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Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law

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Abstract

The present article deals with international law problems that have arisen in the process of legal clarification of the state crimes committed during the Soviet occupation in the three Baltic states. Following the restoration of their independence in 1991, the Baltic states have sought to establish the historical truth about the mass crimes committed during the Nazi and Soviet occupations – Estonia's International History Commission recently published its first report which is analyzed in this article. Moreover, the courts in the Baltic states have convicted deporters of 1941 and 1949 for crimes against humanity and/or genocide. By discussing different definitions of ‘genocide,’ the author attempts to answer the question whether the general context of the Stalinist mass repressions in the Baltic states permits to qualify the occupant's policy as ‘genocide.’
Soviet Genocide? Communist Mass Deportations in
the Baltic States and International Law
Lauri Mälksoo
*
Keywords: crimes against humanity; genocide; occupation; responsibility; the Baltic
states.
Abstract. The present article deals with international law problems that have arisen
in the process of legal clarification of the state crimes committed during the Soviet
occupation in the three Baltic states. Following the restoration of their independence
in 1991, the Baltic states have sought to establish the historical truth about the mass
crimes committed during the Nazi and Soviet occupations – Estonia’s International
History Commission recently published its first report which is analyzed in this article.
Moreover, the courts in the Baltic states have convicted deporters of 1941 and 1949
for crimes against humanity and/or genocide. By discussing different definitions of
‘genocide,’ the author attempts to answer the question whether the general context of
the Stalinist mass repressions in the Baltic states permits to qualify the occupant’s
policy as ‘genocide.’
1. INTRODUCTION
In the present time, which is otherwise so rich in calls for interdiscipli-
nary research, a much-debated book written by a group of mostly French
historians has elicited relatively little attention by the scholars of inter-
national law: Le livre noir du communisme.
1
The lack of reactions by inter-
national lawyers is somewhat surprising, especially since the authors of
this controversial book penetrate extensively and critically into issues of
international criminal law and justice.
Of course, the mass crimes committed under Stalin’s communist regime
in the USSR is not a discovery first made by Stéphane Courtois and his
14 Leiden Journal of International Law 757–787 (2001)
2001 Kluwer Law International
* Doctoral Candidate at the Faculty of Law of the Humboldt University Berlin; LL.M.
(Georgetown University); LL.B. (University of Tartu).
I would like to thank Prof. Christian Tomuschat and Stefan Meseke, LL.M., for their
comments on an earlier draft of this article. (The usual disclaimer, of course, applies.) I
am also grateful towards the Konrad Adenauer Foundation for a doctoral scholarship.
1. See S. Courtois, et al., Le livre noir du communisme. Crimes, terreur et répression (1997).
The English translation has been published by the Harvard University Press in 1999. See
also P. Rigoulot & I. Yannakis, Un pavé dans l’Histoire. Le débat français sur Le Livre
noir du communisme (1998); and H. Möller (Ed.), Der rote Holocaust und die Deutschen.
Die Debatte um das “Schwarzbuch des Kommunismus” (1999). For a critical response,
see, e.g., J. Mecklenburg & W. Wippermann, “Roter Holocaust”? Kritik des Schwarzbuchs
des Kommunismus (1998).
co-authors. The mass repressions of the totalitarian Soviet regime have
been analyzed earlier in important works of philosophy, literature, and
history.
2
But altogether, the tremendous human tragedy in Stalin’s USSR
was neither adequately perceived nor confronted in the West. Double stan-
dards were applied to the “far-away” peoples of the USSR – morally, polit-
ically and, as the analysis of some definitions of international crimes seems
to suggest, legally.
The novelty of Courtois’ work is that he, rather than restricting himself
to the moral condemnation of the Soviet mass “liquidations,” applies the
categories of international crimes to Stalin’s policies. He recites the Soviet
aggressions (e.g., the occupation and annexation of Eastern European states
and territories following the Hitler-Stalin Pact), but especially crimes
against humanity and what he provocatively calls “class genocide” (e.g.,
the liquidation of kulaks and the deliberate organizing of the Ukrainian
famine in 1932–1933).
3
By this intervention into the realm of international law, the authors of
Le livre noir challenge the “rightness” of two definitions of international
crimes, as (at least historically) established in international legal instru-
ments: those of crimes against humanity and genocide. As is well known,
according to the Nuremberg definition, mass killings and deportations of
the civilian population could be prosecuted as crimes against humanity
only when they had been committed “in execution of or in connection with
any crime within the jurisdiction of the Tribunal,” i.e., crimes against peace
(aggression) or war crimes.
4
At the same time the definition acknowledged
that the crimes against humanity could be committed against the civilian
population “before or during the war.”
As the Allied Control Council for Germany with its Law No. 10
removed in 1946 the restrictive connexion with the crime against peace
or war crimes, the exact meaning of the restriction in the Nuremberg def-
inition has been a source of different views and interpretations.
5
According
758 Soviet Genocide? 14 LJIL (2001)
2. Of the classical works, see especially H. Arendt, The Origins of Totalitarianism (1951); R.
Conquest, The Great Terror (1968); A. Solzhenitsyn, The Gulag Archipelago 1918–1956:
An Experiment in Literary Investigation (1974); R. Conquest, The Great Terror: A
Reassessment (1990); F. Furez, Le passé d’une illusion (1995).
3. See Courtois, et al., supra note 1, at 14 et seq. For a recent analysis of the Ukrainian famine,
see B.B. Green, Stalinist Terror and the Question of Genocide: The Great Famine, in A.S.
Rosenbaum (Ed.), Is the Holocaust Unique? Perspectives on Comparative Genocide, 2nd
ed., 169–193 (2001).
4. See, e.g., E. Schwelb, Crimes Against Humanity, 23 BYBIL 178–226 (1946); and United
Nations War Crimes Commission, History of the United Nations War Crimes Commission
and the Development of the Laws of War 192 et seq. (London: UN War Crimes Commission,
1949). See, generally, C.M. Bassiouni, Crimes Against Humanity in International Criminal
Law 31 et seq. (1992).
5. According to Christian Tomuschat, the restriction was rather of a technical nature and was
not meant to raise doubts about the criminality of similar acts beyond the context of war.
See C. Tomuschat, Die Vertreibung der Sudetendeutschen. Zur Frage des Bestehens von
Rechtsansprüchen nach Völkerrecht und deutschem Recht, 56(1–2) ZaöRV 1, at 31 et seq.
(1996).
to one view, neither the Soviet killings and mass deportations of its own
people(s), nor the forced transfer of several million Germans following
the Allied decision at the Potsdam Conference
6
could formally be quali-
fied as crimes against humanity, since they were not “connected to” war
crimes or aggression.
7
Following heated arguments, the international legal definition of geno-
cide was similarly restricted by the drafters of the Convention for the
Prevention and Punishment of the Crime of Genocide.
8
While the initial
draft defined genocide as “the intentional destruction of a group of human
beings,” including racial, national, linguistic, religious or political groups,
the Soviet opposition
9
to this broad definition played a crucial role in the
omission of “political” (including “social”) groups from the definition of
genocide when the Genocide Convention was adopted in 1948.
10
The
argument that the “political” groups lack the required stability has not been
able to persuade a number of legal and social scientists criticizing the
exclusion of “political” groups from the genocide definition.
11
William
A. Schabas, even though favouring the restrictive definition of genocide,
admits: “It is clear that political groups were excluded from the defini-
tion for ‘political’ reasons rather than reasons of principle.”
12
These debates and controversies would be “harmless” intellectual exer-
cises on historical matters, had they not become so topical from a prac-
tical legal point of view after the USSR collapsed in 1991. A whole range
of historical, moral, and legal questions emerged on the ruins of the Soviet
empire, the most burning of them the question about the guilt and respon-
sibility for the Soviet-era crimes. Who, if anyone, was going to take the
responsibility for the Soviet-era “repressions”? Many victims demanded:
Lauri Mälksoo 759
6. See further A.M. de Zayas, International Law and Mass Population Transfers, 16 Harvard
Journal of International Law 207–258 (1975).
7. The importance of the connexion is, e.g., stressed by Bassiouni, supra note 4, at 258.
8. See Convention on the Prevention and Punishment of the Crime of Genocide, adopted by
UN General Assembly Res. 260(III)A on 9 December 1948, 78 UNTS 277 (1951). For a
thorough over-view, see W.A. Schabas, Genocide in International Law (2000).
9. The USSR presented a document entitled Basic Principles of a Convention on Genocide,
and argued that genocide was “organically bound up with fascism-nazism.” See UN Doc.
A/C. 6/273.
10. The 1948 Genocide Convention provides the following definition:
In the present Convention, Genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such: (a) killing members of the group; (b) causing serious bodily or mental harm to
members of the group; (c) deliberately inflicting on the group conditions of life calcu-
lated to bring about its physical destruction in whole or in part; (d) imposing measures
intended to prevent births within the group; (e) forcibly transferring children of the group
to another group.
11. See, e.g., P.N. Drost, The Crime of State, Volume 2: Genocide 122–123 (1959); L. Kuper,
Genocide: Its Political Use in the Twentieth Century (1982); H.-H. Jescheck, Genocide, I
EPIL 543 (1992) (written 1985); F. Chalk & K. Jonassohn, The History and Sociology of
Genocide: Analyses and Case Studies (1990).
12. Schabas, supra note 8, at 139 et seq.
will the perpetrators be prosecuted? In short, in the former USSR, people
asked the classical question, well-known in South Africa, Chile, Guate-
mala, Germany, and many other countries of the world: what to under-
take with the crimes that had been committed by the previous regime?
The longer the time that has passed since the crimes had been com-
mitted, the more difficult it becomes to apply consequently legal princi-
ples to the past situations. In one of the most tragic cases of this kind, in
Cambodia, it took for the country and for the world twenty five years to
give a legal (judicial) response to the Khmer rouge mass crimes, and the
results of this process are still to be expected. In many instances, the needs
for justice have often – one of the illustrious examples being the contro-
versial Truth and Reconciliation Commission of South Africa
13
– been
balanced with the need for peace.
The problem remains: when a state or regime has perpetrated crimes
against its own and/or foreign citizens, to what extent can justice be estab-
lished retrospectively? Would the calls for justice in some circumstances
remind us of the Roman maxime fiat justitia, pereat mundus? This question
has been asked in practice, notwithstanding the fact that the non-applica-
bility of statutes of limitations to worst crimes, prohibited by interna-
tional law, is a well-established legal principle.
14
The former USSR is a unique case of “transitional justice” since the
repressive regime was overturned (often more than) half a century after it
had perpetrated its mass liquidations and deportations. Were those repres-
sions at the time when they were committed legally a purely domestic
matter or did they violate principles of international law? In the case of
the criminal prosecution of offenders, would the Soviet criminal law or
international law apply? As the perpetrators of the Stalin-era mass repres-
sions had all become aged persons, should amnesty apply to them in case
they would be convicted?
Soon it appeared that different states within the territory of the former
USSR opted for different models of Vergangenheitsaufarbeitung, i.e., his-
torical and legal clarification of the past crimes. In most countries of the
former USSR where the (more or less transformed) communist elites pre-
served their positions in politics, a de facto amnesty for Soviet-era crimes
has been granted. In those countries, most notably in Russia, the crimes
of the Stalin era have been perceived as a tragic domestic matter which
has been left for historians and not for lawyers to study. The victims have
usually been rehabilitated but the state has not accepted its further respon-
sibilities, e.g., in the criminal prosecution of offenders or in the compen-
760 Soviet Genocide? 14 LJIL (2001)
13. See, e.g., P.K. Rakate, Dealing with the Hachet of the Past: A Critique of the South African
Truth and Reconciliation Commission Report, 40(3) Indian Journal of International Law
547–558 (2000). See also the debate between P. Rakate, G. Meintjes and J. Méndez in 3
International Law FORUM du droit international 42–49 (2001).
14. See the Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity, General Assembly Res. 2391 (XXIII), Annex, 23 U.N. GAOR
Supp. (No. 18) at 40, UN Doc. A/7218 (1968).
sation of victims.
15
After all, had not the Soviet Communist Party General-
Secretary Khrushov already distanced himself and his country from Stalin’s
“mistakes”?
The present article deals with a case where a different approach to the
past has been taken, i.e., a situation where the Soviet crimes have become
a legal issue and the concepts of international criminal law have been
applied. This has happened in the three Baltic states – Estonia, Latvia, and
Lithuania. As most people in the formerly independent Baltic states had
experienced the Soviet era as something imposed from outside – and
indeed, this experience was supported by international law –, there were
less constraints to look for legal questions and answers, as far as the Soviet
repressions were concerned. The general emotional and intellectual atmos-
phere of this search for answers – huge need for justice, but considerable
lacunae in the knowledge of international law – is quite well reflected in
the words of an Estonian pensioner who has collected from ex-Soviet
archives two impressive volumes of documentary evidence on the Soviet
deportations of Baltic citizens:
Unhappy people from Estonia and Baltics obeyed strict orders and, being accom-
panied by unknown gunmen, left their hearths, which their ancestors had built and
taken care of. Went to the poverty, hunger, cold and death. How to call it? Is this
a violation of human rights? Genocide? Or still something else?
16
In the following, we intend to find out what answers have been – and
can be – given to these questions in the context of the Baltic states, par-
ticularly in Estonia. Our primary attention is devoted to the question how
coherently and “successfully” have the concepts of international (criminal)
law been applied to the deportations and other mass “repressions” that
were organized in the 1940s. In particular, we will be dealing with the
question whether it is correct to apply the concept of ‘genocide’ in the
context of Soviet crimes in the Baltic states.
2. T
HE LEGAL STATUS OF THE BALTIC STATES FOLLOWING THEIR
OCCUPATION AND ANNEXATION BY THE USSR IN 1940
From the point of view of international law, Estonia, Latvia, and Lithuania
constitute a special and non-representative case among the ex-republics
of the Soviet Union. After approximately twenty years of independent
statehood (1918–1940) and membership in the League of Nations, these
states were militarily occupied by the USSR in mid-June 1940 and annexed
in August 1940.
Lauri Mälksoo 761
15. See, generally, L.B. Obidina, Country Report: Russia, in A. Eser & J. Arnold (Eds.),
Criminal Law in Reaction to State Crime. Comparative Insights into Transitional Processes
252–257 (2000).
16. H. Sabbo, Võimatu vaikida (Impossible to Remain Silent), Vol. I, 618 (Tallinn, 1996).
While the Soviet annexation transformed Estonia, Latvia, and Lithuania
de facto into Soviet republics and thus quasi-effectively into “usual” ter-
ritory of the USSR, a considerable part of the Western states refused to
accord de iure recognition to the Soviet annexation. As a symbol of the
non-recognition policy, the Baltic legations in the US continued their activ-
ities throughout the whole time of the Soviet annexation.
17
Moreover, when the Baltic states restored their independence in August
1991, their claim of state identity and continuity with pre-1940 indepen-
dent Baltic republics was recognized by most states.
18
In the Baltic states,
the Soviet period (1940–1941, 1944–1991) is thus generally viewed as the
Soviet “occupation,” even though the USSR had – by annexing the Baltic
states – completely ignored the classical legal limits set to the Occupying
Powers. In fact, to the extent that the Soviets had eliminated the military
resistance in the Baltic states for mid-1950s and the annexation thereby
acquired a certain stability in the following decades, there is a certain
element of legal fiction in the Baltic claims of Soviet “occupation”
throughout half a century of Soviet reality. In practice, today’s Baltic states
necessarily have had to take into account such aspects when solving legal
and political issues arising from their legal identity with the pre-war
republics.
The illegality of the Soviet annexation gives a special legal framework
to the Soviet repressions in the Baltics. The Soviet crimes in the Baltic
states can thus be qualified on two levels: on the level of concepts of
individual criminal law such as crimes against humanity, and on the level
of state-to-state obligations, such as the violations of the 1907 Hague rules
of belligerent occupation.
3. H
ISTORICAL BACKGROUND: MASS REPRESSIONS IN THE
OCCUPIED BALTIC STATES
3.1. General background: ethnic groups punished by the Soviet
regime
There is a widespread misperception that the Soviet mass repressions were
directed only against certain hostile social classes within an otherwise
homogeneous society. In reality, several ethnic and national groups were
treated as “hostile” by the Stalinist regime. Such “untrustworthy” ethnic
or national groups were hit particularly hard by the Soviet mass deporta-
762 Soviet Genocide? 14 LJIL (2001)
17. See W.H.H. Hough, III, The Annexation of the Baltic States and Its Effect on the
Development of Law Prohibiting Forcible Seizure of Territory, 6 New York Law School
Journal of International and Comparative Law 301–533 (1985).
18. See, e.g., L. Mälksoo, Professor Uluots, the Estonian Government in Exile and the Con-
tinuity of the Republic of Estonia in International Law, 69 Nordic Journal of International
Law 289–316 (2000).
tions.
19
Historians have hypothesized that the awareness of the tragic fate
of “hostile” ethnic minorities in the USSR during the 1930s purges
20
was
one of the factors pushing the leaders of the militarily weak Baltic states
not to resist the Soviet aggression in 1939–1940. It was feared that the
punishment for the determined military fight for independence would be
the deportation or even extermination of their peoples.
21
In retrospective,
the Baltic peoples were “lucky” at least in the sense that they, unlike some
other ethnic groups, were not deported in toto by Stalin.
For a better understanding of the legal discussion, a brief historical
account of the Soviet (and Nazi) repressions in the occupied Baltic states
is provided.
3.2. Repressions during the first Soviet occupation (1940–1941)
Immediately following the military occupation of the Baltic states in June
1940, the Soviets started to arrest members of the former political, military,
business, and cultural elite. Most of the arrested persons were executed
or sent to prison camps in Siberia where they died from malnutrition, slave
labour, and insufficient medical care. For instance, of the 48 former
Estonian government members who were arrested only 3 survived.
22
On 14 June 1941, a mass deportation was carried out simultaneously
Lauri Mälksoo 763
19. A recent study published by the UN High Commissioner for Refugees gives the following
account of the Soviet mass deportations of ethnic groups in 1930s and 1940s: Poles
(including Polish Jews), 1940–1941, 380,000; Volga Germans, September 1941, 366,000;
Tchetchens, February 1944, 362,000; Meshkets, November 1944, 200,000; Crimean Tatars,
May 1944, 183,000; Coreans, 1937, 172,000; Ingouchets, February 1944, 134,000; Kalmyks,
December 1944, 92,000; Karachais, November 1943, 68,000; Poles, 1936, 60,000; Finns
(Ingermanlandians of the St. Petersburg region), 1942, 45,000; Balkarians, April 1944,
37,000; Moldavians, 1949, 36,000; Greeks of the Black Sea region, 1949, 36,000; Other
Germans of the USSR, 1941–1952, 843,000; Other Crimean groups, 1944, 45,000; Other
groups of the Black Sea region, 1949, 22,000; Other groups of the northern Caucasus,
1943–1944, 8000. Total – 3,089,000 deportees. See Les réfugiés dans le monde, Cinquante
ans d’action humanitaires. Haut Comissariat des Nations Unies pour les Réfugiés 187 (Paris:
Autrement, 2000). See further R. Conquest, The Nation Killers. The Soviet Deportation of
Nationalities (1970); N. Bougai, The Deportation of Peoples in the Soviet Union (1996);
Deportirovannyie v Kasahstan narody. Vremja i sudby (Nations Deported to Kazakhstan:
Time and Fortunes) 107 et seq. (Almaty: Arys, 1998); J.O. Pohl, Ethnic Cleansing in
the USSR, 1937–1949 (1999). See also D. Dahlmann & G. Hirschfeld (Eds.), Lager,
Zwangsarbeit, Vertreibung und Deportation. Dimensionen der Massenverbrechen in der
Sowjetunion und in Deutschland 1933 bis 1945 (1999).
20. See for references J.E. Mace, Genocide in the USSR, in I.W. Charny (Ed.), Genocide. A
Critical Bibliographic Review 117 (1988).
21. Somewhat undiplomatically, this explanation has recently been taken up by the (then)
Russian Ambassador to the Republic of Estonia, A. Glukhov, who argued in an interview,
given to an Estonian daily that in 1940, Estonia “gave away its freedom”: “What is here
to discuss – such is history, such is fate. […] What would have happened if you would
have resisted in 1940? Nobody knows. Probably, there would not be any more Estonians.”
See A. Gluhhov: Eesti peab Venemaad tänama, mitte ootama vabandamist (Glukhov:
Estonia should thank Russia, not wait for apology), Eesti Päevaleht, 15 November 2000.
22. See P. Varju, Eesti poliitilise eliidi saatusest (About the Fate of the Estonian Political Elite),
(Tallinn: Estonian State Commission on Examination of Policies of Repression, 1994).
in all three Baltic states and in the Soviet-annexed Bessarabia (Moldavia).
The “completely secret” decision for the 14 June 1941 mass deportation
was taken by the Central Committee of the All-Russia Communist
(Bolshevik) Party and the Council of People’s Commissars of the USSR
on 14 May 1941.
23
Approximately 10,000 Estonian citizens, arrested and
deported to Siberia on 14 June 1941 made up 1% of the whole popula-
tion of the country.
24
It is estimated that from Latvia, 15,081 people, and
from Lithuania, 13,600 people were deported to Siberia on 14 June 1941.
25
The June 1941 mass deportation hit the elite of the Baltic peoples –
active people who had shown leadership in their political, professional,
economical etc activities. Most of the men and some of the women
deported from the occupied Baltic states were arrested in Russia and sen-
tenced to death or to prison camps. The death rates were very high; for
instance, of the men deported from Estonia, only about 100 out of 5,100
returned alive from this deportation.
In Estonia, another wave of deportations was carried out under the
pretext of conscription to the Red Army, following the German attack
against the USSR in World War II. In early July 1941, 33,000 Estonian
men were mobilized into the Soviet army and moved to the USSR.
However, already on 10 July 1941, the conscripts from the annexed terri-
tories were declared “politically not reliable” and sent to NKVD (People’s
Commissariat for Internal Affairs) work camps. It is estimated that around
10,000 illegally conscripted Estonians died in Siberian “work battalions”
due to inhumane conditions and exterminations.
26
3.3. Crimes perpetrated during the German occupation
(1941–1944)
During the German occupation (1941–1944), the Baltic states became trag-
ically one of the Eastern European theatres of the Holocaust. In Lithuania,
more than 100,000 Lithuanian Jews were killed; only 20,000 of the more
than 150,000 pre-war Lithuanian Jews survived the Holocaust. In Latvia,
around 80,000 people were killed during the German occupation – most
of them (almost 70,000) the Jews who could not leave the country. Around
6,600 Estonian citizens were killed, among them almost 1,000 Estonian
764 Soviet Genocide? 14 LJIL (2001)
23. See more about this document, which can be found in the State Archives of the Russian
Federation, in Bougai, supra note 19, at 152.
24. See V. Salo (Ed.), Deported in 1941. General Index of Deportees from Estonia (Brampton:
Marjamaa Publications, 1993).
25. See A. Küng, Communism and Crimes against Humanity in the Baltic States, A report to
the Jarl Hjalmarson Foundation seminar on 13 April 1999. See http://www.rel.ee/akungeng.
html, at 4 (visited on 31 July 2000). According to another data, 17,171 people were deported
from Latvia and 15,851 from Lithuania. See further id.
26. J. Kahk (Ed.), World War II and Soviet Occupation in Estonia: A Damages Report 36
(1990).
Jews and 243 Romani.
27
The German Nazis also killed most of the more
than 36,000 Soviet prisoners of war in Estonia. Just as the Soviet occu-
pants did, the Nazis also found among the Baltic citizens perpetrators who
helped them to liquidate their perceived political enemies.
28
Before the second Soviet invasion in the autumn of 1944, several
hundred thousand Lithuanians, Latvians, and Estonians fled to the West.
In Estonia, the fears of the return of the Soviet occupants had been nour-
ished even further when on 9 March 1944, Soviet airforce carried out a
terror attack against the capital Tallinn.
29
3.4. Repressive policies during the second Soviet occupation
(1944–1991)
After the Soviets had occupied the Baltic republics for the second time in
1944, they were confronted with a guerilla movement that had been formed
among the native population (called “forest brethren” by the sympathizers
and “bandits” by the Soviets.) In order to defeat the guerilla movement,
41,158 Lithuanians were deported to Soviet Russia in May 1948. The
deportation was decided by the USSR Council of Ministers on 21 February
1948, and was directed against “bandits and nationalists, bandits accom-
plices, kulaks and their families.”
30
On 25 March 1949 nearly 100,000 more Balts were arrested and
deported in cattle wagons to Siberia following the decision of the USSR
Council of Ministers dated 29 January 1949. Among the deported persons
around 40,500 were Latvians, 33,500 Lithuanians and 20,500 Estonians.
The target groups of this deportation were “the kulaks with their families,
the families of the bandits and of the convicted nationalists, legalized
bandits who continue their hostile activities and their families, family
members of those who have helped the bandits.”
31
Of the people deported
in 1949, approximately 10% died in Siberia.
32
In the subsequent years, several smaller groups, such as the members
of the religious sect of Jehovah Witnesses, were deported from the Baltic
republics.
33
Lauri Mälksoo 765
27. See E. Gurin-Loov, Suur häving: Eesti juutide katastroof, 1941/Holocaust of the Estonian
Jews, 1941 (Tallinn: Eesti Juudi Kogukond, 1994).
28. See, e.g., a special publication on the Holocaust in Lithuania, discussing inter alia the
complicity of Lithuanians: 12(1) Holocaust and Genocide Studies (Spring 1998).
29. See J. Kivimäe & L. Kõiv (Eds.), Tallinn tules. Dokumente ja materjale Tallinna pommi-
tamisest 9./10. märtsil 1944 (Tallinn in Fire. Documents and Materials On the Bombing of
Tallinn on 9/10 March 1944) (Tallinn, 1997).
30. See Bougai, supra note 19, at 166.
31. See id.
32. See further, e.g., A. Rahi, 1949. aasta märtsiküüditamine Tartu linnas ja maakonnas (The
March 1949 Deportation in the Town and County of Tartu) (Tartu: “Kleio”, 1998).
33. The reason for the deportation of the Jehovah Witnesses was not so much their religious
convictions per se, but that they refused to work in kolkhoses and to serve in the Red Army.
See Bougai, supra note 19, at 160.
Altogether, around 15% per cent of the population of the Baltic states
was arrested, deported, and/or executed under the reign of Stalin. In Latvia,
around 139,700 persons were deported, 51,973 arrested, at least 1,986
executed. In Lithuania, ca. 130,000 persons were deported altogether
(28,000 of those died in Siberia), ca. 200,000 were arrested (149,741 of
those were transferred to Soviet concentration camps). 25,000 guerillas
were killed in the fight against the Soviets; 2,747 arrested persons were
killed in Lithuanian prisons.
34
In Estonia, 32,000 individuals (together with 1941 “conscripts”: 65,000)
were deported and around 80,000 arrested by the Soviets, around 2000
were executed and the same number of civilians fell victims to Soviet
bombing.
After the death of Stalin in 1953, the Soviet repressions in the Baltic
states took generally less violent forms, just as more passive forms of resis-
tance were adopted among the Baltic population.
4. L
EGAL EVALUATION OF THE SOVIET REPRESSIONS: THE CASE OF
ESTONIA
In this part of the article, we take one of the Baltic states, Estonia, and
explore how the legal evaluation of the past crimes has been undertaken.
As we have established, the repressions that the three Baltic republics
experienced were quite synchronized – therefore, the general problems of
international law are similar to all three.
In the immediate years following the re-establishment of the indepen-
dence of Estonia in 1991, some publicists called for a “Nuremberg trial
for communist crimes.” However, the circumstances around the collapse
of the communist regime did not favour the establishment of such an
international judicial body.
35
The Estonian process of Vergangenheitsaufarbeitung has been marked
with fragmentations, conflicting views, and controversial developments.
It appeared soon that the most important task would be to establish the
historical truth about the past crimes, and at least identify their perpetra-
766 Soviet Genocide? 14 LJIL (2001)
34. See http://www.tdd.lt/genocid/index.html (website of the Lithuanian Genocide and Resis-
tance Research Center).
35. In Lithuania, calls for a “communist Nuremberg” are still made. For instance, the Interna-
tional Congress on the Evaluation of Crimes of Communism which was held in Vilnius on
12–14 June 2000 and attended inter alia by the former President of Poland Lech Walensa,
adopted an “Appeal to the World Community concerning the Establishment of the
International Tribunal for the Prosecution of the Crimes of Communism and Their
Perpetrators.” Moreover, a Vilnius International Public Tribunal on the Evaluation of Crimes
of Communism was established at the same conference. As far as can be established, the
Vilnius “Tribunal” is not a judicial body in the proper sense. The Tribunal has heard
in public sessions “accusatory acts” from different countries, “examined victims and wit-
nesses” and proclaimed decisions at the Lithuanian National Drama Theatre [sic]. See
wywsig://8/http://ok.w3.lt/cgi-bin/2000.pl?En_organization.htm (last visited 15 June 2001).
tors. It became therefore crucial to charge some authoritative body with
painting an objective picture of these crimes. Estonia finally opted for a
relatively modern and popular
36
concept of an international “history com-
mission,” the Estonian International Commission for Investigation of
Crimes Against Humanity (‘EICICAH’). Similar “history commissions”
have been set up in Latvia and in Lithuania.
4.1. The Estonian International Commission for the investigation
of crimes against humanity
4.1.1. Establishment and the first report
The Estonian “International History Commission” was established by
Lennart Meri, President of the Republic of Estonia (1992–2001), and held
its first session in Tallinn in January 1999. Minister Max Jakobson from
Finland serves as the Chairman of the Commission, the members of which
are Nicolas Lane, Uffe Ellemann-Jensen, Peter Reddaway, Arseny
Roginsky, Paul Goble, and Wolfgang Freiherr von Stetten. There are thus
no Estonian citizens among the members of the Commission.
In opening the work of the Commission, President Meri made a state-
ment about the mandate and goals of the Commission:
This commission is committed to setting out in as clear terms as possible what
crimes against humanity happened in Estonia […]. And it is committed to com-
piling a record sufficiently well-documented and complete that no-one will be
able to deny what happened or to avoid facing up to the facts.
37
President Meri added that the Commission was not to act as a judicial or
prosecutorial body, since its members were not judges and did not intend
to act as such. “They are not trying to compile a set of facts in order to
launch judicial actions against anyone or any institution, either here in
Estonia or elsewhere.”
38
In April 2001, the EICICAH publicized its first report, dealing with
crimes against humanity committed during the Nazi German occupation
in Estonia (1941–1944).
39
While the Commission stressed that “overall
responsibility for most, if not all of the episodes of criminality reported
upon here lies with the German military and civil occupying forces,”
40
it
also identified the events in which cases it believed “at least prima facie
evidence that genocide, crimes against humanity, and war crimes were
Lauri Mälksoo 767
36. Comparable History Commissions for the study of World War II events have been recently
set up in Austria and in Liechtenstein. See, e.g., http://www.historikerkommission.gv.at.
37. Quoted at http://www.historycommission.ee/temp/statement.htm.
38. See id.
39. See http://www.historycommission.ee/temp/conclusions.htm.
40. See id., at 1.
committed by, or with the active assistance of, Estonians on or outside
Estonian territory.”
41
The Commission noted that it has been difficult for Estonians to deal
with the German occupation, since
[t]he repressive policies of both of the Soviet periods of occupation, the inability
of Estonia to reassert her independence during or after the German occupation,
the losses of life and property that occurred as a result of the war, and the further
loss of tens of thousands of Estonians who fled the return of the Soviets, made
Estonia and Estonians a victim nation. After the war it was only natural that
Estonians […] primarily attributed this victimhood to the ‘oppressor in residence’,
the Soviet Union.
42
However, the Commission concluded that
[…] being a victim does not preclude acts of perpetration. A people which respects
the rule of law should recognize crimes when they have been committed, and
condemn them and those who committed them. It is unjust that an entire nation
should be criminalized because of the actions of some of its citizens; but it is
equally unjust that its criminals should be able to shelter behind a cloak of vic-
timhood.
43
It is to be hoped that the Commission’s first report on the complicity
of Estonians in crimes perpetrated during the German occupation will make
a necessary contribution towards achieving in Estonia a more balanced
picture of the crimes committed during the foreign occupations. Individuals
who perpetrated crimes against humanity should be held accountable,
notwithstanding their ethnic or national origin or whether the crimes were
committed during the Nazi or the Soviet occupations.
4.1.2. Analysis of some legal aspects in the Commission’s work
The topic of this article does not permit to analyze the History Commis-
sion’s report on the crimes against international law committed in Estonia
during the German occupation. Those crimes were properly qualified
already in Nuremberg, and for the purposes of international legal analysis,
the Estonian History Commission could have hardly contributed anything
new. We will thus only discuss a few problems that are legally relevant
from the perspective of the evaluation of the Soviet crimes.
In most instances of international “truth commissions,” questions about
their exact legal nature and function have been raised, e.g., whether they
are judicial bodies or not, whether they are applying the law or not. In
most cases, truth commissions have combined fact-finding with political
768 Soviet Genocide? 14 LJIL (2001)
41. See id., at 2 et seq.
42. See id., at 9.
43. See id., at 9f.
and sometimes quasi-judicial functions.
44
Similar questions can be raised
with respect to “history” commissions which in this sense can be under-
stood as one kind of “truth commissions.”
45
The Estonian International Commission is clearly not a judicial body;
it’s role is not to judge individuals. However, by applying international
legal concepts such as “crimes against humanity” to “criminal events,”
46
and by assigning responsibility to certain individuals, either by virtue of
the positions they held or by the actions of the individual,
47
the work of
the Commission includes some quasi-legal elements. Even though the
Commission is not a judicial body, its assignment of responsibility for
crimes against humanity committed by certain individuals goes beyond the
establishment of a mere “moral” responsibility. Formally, such an assign-
ment by the Commission may be “non-binding,” however, due to the
authority of the institution, such a judgment by the truth commission would
probably serve as an important political and legal guideline not just for
the society but for the state judiciary as well.
From the legal point of view, a surprising decision of the Estonian
History Commission is the application of the definition of ‘crimes against
humanity’ as set out in Article 7 of the 1998 Rome Statute of the
International Criminal Court (‘ICC’) to the events that took place in
Estonia during the 1940s. The Commission explains:
Although these definitions were arrived at many years after the events that we have
studied, we are confident that they represent a standard that is appropriate to those
events. This is, furthermore, not a judicial commission; any legal action that may
be taken as a result of the Commission’s findings will be the responsibility of the
appropriate authorities of the Republic of Estonia.
48
The Rome Statute’s definition of ‘crimes against humanity’ constitutes
of itself a progressive development of international law when compared
to the Nuremberg definition of 1945. While it may not make a real dif-
ference in the Estonian historical context in terms of judging the nature
and scale of specific atrocities committed during the occupation – which
may qualify as crimes against humanity both under the Nuremberg and
Lauri Mälksoo 769
44. See, generally, C. Tomuschat, Human Rights and National Truth Commissions, in P. Baehr
(Ed.), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights
151–160 (1999); and C. Tomuschat, Between National and International Law. Guatemala’s
Historical Clarification Commission, in V. Götz, P. Selmer & R. Wolfrum (Eds.), Liber
amicorum Günther Jaenicke – Zum 85. Geburtstag 991–1011 (1998).
45. “Truth commissions” can be distinguished from the “history commissions” by the time
factor. In both cases, “historical truth” needs to be established; however, in the case of a
“history commission” the past events lay so far back that the emphasis is no longer on the
testimonies of the individuals (“tell-their-stories aspect”).
46. See supra note 39, at 2.
47. See id., at 4f.
48. See id., at 2.
Rome definitions –, it still neglects the fundamental legal principle of non-
retroactivity.
49
With respect to the German occupation in Estonia, the application of
the Rome rather than Nuremberg definition of crimes against humanity
by the Estonian History Commission may have created less problems – at
least the connexion with crimes against peace or war crimes which was
already established by the Nuremberg Tribunal, is not at stake. However,
in evaluating the crimes committed during the Soviet occupation, simply
to apply the Rome definition would be a too easy way out. The Nuremberg
Tribunal’s definition of “crimes against humanity” established a manda-
tory nexus with crimes against peace (aggression) or war crimes. Without
establishing a similar nexus in Estonia and other Baltic republics under
the Soviet occupation, some doubts about the proper application of the
concept of ‘crimes against humanity’ would persist.
There is evidence in the recent state practice that the qualification of
certain World War II events as “aggression” is continuously considered
to be of big legal and political importance. For instance, on 1 September
1999, i.e., on the 60th anniversary of the outbreak of World War II, the
Russian Ministry of Foreign Affairs issued a note in which it inter alia
took a position with respect to the invasion of the Soviet army in Poland
on 17 September 1939. The Russian note stated: “The entering of Soviet
troops into Poland cannot be regarded as aggression in any way.”
50
Similar
argument could be made with respect to the Baltic republics, especially
as the Baltic governments accepted in June 1940 the Soviet ultimatums
and no state of war was technically triggered.
However, in the case of the occupation of the Baltic states, such an
argument would be difficult to maintain. The USSR had concluded with
the Baltic states a comprehensive system of security treaties in which a
special role was played by the non-aggression pacts and the Convention
on the Definition of Aggression of 3 July 1933,
51
the terms of which had
been proposed by the USSR. The latter treaty defined “aggression” not
only as military attack (the outbreak of military activities), but also inter
alia as the military blockade of the coasts and borders of another state.
The Soviet ultimatums to the governments of the Baltic states in mid-
June 1940 were preceded by the military blockade of the land and sea
borders. Moreover, the island of Naissaar which closes the sea access to
the Estonian capital Tallinn, was occupied by the Soviet army one day
before the Soviet ultimatum was presented. Therefore, notwithstanding the
fact that the Soviet leadership subsequently tried to give the appearance
of legality to the sovietization of the Baltic republics and to their “entering”
770 Soviet Genocide? 14 LJIL (2001)
49. Cf. in the context of international criminal law: J. Barboza, International Criminal Law,
278 Recueil des cours 54 (1999).
50. Information on file with the author.
51. See 147 LNTS 69 (with respect to Latvia and Estonia) and 148 LNTS 79 (with respect to
Lithuania).
into the USSR, the Soviet’s own definition compels to qualify the occu-
pation of the Baltic states in June 1940 as acts of aggression.
While it is difficult to imagine that any lawyer or politician would today
try to avoid the qualification of the Soviet mass deportations and “liqui-
dations” in the Baltic states as crimes against humanity by warding this
claim off with the denial of the aggression, it would have been more
accurate if the EICICAH had taken the Nuremberg definition of crimes
against humanity as the starting point of its discussion. Possibly, the
Commission wondered whether, being a “history” commission – applying,
however, international legal terms, such as ‘crimes against humanity’ – it
has the right mandate to answer the question whether the Soviet repres-
sions were preceded by an act of aggression. Such treatment of the problem
would be an easier way out politically, but not methodologically.
However, the Commission can still improve this fallacy when it turns
next specifically to the study of the crimes committed during the Soviet
occupation. So far, in its first report dealing with the German occupation,
the Commission made only a preliminary statement about the first Soviet
occupation in Estonia (1940–1941): “Altogether tens of thousands Estonian
citizens and residents fell victims to crimes against humanity and war
crimes.”
52
4.2. Soviet mass crimes in Estonian courts and international law
Consciously and sometimes un-consciously, the Estonian court practice
has been a mirror image of several important legal questions that arise in
the context of the communist repressions in the Baltic states. International
criminal law has been known for its dédoublement fonctionnel principle,
and the domestic courts have usually been charged with the prosecution
of international crimes. However, often there have been concerns voiced
about whether the national legal systems are qualified enough to apply
international criminal law in a competent and non-biased manner. In
Estonia, the transformation of some concepts of international criminal law
into the Estonian criminal law and practice has not occurred without
deficiencies, at least when measured by an international yardstick.
4.2.1. The definitions of ‘crimes against humanity’ and ‘genocide’ in
the (former) Estonian Criminal Code
The Constitution of the Republic of Estonia establishes that the general
principles and norms of international law are a part of the Estonian
domestic law.
53
Thus, crimes under international law such as crimes against
humanity and genocide, which were unknown in the Soviet Criminal Code,
Lauri Mälksoo 771
52. See supra note 39, at 1.
53. See the Constitution of the Republic of Estonia, adopted at the referendum on 28 June 1992,
§ 3. See Riigi Teataja (The State Gazette) No. 26, at 349; No. 36, at 1200 (1992).
have been included in the new Estonian Penal Code which was adopted
by the parliament Riigikogu on 6 June 2001.
54
Before the adoption of the
new Penal Code, a new chapter entitled “Crimes Against Humanity and
War Crimes”, was included on 9 November 1994 in the (modified ex-
Soviet) Estonian Criminal Code. Thus, before 2001, Soviet-era crimes have
been qualified under § 61’ of the former Estonian Criminal Code which
was entitled “Crime against Humanity” and read:
(1) For committing crimes against humanity, including genocide, as these crimes
are defined in norms of international law, i.e., for wilful acts which aimed to
completely or partially destroy a national, ethnic, racial, religious group, a group
offering resistance to the occupation regime or other social group, for killing a
member of such group or inflicting upon him serious or very serious bodily or
mental damage or for torturing him, for forced removal of children, for the depor-
tation or expulsion of the indigenous population during an armed attack, occupa-
tion or annexation, or the denial of their economic, political and social human rights
or the stripping of such rights – will be punished with the loss of freedom from
eight until fifteen years or with the life sentence or with death penalty.
(2) The representative of the state authorities, with whose approval the crimes men-
tioned in this article’s first paragraph were committed, shall be punished due to
his involvement as an accessory in accordance with § 17 para. 6.
This article was not necessarily the most successful example of legal
draftmanship. It was entitled ‘crimes against humanity,’ but in reality
combined the elements of two different international crimes: crime against
humanity and genocide. Substantively speaking, there was also an inner
contradiction in this Article: on the one hand, reference was made to the
definitions of ‘crime against humanity’ and ‘genocide’ in international
law; on the other hand, the article’s own concepts went further from the
respective international definitions. The inclusion of “groups offering resis-
tance to the occupation regime or other social groups” in the definition of
“genocide” went further from the definition set out in the 1948 Genocide
Convention, whereas the inclusion of the “denial or stripping of the
economic, political or social human rights (in the case of armed attack,
occupation or annexation)” in the definition of ‘crime against humanity’
was an unprecedented expansion of the concept.
The wording of the definitions of the crime against humanity and of
genocide in the Estonian Criminal Code gives the impression that the leg-
islator has modeled the respective definitions, bearing primarily in mind
their applicability to repressive acts committed in the occupied Estonia.
55
772 Soviet Genocide? 14 LJIL (2001)
54. See Karistusseadustik, Riigi Teataja I (The State Gazette) No. 61, 6 July 2001. See § 89
“Crimes against Humanity” and § 90 “Genocide”.
55. See also J. Saar & J. Sootak, Strafrechtliche Vergangenheitsaufarbeitung nach politischem
Systemwechsel in verschiedenen Ländern. Landesbericht. Estland 30 et seq. (on file with
the author). These Estonian criminal law professors argue that by expanding the 1945
definition of crimes against humanity and the 1948 definition of genocide and not applying
the statute of limitations when applying the expanded definitions of crimes to 1940s cases,
the Estonian legislator has violated the nullum crimen sine lege principle.
While this is conceivable, a more consistent reference to the international
definition of crimes against humanity would have been advisable.
In the new Estonian Penal Code, adopted in 2001, the definition of
‘crimes against humanity’ is identical to the definition given in the Rome
Statute of the ICC and thus does not contain any deviations from the inter-
national definition. However, the definition of the crime of ‘genocide’ in
the new Estonian Penal Code includes among the protected groups the
“groups offering resistance to the occupation regime or other social
groups.” This seems to confirm the international trend of including the
“political groups” in the definition of ‘genocide,’ notwithstanding the
restrictive definition of the 1948 Genocide Convention.
56
As we will show next, ambiguities inherent in the definitions of ‘crimes
against humanity’ and ‘genocide’ in the (now former) Estonian Criminal
Code have been a source of some confusion for the Estonian courts.
4.2.2. Charges and judgments on genocide and crimes against humanity
in Estonian courts
4.2.2.1. The criminal proceedings against deporters
Since 1996, Estonian prosecutors have initiated criminal proceedings
against a number of individuals, charging them with the deportation of
people to Siberia or with other repressive acts. In the following, a closer
over-view of these cases is provided.
In the first two cases – against Vassili Riis and Idel Jakobson – the
criminal proceedings never ended up with the judgments. The indictment
against Vassili Riis (born in 1910) was issued by the prosecutor on 20
March 1996. The accused had been a leading NKVD officer and had in
June 1941 given orders for the arrest and/or deportation of 882 Estonian
citizens. The indictment accused Riis of having committed a crime under
§ 61’(2) of the Estonian Criminal Code, since the deportations had been
carried out “with the intent to destroy a group possibly offering resis-
tance to the occupying power.” On 13 May 1997, the Court decided to
temporarily halt the proceedings due to the bad health condition of the
Lauri Mälksoo 773
56. Several other nations, including France, have included “political groups” to the genocide
definitions in their Criminal Codes. Some authors have argued that this reflects a new
definition of ‘genocide’ in customary international law. See, e.g., L.L. Bruun, Beyond the
1948 Convention – Emerging Principles of Genocide in Customary International Law, 17
Maryland Journal of International Law and Trade 210–218 (1993); and B. Van Schaack,
The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot, 106
Yale Law Journal 2259–2291, at 2280–2282 (1997).
Note also a Resolution Regarding the Extension of the Meaning of the Concept of
“Genocide,” adopted at the International Congress on the Evaluation of Crimes of
Communism, held in Vilnius, Lithuania, on 12–14 June 2000. (“It is necessary to extend
internationally the meaning of the concept ‘genocide’ so that it should cover physical
annihilation not only of nations but also of political and social groups of people. Until it
is achieved, such extended meaning is recommended to be introduced into national law.”)
accused person. In 1999, Riis died and the proceedings were terminated
by a court order.
Criminal proceedings against Idel Jakobson (born in 1904) were initi-
ated on the basis of § 61’(1) of the Estonian Criminal Code on 19 April
1996. According to the indictment, the accused had served as a high
functionary in the NKVD and had from 1940 to 1950 signed the orders
of repression about at least 1801 persons, including proposals to execute
621 persons. He was therefore accused of committing “crimes against
humanity for the deliberate actions which were aimed at the destruction
of national and other social groups offering resistance to the occupation
regime.” Of the specific cases, according to the indictment, the indicted
person had ordered in Sverdlovsk in 1942 the execution of fourteen
Estonian citizens who had been deported on 14 June 1941. Due to the
indicted person’s mental and health condition, his case was closed by an
order of the prosecutor on 18 February 1997. The accused died lately.
A court precedent was created when on 22 January 1999, the Lääne
County Court convicted Johannes Klaassepp of crimes against humanity
under § 61’(1) of the Estonian Criminal Code.
57
Klaassepp (born in 1921)
had served as the operative plenipotentiary of the Läänemaa Division of
the Estonian SSR Ministry of State Security (‘MSS’). According to the
indictment, he had in March 1949 “deported 23 Estonians and participated
in the deportation of 9 Estonians with the purpose to destroy a national
group, a group offering resistance to the occupying power and a social
group which had been declared kulaks.” The Court convicted the defen-
dant and sentenced him conditionally to prison for eight years with a two-
year probationary period. In giving its judgment the Court took into
account the ages of those deported – the oldest person on the lists linked
to Klaassepp was 83 and the youngest, 4 years old. The Court also con-
sidered that the defendant had been following orders in his role as an
NKVD official and had not planned or organized the crime. Both the pros-
ecutor and the counsel for the defendant appealed to the Circuit Court
which, on 6 April 1999, decided not to change the punishment and made
no amendments to the judgment of the court of first instance.
58
Similarly, on 10 March 1999, Pärnu County Court convicted Vassili
Be
kov under § 61’(1) of the Estonian Criminal Code. According to the
indictment, the defendant had as an operative plenipotentiary of NKVD
collected the data about 210 persons who were deported to Siberia on 25
March 1949, and participated personally in the deportation of 21 persons.
Under § 61’(1), he was charged with the “intent to destroy in part a
national group offering resistance to the occupation regime which was also
a social group declared ‘kulaks’.” The Court found that the prosecutor had
failed to prove beyond reasonable doubt that the defendant had collected
774 Soviet Genocide? 14 LJIL (2001)
57. Act No. II-I 183 1999 of Lääne County Court.
58. See also Overview of the Status of Human Rights in Estonia in 1999, compiled by the
Estonian Institute of Human Rights, at http://ww.eihr.ee/texts/ulevaade1999i.html, at 3.
the data about 210 “kulaks” for the purposes of deportation (of which the
defendant said he had been informed only in the morning of the deporta-
tion day). In this part of the indictment, the defendant was acquitted.
However, the Court found, relying on the “documents of delivery” that
had been signed by the defendant, that he was guilty in the deportation of
21 persons. The Court convicted the defendant under § 61’(1) and sen-
tenced him to eight years of prison with a three-year probationary period.
59
By sentencing, the Court considered the fact that the defendant committed
his crime under superior orders as an alleviatory circumstance, and the
deportation of aged people and children as an aggravating circumstance.
The convicted appealed the judgment, but on 19 May 1999 dropped his
action and agreed to the judgement.
Another deportation case was halted due to the bad health of the accused.
On 17 March 1999 the Järva County Court terminated the criminal matter
against the former Estonian SSR MSS (NKVD) security agent Vladimir
Loginov (born in 1924), charged with crimes against humanity, and ruled
that he should be placed in the custody of a psychiatric hospital until his
health improves. The prosecutor had accused the former operative plenipo-
tentiary of the Järvamaa Division of the NKVD of the preparation of the
list of deportees including 122 persons and the deportation of 14 people
to Siberia on 25 March 1949, qualifying it as “crimes against humanity
under § 61’(1).” Under the court order, the intent to deport was proven in
the case of “four families and fourteen individuals.” The Court affirmed
that after the defendant gets well, the Court would decide on his sentence.
So far the last deportation case has been the one against Mikhail
Neverovski (born in 1920). The Pärnu County Court started to hear his
criminal case on 19 July 1999. According to the indictment, the defen-
dant worked as an operative plenipotentiary of the NKVD in Pärnu and
participated in the deportation of March 1949. Thus, pursuant to the indict-
ment, he had “caused, through his deliberate acts, the deportation of natives
from the annexed Republic of Estonia with the purpose to destroy in part
a national group which was offering resistance to the occupying power
and a social group which was declared ‘kulaks’.” He was thus accused in
having committed a crime under § 61’(1) of the Estonian Criminal Code,
whereas the indictment did not specify explicitly whether the crime was
to be called “crime against humanity” or “genocide.” Of more than a
hundred victims, about sixty appeared in the courtroom. On 30 July 1999
the Pärnu County Court found the defendant guilty under § 61’(1) of the
Estonian Criminal Code, and sentenced him to four years in a closed
prison.
60
The convicted appealed the judgement. On 1 November 1999
the Tallinn Circuit Court relieved Neverovski from actual imprisonment
Lauri Mälksoo 775
59. Act No. II-I, 10 March 1999 of the Pärnu County Court.
60. Act No. 1-148 1998.
and replaced the punishment with four years of imprisonment on a three-
year probationary period.
61
4.2.2.2. The case of the killing of “forest brethren” (Paulov case)
The defendant Karl-Leonhard Paulov was charged by the prosecutor with
a crime under § 61’(1), since he “had killed, as an agent of the NKVD,
in order to destroy a group offering resistance to the occupation regime”
in commune Viluste on 18 October 1945 a “member of a group offering
resistance to the occupying power,” Aleksander Sibul, and on 27 October
1945, two “members of a group offering resistance to the occupying
power,” Alfred and Aksel Pärli. The defendant had been offered money
from NKVD for killing those “forest brethren”
62
and had been promised
that he would not be punished by the Soviet power for his having earlier
been conscripted to the German army.
In its judgement of 26 October 1999, the Põlva County Court rejected
the qualification of the crime in the indictment and requalified it as delib-
erate killing on the motive of personal interest (§ 101, paragraph 1 of the
Estonian Criminal Code). The Court established that as the “forest
brethren” were carrying weapons, they were “offering resistance” to the
occupation regime and therefore cannot be regarded as “civilians.” The
Põlva County Court noted that § 61’(1) of the Estonian Criminal Code was
broader than the definition of ‘genocide’ embodied in the 1948 Genocide
Convention, and found that the priority was to be given to the latter. On
the basis of available evidence, the Court refused to conclude that the
defendant aimed to kill or discriminate against Estonians by killings the
three “forest brethren.”
The prosecutor appealed the decision of the Põlva County Court.
However, in its judgment of 13 December 1999, the Tartu Appellate Court
did not change the judgment of the court of the first instance. The
Appellate Court established that § 61’(1) of the Estonian Criminal Code
contains a broader list of criminal acts than the respective international
legal norms and is thus not in accordance with the latter. The Appellate
Court argued that international agreements do not define the killing of
members of a group offering resistance to the occupying power as ‘crime
against humanity.’ However, applying the definition of “combatants” in
Article 50, paragraph 1 of the Additional Protocol I to the Geneva
776 Soviet Genocide? 14 LJIL (2001)
61. Act No. 11-1/810.
62. About the “forest brethren,” the Supreme Court of Estonia has issued a dictum in the case
III-1/3-19/94 (the case of E. Mikkor and K. Nurmoja):
Hiding oneself in the forest was a form of fighting for the independence of the Republic
of Estonia and against the injustice done to the Estonian people, whereas during the
hiding the victims of the state arbitrariness committed plunders in the state of neces-
sity.
See http://www.nc.ee/rkis/lahendid/tekst/III-1/3-19/94.html (last visited on 15 June 2001).
Conventions of 8 June 1977,
63
the appellate court rejected the dictum of
the Põlva County Court that these “forest brethren” were not “civilians.”
The prosecutor appealed the decision at the Estonian Supreme Court
in Tartu. She argued that the acts committed by the defendant would
qualify as “murder or extermination of any civilian population” under the
Nuremberg Tribunal Statute (Article 6(c)). The fact that the three “forest
brethren” had been qualified as “members of a group offering resistance
to the occupation power” in the indictment would not ipso facto imply that
they were not civilians in the sense of the Nuremberg statute definition
of the “crimes against humanity.” The defendant killed the “forest
brethren” in the framework of a larger NKVD plan that was aimed at
depriving citizens of the occupied country of their right to life and fair
trial.
The Estonian Supreme Court in its judgment of 21 March 2000 over-
ruled the judgments of the County and Appellate Courts. It explained that
§ 61’ of the Estonian Criminal Code, entitled “Crime Against Humanity”,
contains in reality the elements of two crimes: crime against humanity and
genocide. The Supreme Court went on in laying out the definitions of
“crimes against humanity” in the Statutes of Nuremberg Tribunal and
International Criminal Tribunal for the former Yugoslavia (‘ICTY’), and
the definition of “genocide” in the 1948 Genocide Convention. It explained:
By distinguishing crimes against humanity from other crimes, one has to depart
from the following bases. In the case of a ‘usual’ crime, the offender does not deny
the injured value itself. He does not put himself beside or above the existing value
system. By killing the sufferer, he recognizes the human life as a value, its invio-
lability, although finds to his specific deed a justification. In the case of a crime
against humanity, the offender puts himself for various – primarily religious,
national or ideological – reasons out of the value system. He acts in the name of
other goals (such as ethnic cleansing) and the attacked goods – life, health, corporal
integrity – are in the given context for him valueless. The attack is here not directed
against the concrete sufferer, but the sufferer could turn out to be a discretionary
human being.
64
The Supreme Court went on to say that due to the failure to distin-
guish ‘genocide’ from ‘other crimes against humanity’ in § 61’, the County
and Appellate Courts had mixed both definitions together, and thus had
come to the conclusion that neither applied. The Supreme Court empha-
sized that the phrase “group offering resistance to the occupation regime,”
crystallized in § 61’ is a feature of the crime of genocide, and not of the
crime against humanity.
The Supreme Court agreed with the view presented in the cassation
Lauri Mälksoo 777
63. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3.
64. Translated from the Estonian Supreme Court judgment rendered on 21 March 2000, see
http://www.nc.ee/rkis/lahendid/tekst/3-1-1-31-00.html.
application that the three victims hid in the forest, in order to eschew the
Soviet repressions. The occupation power, however, decided to take away
their right to fair trial and to murder them. Therefore, the killings must
be qualified as a crime against humanity, concluded the Estonian Supreme
Court, relying on the definition of crimes against humanity as contained
in Article 6(c) of the Nuremberg Statute.
The case was thus sent back to the Põlva County Court which followed
in its new judgment of 29 July 2000 the instructions given by the Estonian
Supreme Court. The Court established that the defendant had committed
crimes against humanity by murders directed against the civilian popula-
tion. According to the Court, the murders qualified as crimes against
humanity, since the intention to kill was not directed against the concrete
victims, but anybody, whose killing would have come within the scope of
the operations planned by the NKVD, could have become a victim of this
crime. On 29 July 2000 Põlva County Court sentenced Paulov to eight
years in prison.
4.2.3. Analysis and critique of the Court judgments
The judgments in the recent case of the NKVD agent Paulov raise several
questions, especially with regard to the application of law to the facts.
What were these “forest brethren,” civilians or non-civilians (combatants)?
The respective “forest brethren” were in the possession of weapons, but
were in the first place hiding in the fear of repressions by the occupying
power. It was not known to the Court whether the killed “forest brethren”
had been using their weapons against the Soviets. The Estonian Supreme
Court chose to call those “forest brethren” “civilians” rather than “non-
civilians,” although the use of the 1949 Geneva Convention and the 1977
Additional Protocols definitions for this purpose may be challenged from
the point of view of intertemporal law.
The main legal issue in the case of Paulov was when does a murder
constitute ‘crime against humanity.’ The theoretical answer, given by the
Estonian Supreme Court, does not exactly follow the explanations given
in the international jurisprudence and literature. The explanation that “the
attack [in the case of crimes against humanity] is not directed against the
concrete sufferer but the sufferer could turn out to be a discretionary human
being” points to the phenomenon of the depersonalization of victims
which, however, also takes place in the cases of “blind” terrorist attacks
which are usually not qualified as “crimes against humanity.”
65
Instead,
the international jurisprudence has pointed out the “contextual element”
778 Soviet Genocide? 14 LJIL (2001)
65. Cf. L. Arbour & J.-P. Brodeur, Retenir le bras de la vengeance, in Le monde des debats
(“Crimes contre l’humanité: une justice des vainqueurs?”), No. 25, 24 (mai 2001).
of such crimes, namely that crime against humanity implies a “wide-spread
and systematic attack against the civilian population.”
66
The historic evidence seems to suggest that in the time of the “forest
brethren” resistance in the Baltic states, such wide-spread and systematic
attack against the civilian population can be proven. Indeed, the very resis-
tance movement of the “forest brethren” was largely a consequence of
the Soviet repressive policies against the civilians.
67
The military attack
against the “forest brethren,” of whom many but not all offered military
resistance against the Soviets, was a part and consequence of the attack
against the civilian population. However, the courts failed to elaborate
on this “contextual element” in the Paulov case.
In general, the unfortunate decision of the Estonian legislators to tie the
crimes of genocide and crimes against humanity together into a single
article in the former Criminal Code has caused considerable misunder-
standings in the Estonian legal system. There is the confusion whether
the individuals convicted for 1949 deportation have been convicted for
‘crimes against humanity’ or ‘genocide.’ Before the Estonian Supreme
Court handed down its judgment in the case of Paulov, in which it called
attention to the difference between the crime of ‘genocide’ and ‘crime
against humanity’ in the former § 61’ of the Criminal Code, Estonian
prosecutors and courts qualified the acts of deportation as “deliberate acts,
the purpose of which was to destroy a national group, group offering
resistance to the occupation regime and a social group declared ‘kulaks’.”
68
This qualification implies thus the crime of ‘genocide.’ At the same time,
the indictment of Klaassepp, for instance, concluded that the defendant
had committed under § 61’ of the Estonian Criminal Code a ‘crime against
humanity,’ restating the title of § 61.’
In most mass deportation cases, the courts have restricted themselves
to the pronouncement that the deportators, with their deliberate activities,
“the purpose of which was to destroy a […] group,” had committed “a
crime under § 61’.” Due to the Courts’ qualification “the purpose of which
was to destroy a […] group,” commentators have suggested that these
convictions were pronounced on account of the crime of ‘genocide.’
69
At
the same time, none of these judgments explicitly uses the term ‘genocide.’
Moreover, the judgments establish that the convicts followed superior
orders and neither planned nor organized the deportations.
The present author doubts whether the respective Estonian courts have
Lauri Mälksoo 779
66. See, e.g., P. Akhavan, Contributions of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda to Development of Definitions of Crimes Against Humanity and
Genocide, Proceedings of the 94th Annual Meeting of the American Society of International
Law, 5–8 April 2000, 279–284 (2000).
67. See, e.g., M. Laar, War in the Woods. Estonia’s Struggle for Survival 1944–1956 (Washing-
ton, DC: The Compact Press, 1992).
68. See, e.g., the indictment of Klaassepp.
69. See supra note 58, at 4; Saar & Sootak, supra note 58, at 26 et seq. (arguing that Bekov,
Klaassepp, and Neverovski have been convicted of ‘genocide’).
consciously intended to convict the Soviet deporters for ‘genocide,’ as
opposed to ‘crimes against humanity.’ When they have, they have failed
to prove the necessary requisites of the crime of genocide. It is striking
that none of the respective court decisions has so far paid attention to the
proof of the element “intent to destroy,” so essential in the qualification
of the crime of genocide. Rather, the repeated qualification that the purpose
of the deportations was to “destroy a […] group” has quasi-automatically
been used as some kind of mandatory requisite, as if the very fact of the
taking place of the mass deportation would prove such an intent. The qual-
ification has been taken over from the indictment, taken for granted but
never proven. It can be traced to the confusing wording of § 61’ of the
former Estonian Criminal Code. This author suggests that due to the failure
of the Estonian courts to include a proof of the “intent to destroy […] the
group” and without the explicit pronouncement of the crime of ‘genocide,’
the convictions “of crimes under § 61’” of the former Estonian Criminal
Code can be understood as convictions of ‘crimes against humanity,’ and
not of ‘genocide.’
No “intent to destroy a group” is required in order to qualify the acts
of the perpetrators of the Soviet mass deportations as ‘crimes against
humanity.’ In the case of the March 1949 deportation, it would be diffi-
cult to prove that the convicted NKVD officials intended to “destroy the
group offering resistance to the occupation regime,” already since – dif-
ferently from the June 1941 deportation – the destruction in the sense of
physical annihilation did not take place. (Most people deported to Siberia
in March 1949 managed to return to their homes in the late 1950s.)
It seems that the crime of genocide may have two levels. It is, first of
all, an individual crime in which case the question is whether this partic-
ular person acted with the intent to destroy the particular group. However,
genocide may also have a “state level” – it may be planned and organized
by a few individuals who are acting as highest state organs. Their –
“state’s” – intent does not necessarily imply the genocidal intent of the
lower state officials. James E. Mace suggests rightly in the context of
Stalinist repressions that “[i]n such circumstances, subordinates might well
be unaware as to the rationale for a given action or the official reason
might not be the real one. We have little choice, in such a situation, but
to attempt to extrapolate intent from circumstantial evidence.”
70
As convictions of ‘genocide’ have also been delivered by Latvian
71
and
780 Soviet Genocide? 14 LJIL (2001)
70. Mace, supra note 20, at 118.
71. In Latvia, a former KGB chief, Alfons Noviks, was convicted of genocide and sentenced
to life in prison in 1995. He died in prison the following year. In May 2000, Mihhail
Farbtukh was convicted of genocide for deporting 31 Latvian families to Siberia in 1941.
He began to serve a five-year prison sentence. See Financial Times, 18 May 2000, at 2. On
the case of Noviks, see further I. Ziemele, The Application of International Law in the Baltic
States, 40 German Yearbook of International Law 243, at 261 et seq. (1997).
Lithuanian
72
courts, it must be asked whether the general “circumstantial
evidence” in the context of the Soviet repressions in the Baltic states may
indicate the crime of ‘genocide.’
6. C
OMMUNIST REPRESSIONS IN THE BALTIC REPULICS: WAS IT
‘GENOCIDE’?
Most Baltic authors writing on the Soviet mass deportations and “liqui-
dations” in the 1940s–1950s, claim that the Lithuanians, Latvians, and
Estonians became victims of Soviet genocide.
73
The condemnation of the
Soviet policies as ‘genocide’ has become almost axiomatic in the Baltic
states. The Soviet deportations in the Baltic states have also been quali-
fied as ‘genocide’ by some Western authors such as the political scientist
Rudolph Rummel.
74
Similarly, historian J. Otto Pohl applies the genocide
definition of the 1948 Genocide Convention to the Soviet deportation of
nationalities, and argues that Stalin’s policies meet the prong “deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part.”
75
At the same time, the French
genocide researcher Yves Ternon warns that in those cases of Soviet depor-
tations when ethnic groups were not deported in their entirety, genocide
Lauri Mälksoo 781
72. See S. Lammich, Country Report: Lithuania, in Eser & Arnold, supra note 15, at 198. In
1997, the District Court of Vilnius convicted Kirilas Kurakinas (75), Petras Bartasevicius
(74) and Juozas Sakalys (74) of ‘genocide’ for killing in a Lithuanian village in 1945 a
family who had been hiding in front of the Red Army. See also Postimees, 5 December
2001, at 3.
73. The claim that the Soviets committed genocide in the Baltic states, was first presented by
the Baltic authors in exile. See K. Pelékis, Genocide. Lithuania’s Threefold Tragedy
(Germany: Venta, 1949); A. Kaelas, Human Rights and Genocide in the Baltic States. A
Statement Submitted to the Delegations of the United Nations General Assembly 52
(Stockholm: Estonian Information Centre, 1950); A. Svabe, Genocide in the Baltic States
(Stockholm: Latvian National Fund in the Scandinavian Countries, 1952); A. Taska,
Enesemääramisõigusest rahvusmõrvani – Nõukogude Liidu sõnad ja teod Eesti Vabariigi
ja rahva suhtes (From Self-Determination to Genocide – the Words and Deeds of the USSR
with Respect to the Republic and People of Estonia), Eesti Üliõpilaste Seltsi Album XIV,
81–95 (Toronto: Estoprint, 1965); Latvian National Foundation (Ed.), These names Accuse.
Nominal List of Latvians Deported to Soviet Russia in 194041, 2nd ed., XII (Stockholm:
Latvian National Foundation, 1982); A. Võõbus, Studies in the History of the Estonian
People, Vol. XIII, 118 et seq. (Stockholm: ETSE, 1984). Of the recent literature in Lithuania,
see A. Amiauskas, Lietuviu tautos sovietinis naikinimas 1940–1958 metais 466 et seq.
(Vilnius: Mintis, 1996); I. Ignatavicius (Ed.), Lietuvos naikinimas ir tautos kova 40 et seq.
(Vilnius: Vaga, 1999); Institute of Philosophy, Sociology and Law, Research Center of
Repressions in Lithuania (Ed.), Genocide of Lithuanian People, Volume I (1931–1941)
(1992), and B. Burauskaite (Ed.), Genocide of Lithuanian People, Volume II (1944–1947)
(1998) (Vilnius: Institute of Philosophy, Sociology and Law, Research Center of Repressions
in Lithuania). In Estonia: E. Sarv, Genotsiid ja apartheid okupeeritud Eestis (Genocide
and Apartheid (sic – L.M.) in Occupied Estonia), 2–4 Akadeemia (1997); P. Varju, Eesti
laste küüditamine 14. juunil 1941 kui genotsiidikuritegu (The Deportation of Estonian
Children on 14 June 1941 as a Crime of Genocide) (Tallinn: ORURK, 1994).
74. R.J. Rummel, Lethal Politics. Soviet Genocide and Mass Murder since 1917, 2 (1990).
75. J. Otto Pohl, Ethnic Cleansing in the USSR, 1937–1949, 2–3 (1999).
“cannot be proven easily.”
76
The British author Anatol Lieven, however,
argues in the Lithuanian context quite categorically that the 1941 Soviet
deportation was “in no sense a ‘Lithuanian genocide’.”
77
The characterization of Soviet repressions in the Baltic states as
‘genocide’ is conceivable to the extent that the repressions were aimed at
the destruction of hostile political groups – which is covered by the def-
inition of ‘genocide’ in the criminal law of the Baltic republics. However,
as the inclusion of political groups in the definition of ‘genocide’ has inter-
nationally remained a matter of controversy, it must be asked whether the
Soviet policies in the Baltic states could still be qualified as ‘genocide’
when the legal threshold of the 1948 Genocide Convention is used.
The scope of the present article would not enable us to present here a
comprehensive legal analysis on the issue whether the Soviet repressions
in the Baltic states could be qualified as ‘genocide.’ We would simply like
to point out some crucial issues that the application of the 1948 defini-
tion of ‘genocide’ to the Baltic situation raises.
First, Lithuania, Latvia, and Estonia lost a significant percentage of their
peoples as a consequence of the Soviet policy of extermination, deporta-
tion, and forced exile. However, smaller national and ethnic groups are
“by nature” more vulnerable and endangered in the cases of organized
repressions and terror, just as during the Stalin era. It must therefore be
asked whether the repressions in the occupied Baltics did constitute a
“standard treatment” of the Soviet’s own citizens or had a specific char-
acter.
One of the crucial questions from the point of view of establishing
genocide is: against which groups were the deportations and repressions
directed? The widespread misperception restricts the communist repres-
sions to the destruction of hostile “social” or “political” groups only, i.e.,
groups which are not covered by the 1948 genocide definition. Often, this
has proven to be a too simplistic answer. The attacks against hostile “polit-
ical” groups in communist countries have often simultaneously had a
“hidden agenda,” for instance the subjugation of other ethnic or religious
groups.
78
The Soviets themselves defined the target group of their repressions in
the Baltic states as “anti-Soviet element.” At the first glance, this may be
identified like any other political or social group, just like the “kulaks” in
the USSR itself. However, in the context of the occupied Baltic states,
782 Soviet Genocide? 14 LJIL (2001)
76. Y. Ternon, Der verbrecherische Staat. Völkermord im 20. Jahrhundert 215 (Hamburg:
Hamburger Edition, 1996) (translation from the French original, 1995, Seuil).
77. A. Lieven, The Baltic Revolution. Estonia, Latvia and Lithuania and the Path to Independ-
ence, 2nd ed., 151 (1994).
78. In a study on communist Ethiopia, Andre Glucksmann and Thierry Walton point out that
the “kulaks” in Ethiopia were oromos (a muslim ethnic group) who had been traditionally
discriminated by the Amhara christians. The “dekulakization” in Ethiopia sought thus inter
alia to subjugate an inferior ethnic and religious group. See A. Glucksmann & T. Walton,
Silence, on tue 17 (1986).
the “anti-Soviet element” had a different meaning from the rest of the
USSR, the meaning of destroying three young nation states. As the Soviet
repressions in the Baltic states were antedated by the aggression, the
targeted “political groups” were representing Baltic “national groups.”
79
For “anti-Soviet element” were automatically those leaders among the
people – from all social strata and ethnic groups of the country, as the
study of those deported in June 1941 demonstrates
80
– who had been prior
to the occupation and continued to be in favour of Estonia, Latvia, and
Lithuania as independent nations based on non-communist principles of
government and ownership. Even the orders for 1949 mass deportation,
which in Estonia were initially opposed even by local communist leaders,
singled out kulaks and “nationalists.” The repressions in the Baltic
republics could not therefore be qualified as “autogenocide” which –
although this concept remains very controversial – could possibly be used
in the case of Soviet Russia itself.
The Soviets handled the years of independent statehood in the Baltic
states (1918/1920–1940) retrospectively as an episode of counter-revolu-
tion and talked about the “revolutionary reestablishment of the Soviet
power.” Thus, the Russian SFSR’s Criminal Code of 1926, which had been
made retroactively applicable in the annexed Baltic states in December
1940, served as the “legal” basis for the sentencing of the arrested persons
to death or to prison camps.
81
Although the USSR had recognized the
Baltic republics de iure in 1920, its courts later considered a dedicated
involvement in the independent Baltic states (1918–1940) as a crime under
the infamous § 58 of the Russian SFSR’s Criminal Code which established
crimes against the Soviet state (betrayal of the homeland, acts against the
Lauri Mälksoo 783
79. The International Criminal Tribunal for Rwanda has explained that the term “national group”
refers to a “collection of people who are perceived to share a legal bond based on common
citizenship, coupled with reciprocity of rights and duties.” See Prosecutor v. Akayesu, Case
No. ICTR-96-4-T, Judgment, 2 September 1998, at para. 511.
80. The analysis of the deportees of June 1941 demonstrates that the deportations were not
directed against Lithuanians, Latvians, and Estonians as ethnic groups. The number of
deported Baltic Jews and Baltic Russians even exceeded their relative size in the popula-
tion. See further V. Salo, Population Losses in Estonia June 1940–August 1941, 212 et
seq. (Scarborough, 1989). Nor was the 14 June 1941 deportation directed against partic-
ular social groups – e.g., according to social status, only 26% of the Estonian deportees of
1941 were owners of land or other substantive property. 43% were workers, 17% were
employees or technical personnel, and the remainder were independent or without definite
social status. Among the arrested and executed persons, only 34% owned substantive
property. See J. Kahk (Ed.), World War II and Soviet Occupation in Estonia: A Damages
Report 35 (1990). Cf. for all Baltic states: Bougai, supra note 19, at 169 (quoting the sources
in the State Archive of the Russian Federation). In the GULAG registry, the people deported
from the Baltic states were not classified according to their social status or “criminal record,”
but designated laconically as “the Balts.” See H. Strods, The USSR MGB’s Top Secret
Operation “Priboi” (‘Surf’) for the Deportation of Population from the Baltic Countries,
25 February–23 August 1949, http://vip.latnet.lv/LPRA/priboi.htm, at 1 (last visited 15 June
2001).
81. In the case of Estonia, see ENSV Teataja (Official Gazette of the Estonian SSR), 1940,
No. 65 (16 December 1940).
military capacity, independence or territorial integrity of the USSR, mem-
bership in counter-revolutionary organizations etc.).
The Soviet deportations and exterminations in the Baltic states were
accompanied by a phenomenon which the USSR itself had defined as
“cultural genocide” when demanding in 1948 its inclusion in the defini-
tion of “genocide.”
82
Most of the monuments erected in the Baltic states
during the independence period were destroyed by the Soviets as “nation-
alistic,” millions of books met with the same fate.
83
However, in the case of the Soviet mass repressions, just as in all other
cases of genocide claims, the mental element or mens rea of the crime of
genocide is most difficult to prove. In practice, the genocidal intent can
be inferred from the physical acts, and specifically from “the massive
and/or systematic nature of the atrocity.”
84
The prosecution will rely on
the context of the crime, its massive scale, and elements of its perpetra-
tion that suggest hatred of the group and a desire for its destruction.
85
The intent is a logical deduction that flows from evidence of the material
facts.
86
The ICTY found in the Jelisi´c case that the “genocidal intent can take
two forms”: on the one hand, the intent to exterminate a very large number
of members of the group, and, on the other, the intent to pursue a more
selective destruction targeting only certain members of the group “because
of the impact their disappearance would have on the survival of the group
as such.”
87
The context of the Soviet repressions in the Baltic states seems
to indicate genocidal intent in the second sense. The USSR’s repressive
actions in the Baltic states were directed towards “liquidating” the people
who would be most determined to carry on the will for independent state-
hood, based on “non-Soviet” principles of government. The Baltic national
groups were ordered to be transformed into something else, for a part of
the “Soviet people,” and Stalin’s condition for individuals’ and groups’
784 Soviet Genocide? 14 LJIL (2001)
82. The Soviet proposal defined “cultural genocide” as “prohibition or restriction of the national
languages in public and private life and the destruction of historical or religious monuments,
museums and libraries.” See Schabas, supra note 8, at 63; and M.N. Andrjuhin, Genotsid
– tjagtsheishee prestuplenije protiv tshelovetshestva 85–87 (Moscow, 1961).
83. According to the data published by the NGO “Memento” and the Estonian State Commission
on Examination of the Policies of Repression, the Soviets destroyed 26 Million copies of
books published during Estonia’s independence period.
84. Akayesu, supra note 79, at para. 477.
85. Schabas, supra note 8, at 222.
86. Id., at 222.
87. Prosecutor v. Jelisi´c, Case No. IT-95-10, at para. 82. See also G. Verdirame, The Genocide
Definition in the Jurisprudence of the Ad Hoc Tribunals, 49 ICLQ 578, at 587 (2000).
right to existence was their willingness to obey to such forced transfor-
mation of identity.
88
However, the genocidal intent of the Soviet leadership does not auto-
matically prove that for instance an NKVD official who, obeying superior
orders, was preparing and carrying out mass deportations, had a dolus
specialis of the crime of genocide, the intent to destroy the (national) group
or a part of it. Such an intent must be proven in each individual case
separately.
7. S
HOULD ANYBODY BE RESPONSIBLE FOR “STALIN”? BY WAY OF
CONCLUSION
The crimes committed more than fifty years ago in and by the USSR
cannot today be confronted in the way as if those crimes were committed
yesterday. Many facts of life, such as the high age of perpetrators, cannot
be ignored at the sentencing – as the Estonian court practice reconfirms.
However, the prosecution of those guilty in the crimes against humanity
and/or genocide has a high symbolic value, and has in the Baltic states
proven to be a precondition so that the people could come to terms with
the tragic past of their countries.
One of the challenges for the evaluation of the Soviet deportations and
other repressive policies in the Baltic states is that those crimes were state
crimes, organized by the USSR and by the Soviet Communist Party which
was running the state. Although Klaassepp and Neverovski carried out
the deportations in the technical sense, they remained relatively “small
cogs” in the Soviet state’s repressive machinery, the ones who carried out
the superior orders of the Soviet central power. It would be misleading
and unfair when they alone would now have to bear the responsibility for
those deportations.
In that regard, we have witnessed an interesting phenomenon: since
the USSR collapsed in 1991, the responsibility of the former Communist
Party and of the Soviet state for the mass repressions has “evaporated”
somewhere. The Russian Federation has continued the international legal
personality of the USSR, but seems to have chosen the easiest path and
released itself from the responsibility for the “negative ballast,” crimes
committed by the USSR. So far, the Russian Federation has neither out-
rightly acknowledged the illegal occupation of the Baltic states by the
Lauri Mälksoo 785
88. James E. Mace writes aptly:
In the Stalin period, the Soviet State did not hesitate to attempt the complete destruc-
tion of [national and religious] identities and those who bore them, if they were per-
ceived to be hindrances to the State’s complete integration and subordination of all forces
in society to Stalin’s goals. Genocide took place as mechanism of removing obstacles.
Mace, supra note 20, at 119.
USSR, nor apologized for the mass repressions that were carried out in
the illegally annexed Baltic states.
In the Baltic states, it has become an issue of controversy whether these
states should present to the Russian Federation a reparation claim based
on the principles of state responsibility. Generally, most politicians seem
to agree that even though such a claim would be “right,” it would have
little prospect of success and add unnecessary tension to the application
of the Baltic states to join NATO and the EU.
89
It is therefore relatively
unlikely that a claim based on state responsibility will be presented to
Russia.
90
Political factors have influenced the confrontation with the responsi-
bility of the Soviet Communist Party as well. The Communist Party con-
tinues to be full of vitality in Russia, and although the successors of the
former Communist parties in the Baltic states play only a marginal role
in today’s politics, the number of Balts who joined the Communist Party
in the later decades of the Soviet period was not totally unsubstantial. Until
today, the Baltic states have been incapable of taking a formal stand on
their own citizens’ membership in the Soviet Communist Party.
91
From the
point of view of a fair attribution of the responsibility, this is an impor-
tant factor, since the mass deportations in the Baltic states were not just
prepared and carried out by “Moscow,” but implemented by native Baltic
communists as well. Those Baltic politicians who were formerly members
of the Communist Party, are now reluctant to recognize that there is a
contradiction between their countries’ claim of the Soviet “occupation,”
and their own former membership in the party (unless one can occupy
oneself).
Altogether, most people in the former USSR seem today to perceive
themselves as victims of the Soviet era, or of the changes caused by its
end. Jutta Scherrer, a scholar from Germany, observes:
786 Soviet Genocide? 14 LJIL (2001)
89. Latvian and Russian leaders have already expressed conflicting views when on 21 January
2000 the Riga District Court convicted Vasily Kononov, a 77-year old former Soviet
partisan, of war crimes. Kononov had been accused of having killed nine civilians in the
village of Malyie Baty in the summer of 1944. President Putin wrote to the Latvian President
Vike-Freiberga and asked her to intervene and free Kononov. The Latvian President
defended her country’s right to jail Kononov, by arguing that “[s]uch crimes have to be
punished irrespective of the ideology on whose behalf they have been committed and irre-
spective of the age of those who have committed them.” See Latvian Leader Defends Right
to Jail Soviet Partisan, Financial Times, 25 February 2000, at 2. See also M. Wines, Latvians
and Russians Remain Divided by the Legacy of World War II, International Herald Tribune,
21 May 2000 at 2.
90. But see The Republic of Lithuania Law on Compensation of Damage Resulting from the
Occupation by the USSR, adopted on 13 June 2000 which mandates the Lithuanian
Government to start negotiations with its Russian counterpart in that matter. For a discus-
sion on the applicability of the principles of state responsibility in the Baltic case, see L.
Mälksoo, The June 14, 1941 Deportation and International Law: Thoughts on Responsi-
bility, in Pro Patria Union and Jarl Hjalmarson Stiftelsen (Eds.), Speeches at the International
Conference “On Crimes of Communism” 26–33 (Tallinn, 2000).
91. Only in Lithuania, the then Supreme Council prohibited the future activities of the
Communist Party on 22 August 1991, following the unsuccessful coup d’état in the USSR.
Most Russians whom I spoke to about Russia’s past, understand themselves as
victims. In their eyes, they themselves, the Russian nation has brought the biggest
sacrifice when compared to the other nationalities and ethnic groups of the Soviet
State. Also for the members of the former Soviet republics as the Ukrainians or
the Balts, the question of guilt is equally clear: those responsible for the system
were the Russians, they themselves the victims. The guilty ones were always the
others. The question about the other in myself is not posed.
92
The question about the “other in myself” is indeed one of the most
difficult questions to ask. The establishment and first report of the
International History Commission in Estonia may have opened the door
for such questions in the post-Soviet region. It is to be hoped that, sooner
or later, bigger countries will follow the same path. The application of
international legal concepts to the Soviet crimes is likely to remain a
complicated matter, but a fair and wise attribution of responsibility to the
perpetrators would not only bring justice, but can also make a contribu-
tion to the most practical goal of any Vergangenheitsaufarbeitung: namely,
that such crimes would never occur again.
Lauri Mälksoo 787
92. See J. Scherrer, “Laßt die Toten ihre Toten begraben.” Warum Rußland von den sowjetis-
chen Massenverbrechen nichts wissen will, Die Zeit, 2 July 1998 (translation from German
by this author).
... Przedmiotem postępowań karnych stały się w głównej mierze przypadki masowych deportacji ludności Litwy, Łotwy oraz Estonii w głąb ZSRS, represji wobec inteligencji narodów bałtyckich oraz zbrodni popełnionych przez Sowietów na uczestnikach antysowieckiego ruchu oporu ("leśnych braciach") pod koniec II wojny światowej i w latach następujących bezpośrednio po niej. Oskarżano w nich byłych funkcjonariuszy NKWD, MGB, KGB, ale także weteranów Armii Czerwonej (Mälksoo, 2001). Należy przy tym uwypuklić, że wzmocnieniem aktywności prokuratorskiej stało się wykorzystanie kategorii zbrodni międzynarodowych (international core crimes), w tym zbrodni ludobójstwa, zbrodni przeciwko ludzkości oraz zbrodni wojennych, dla prawnej kwalifikacji tragedii, jakiej doświadczyły narody państw bałtyckich ze strony dwóch totalitaryzmów (w szczególności sowieckiego). ...
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... Especially US officials and international Jewish organisations demanded greater action from the Baltic governments to find and prosecute former Nazi perpetrators still alive and to more self-critically address issues of guilt and accountability in connection with local collaboration during Nazi rule. Baltic politicians and intellectual elites strongly rejected any notion of historical guilt or even co-responsibility for Nazi atrocities and instead stressed their own collective historical victimisation under Stalin, which they framed also in terms of genocide and crimes against humanity in national criminal law (Mälksoo 2001;Budryte 2004). It was this latter context of Baltic -Western disputes over the history of the Nazi occupation that increasingly threatened to overshadow the politics of the three states as they were gearing towards further integration into Western political and security structures. ...
... 6 Bringing to justice the deportation agents as aged men (born between 1918 and 1927) caused mixed opinions in society. While one group is focusing on forgiveness and understanding, another one places the principle of justice in the foreground (Mälksoo, 2001;Pettai and Pettai, 2015). Many people think that the truth concerning the past seemed to be established, but justice was not served. ...
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Vremja i sudby (Nations Deported to Kazakhstan: Time and Fortunes) 107 et seq. (Almaty: Arys, 1998); J.O. Pohl, Ethnic Cleansing in the USSR See also D
  • Deportirovannyie V Kasahstan Narody
Deportirovannyie v Kasahstan narody. Vremja i sudby (Nations Deported to Kazakhstan: Time and Fortunes) 107 et seq. (Almaty: Arys, 1998); J.O. Pohl, Ethnic Cleansing in the USSR, 1937–1949 (1999). See also D. Dahlmann & G. Hirschfeld (Eds.), Lager, Zwangsarbeit, Vertreibung und Deportation. Dimensionen der Massenverbrechen in der Sowjetunion und in Deutschland 1933 bis 1945 (1999).
Communism and Crimes against Humanity in the Baltic States, A report to the Jarl Hjalmarson Foundation seminar on 13 According to another data
  • See A Küng
See A. Küng, Communism and Crimes against Humanity in the Baltic States, A report to the Jarl Hjalmarson Foundation seminar on 13 April 1999. See http://www.rel.ee/akungeng. html, at 4 (visited on 31 July 2000). According to another data, 17,171 people were deported from Latvia and 15,851 from Lithuania. See further id.
Country Report: Lithuania, in Eser & Arnold, supra note 15, at 198 the District Court of Vilnius convicted Kirilas Kurakinas (75), Petras Bartasevicius (74) and Juozas Sakalys (74) of 'genocide' for killing in a Lithuanian village in 1945 a family who had been hiding in front of the Red Army
  • See S Lammich
See S. Lammich, Country Report: Lithuania, in Eser & Arnold, supra note 15, at 198. In 1997, the District Court of Vilnius convicted Kirilas Kurakinas (75), Petras Bartasevicius (74) and Juozas Sakalys (74) of 'genocide' for killing in a Lithuanian village in 1945 a family who had been hiding in front of the Red Army. See also Postimees, 5 December 2001, at 3.
Eesti poliitilise eliidi saatusest (About the Fate of the Estonian Political Elite), (Tallinn: Estonian State Commission on Examination of Policies of Repression
  • See P Varju
See P. Varju, Eesti poliitilise eliidi saatusest (About the Fate of the Estonian Political Elite), (Tallinn: Estonian State Commission on Examination of Policies of Repression, 1994).
Ethnic Cleansing in the USSR
  • Otto Pohl
J. Otto Pohl, Ethnic Cleansing in the USSR, 1937-1949, 2-3 (1999).
World War II and Soviet Occupation in Estonia
J. Kahk (Ed.), World War II and Soviet Occupation in Estonia: A Damages Report 36 (1990).
Genocide in the USSR
  • J E See
  • Mace
See for references J.E. Mace, Genocide in the USSR, in I.W. Charny (Ed.), Genocide. A Critical Bibliographic Review 117 (1988).
Völkermord im 20: Hamburger Edition, 1996) (translation from the French original
  • Y Ternon
  • Der
  • Staat
Y. Ternon, Der verbrecherische Staat. Völkermord im 20. Jahrhundert 215 (Hamburg: Hamburger Edition, 1996) (translation from the French original, 1995, Seuil).