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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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Competing Histories

Competing Histories

Soviet War Crimes in the Baltic States

Chapter:
(p.248) 12 Competing Histories
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Liivoja Rain

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0012

Abstract and Keywords

This chapter analyses the attempts of three Baltic states — Estonia, Latvia, and Lithuania — to prosecute offences against international law committed in their territories by the Soviet authorities during and after World War II. It highlights the storytelling or history-writing function of trials of international crimes. The situation of the Baltic states also illustrates what happens if the historical record produced by such trials is in conflict with existing historical paradigms.

Keywords:   Estonia, Latvia, Lithuania, war crimes, international law, World War II, historical record

Most contributions to this volume tell untold stories about war crimes trials. This chapter, however, focuses on a few trials that attempt to tell untold stories. In other words, it is not the trials themselves that have been hidden in the mist of history, but rather the offences that they deal with. My aim here is to provide a brief comment on the efforts that the three Baltic states—Estonia, Latvia and Lithuania—have made to prosecute offences against international law committed in their territories by the Soviet authorities during and after World War II. This discussion highlights the storytelling or history-writing function that trials of international crimes often have. The situation of the Baltic states illustrates particularly vividly what happens if the historical record produced by such trials is in conflict with existing historical paradigms.

(I) Background

The Baltic states, as well as Finland, were part of the Russian Empire until the Russian Revolution of 1917. To cut a long story short,1 in the wake of the collapse of the Tsarist Government, Finland, Estonia, Latvia and Lithuania declared independence; they waged successful wars of independence against Soviet Russia, which, in peace treaties concluded in 1920, recognized the new states and disclaimed any rights to their territory.2

(p.249) On 23 August 1939, the Reich Minister for Foreign Affairs Joachim von Ribbentrop and the People’s Commissar for Foreign Affairs Vyacheslav Molotov signed the Nazi–Soviet Treaty of Non-Aggression.3 This agreement, which has become widely known as the Molotov–Ribbentrop Pact, made it possible for Germany to attack Poland on 1 September 1939 without entanglement with the Soviets. On 17 September 1939, the Red Army invaded Poland from the east and five days later the advancing German and Soviet troops met under amicable circumstances, celebrating that fact by a joint ‘victory parade’ in Brest. By a secret protocol attached to the Pact, the Union of Soviet Socialist Republics (USSR) and the German Reich divvied up Eastern Europe between them. The deal—as amended by a secret provision attached to a treaty concluded after the occupation of Poland4—left Finland, Estonia, Latvia, Lithuania, eastern Poland and what is now Moldova to the Soviet ‘sphere of influence’.

In furtherance of this arrangement, the USSR cajoled the Baltic states into concluding Mutual Assistance Pacts in September and October 1939, which permitted the establishment of Soviet military bases in their territories.5 Finland, in contrast, rejected a similar treaty, and on 1 December 1939 the USSR attacked Finland, launching the 105-day-long Winter War, in which Finland managed to defend its independence but lost a sizable part of its territory.6

In mid-June 1940, the USSR presented the Baltic governments with a demand for the total occupation of their territories, backed by a warning that military resistance would be repressed. The Baltic governments capitulated and Soviet forces invaded. Shortly thereafter, hasty ‘elections’ were held, in which only candidates approved by the Communist Party could run. The resulting ‘parliaments’ immediately petitioned Moscow to admit the Baltic states into the Soviet Union, a wish that was promptly granted, and the Baltic states were annexed to the USSR in early August 1940. Thus, ‘[w]‌ithin three months, the three states had been transformed from independent sovereign republics into union republics, constituent parts of a latter-day empire’.7

What happened next had something to do with a particular Soviet interpretation of history. The USSR took the view that the legitimate post-1917 governments in the Baltic states had not been the ones with which they had negotiated peace treaties in 1920, but rather Bolsheviks who had been toppled by ‘bourgeois democratic’ regimes. Accordingly, everyone involved in governing the Baltic states between 1918 and 1940 was seen as having played a role in an illegal usurpation of Soviet power. (p.250) Furthermore, having regained control over the Baltic territories in 1940, the Soviet authorities wished to reorganize the societies and economies along communist lines. The combination of these factors resulted in a highly systematic repression of the political, administrative, military and economic elites of the countries: undesirable persons were convicted by military tribunals for anti-Soviet or anti-communist offences and either executed or sent to prison camps in the USSR.8 Lesser ‘offenders’, including family members of those convicted, were deported to remote parts of the Soviet Union. On 13–14 June 1941, during one night alone, more than 40,000 people were ‘taken by truck to gathering points at peripheral railroad stations, packed into boxcars, and then taken to different points in the interior of the USSR’.9

In 1941, Germany attacked the USSR and occupied the Baltic states. The Nazis began carrying out their own repression campaign; murdering local Jews, Roma and those with Communist sympathies. Also, a significant number of Jews from other countries were brought into the Baltics for execution. Altogether some 300,000 people were murdered on Baltic soil during the German Occupation.10

In 1944, the Red Army invaded again and re-established Soviet rule. The authorities were now confronted with a group of individuals—known as the ‘forest brethren’—hiding from the Soviet authorities in the woods, and to some extent engaging in guerrilla warfare tactics. A two-fold strategy was adopted to deal with them. On the one hand, there began a campaign of extrajudicial executions of the forest brethren, who were regarded as ‘bandits’. On the other hand, to reduce support for them, another wave of deportations was undertaken. Deportation also served the purpose of accelerating the collectivization of agriculture through ‘dekulakization’—the physical removal of well-off farmers.

As a result, from 1940 through 1953, some 200,000 people were expelled from the Baltic states.11 Most notably, from 25–28 March 1949, in what was known as Operation Priboi (‘Breaker’), the Soviet authorities deported some 90,000 Estonians, Latvians and Lithuanians to various parts of the USSR, in particular the Amur, Irkutsk, Novosibirsk, Omsk and Tomsk oblasts and the Krasnoyarsk krai.12 On top of the deportation effort, some 75,000 people from the Baltic region were sent to forced labour camps (the infamous Gulag). All in all, roughly ten percent of the adult population of the Baltic states was either killed, imprisoned or deported by the Soviets.

(p.251) (II) Nazi Crimes in the Baltic States

The offences committed during the German occupation of the territory of the Baltic states, like those perpetrated in other Soviet-claimed territories, were immediately subjected to scrutiny.

As early as 1942, several years before the end of the war, the Soviet Union established an Extraordinary State Commission to investigate the offences of Nazis and their collaborators. This body was tasked with amassing evidence of crimes committed and damage caused by German forces occupying Soviet territory13 and reports of the commission were used, inter alia, at the Nuremberg trial.14 During the next few years, local commissions of a similar nature, numbering more than one hundred,15 were set up in Soviet-controlled territories, including the Baltic states.

In 1943, the Presidium of the Supreme Soviet of the USSR passed a decree ‘on the penalties for German-fascist evildoers, guilty of murdering and torturing the Soviet civilian population and Red Army prisoners-of-war, and for Soviet citizens [guilty of] spying and treason of the Motherland, and for their accomplices’.16 In accordance with this enactment, numerous trials were held all across the Soviet Union. The prosecutions relied on the evidence gathered by the Extraordinary State Commission and its local branches, and, most crucially, confessions of the accused. Two of the most widely known of these trials were held in 1943: the Krasnodar trial, which dealt with a group of eleven Russian and Ukrainian auxiliaries to Sonderkommando 10a, and the Kharkov trial, which focused on three Germans and one Russian accused of killing civilians.17

These proceedings set the tone for subsequent trials, held in 1945–6 in Kiev, Minsk, Leningrad, Smolensk, Briansk, Nikolaev, Velikie Luki and elsewhere.18 With respect to the Baltic territories, a trial took place in Riga in early 1946 and resulted in the conviction and execution of seven German ex-officials of the Riga military district.19 These trials, characterized by the application of the 1943 edict, appear (p.252) to have come to a conclusion with respect to Soviet citizens in 1947 and as regards enemy nationals in 1949.20 During the period in question, military tribunals across the USSR convicted roughly 2.5 million people of offences relating to the German occupation.21

The Soviet proceedings did not take place only during the war and the immediate post-war period. There appears to have been something of a break in the 1950s, but another wave of prosecutions commenced in the 1960s and, again, also involved the territory of the Baltic states. Two particularly prominent trials, somewhat hampered by the absence of some of the accused, were held in Estonia. In 1961, a prosecution was mounted against Ain-Ervin Mere (commander of the Estonian Security Police under the Self-Administration set up under German occupation), Ralf Gerrets (deputy commandant of a concentration camp at Jägala), and Jaan Viik (a guard at the camp, for the mass-murder of Jews). The three men were convicted and sentenced to death. Gerrets and Viik were duly executed. However, Mere had taken up residence in the UK and the British government declined to extradite him, citing a lack of evidence. He died in 1969 in Leicester, England. A fourth person, Aleksander Laak, commandant of the Jägala camp, had initially also been indicted, but he committed suicide in Winnipeg, Canada—allegedly after some prompting from a Zionist ‘avenger’—before the start of the trial.22

In 1962, another trial was held where Juhan Jüriste, Karl Linnas and Ervin Viks were charged with murdering 12,000 civilians at a concentration camp at Tartu. All three defendants were convicted and sentenced to death, but only Jüriste was actually executed. For the want of an extradition treaty, Viks was not extradited from Australia and he died there in 1983. The US, however, deported Linnas to the USSR. (In view of the American non-recognition policy of the annexation of the Baltic states and the death sentence passed in absentia, the deportation was quite extraordinary.23) Linnas died in 1987 in a Soviet prison hospital while awaiting retrial.

The Soviet investigations and trials of Nazis and their collaborators, which continued into the 1980s,24 should be approached with care. First of all, the historical record that they generated is tainted by conscious falsification of evidence. It is quite telling that the person in charge of editing the reports of the Extraordinary State Commission was none other than Andrey Vyshinsky,25 who, for example, personally ‘corrected’ forensic medical reports provided to the Commission.26 The most notorious instance of direct falsification was the fabrication of evidence to suggest that (p.253) the Germans were responsible for the massacre of some 22,000 Polish officers at Katyn,27 whereas in reality they had been killed by the Soviet NKVD—the People’s Commissariat for Internal Affairs.

Second, the judicial proceedings were egregious examples of show trials. They were characterized by inflated charges, an extensive reliance on (coerced) confessions (often involving grotesquely self-deprecating admissions of guilt), impotent defence counsel, and carefully orchestrated media coverage.

Third, with respect to Soviet citizens, the main legal basis for the trials was Section 58 of the 1926 Criminal Code of Soviet Russia, dealing with ‘counterrevolutionary crimes’,28 a concept with notoriously broad scope.29 Later trials, conducted under the 1961 Criminal Code of Soviet Russia or the relevant counterparts in the other Soviet republics, relied on the provision that criminalized the ‘betrayal of the fatherland’.30 Thus, as Ferdinand Feldbrugge, an eminent Dutch scholar of Soviet law explained:

[T]‌he edict of 1943 supplied the legal definition, the Tatbestand, for the crimes of foreign war criminals, but only the basis for special penalties (hanging and katorga [i.e. forced labour under harsh conditions]) with regard to Soviet citizens convicted of similar war crimes. Indeed the looseness of the Soviet definition of treason made it unnecessary to draft special provisions for punishing Soviet citizens who had acted against the Soviet Union in wartime. When we speak, therefore, of war crimes committed by Soviet citizens, we have in mind what is technically the crime of treason.31

As a result, it may be difficult to tell who during this period were actually convicted of war crimes and who were convicted of some perceived disloyalty to the Soviet regime.

Finally, only during the later trials was there any specific concern for the persecution and extermination of ethnic and racial groups. The earlier trials were fixated on the anti-Soviet dimension of the defendants’ conduct rather than any specific violations of the law of armed conflict or more general principles of humanity. Thus, Jewish victims were initially not designated as ‘Jews’ or ‘people’ or ‘civilians’, but as ‘Soviet citizens of Jewish descent’ or some such, in an attempt to cast the Soviet state as the greatest victim.

Having said all this, one cannot deny the atrocities committed by Nazi Germany in the territory that it occupied during World War II. There is also no doubt that locals—be they Estonians, Latvians or Lithuanians, or Russians, Byelorussians or Ukrainians—for a variety of reasons, and sometimes quite enthusiastically, collaborated with the (p.254) Germans and actively partook in the atrocities.32 It is probable that many of these individuals were caught in the vast net cast by the Soviet authorities. Thus, grossly imperfect as the Soviet investigations and trials may have been, they generated at least a semblance of accountability for offences committed in Eastern Europe in the interests of the Axis powers.

(III) Soviet Crimes in the Baltic States

The conduct of the Soviet regime itself was, of course, never critically evaluated. Thus, when the Baltic states regained independence in 1991, the situation was such that while Nazi crimes in their territories had at least to some extent been investigated and judicially processed, no legal assessment had been given to the conduct of members of the Red Army or other authorities of the Soviet Union in the Baltic territories. The three Baltic states were determined to rectify the situation.

(1) Preparatory steps

In 1992 all three states established national institutions to compile evidence of offences committed by the occupying regimes—both German and Soviet, though admittedly focusing on the latter. Thus, in Estonia a State Commission for the Investigation of Policies of Repression operated until 2004, while the Latvian Centre for the Documentation of the Consequences of Totalitarianism33 and the Genocide and Resistance Research Centre of Lithuania34 continue their work to this day. Furthermore, in 1998, the presidents of the Baltic states set up expert bodies with international or mixed membership to specifically consider the occupation period in their respective countries in a historical perspective. Thus emerged the Estonian International Commission for Investigation of Crimes against Humanity (replaced in 2008 by the Institute of Historical Memory),35 the Latvian History Commission,36 and the International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania.37

Furthermore, all three states embarked on a distinctly legal process of evaluating Soviet-occupation-era atrocities.38 The first obstacle was the lack of adequate (p.255) legislation. Obviously the Soviet approach of classifying war crimes as a form of treason was out of the question. In any event, even though all three states initially continued to apply the existing Soviet-era criminal legislation, they purged these instruments of all distinctly Soviet offences. Accordingly, all three states first had to modify their legislation—a process that in hindsight looks rather peculiar.

In 1992, Lithuania passed a special Act providing for the responsibility for the genocide of the Lithuanian people.39 Section 1 of the Act defined genocide, broadly following the definition of the Genocide Convention.40 Section 2 added that ‘killing and torturing the people of Lithuania, deportation of its population carried out during the years of Nazi and Soviet occupation and annexation of Lithuania, corresponds to the definition of the crime of genocide as it is described by international law’. In an effort to codify Lithuanian criminal law, the crime of genocide was incorporated into the Criminal Code in 1998. The definition of the offence referred to ‘actions committed with intent to physically destroy, in whole or in part, residents belonging to a national, ethnical, racial, religious, social or political group’ and then listing the various modalities.41

In 1993, Latvia amended its Criminal Code with a new chapter, dealing with international crimes. Notably, section 68/1 provided that ‘crimes against humanity, including genocide’, are certain deliberate acts committed with intent to destroy, in whole or in part, a particular national, ethnical, racial or religious group.42 Section 68/3 proscribed war crimes, defined as ‘violations of the laws and customs of war’.

In 1994, Estonia inserted a provision dealing with genocide and crimes against humanity into the Criminal Code as section 61/3, which referred to:

[c]‌rimes against humanity, including genocide, as these offences are defined in international law, that is, the intentional commission of acts directed to the full or partial extermination of a national, ethnic, racial or religious group, a group resisting an occupation regime, or other social group, the murder of, or the causing of extremely serious or serious bodily or mental (p.256) harm to, a member of such group or the torture of him or her, the forcible taking of children, an armed attack, the deportation or expulsion of the native population in the case of occupation or annexation and the deprivation or restriction of economic, political or social human rights.43

At the same time, three provisions regarding war crimes were introduced into the Criminal Code, dealing respectively with the abuse of the civilian population in a zone of hostilities, mistreatment of prisoners of war, and the use of prohibited means and methods of warfare.44

Before looking at the proceedings undertaken within this legal framework, a few general observations are in order. First, all three states have since adopted completely new codifications of substantive criminal law—Latvia in 1998,45 Lithuania in 2000,46 and Estonia in 2001.47 I have mentioned the early legislation above because the lion’s share of criminal cases concerning Soviet offences were dealt with under the earlier legislation.

Second, a striking feature of the Estonian and Lithuanian legislation is the broadening of the definition of genocide. According to the 1948 Genocide Convention, the crime of genocide encompasses certain violent or coercive acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.48 Lithuanian law adds ‘social or political group[s]‌’ to the list, whereas Estonian law mentions ‘a group resisting an occupation regime, or other social group’ (the former being a thinly veiled reference to the forest brethren). The extension of the definition of genocide to social and political groups is not a uniquely Baltic phenomenon—numerous other states have done so49—but it doubtless has special significance in the case of the Baltics (and also, for example, for Ethiopia in view of the Red Terror of the 1970s).

Third, early Estonian and Latvian definitions of crimes against humanity hardly qualified as masterpieces of legal craftsmanship. For whatever reason, the legislators tried to address crimes against humanity and genocide jointly. They did not succeed very well and in fact caused considerable confusion. The recent codifications have resolved the problem by treating the two offences separately.

(p.257) But from these premises, imperfect as they may have been, the Baltic states proceeded to investigate, indict and try a number of persons suspected of having perpetrated international crimes against Estonians, Latvians and Lithuanians. The defendants were mainly regional heads and operational commissioners of the Ministry of Internal Affairs (MVD), the NKVD and the Ministry of State Security (MGB).

There is, unfortunately, no definitive list or count of all the trials, let alone of all the investigations that did not lead to trials. But by my last count, Estonian courts have convicted eleven persons,50 Latvian courts nine, and Lithuanian courts another dozen or so. Yet the total number of investigations is in the order of several hundred as many cases were closed due to a shortage of evidence, or the death or ill-health of the accused, who were by this time in their 70s and 80s. Thus, I will mention here only a few representative cases, focusing especially on those which garnered international attention due to proceedings before the European Court of Human Rights.

(2) Prosecution for crimes against humanity and genocide

The bulk of the cases addressed two aspects of Soviet repression: the deportation of civilians and the extrajudicial execution of forest brethren. Yet the way these acts have been qualified as a matter of law has differed from state to state.

In Estonia, virtually all of the cases have proceeded under section 61/1 of the old Criminal Code, which, as already mentioned, contained the awkward amalgamation of genocide and crimes against humanity. An important case came before the Estonian courts in 1998, when Karl-Leonhard Paulov, a former ‘combat agent’ (agent-boyevik) of MGB was prosecuted for having killed three forest brethren in 1945 and 1946 by shooting them in the back.

The case is notable because this appears to have been the first occasion where such an agent was actually prosecuted. Furthermore, the case allowed the Supreme Court to clear up the confusion created by the legislature in defining international offences in Estonian law. The Court, by relying on the definitions contained in Article 6(2) of the Nuremberg Charter and Article 2 of the Genocide Convention, outlined the elements of genocide, distinguishing it from crimes against humanity.51 Finally, the case allowed the Supreme Court to clarify the status of the forest brethren. The Supreme Court agreed with the position of the appellate court that they were civilians for the purposes of the law of armed conflict.52 Therefore depriving them (p.258) of the right to life and the right to a fair trial could be qualified as other ‘other inhumane act[s]‌’ falling within the definition of crimes against humanity in Article 6(2)(c) of the Nuremberg Charter. In a later case, concerning a MGB agent named Vladimir Penart, who in 1953 had shot another of the forest brethren, the Supreme Court had the occasion to further explain the point.53 The Court noted that whether or not the forest brethren qualified as combatants had to be evaluated in light of the 1907 Hague Regulations which codified customary international law at the time. The Court noted that since the forest brethren did not meet the criteria of Articles 1 and 2 of the Regulations defining combatants, they were to regarded as civilians.

In only one instance has there been prosecution for genocide in Estonia. In 2007, one Arnold Meri was indicted under the provision in the new Penal Code dealing exclusively with genocide for his alleged involvement in the deportation of 251 civilians from the island of Saaremaa during Operation Priboi. However, the trial was suspended because of the aged defendant’s ill health, and subsequently closed when he died. Thus, Estonian courts have not had the occasion to pronounce on whether the deportation campaign amounted to genocide.

In Latvia, the intermingling of the definitions of crimes against humanity and genocide also caused some difficulty. However, there the authorities and courts opted for genocide. For example, in affirming the conviction of Alfons Noviks, the former People’s Commissar of the Interior of the Latvian SSR, for his involvement in the deportation, the Latvian Supreme Court explicitly qualified this conduct as ‘[g]‌enocide against those inhabitants of Latvia whom Alfons Noviks marked as socially dangerous and detrimental to the Soviet regime’.54

In Lithuania, there was little alternative in respect of the early cases to qualifying similar conduct as genocide, as the definition of crimes against humanity was introduced into Lithuanian law by the entry into force of the new Criminal Code in 2003.55

In this context, the charge of crimes against humanity is clearly the less problematic one. The deportation campaign certainly satisfies either of the two contextual elements of crimes against humanity. There can be little doubt that, given the large number of persons affected by the measures, especially in relation to the size of the total population of the Baltic countries, the acts were widespread. In light of the deportation being carried out meticulously against specific segments of the population according to lists previously drawn up, they were also systematic. As regards modalities of crimes against humanity, that is to say the specific acts that amount to the offence if the contextual element is satisfied, both murder and deportation are recognized as such by international law.56

(p.259) The genocide charges, in contrast, are far more problematic. The main question is whether the activities of the Soviet authorities were undertaken with a view to eliminating a specific group, and if so, whether the group was covered by the definition of genocide. Here one stumbles on the innovation of the law of the Baltic states with respect to the range of protected groups. Whatever may be the status of customary law today, it is difficult to make the argument that, in the 1940s and 1950s, the destruction of social or political groups amounted to genocide under customary law. Hence, the genocide of a ‘group resisting occupation’ or of ‘those inhabitants…marked as socially dangerous and detrimental to the Soviet regime’ is a notion fraught with difficulty.

However, there is a different way of approaching the matter. As the International Criminal Tribunal for the former Yugoslavia has recognized, genocidal intent need not be manifested in ‘desiring the extermination of a very large number of the members of the group’, but ‘may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such’.57 An Estonian legal scholar, Lauri Mälksoo, has argued that the context of the Soviet repressions in the Baltic states indicates a genocidal intent in this sense.58 The repressions were directed against the political, economic and intellectual elites, with the further hidden agenda of subjugating national groups. However, as Mälksoo notes, it may be difficult to prove such intent on the level of the officials who actually carried out the deportation orders.59

As regards modalities, while the execution of individuals would certainly qualify as an act of genocide if the necessary dolus specialis is present,60 the status of deportation is far less certain.61

In view of all this, Justinas Žilinskas, a Lithuanian legal scholar who has extensively studied the approach to the crime of genocide in Lithuania,62 sensibly concludes that ‘[i]‌n many instances, it may be advisable to qualify crimes of the Soviet regime as crimes against humanity to avoid possible problems with the principle of nullum crimen sine lege’.63

(p.260) (3) Prosecution for war crimes

Although there exists a fairly large body of cases where the offence was characterized as a crime against humanity or as genocide, there have not been many war crimes trials.

This may seem curious in light of the fact that it has been an article of judicial faith in the Baltic states that their territories were militarily occupied by the USSR until 1991. Hence, the law of armed conflict (in particular, the law of occupation) should have applied and its serious violations ought to be prosecutable as war crimes. Moreover, the law of armed conflict (and hence war crimes law) was far better developed at the relevant time compared to the international law relating to crimes against humanity and genocide, which should have made laying war crimes charges technically much simpler. However, crimes against humanity and genocide appear as powerful and self-explanatory labels for the Soviet crimes, whereas war crimes might be viewed by the public as mere technicalities. In other words, describing the Soviet conduct as crimes against humanity (or, better yet, genocide) better reflects the subjective suffering felt by the victims.

That said, it is interesting that the most controversial of all the cases involving Soviet crimes in the Baltic states has been one of the very few war crimes trials—the prosecution of Vasily Kononov in Latvia.64 The facts of the case relate to the period after the Baltic states had been annexed by the Soviet Union and had then been occupied by Germany. Units of Soviet guerrillas, known as the Red Partisans, operated in the occupied territories, spreading political propaganda among the local population and engaging in acts of sabotage. To get a sense of the modi operandi of the Partisans, one can refer to the Soviet Supreme Command order of 17 November 1941, which instructed that ‘[a]‌ll settlements in the rear of the German troops, 20–60 km deep behind the front line and 20–30 km to the right and to the left of the roads, must be destroyed and burned to ashes’.65

In 1944, Kononov was a sergeant in command of a platoon of Red Partisans in Latvia. His unit suspected that a number of the inhabitants of a village called Mazie Bati had revealed to the Germans the location of another group of partisans, who had been subsequently ambushed and killed by German soldiers. At the same time, the villagers, apparently fearing an attack by the partisans, turned for assistance to the German military administration, which supplied several households with a rifle and two grenades.

(p.261) On 27 May 1944, Sergeant Kononov led his unit, wearing German army uniforms to avoid detection, into the village where the inhabitants were preparing to celebrate Pentecost. They split into groups and searched several farmhouses, finding the weapons supplied by the Germans. They ordered the heads of families—altogether six men, who offered no resistance—into the yard from their houses. They bolted the doors after them and shot the men. The partisans then set fire to two farmhouses, thereby burning to death the people inside—one man and three women, one in the final stages of pregnancy.

In 1998, the Latvian authorities opened an investigation into Kononov’s wartime conduct. He was subsequently prosecuted for war crimes under the 1993 amendment to the Latvian Criminal Code. The proceedings were long and complex, making two cycles through the courts. In the end, the Latvian courts found that Mr Kononov had violated several rules of the law of armed conflict, namely ill-treatment, wounding and killing of persons hors de combat,66 treacherous wounding and killing (by making improper use of enemy uniforms),67 breach of the special protection accorded to women,68 and destruction of property not imperatively demanded by the necessities of war.69 He was sentenced to eighteen months’ imprisonment, time already served in pre-trial detention.

(IV) Proceedings before the European Court of Human Rights

Several defendants in these cases have complained to the European Court of Human Rights of various violations of the European Convention on Human Rights. Some applicants have questioned the procedural fairness of the trials or the surrounding circumstances. The Court has not been particularly receptive to allegations that due process guarantees have been violated and has on a number of occasions declared complaints along those lines manifestly ill-founded.70 Somewhat more problematic has been the fact that the defendants have been rather old and not in the best health. Thus, at least in one instance the Court found that the conditions of detention were incompatible with the age and ill-health of the particular defendant and therefore amounted to a violation of the prohibition of degrading treatment.71

The brunt of the legal challenge has related, however, to the possibility that the defendants have been tried under retroactive law: as already noted, the proceedings (p.262) have been conducted with respect to events taking place in the 1940s and 1950s but under legislation enacted in the 1990s.

The relevant provision of the Convention is Article 7, which reads as follows:

  1. (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

  2. (2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

In early 2006, the Court made two decisions regarding Estonia. The applicants had complained of a violation of Article 7 because they had been convicted of crimes against humanity committed before the Estonian Criminal Code was amended to incorporate such offences. In dismissing the arguments, the Court held that deportation and extrajudicial execution committed post-Nuremberg had doubtless been criminal according to international law, which satisfied the requirement of Article 7(1).72 While individual points in the court’s reasoning are open to criticism, the conclusion appears valid.73

Regarding Mr Kononov’s allegation as to the retroactivity of Latvian law, the main question was ‘whether on 27 May 1944 the applicant’s acts constituted offences that were defined with sufficient accessibility and foreseeability by domestic law or international law’.74 In 2008, a Chamber of the Court, by a narrow majority of four votes to three, found that they were not.75 In 2010, the Grand Chamber reversed that decision, by fourteen votes to three, finding that they were.76

At first sight, the disagreement between the Latvian courts and the Chamber seems to relate to the status of the villagers and any possible protection deriving from international law due to that status. The Latvian courts had regarded the villagers as civilians with the attendant protection against attack. The Chamber disagreed.77 It considered the villagers ‘collaborators of the German Army’ who could not be deemed civilians.78 This suggests that collaboration turned them into combatants—a (p.263) position that is rather odd. Moreover, the argument put forward by the applicant that Latvia had lawfully become part of the USSR79 is difficult to reconcile with the idea that the villagers were targetable as enemy combatants, that is ‘persons belonging to a hostile army’. If the annexation was lawful, and the villagers were Soviet nationals on Soviet territory, surely they could not have been regarded as part of a hostile army.80 The Grand Chamber later simply hedged its bets, observing that even if the villagers were considered combatants or civilians having taken part in hostilities, they were still entitled to protection upon capture, and their extrajudicial execution contravened the law of armed conflict. And as civilians they would have been entitled to even greater protection.81

On one level, the whole case can be seen as a dispute about the identification and interpretation of specific rules of the law of armed conflict, and their application to the case at hand. The Chamber may have simply misapplied the law and the Grand Chamber rectified this. It is not as if there has not been a struggle with the concepts of combatants and civilians elsewhere; plus, the Court’s expertise is not really in the law of armed conflict.

But there appears to be a more fundamental disagreement buried beneath the legal niceties of ‘retroactivity’. One of the revealing points of controversy was whether the villagers, by arming themselves with weapons provided by the Germans, ostensibly for defensive purposes, lost their status as civilians. Russia, intervening in the proceedings in support of the applicant, certainly thought so. Russia suggested that any argument as to self-defence against the anti-Nazi partisans was ‘unacceptable, since it went against the tenor of the Nuremberg judgment. No legitimacy whatsoever could attach to the collaboration with the Nazi criminal regime.’82 The Chamber agreed. It dismissed the idea that the villagers engaged in collaboration in order to defend themselves against potential attacks of the Red Partisans: ‘National Socialism is in itself completely contrary to the most fundamental values underlying the [European] Convention [on Human Rights] so that, whatever the reason relied on, it cannot grant any legitimacy whatsoever to pro-Nazi attitudes or active collaboration with the forces of Nazi Germany’.83 In effect, the Chamber took the position that the alleged ‘pro-Nazi’ views of the villagers deprived them of protection accorded to civilians under international humanitarian law.84 Indeed, the Chamber was somehow very insistent in suggesting that the villagers ‘had it coming’. As the Chamber said itself, ‘the villagers must have known that by siding with one of the belligerent parties they would be exposing themselves to a risk of reprisals by the other’.85

(p.264) In short, Russia suggested, and the Chamber accepted, that the protection deriving from the law of armed conflict depends on where one’s sympathies lie. To take the argument to its logical conclusion—the law of armed conflict only protects the ‘good guys’. This, however, goes against the very core principles of this body of law, which is supposed to apply quite independently of the justness of one’s cause.

The ‘good guys’ versus ‘bad guys’ theme appears in a rather striking fashion once more in Russia’s arguments:

[T]‌he Latvian courts should not have applied by analogy the Charter of the Nuremberg Tribunal—whose purpose was to punish crimes committed by the Axis powers in the occupied territories—to the applicant, who had fought alongside the anti-Hitler coalition in his own country, the USSR. Such an extension was unacceptable and manifestly contrary to the judgment of the Nuremberg Tribunal on which the entire post-war legal and political system was based.86

At least some of the judges were persuaded by this reasoning. In his Concurring Opinion attached to the Chamber judgment, Judge Myjer recorded his understanding that ‘the Nuremberg trials and the subsequent trials of the Nazis and their henchmen at the international and national level were to be the final ‘judicial settlement’ under criminal law of what had happened during the Second World War’.87 He then referred to the applications made to the European Court previously by individuals who had many years after the war been tried for war crimes perpetrated in the interest of Axis powers. But they were ‘Nazi collaborators and had no right to complain about the fact that they were tried for war crimes or crimes against humanity many years after the end of the Second World War’.88 The Kononov case was different, as this was ‘the first case before this Court relating to events which took place during the Second World War in which the person on trial was not associated with the Nazis or their allies and collaborators, but was on the side of the Allied powers fighting the Nazis’.89 Apparently a distinction was to be made here.

This point was picked up by three dissenting judges of the Chamber who observed:

This case is allegedly different since the applicant belonged to the Allied powers fighting against the Nazis. The legal basis for such an approach is unclear. Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?90

(V) By Way of Conclusion

Why indeed? Yet the line of reasoning adopted by Russia, and accepted by some of the European judges, is not novel. During the drafting of the Nuremberg Charter, (p.265) the Soviet Union took a similar stance. Justice Robert Jackson, the US representative during the Charter negotiations and chief prosecutor at the trial, has written that:

[t]‌he Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all.91

The qualifications of course made their way into the Charter as jurisdictional limitations—the tribunal was only competent to deal with Axis war crimes. But the point is that already in the preparatory stages of the Nuremberg process, the Soviet Union was of the view that certain crimes are by their very definition only capable of being committed by someone else—the enemy, in this instance, the ‘Fascist-German invaders’.92

The survival of this view points to a deeper problem, namely the persistence in the Soviet, and now Russian, ideology of what has been called the ‘myth of the war’. Marina Sorokina from the Russian Academy of Sciences has astutely observed that:

[a]‌mong the many and varied Stalinist political myths that have been gradually destroyed in Russia in recent decades, the ‘myth of the war’ has proved to one of the most resilient….According to its simple and bewitching logic, everything ‘ours’ consisted of heroes and victims, and everything ‘alien’ was associated with enemies and criminals.93

Sorokina further argues that the Extraordinary State Commission, tasked with investigating the damage done by Nazi Germany to the Soviet Union, was ‘[o]‌ne of the immediate participants in the creation of the Stalinist war myth’.94 The same can no doubt be said about the war crimes trials conducted in the Soviet Union. Perhaps one of the most successful individual components of this myth-creation was the shifting of the blame for the Katyn massacre to the Germans. When in 2010 the lower house of the Russian parliament finally condemned Katyn as a (p.266) crime of Joseph Stalin, the Communist Party voted against the motion, because it did not believe that the USSR had anything to do with the atrocity.95

In view of the ‘myth of the war’, it is easier to understand why Russia got so worked up about the Kononov case, while its reaction to the previous cases was more muted. The previous defendants had mostly been people doing the dirty work of the NKVD or the MGB. Little love has been lost between the ordinary Russian and various forms of Stalinist secret police. But Kononov was a partisan—a heroic fighter against Nazism—with the Order of Lenin, the highest Soviet decoration, pinned to his chest. While in many Western countries it is the prisoner-of-war who enjoys the status of the ultimate war hero, in the Soviet Union it was the Red Partisan. Thus, the prosecution attacked not just Kononov the man, but the Soviet partisan as a mythical figure.

The biggest complaint against the trials in the Baltic states has been that they are rewriting history. ‘It is true’, notes Yulia Latynina, a prominent Russian journalist, ‘that the verdicts of the Latvian court and the [Grand Chamber of the] European Court of Human Rights are vivid examples of an attempt to rewrite history. But this is precisely the history that needs to be rewritten’.96 Several contributors to this volume have elsewhere discussed the expressive value and the history-writing function of criminal law.97 As Mark Drumbl explains, ‘[e]‌xpressivism…transcends retribution and deterrence in claiming as a central goal the crafting of historical narratives, their authentication as truths, and their pedagogical dissemination to the public’.98 This indeed appears to be the main function of the trials undertaken by the Baltic states. In the majority of cases, the defendants, when found guilty, have not been given any actual punishment.99 In Estonia, for example, the seemingly standard practice is to mete out a sentence of eight years, suspended for three years.

But, interestingly, the public, who the Baltic states wish to educate, is not actually the society in which the trials take place. Every Estonian, Latvian or Lithuanian can tell a story about a relative or a family friend who was somehow affected by the Soviet oppression. They do not need proof—though they probably appreciate the judicial authentication of their stories. The public who is being educated is the world community. And as long as there are judges in Strasbourg who believe the Soviet war myth, the history lesson may well be necessary.

Notes:

(1) For more detail, see Andrejs Plakans, A Concise History of the Baltic States (Cambridge: Cambridge University Press, 2011), particularly 293–307, and Andres Kasekamp, A History of the Baltic States (Basingstoke: Palgrave Macmillan, 2010), 95–105.

(2) See Treaty of Peace, Estonia–Russian SFSR, signed at Dorpat [Tartu], 2 February 1920, in force 30 March 1920, 11 LNTS 30; Treaty of Peace, Lithuania–Russian SFSR, signed at Moscow, 12 July 1920, 3 LNTS 106; Treaty of Peace, Latvia–Russian SFSR, signed at Riga, 11 August 1920, 63/2 LNTS 195; Treaty of Peace, Finland–Russian SFSR, signed at Dorpat [Tartu], 14 October 1920, 3 LNTS 5.

(3) Treaty of Non-Aggression, Germany–USSR, signed at Moscow, 23 August 1939, reproduced at <http://www.lituanus.org/1989/89_1_03.htm> (accessed 3 March 2013).

(4) Treaty of Friendship, Cooperation and Demarcation, Germany–USSR, signed at Moscow, 28 September 1939,reproducedat<http://en.wikisource.org/wiki/German-Soviet_Boundary_and_ Friendship_Treaty_28_September_1939> (accessed 3 March 2013).

(5) Pact of Mutual Assistance, Estonia–USSR, signed at Moscow, 28 September 1939, in force 4 October 1939, 198 LNTS 223; Pact of Mutual Assistance, Latvia–USSR, signed at Moscow, 5 October 1939, in force 11 October 1939, 198 LNTS 381; Pact of Mutual Assistance, Lithuania–USSR, signed at Moscow, 10 October 1939, 3 Soviet Documents on Foreign Policy, 380.

(6) See Plakans, above n 1, 339, and Kasekamp, above n 1, 126.

(7) Plakans, above n 1, 344.

(8) Consider, for example, the fate of the members of the Tallinn Rotary Club, who in the 1930s included numerous movers and shakers of Estonian society. According to a study recently commissioned by the Club, of the ninety-one men who had been members in 1930–40, a third managed to escape to the West. Of the rest, sixty per cent were either executed or imprisoned, and the vast majority of those imprisoned died in jail or in prison camps. See ‘Liikmed 1930–1940’, Tallinn Rotary Club [website], <http://www.rotary.ee/tallinn/et/klubi-ajalugu/liikmed-.html> (accessed 3 March 2013, in Estonian).

(9) Plakans, above n 1, 347.

(10) Plakans, above n 1, 353.

(11) Plakans, above n 1, 367–8.

(12) Heinrihs Strods and Matthew Kott, ‘The File on Operation “Priboi”: A Re-Assessment of the Mass Deportations of 1949’, Journal of Baltic Studies, 33 (2002), 1–36, 241.

(13) See generally Marina Sorokina, ‘People and Procedures: Toward a History of the Investigation of Nazi Crimes in the USSR’, Kritika: Explorations in Russian and Eurasian History, 6 (2005), 797–831.

(14) For the role of the Commission in preparing the Soviet case at Nuremberg, see George Ginsburgs, Moscow’s Road to Nuremberg: The Soviet Background to the Trial (Boston, MA and Leiden: Martinus Nijhoff, 1996), especially 37–40.

(15) Sorokina, above n 13, 801.

(16) An English translation of the edict appears in F.J.M. Feldbrugge, ‘War Crimes in Soviet Criminal Law: A Postscript’, Review of Central and Eastern European Law, 25 (1999), 459–61.

(17) For an illuminating account of the Krasnodar trial and the background to Soviet prosecutions, see Ilya Bourtman, ‘“Blood for Blood, Death for Death”: The Soviet Military Tribunal in Krasnodar, 1943’, Holocaust and Genocide Studies, 22 (2008), 246–65. See also the judgment in USSR v Langheld et al. (Case of Atrocities Committed by German-Fascist Invaders in the City of Kharkov and Kharkov Region During Their Temporary Occupation) (Military Tribunal of the 4th Ukrainian Front, USSR, 1943), the English text of which appears in Nazi Crimes in Ukraine 1941–1944: Documents and Materials (Kiev: Institute of State and Law of the Academy of Sciences of the Ukrainian SSR, 1987), 279–83.

(18) Ginsburgs, above n 14, 40.

(19) See ‘Riga Trial’, Jewish Virtual Library [website], <http://www.jewishvirtuallibrary.org/jsource/Holocaust/WarCrime50.html> (accessed 3 March 2013).

(20) F.J.M. Feldbrugge, ‘War Crimes in Soviet Criminal Law: A Propos—The Lukianoff Case’, Review of Socialist Law, 10 (1984), 293.

(21) Ginsburgs, above n 14, 41.

(22) Jonathan Freedland, ‘Revenge’, The Guardian, 26 July 2008, <http://www.guardian.co.uk/world/2008/jul/26/second.world.war> (accessed 3 March 2013).

(23) See Jerome S. Legge, Jr, ‘The Karl Linnas Deportation Case, the Office of Special Investigations, and American Ethnic Politics’, Holocaust and Genocide Studies, 24 (2010), 26–55.

(24) For a late case, see Feldbrugge, above n 20.

(25) While Vyshinsky later gained some prominence as one of the prosecutors at Nuremberg, his main claim to fame was the orchestration of show trials during Joseph Stalin’s Great Purge in the late 1930s.

(26) Sorokina, above n 13, 827–9.

(27) Sorokina, above n 13, 804–806.

(28) For an English translation of the provision, see ‘Criminal Code of RSFSR’, <http://www.cyberussr.com/rus/uk58-e.html> (accessed 3 March 2013). Section 59 of the Code, addressing ‘crimes against the administrative order that are especially dangerous to the USSR’, also proved useful.

(29) As Aleksandr Solzhenitsyn rhetorically asked in The Gulag Archipelago, ‘[w]‌ho among us has not experienced its all-encompassing embrace? In all truth, there is no step, thought, action, or lack of action under the heavens which could not be punished by the heavy hand of Article 58’: Aleksandr Solzhenitsyn, The Gulag Archipelago (New York, NY: Harper & Row, 1st edn, 1973), 60.

(30) Section 64a.

(31) Feldbrugge, above n 20, 293.

(32) For example, with respect to Estonia, see generally Estonia 1940–1945: Reports of the Estonian International Commission for the Investigation of Crimes against Humanity (Tallinn, 2006).

(33) See Centre for the Documentation of the Consequences of Totalitarianism (CDCT) [website], <http://www.sab.gov.lv/index.php?lang=en&page=15&sub=260> (accessed 3 March 2013).

(34) See Genocide and Resistance Research Centre of Lithuania [website], <http://www.genocid.lt> (accessed 3 March 2013).

(35) See Estonian Institute of Historical Memory [website], <http://www.mnemosyne.ee> (3 March 2013).

(36) See ‘Latvia’s History Commission’, Ministry of Foreign Affairs of Latvia [website], <http://www.mfa.gov.lv/en/policy/4641/4661/4664/> (accessed 3 March 2013).

(37) See The International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania [website], <http://www.komisija.lt> (accessed 3 March 2013).

(38) All three became parties to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, GA Res. 2391 (XXIII) (26 November 1968), in force 11 November 1970, 754 UNTS 73—Estonia acceded on 21 October 1991, Latvia on 14 April 1992 and Lithuania on 1 February 1996.

(39) Įstatymas dėl atsakomybės už Lietuvos gyventojų genocidą [Law on the Responsibility for the Genocide of the Population of Lithuania], 9 April 1992, No. I-2477, Valstybės žinios (1992), No. 13-342. See also Justinas Zilinskas, ‘Broadening the Concept of Genocide in Lithuania’s Criminal Law and the Principle of nullum crimen sine lege’, Jurisprudencija, 4 (118) (2009), 335; Rytis Satkauskas, ‘Soviet Genocide Trials in the Baltic States: The Relevance of International Law’, Yearbook of International Humanitarian Law, 7 (2004), 392.

(40) But for two points of difference, see Zilinskas, above n 39, 336.

(41) Baudžiamasis kodeksas [Criminal Code], 1961/1990, Section 71(1), cited in Compliance of the Republic of Lithuania Law ‘On Compensation for the Damage Inflicted by the USSR Occupation’ (Wording of 12 March 1998), the Republic of Lithuania Law ‘On Restoring the Rights of Persons Repressed for Resistance Against the Occupation Regimes’ (Wording of 12 March 1998) and the Republic of Lithuania Law ‘On Liability for Genocide of Residents of Lithuania’ (Wording of 9 April 1992 with Subsequent Amendments) with the Constitution of the Republic of Lithuania, Case No. 09/2008 (Constitutional Court, Lithuania, 2010). A separate section created an aggravated form of the offence, involving the killing of the victims or organizing the commission of genocide by other persons. Criminal Code 1961/1990 (Lithuania), section 71.

(42) Cited in ‘Third Periodic Report of States Parties Due in 1997—Latvia’, Committee on the Elimination of Racial Discrimination, Doc. CERD/C/309/Add.1 (25 March 1999), [21].

(43) Criminal Code (Estonia), section 61/1(1), as introduced by Eestis inimsusevastaseid kuritegusid või sõjakuritegusid toimepannud isikute kriminaalvastutuse seadus [Act on the Criminal Liability of Persons Who Have Committed Crimes against Humanity or War Crimes in Estonia], 9 November 1994, Riigi Teataja I 1994, 83, 1447.

(44) Criminal Code (Estonia), above n 43, sections 61/2, 61/3, and 61/4.

(45) Krimināllikums [Criminal Code], 17 June 1998, Latvijas Vēstnesis No 199/200 (8 July 1998). See, in particular, section 71 (genocide), section 71/2 (crimes against humanity) and section 74 (war crimes).

(46) Baudžiamasis kodeksas [Criminal Code], 26 September 2000, Valstybės žinios 2000 No. 89-2741. See, in particular, section 99 (genocide), section 100 (crimes against humanity), sections 101–113 (war crimes).

(47) Karistusseadustik [Penal Code], 6 June 2001, Riigi Teataja I 2001, 61, 364. See, in particular, section 89 (crimes against humanity), section 90 (genocide) and sections 94–109 (war crimes).

(48) Convention on the Prevention and Punishment of the Crime of Genocide, GA Res. 260 A (III) (9 December 1948), in force 12 January 1951, 78 UNTS 277, Article II.

(49) See John B. Quigley, The Genocide Convention: An International Law Analysis (Farnham: Ashgate, 2006), 17–18.

(50) See ‘Aegumatud rahvusvahelised kuriteod—Kriminaalasjad’, Estonian Security Police [website], <http://www.kapo.ee/est/toovaldkonnad/aegumatud-rahvusvahelised-kuriteod/kriminaalasjad> (accessed 3 March 2013, in Estonian).

(51) In re Paulov, Case No. 3-1-1-31-00, Riigi Teataja III 2000, 11, 118 (Supreme Court, Estonia, 2000).

(52) The Courts, somewhat problematically, based themselves here on Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, signed at Geneva, 8 June 1977, in force 12 July 1978, 1125 UNTS 3, Article 50(1): ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’

(53) In re Penart, Case no. 3-1-1-140-30, Riigi Teataja III 2004, 2, 23 (Supreme Court, Estonia, 2003).

(54) In re Noviks, Case No. #PAK-269 (Supreme Court, Latvia, 1996), Baltic Yearbook of International Law, 1 (2001), 261, 298.

(55) Zilinskas, above n 39, 338.

(56) Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, UK–US–France–USSR, signed at London, 8 August 1945, in force upon signature, 82 UNTS 279, Article 6(1)(c); Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 UNTS 90, Article 7(1)(a) and (d).

(57) Prosecutor v Jelisić, Case no. IT-95-10, ICTY Trial Chamber, Judgment (14 December 1999), [82].

(58) Lauri Mälksoo, ‘Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law’, Leiden Journal of International Law, 14 (2001), 784–5.

(59) Mälksoo, above n 58, 785.

(60) Rome Statute, above n 56, Article 6(a).

(61) UN Secretary-General, ‘Draft Convention on the Crime of Genocide’, UN Doc. E/447 (26 June 1947), 24: ‘Mass displacement of populations from one region to another also does not constitute genocide. It would, however, become genocide if the operation were attended by such circumstances as to lead to the death of the whole or part of the displaced population (if, for example, people were driven from their homes and forced to travel long distances in a country where they were exposed to starvation, thirst, heat, cold and epidemics)’.

(62) Justinas Žilinskas, Nusikaltimai žmoniškumui ir genocidas tarptautinėje teisėje bei Lietuvos Respublikos teisėje (Vilnius: Lietuvos teisės universitetas, 2003).

(63) Zilinskas, above n 39, 344.

(64) For more detailed examinations, see Rain Liivoja and Ieva Miluna, ‘Latvia’ in ‘Correspondent’s Reports: A Guide to State Practice in the Field of International Humanitarian Law’, Yearbook of International Humanitarian Law, 13 (2010), 571–4; Lauri Mälksoo, ‘Kononov v Latvia’, American Journal of International Law, 105 (2011), 101–8; Giulia Pinzauti, ‘The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v Latvia’, Journal of International Criminal Justice, 6 (2008), 1043–60; Mariya S. Volzhskaya, ‘Kononov v Latvia: A Partisan and a Criminal—The European Court of Human Rights Takes a Controversial Stance on War Crimes’, Tulane Journal of International & Comparative Law, 19 (2011), 651–68.

(65) Cited in Pavel Polian, Against Their Will: The History and Geography of Forced Migration in the USSR (New York, NY: Central European University Press, 2005), 124.

(66) Regulation respecting the Laws and Customs of War on Land, annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, The Hague (Hague Regulations), 18 October 1907, in force 26 January 1910, 205 CTS 277, Article 23(c).

(67) Hague Regulations, above n 66, Article 23(b).

(68) General Orders No. 100—Instructions for the Government of Armies of the United States in the Field, 24 April 1863 (US), Articles 19 and 37; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, signed at Geneva, 12 August 1949, in force 21 October 1950, 75 UNTS 287, Article 16.

(69) Hague Regulations, above n 66, Article 25.

(70) See Kononov v Latvia, Application no. 36376/04, ECtHR, Decision (20 September 2007); Tess v Latvia (No. 2), Application No. 19363/05, ECtHR, Decision (4 January 2008).

(71) Farbtuhs v Latvia, Application no. 4672/02, ECtHR, Judgment (2 December 2004).

(72) Kolk and Kislyiy v Estonia, Application nos 23052/04 and 24018/04, ECtHR, Decision (17 January 2006); Penart v Estonia, Application no. 14685/04, ECtHR, Decision (24 January 2006).

(73) Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v Estonia Case before the ECHR’, Journal of International Criminal Justice, 4 (2006), 410–18.

(74) Kononov v Latvia, Application no. 36376/04, ECtHR, Judgment (24 July 2008), [116]. There was also the question whether, by intervening domestic statutory law, the crimes had become statute barred—Russia thought so. Kononov v Latvia (Chamber), [105]. But I will leave that issue aside for the moment.

(75) Kononov v Latvia (Chamber), above n 74. Majority: President Zupančič (Slovenia), Judges Bîrsan (Romania), Gyulumyan (Armenia) and Myjer (The Netherlands).

(76) Kononov v Latvia, Application no. 36376/04, ECtHR GC, Judgment (17 May 2010).

(77) Kononov v Latvia (Chamber), above n 74, [107]. See, however, Diss. Op. of Judge David Thór Björgvinsson, [1]‌: ‘This Court is in no position to refute the finding or to override the conclusions of the national courts as regards the facts of the case and the applicable law’.

(78) Kononov v Latvia (Chamber), above n 74, [129] and [131].

(79) Kononov v Latvia (Chamber), above n 74, [94].

(80) Kononov v Latvia (Chamber), above n 74, [97]. This question was explicitly brought up by Lithuania. Kononov v Latvia (GC), above n 76, [179]. See also [217] (‘persons belonging to the hostile army’).

(81) Kononov v Latvia (GC), above n 76, [194], [202]–[203], [227].

(82) Kononov v Latvia (Chamber), above n 74, [106].

(83) Kononov v Latvia (Chamber), above n 74, [130].

(84) Kononov v Latvia (Chamber), above n 74, [130]; and Diss. Op. of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, [12].

(85) Kononov v Latvia (Chamber), above n 74, [130]. Cf. Pinzauti, above n 64, 1058. Moreover, reprisals are used to compel an enemy to follow the law. Germany admittedly violated all sorts of rules, but what was this putative reprisal directed against?

(86) Kononov v Latvia (Chamber), above n 74, [104]; see also Kononov v Latvia (GC), above n 76, [174]–[175].

(87) Kononov v Latvia (Chamber), above n 74, Conc. Op. of Judge Myjer, [5]‌.

(88) Kononov v Latvia (Chamber), above n 74, [6]‌.

(89) Kononov v Latvia (Chamber), above n 74, [5]‌.

(90) Kononov v Latvia (Chamber), above n 74, Diss. Op. of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, [3]‌.

(91) Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945, Publication 3080, International Organisation and Conference Series II, European and British Commonwealth 1 (Washington, DC: US Department of State, 1949), vii–viii.

(92) Interestingly, French case law prior to 1994 interpreted crimes against humanity to mean ‘inhumane acts and persecution committed in a systematic manner in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy, whatever the form of their opposition’ (emphasis added): Barbie (1985) 78 ILR 136 (Court of Cassation), 137; (1998) 100 ILR 330 (Court of Cassation), 336; Touvier (1992) 100 ILR 337 (Court of Appeal of Paris), 350–351. This neatly excluded possible French (Vichy Government) crimes during World War II, the Algerian War, and French operations in Indochina. See Luc Reydams, ‘National Laws’, in Dinah L. Shelton (ed), Encyclopaedia of Genocide and Crimes Against Humanity, Vol. 2 (Detroit, MI: Gale, 2005), 730. See also Leila Nadya Sadat, ‘The Legal Legacy of Maurice Papon’, in Richard J. Golsan, The Papon Affair: Memory and Justice on Trial (New York, NY: Routledge, 2000), 131–160.

(93) Sorokina, above n 13, 800–1.

(94) Sorokina, above n 13, 801.

(95) ‘Russian Parliament Condemns Stalin for Katyn Massacre’, BBC News, 26 November 2010, <http://www.bbc.co.uk/news/world-europe-11845315> (accessed 3 March 2013).

(96) Yulia Latynina, ‘The Red Partisans’, The St. Petersburg Times, 11 June 2010, <http://www.sptimes.ru/index.php?action_id=2&story_id=31668> (accessed 3 March 2013).

(97) See, in particular, Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007), 173–80; Gerry Simpson, Law, War and Crime (Cambridge: Polity, 2007), Chapter 4.

(98) Drumbl, above n 97, 173.

(99) Even though a punishment may also serve an expressive purpose. See Drumbl, above n 97, 174.