing identities of good and bad, inclusion and exclusion. To call it a ritual is not to degrade it. It is rather to emphasize its full potential. Rituals are difficult to master, however. They may seem to work in one direction on the surface level, but also create adverse effects. A deficient trial may by its trauma engender taboos and martyrs. It may endanger open analysis of acts and responsibilities, thereby cementing a period in (p.454) history under its protective cover. In a bedtime story turning into a nightmare, a trial becomes a damaged nuclear reactor that maintains its toxicity for interminable periods, slowly leaking emissions into its environment. But are those periods interminable, after all? Perhaps the current and future generations of Finland will soon be far enough from the wars. Perhaps the virtues of peace and democratic government were advanced by the trial, in one way or another. Perhaps in Sudan or Libya this will happen even sooner. We know that bedtime stories with happy endings exist.

Notes:

(1) Most of the historians of recent Finnish history have addressed the trial in one way or another, and the literature is quite overwhelming. Much less research has taken place by legal scholars, and even less so from the point of view of international law. A recent study commissioned by the Ministry of Justice has been most useful for providing both a historical overview and a meticulous analysis of the current context, see Jukka Lindstedt and Stiina Löytömäki: Sotasyyllisyysoikeudenkäynti, Oikeusministeriön selvityksiä ja ohjeita, 22/2010.

(2) Yrjö Soini, Kuin Pietari hiilivalkealla, Sotasyyllisyysasian vaiheet 1944–1949 (Helsinki: Otava 1956), 373.

(3) Minister Leino in a government meeting on 8 August 1944, see Hannu Rautkallio (ed), Sotasyyllisyyden asiakirjat, (EC-Kirjat 2006), 318.

(4) See, eg, Jukka Tarkka, ‘Tuomio, syyllisyys ja kunnia’, in Jukka-Pekka Pietiäinen (ed), Sota ja tuomio, (Helsinki: Edita 2002). For a compilation of personal recollections, see Aarne Långfors (ed), Isänmaan vangit (Helsinki: Otava 1997).

(5) By this is meant here both the existing legal and institutional forms (national and international norms, bureaucracies and adjudication) of international criminal justice, and the political ‘movement’ that furthers their enlarged role and use in the world. On the ‘ICC movement’, see Frédéric Mégret, ICC, R2P, and the International Community’s Evolving Interventionist Toolkit (2011), (available at <http://ssrn.com/abstract=1933111)>, 5–6. The concept of ‘transitional justice’ is often used in the context of emerging democracies with regard to their former regimes, as a broader concept including domestic, hybrid, and international prosecutions, truth-telling commissions, reparations, institutional reform, vetting of abusive, corrupt, or incompetent officials, promoting reconciliation, constructing memorials and museums, see International Centre for Transitional Justice, What is Transitional Justice? (2006).

(6) The wealth of historical commentaries on the events of 1939–44 is such that this limited chapter based on a conference presentation is not able to take them all into account. When describing the events preceding the trial, it aims simply at presenting an uncontroversial background summary. References are used for additional information only.

(7) Curzio Malaparte, Kaputt (New York: New York Review Books 2004), 50. First published in Italian in 1944.

(8) See Suomen asetuskokoelman sopimussarja, 3/1940.

(9) It has been suggested that a promise by Hermann Göring of a future recuperation of the lost territories together with the German ally was behind the reasons why Finland accepted the severe Moscow Peace Treaty in 1940. Thus a conscious plan on the Continuation War would have existed very early, see Heikki Ylikangas, Tulkintani talvisodasta (Helsinki: WSOY 2001).

(10) Research on the ‘drifting’ of Finland into the war versus an active stance by Finland in that direction has been vivid though decennia. This chapter follows the currently prevailing understanding based on Mauno Jokipii, Jatkosodan synty (Helsinki: Otava, 1986).

(11) In 1923, Finland had brought the issue of Eastern Karelian populations to the League of Nations, and an advisory opinion of The Permanent Court of International Justice was sought although the Court declined to grant it, see ‘Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5’ (July1923), <http://www.worldcourts.com/pcij/eng/decisions/1923.07.23_eastern_carelia.htm> (accessed 20 December 2011).

(12) See Lars Westerlund, ‘The Mortality Rate of Prisoners of War in Finnish Custody Between 1939 and 1944’, in Westerlund (ed), POW Deaths and People Handed Over to Germany and the Soviet Union in 1939–55: A Research Report by the Finnish National Archives (Helsinki: Kansallisarkisto, 2008), 14–84.

(13) See Suomen asetuskokoelman sopimussarja, 4/1944.

(14) See Suomen asetuskokoelman sopimussarja, 20/1947.

(15) An extract of the famous first ‘order of the day of the Continuation war’ by the Finnish Commander-in Chief Mannerheim, 10 July 1941. He referred to his promise made to the neighbouring Karelian peoples in 1918 ‘that I will not scabbard my sword before Finland and Eastern Karelia are freed’. Mannerheim’s order was his own initiative; it was controversial and caused a wave of immediate political reactions. See, eg, Jukka Tarkka, Neither Stalin Nor Hitler (Helsinki: Otava, 1991), 48–50.

(16) See President Mauno Koivisto’s speech in 1993, referred to in Jukka Tarkka, Hirmuinen asia (Helsinki: WSOY, 2009), 360–1 ; the speech by President Tarja Halonen at French Institute of International Relations (IFRI), 1 March 2005: ‘For us the world war meant a separate war against the Soviet Union and we did not incur any debt of gratitude to others’, see <http://www.tpk.fi>, speeches.

(17) See Jokipii, above n 10, 625–8; Mauno Jokipii, Hitlerin Saksa ja sen vapaaehtoisliikkeet (Helsinki: Suomalaisen kirjallisuuden seura, 2002) 46.

(18) Jokipii, Jatkosodan, above n 10.

(19) See, for example, Ida Suolahti, ‘POW Transfers During the Continuation War 1941–44’, in Westerlund (ed), above n 12; Oula Silvennoinen, ‘The Transfers of Civilians to German Authorities’, in Westerlund (ed). For a journalistic documentary, see Elina Suominen, Kuolemanlaiva S/S Hohenhörn—juutalaispakolaisten kohtalo Suomessa (Helsinki: WSOY, 1979).

(20) Public and academic discussion of the treatment of Jews in Finland during WWII remains often polemic, oscillating between picturing Finland as the rescuer (of the Finnish Jews) to be celebrated, or on the other hand as the persecutor (of foreign Jews, the exact number of victims not being unambiguously known) to be undisguised. See, eg, Hannu Rautkallio, Holokaustilta pelastetut (Helsinki: WSOY, 2004); Suominen, above n 19; Elina Sana, Luovutetut—Suomen ihmisluovutukset Gestapolle (Helsinki: WSOY, 2003); Hannu Rautkallio, Ne kahdeksan ja Suomen omatunto (Helsinki: Weilin & Göös, 1985).

(21) Even a field synagogue was active on the Finnish-German front. The picture was not always as idyllic as that, however; some forms of discrimination and tension existed, see Hannu Rautkallio, Suomen juutalaisten aseveljeys (Helsinki: Tammi, 1989).

(22) See, eg, Markku Jokisipilä, Aseveljiä vai liittolaisia? (Helsinki: Suomalaisen kirjallisuuden seura, 2004). Generally on the whole discussion, see Timo Soikkanen, ‘Objekti vai subjekti? Taistelu jatkosodan synnystä’, in Markku Jokisipilä (ed), Sodan totuudet (Helsinki: Ajatus, 2007).

(23) For recent research on the cooperation between the security police during the Continuation War, implying the knowledge of and some participation of the Finnish State Police in the torture and execution of POWs, mainly Jews and Communists by the German authorities, see Oula Silvennoinen, Secret Brothers in Arms (Helsinki: Otava, 2008). For a journalistic account of the handing over by the Finnish authorities to the German authorities of POWs or other individuals, presumably based on various discriminatory grounds, see Sana, above n 20. See also the research report Lars Westerlund (ed), above n 12; Sari Näre and Jenni Kirves (eds), ‘Ruma sota. Talvi- ja jatkosodan vaiettu historia’ (Helsinki: Johnny Kniga Publishing, 2008).

(24) Chairman of the Allied Control Commission Zdanov, threatening the Finnish government that was hesitating on the war responsibility issue, quoted by Jukka Nevakivi, Zdanov Suomessa, Miksi meitä ei neuvostoliittolaistettu? (Helsinki: Otava, 1994), 159 with reference to the Archives of the Allied Control Commission. Zdanov has also been reported to orally have threatened Finland with a new war, although the threat may have been rhetoric only, see Tarkka, above n 16, 127 and 340–1.

(25) The Tokyo International Military Tribunal (IMT) was established in January 1946 based on Principle 10 of the Potsdam declaration which promised stern justice for war criminals. The defence then challenged its jurisdiction for crimes against peace. The challenge was rejected by arguing that the Japanese government had understood that war criminals referred also to those responsible for initiating the war. See judgment of the Tokyo IMT, at 48, 440–1.

(26) The Soviet Union also used Article 13 to require prosecution of conventional war crimes, allegedly committed by Finnish military in the territories Finland was occupying. In 1944, Finnish soldiers were arrested for expected trials. Most of them were freed after pre-trial detention without charges and received compensation from the Finnish state for deprivation of liberty. The most known group is the so-called List No. 1, in which the Soviet Union had included 61 names of alleged war criminals, see Lauri Hyvämäki, Lista 1:n vangit : vaaran vuosina 1944–48 sotarikoksista vangittujen suomalaisten sotilaiden tarina; toimittanut Hannu Rautkallio, (Helsinki: Weilin & Göös, 1983). On other trials see discussion further under section II.3.

(27) The Commission consisted of a majority of Soviet officers, plus a few British members. On the role of the Commission and its power constellations, see Tarkka, Hirmuinen, above n 16, 121–46; Tuomo Polvinen, Jaltasta Pariisin rauhaan (Helsinki: WSOY, 1981), 147–8. Lasse Lehtinen ja Hannu Rautkallio’s recent book’s main argument is to contest the existence of an important external pressure, and accord the holding of the trial rather to internal political actors, in particular the minister of justice Kekkonen, see Kansakunnan sijaiskärsijät (Helsinki: WSOY, 2005).

(28) See Lindstedt and Löytömäki, above n 1, 19–22.

(29) See Nevakivi, Zdanov Suomessa, above n 24, 154–69.

(30) Hallituksen esitys nro 54/1945 vp. Laiksi sotaan syyllisten rankaisemisesta, 21.8.1945.

(31) See Polvinen, above n 27, 139–41.

(32) See Hallituksen esitys, above n 30.

(33) Opinion of the Supreme Court to the Constitutional Law Committee, n 1488, dated 28.8.1945, 1945 Vp., reprinted in Rautkallio (ed), above n 3, 674–8.

(34) Opinion of the Constitutional Law Committee, n 40/1945, 4 September 1945, reprinted in Rautkallio (ed), above n 3, 666–73.

(35) See Polvinen, above n 27, 137–8; Jukka Tarkka, 13. artikla (Helsinki: WSOY 1977) 148–9.

(36) For an analysis of the decision-making in the parliament, see, eg, Tarkka, 13. Artikla, above n 35, 139–49.

(37) Soini, above n 2, 371.

(38) For the conclusions of the Committee, see the memo by its chairman Onni Petäys 24.10.1945, OKV sotasyyllisyyden asiakirjat 1945/1432, Ea 166 (KA). For an analysis of the preparation of the indictment, see Lindstedt and Löytömäki, above n 1, 35–9.

(39) On the pre-trial investigations and the choice of the accused, see Tarkka, 13. artikla, above n 35, 157–77; Tarkka, Hirmuinen, above n 16, 206–13; Lindstedt and Löytömäki, above n 1, 35–9.

(40) See Rautkallio (ed), above n 3, 631–41.

(41) The counts singled out diplomatic or informal contacts via the United States or other channels after August 1941 proposing peace negotiations with the Soviet Union that had been declined by the Finnish government. In 1943, the Finnish government communicated a further effort to mediate a separate peace with Germany that urged it to decline. In early spring 1944, the government gave an insufficient mandate to the peace negotiators and thereby caused a cessation of the negotiations. In summer 1944, the government recommended giving an assurance to Germany that Finland would not seek separate peace with the Soviet Union, and the President signed it.

(42) The defendant Ryti felt that this was the general expectation of the trial, limiting the way he could defend himself, see Martti Turtola, Risto Ryti. Elämä isänmaan puolesta (Helsinki: Keuruu, 1994) 321–2.

(43) See Tarkka, Hirmuinen, above 16, 235–63.

(44) See Polvinen, above n 27, 139–41; Tarkka, Hirmuinen, above 16, 224–35.

(45) See Polvinen, above 27, 145–8; Tarkka, Hirmuinen, above 16, 264–74; Toivo T. Kaila, Sotaansyyllisemme säätytalossa (Helsinki: Werner Söderström, 1946), 224–6.

(46) Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (Ardley-on-Hudson, NY: Transnational Publishers, 2002), 8.

(47) Diary note of date 23 June 1949 by President Paasikivi who accorded the pardons: J.K. Paasikiven, Päiväkirjat 1944-1956, 2. osa (Porvoo: WSOY, 1986), 21.

(48) As described in a recent study by Risto Niku, Kahdeksan tuomittua miestä. Sotasyyllisten vankilavuodet (Helsinki: Edita, 2005).

(49) Niku, above n 48, 229–40.

(50) Speech by a close collaborator (Mr Puntila) in the funeral of the war-time President Risto Ryti, condemned to ten years hard labour in 1946, see Tarkka, Hirmuinen, above n 16, 246.

(51) See Tarkka, Hirmuinen, above n 16, 359–61; Lindstedt and Löytömäki, above n 1, 61–2.

(52) See Lehtinen and Rautkallio, above n 27.

(53) The obvious examples of these contexts are Germany with the Vergangenheitsbewältigung after Nazism, France’s collaboration with Russian and Eastern European communist totalitarianism, and colonizing states with colonialism, although most countries and regions are likely to have their national traumas. On France, but with interesting general methodological positions, see Henry Rousso, The Haunting Past (Philadelphia: University of Pennsylvania Press, 2002). See also Stiina Löytömäki, ‘Law and the Global Phenomenon of Righting Old Wrongs’, (2004) Finnish Yearbook of International Law, Vol. XV, 273.

(54) For a recent case, see ECtHR, Kononov v Latvia, 17 May 2010.

(55) See Lindstedt and Löytömäki, above n 1, 29–48.

(56) A comparison is beyond the scope of this Chapter. For limited comparisons, see Tarkka, 13. artikla, above n 35, 63–6 and 150–7; Tarkka, Hirmuinen, above n 16, 304–14; Polvinen, above n 27f WW n, 148–9.

(57) See Jaakko Paavolainen, Poliittiset väkivaltaisuudet Suomessa 1918. Osa 1: Punainen terrori (Helsinki: Tammi, 1966); Osa 2: Valkoinen terrori (Helsinki: Tammi 1967); Jukka Kekkonen, Laillisuuden haaksirikko. Rikosoikeudenkäyttö Suomessa vuonna 1918 (Helsinki: Lakimiesliiton Kustannus, 1991); Lauri Hannikainen, ‘The Finnish Civil War in 1918 and its Aftermath’ in Lauri Hannikainen, Raija Hanski and Allan Rosas (eds), Implementing Humanitarian Law Applicable in Armed Conflicts, The Case of Finland, (Leiden: Martinus Nijhoff Publishers, 1992), 8.

(58) Supreme Court of Finland, decision 2008:94.

(59) ‘Väärät tuomiot sotasyyllisyydestä ministeriön syyniin’, Helsingin Sanomat 5.2.2009. See also Lindstedt and Löytömäki, above n 1, 84–5.

(60) Lindstedt and Löytömäki, above n 1, 51.

(61) Lindstedt and Löytömäki, above n 1, 52–4. For a critical view on this, see Mikaela Heikkilä, ‘Suomen sotasyyllisyysoikeudenkäynti ja kansainvälinen rikosoikeus’, (2010) Lakimies 4, 638.

(62) See Lindstedt and Löytömäki, above n 1, 29–48.

(63) Lindstedt and Löytömäki, above n 1, 81–8.

(64) Lindstedt and Löytömäki, above n 1, 85.

(65) See Sana, above n 20, 15–16.

(66) See Robert D. Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, (2007) 43 Stanford Journal of International Law 39 (2007), 65 ; Telford Taylor, The Anatomy of the Nuremberg Trials (Boston: Knopf, 1992).

(67) Sloane, above n 66, 65.

(68) See Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press, 2007); Sloane, above n 66 ; Marc Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’, (2000) 22 Human Rights Quarterly, 118 ; Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 European Journal of International Law, 561. See also Anthony Duff, ‘Can We Punish the Perpetrators of Atrocities’, The Religious in Responses to Mass Atrocity, Brudholm, Cushman (eds) (Cambridge: Cambridge University Press, 2009), 79 , Laurel E. Fletcher, ‘From Indifference to Engagement: Bystanders and International Criminal Justice’, (2005) 26 Michigan Journal of International Law, 1013 ; Laurel E. Fletcher & Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, (2002) 24 Human Rights Quarterly, 573.

(69) See, for example, Anthony Duff and David Garland (eds), A Reader in Punishment (Oxford: Oxford University Press, 1994); David Garland, Punishment and Modern Society (Oxford: Oxford University Press,1990).

(70) See J. Feinberg, ‘The Expressive Function of Punishment’ in Doing and Deserving, Feinberg (ed) (Princeton: Princeton University Press, 1970), 95 ; compare to A.J. Skillen, ‘How to Say Things with Walls’, 55 Philosophy (1980), 509.

(71) See Anthony Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001).

(72) On these additional aspects, see the references above n 68.

(73) The eventuality of this, as well as a potential responsibility of Finns for it was known to Finnish leadership, see, for example, Tarkka, Hirmuinen, above n 16, 36–7.

(74) A recent research project in the National Archives has provided several publications, summaries of which are compiled in English, see Westerlund (ed) above n 12. See also Lindstedt and Löytömäki, above n 1, 68–79.

(75) Hundreds of trials targeted low-ranking officials on the treatment of the Soviet POWs and the interned persons. See Raija Hanski, ‘The Second World War’, in Hannikainen, Hanski, Rosas (eds), above n 57, 41, 72–3; Antti Kujala, Vankisurmat. Neuvostosotavankien laittomat ampumiset jatkosodassa (Helsinki: WSOY, 2008), 11 ; Hyvämäki, above n 26. On the political side, an exception to impunity was the trial of Arno Anthoni, Director of the Finnish State Police, on the handing over of Jewish refugees to German authorities. See, eg, Rautkallio, Ne kahdeksan, above n 20; Anthoni was condemned to a warning, and he was compensated for the time of pre-trial detention.

(76) The Rome Statute of the International Criminal Court, 37 ILM 1002 (1998).

(77) On the ICC negotiations, see Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, (1999) 93 American Journal of International Law, 2 ; Roy S. Lee, ‘The Rome Conference and its Contribution to International Law’ in Roy S. Lee (ed), The International Criminal Court: The Making of the Rome Statute (Alphen aan den Rijn: Kluwer Law International, 1999), 1 ; John Washburn, ‘The Negotiations of the Rome Statute for the International Criminal Court and International Lawmaking in the 21st Century’, (1999) 11 Pace International Law Review, 361. See also Antoine Buchet and Immi Tallgren, ‘Sur la route de Rome—Les negotiations préalables à l´adoption du Statut de la Cour pénale international’ in Emmanuel Decaux and Serge Sur (eds), Commentaire du Statut de Rome de la Cour Pénale Internationale (Paris: Pedone, 2012), 171.

(78) Rome Statute, above n 76, 17 July 1998, preamble.

(79) See John T. Holmes, ‘The Principle of Complementarity’ in Roy S. Lee (ed), above n 77; William W. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System on International Justice’, (2008) 49 Harvard International Law Journal, 53. See also Immi Tallgren, ‘Completing the “International Criminal Order”—The Rhetoric of Repression and the Notion of Complementarity in the Draft Statute for an International Criminal Court’, (1998) 67 Nordic Journal of International Law, 107. For the resolution of the Kampala Diplomatic Conference on complementarity, see Resolution RC/Res. 1 (8 June 2010).

(80) See Article 15 of the UN Covenant on Civil and Political Rights (1966) UNTC, vol. 999, 171; Article 7 of the European Convention of Human Rights (1950).

(81) Bruce Broomhall, ‘Article 22’, Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Berlin: 2nd edn, Nomos, 2008) 713, 716. M Cherif Bassiouni wrote, before the ICC era: ‘the “principles of legality” in international criminal law…are necessarily sui generis because they must balance between the preservation of justice and fairness for the accused and the preservation of world order, taking into account the nature of international law, the absence of international legislative policies and standards, the ad hoc processes of technical drafting and the basic assumption that international criminal law norms will be embodied into the national criminal law of various states.’: Crimes Against Humanity in International Criminal Law (Leiden: Martinus Nijhoff Publishers, 1992), 112.

(82) In accordance with Article 13(b). In addition, a non-State Party can ‘accept the exercise of jurisdiction by the Court with respect to the crime in question’ (Article 12, para. 3). Finally, the Court may exercise its jurisdiction for crimes committed in the territory of States Parties, including on nationals of a non-State Party. This was behind the special agreements the USA has concluded with several ICC Member States. See ICC Statute Article 12 and its commentary by Sharon A. Williams and William A. Schabas, ‘Article 12’, Otto Triffterer , above n 81, 547, 556–7.

(83) Rome Statute, see above n 78, preamble.

(84) David S. Koller, ‘The Faith of the International Criminal Lawyer’ (2008) 40 International Law and Politics, 1019, 1023.

(85) On the entry into force of the revisions, see, eg, Claus Kress and Leonie von Holzendorff, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice, 1179.

(86) Even States Parties can declare their opt-out from the jurisdiction for aggression ‘prior to the ratification or acceptance’, Review Conference, RC/Res. 6, preamble operative para 1; Article 15bis (4).

(87) As demonstrated, for example, by the fifth Understanding adopted at Kampala: ‘It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State,’ RC/Res. 6, Annex III Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression.

(88) There is a wealth of commentaries on the application of complementarity. For the argument that it suffices exclusively to compare the (actual or likely) sentences, see Kevin Jon Heller, ‘A Sentence-based Theory of Complementarity’, (2012) 53 Harvard International Law Journal, 202–49.

(89) See Frédéric Mégret’s analysis on the presumed ‘vertical’ essence of international criminal justice, as compared to the ‘horizontal’ of domestic criminal justice, ‘In Search of the “Vertical”: An Exploration of What Makes International Criminal Tribunals Different (And Why)’ (October 9, 2008). Available at SSRN: <http://ssrn.com/abstract=1281546> (accessed 21 May 2013) or <http://dx.doi.org/10.2139/ssrn.128154>. On the presumed benevolence of the vertical, see Mégret, 41–2.

(90) President Urho Kekkonen, minister of justice at the time of the war responsibility trial, in a speech at the Finlandia Hall in 1977, quoted in Lehtinen and Rautakallio, above n 27, 5.

(91) See Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) European Journal of International Law, 941 ; see also Sarah Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013, forthcoming); Chacha Murungu and Japhet Biegon (eds), Prosecuting International Crimes in Africa (Pretoria: Pretoria University Law Press, 2011).