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Competing Histories: Soviet War
Crimes in the Baltic States
Rain Liivoja *
Most contributions to this volume tell untold stories about war crimes trials. is
chapter, however, focuses on a few trials that attempt to tell untold stories. In other
words, it is not the trials themselves that have been hidden in the mist of history,
but rather the o ences that they deal with. My aim here is to provide a brief comment
on the e orts that the three Baltic states—Estonia, Latvia and Lithuania—have
made to prosecute o ences against international law committed in their territories
by the Soviet authorities during and after World War II. is discussion highlights
the storytelling or history-writing function that trials of international crimes often
have. e situation of the Baltic states illustrates particularly vividly what happens
if the historical record produced by such trials is in con ict with existing historical
paradigms.
(I) Background
e Baltic states, as well as Finland, were part of the Russian Empire until the
Russian Revolution of 1917. To cut a long story short,
1 in the wake of the collapse
of the Tsarist Government, Finland, Estonia, Latvia and Lithuania declared inde-
pendence; they waged successful wars of independence against Soviet Russia, which,
in peace treaties concluded in 1920, recognized the new states and disclaimed any
rights to their territory.
2
* I am grateful to Lauri Mälksoo and Gerry Simpson for helpful comments on an earlier draft. e
responsibility for the nal text, however, is minealone.
1 For more detail, see Andrejs Plakans , A Concise History of the Baltic States ( Cambridge : Cambridge
University Press , 2011 ) , particularly 293–307, and Andres Kasekamp , A History of the Baltic States
( Basingstoke : Palgrave Macmillan , 2010 ), 95–105 .
2 See Treaty of Peace, Estonia–Russian SFSR, signed at Dorpat [Tartu], 2 February 1920, in force 30
March 1920, 11 LNTS 30; Treaty of Peace, Lithuania–Russian SFSR, signed at Moscow, 12 July 1920,
3 LNTS 106; Treaty of Peace, Latvia–Russian SFSR, signed at Riga, 11 August 1920, 63/2 LNTS
195; Treaty of Peace, Finland–Russian SFSR, signed at Dorpat [Tartu], 14 October 1920, 3 LNTS 5.
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Competing Histories: Soviet War Crimes in the BalticStates 249
On 23 August 1939, the Reich Minister for Foreign A airs Joachim von Ribbentrop
and the People’s Commissar for Foreign A airs Vyacheslav Molotov signed the Nazi–
Soviet Treaty of Non-Aggression.
3 is agreement, which has become widely known
as the Molotov–Ribbentrop Pact, made it possible for Germany to attack Poland
on 1 September 1939 without entanglement with the Soviets. On 17 September
1939, the Red Army invaded Poland from the east and ve days later the advancing
German and Soviet troops met under amicable circumstances, celebrating that
fact by a joint ‘victory parade’ in Brest. By a secret protocol attached to the Pact,
the Union of Soviet Socialist Republics (USSR) and the German Reich divvied
up Eastern Europe between them. e deal—as amended by a secret provision
attached to a treaty concluded after the occupation of Poland
4 —left Finland,
Estonia, Latvia, Lithuania, eastern Poland and what is now Moldova to the Soviet
‘sphere of in uence’.
In furtherance of this arrangement, the USSR cajoled the Baltic states into con-
cluding Mutual Assistance Pacts in September and October 1939, which permitted
the establishment of Soviet military bases in their territories.
5 Finland, in contrast,
rejected a similar treaty, and on 1 December 1939 the USSR attacked Finland,
launching the 105-day-long Winter War, in which Finland managed to defend its
independence but lost a sizable part of its territory.
6
In mid-June 1940, the USSR presented the Baltic governments with a demand for
the total occupation of their territories, backed by a warning that military resistance
would be repressed. e Baltic governments capitulated and Soviet forces invaded.
Shortly thereafter, hasty ‘elections’ were held, in which only candidates approved by
the Communist Party could run. e resulting ‘parliaments’ immediately petitioned
Moscow to admit the Baltic states into the Soviet Union, a wish that was promptly
granted, and the Baltic states were annexed to the USSR in early August 1940.
us, ‘[w] ithin three months, the three states had been transformed from inde-
pendent sovereign republics into union republics, constituent parts of a latter-day
empire’. 7
What happened next had something to do with a particular Soviet interpretation
of history. e USSR took the view that the legitimate post-1917 governments in
the Baltic states had not been the ones with which they had negotiated peace treaties
in 1920, but rather Bolsheviks who had been toppled by ‘bourgeois democratic’
regimes. Accordingly, everyone involved in governing the Baltic states between 1918
and 1940 was seen as having played a role in an illegal usurpation of Soviet power.
3 Treaty of Non-Aggression, Germany–USSR, signed at Moscow, 23 August 1939, reproduced at
< http://www.lituanus.org/1989/89_1_03.htm > (accessed 3 March2013).
4 Treaty of Friendship, Cooperation and Demarcation, Germany–USSR, signed at Moscow,
28 September 1939, reproduced at < http://en.wikisource.org/wiki/German-Soviet_Boundary_and_
Friendship_Treaty_28_September_1939 > (accessed 3 March 2013).
5 Pact of Mutual Assistance, Estonia–USSR, signed at Moscow, 28 September 1939, in force
4 October 1939, 198 LNTS 223; Pact of Mutual Assistance, Latvia–USSR, signed at Moscow, 5 October
1939, in force 11 October 1939, 198 LNTS 381; Pact of Mutual Assistance, Lithuania–USSR, signed
at Moscow, 10 October 1939, 3 Soviet Documents on Foreign Policy ,380.
6 See Plakans, above n 1, 339, and Kasekamp, above n 1,126.
7 Plakans, above n 1,344.
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European Histories III: Contemporary Trials250
Furthermore, having regained control over the Baltic territories in 1940, the Soviet
authorities wished to reorganize the societies and economies along communist lines.
e combination of these factors resulted in a highly systematic repression of the
political, administrative, military and economic elites of the countries: undesirable
persons were convicted by military tribunals for anti-Soviet or anti-communist
o ences and either executed or sent to prison camps in the USSR.
8 Lesser ‘o end-
ers’, including family members of those convicted, were deported to remote parts
of the Soviet Union. On 13–14 June 1941, during one night alone, more than
40,000 people were ‘taken by truck to gathering points at peripheral railroad
stations, packed into boxcars, and then taken to di erent points in the interior of
the USSR’. 9
In 1941, Germany attacked the USSR and occupied the Baltic states. e Nazis
began carrying out their own repression campaign; murdering local Jews, Roma
and those with Communist sympathies. Also, a signi cant number of Jews from
other countries were brought into the Baltics for execution. Altogether some
300,000 people were murdered on Baltic soil during the German Occupation. 10
In 1944, the Red Army invaded again and re-established Soviet rule. e authorities
were now confronted with a group of individuals—known as the ‘forest brethren’—
hiding from the Soviet authorities in the woods, and to some extent engaging in
guerrilla warfare tactics. Atwo-fold strategy was adopted to deal with them. On the
one hand, there began a campaign of extrajudicial executions of the forest brethren,
who were regarded as ‘bandits’. On the other hand, to reduce support for them,
another wave of deportations was undertaken. Deportation also served the purpose
of accelerating the collectivization of agriculture through ‘dekulakization’—the
physical removal of well-o farmers.
As a result, from 1940 through 1953, some 200,000 people were expelled from
the Baltic states. 11 Most notably, from 25–28 March 1949, in what was known
as Operation Priboi (‘Breaker’), the Soviet authorities deported some 90,000
Estonians, Latvians and Lithuanians to various parts of the USSR, in particular the
Amur, Irkutsk, Novosibirsk, Omsk and Tomsk oblasts and the Krasnoyarsk krai . 12
On top of the deportation e ort, some 75,000 people from the Baltic region were
sent to forced labour camps (the infamous Gulag). All in all, roughly ten percent of
the adult population of the Baltic states was either killed, imprisoned or deported
by the Soviets.
8 Consider, for example, the fate of the members of the Tallinn Rotary Club, who in the 1930s
included numerous movers and shakers of Estonian society. According to a study recently commis-
sioned by the Club, of the ninety-one men who had been members in 1930–40, a third managed to
escape to the West. Of the rest, sixty per cent were either executed or imprisoned, and the vast major-
ity of those imprisoned died in jail or in prison camps. See ‘Liikmed 1930–1940’, Tallinn Rotary Club
[website], < http://www.rotary.ee/tallinn/et/klubi-ajalugu/liikmed-.html > (accessed 3 March 2013, in
Estonian).
9 Plakans, above n 1,347. 10 Plakans, above n 1,353. 11 Plakans, above n 1,367–8.
12 Heinrihs Strods and Matthew Kott , ‘ e File on Operation “Priboi”:ARe-Assessment of the
Mass Deportations of 1949’ , Journal of Baltic Studies , 33 ( 2002 ), 1–36 , 241 .
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Competing Histories: Soviet War Crimes in the BalticStates 251
(II) Nazi Crimes in the Baltic States
e o ences committed during the German occupation of the territory of the Baltic
states, like those perpetrated in other Soviet-claimed territories, were immediately
subjected to scrutiny.
As early as 1942, several years before the end of the war, the Soviet Union
established an Extraordinary State Commission to investigate the o ences of Nazis
and their collaborators. is body was tasked with amassing evidence of crimes
committed and damage caused by German forces occupying Soviet territory
13 and
reports of the commission were used, inter alia, at the Nuremberg trial.
14 During
the next few years, local commissions of a similar nature, numbering more than
one hundred, 15 were set up in Soviet-controlled territories, including the Baltic states.
In 1943, the Presidium of the Supreme Soviet of the USSR passed a decree ‘on
the penalties for German-fascist evildoers, guilty of murdering and torturing the
Soviet civilian population and Red Army prisoners-of-war, and for Soviet citizens
[guilty of] spying and treason of the Motherland, and for their accomplices’.
16
In accordance with this enactment, numerous trials were held all across the Soviet
Union. e prosecutions relied on the evidence gathered by the Extraordinary
State Commission and its local branches, and, most crucially, confessions of the
accused. Two of the most widely known of these trials were held in 1943: the
Krasnodar trial, which dealt with a group of eleven Russian and Ukrainian
auxiliaries to Sonderkommando 10a , and the Kharkov trial, which focused on three
Germans and one Russian accused of killing civilians.
17
ese proceedings set the tone for subsequent trials, held in 1945–6 in Kiev, Minsk,
Leningrad, Smolensk, Briansk, Nikolaev, Velikie Luki and elsewhere.
18 With
respect to the Baltic territories, a trial took place in Riga in early 1946 and resulted
in the conviction and execution of seven German ex-o cials of the Riga military
district. 19 ese trials, characterized by the application of the 1943 edict, appear
13 See generally Marina Sorokina , ‘People and Procedures:Toward a History of the Investigation of
Nazi Crimes in the USSR’ , Kritika:Explorations in Russian and Eurasian History , 6 ( 2005 ), 797–831 .
14 For the role of the Commission in preparing the Soviet case at Nuremberg, see George Ginsburgs ,
Moscow’s Road to Nuremberg: e Soviet Background to the Trial ( Boston, MA and Leiden : Martinus
Nijho , 1996 ), especially 37–40 .
15 Sorokina, above n 13,801.
16 An English translation of the edict appears in F.J.M. Feldbrugge , ‘War Crimes in Soviet Criminal
Law:APostscript’ , Review of Central and Eastern European Law , 25 ( 1999 ), 459–61 .
17 For an illuminating account of the Krasnodar trial and the background to Soviet prosecutions,
see Ilya Bourtman , ‘ “Blood for Blood, Death for Death”: e Soviet Military Tribunal in Krasnodar,
1943’ , Holocaust and Genocide Studies , 22 ( 2008 ), 246–65 . See also the judgment in USSR v Langheld
etal. (Case of Atrocities Committed by German-Fascist Invaders in the City of Kharkov and Kharkov
Region During eir Temporary Occupation) (Military Tribunal of the 4th Ukrainian Front, USSR,
1943), the English text of which appears in Nazi Crimes in Ukraine 1941–1944:Documents and
Materials (Kiev:Institute of State and Law of the Academy of Sciences of the Ukrainian SSR, 1987),
279–83.
18 Ginsburgs, above n 14,40.
19 See ‘Riga Trial’, Jewish Virtual Library [website], < http://www.jewishvirtuallibrary.org/jsource/
Holocaust/WarCrime50.html > (accessed 3 March2013).
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European Histories III: Contemporary Trials252
to have come to a conclusion with respect to Soviet citizens in 1947 and as regards
enemy nationals in 1949.
20 During the period in question, military tribunals
across the USSR convicted roughly 2.5million people of o ences relating to the
German occupation. 21
e Soviet proceedings did not take place only during the war and the immediate
post-war period. ere appears to have been something of a break in the 1950s, but
another wave of prosecutions commenced in the 1960s and, again, also involved
the territory of the Baltic states. Two particularly prominent trials, somewhat ham-
pered by the absence of some of the accused, were held in Estonia. In 1961, a
prosecution was mounted against Ain-Ervin Mere (commander of the Estonian
Security Police under the Self-Administration set up under German occupation),
Ralf Gerrets (deputy commandant of a concentration camp at Jägala), and Jaan Viik
(a guard at the camp, for the mass-murder of Jews). e three men were convicted
and sentenced to death. Gerrets and Viik were duly executed. However, Mere had
taken up residence in the UK and the British government declined to extradite him,
citing a lack of evidence. He died in 1969 in Leicester, England. Afourth person,
Aleksander Laak, commandant of the Jägala camp, had initially also been indicted,
but he committed suicide in Winnipeg, Canada—allegedly after some prompting
from a Zionist ‘avenger’—before the start of the trial.
22
In 1962, another trial was held where Juhan Jüriste, Karl Linnas and Ervin Viks
were charged with murdering 12,000 civilians at a concentration camp at Tartu. All
three defendants were convicted and sentenced to death, but only Jüriste was actu-
ally executed. For the want of an extradition treaty, Viks was not extradited from
Australia and he died there in 1983. e US, however, deported Linnas to the USSR.
(In view of the American non-recognition policy of the annexation of the Baltic states
and the death sentence passed in absentia , the deportation was quite extraordinary.
23 )
Linnas died in 1987 in a Soviet prison hospital while awaiting retrial.
e Soviet investigations and trials of Nazis and their collaborators, which con-
tinued into the 1980s,
24 should be approached with care. First of all, the historical
record that they generated is tainted by conscious falsi cation of evidence. It is quite
telling that the person in charge of editing the reports of the Extraordinary State
Commission was none other than Andrey Vyshinsky,
25 who, for example, personally
‘corrected’ forensic medical reports provided to the Commission.
26 e most notori-
ous instance of direct falsi cation was the fabrication of evidence to suggest that
20 F.J.M. Feldbrugge , ‘War Crimes in Soviet Criminal Law:APropos— e Lukiano Case’ , Review
of Socialist Law , 10 ( 1984 ), 293 .
21 Ginsburgs, above n 14,41.
22 Jonathan Freedland, ‘Revenge’, e Guardian , 26 July 2008, <http:// www.guardian.co.uk/
world/2008/jul/26/second.world.war > (accessed 3 March2013).
23 See Jerome S. Legge , Jr, ‘ e Karl Linnas Deportation Case, the O ce of Special Investigations,
and American Ethnic Politics’ , Holocaust and Genocide Studies , 24 ( 2010 ), 26–55 .
24 For a late case, see Feldbrugge, aboven20.
25 While Vyshinsky later gained some prominence as one of the prosecutors at Nuremberg, his
main claim to fame was the orchestration of show trials during Joseph Stalin’s Great Purge in the
late1930s.
26 Sorokina, above n 13,827–9.
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Competing Histories: Soviet War Crimes in the BalticStates 253
the Germans were responsible for the massacre of some 22,000 Polish o cers at
Katyn, 27 whereas in reality they had been killed by the Soviet NKVD—the People’s
Commissariat for Internal A airs.
Second, the judicial proceedings were egregious examples of show trials. ey
were characterized by in ated charges, an extensive reliance on (coerced) confessions
(often involving grotesquely self-deprecating admissions of guilt), impotent defence
counsel, and carefully orchestrated media coverage.
ird, with respect to Soviet citizens, the main legal basis for the trials was Section
58 of the 1926 Criminal Code of Soviet Russia, dealing with ‘counterrevolutionary
crimes’, 28 a concept with notoriously broad scope.
29 Later trials, conducted under
the 1961 Criminal Code of Soviet Russia or the relevant counterparts in the other
Soviet republics, relied on the provision that criminalized the ‘betrayal of the father-
land’. 30 us, as Ferdinand Feldbrugge, an eminent Dutch scholar of Soviet law
explained:
[T] he edict of 1943 supplied the legal de nition, the Tatbestand , for the crimes of foreign
war criminals , but only the basis for special penalties (hanging and katorga [i.e. forced
labour under harsh conditions]) with regard to Soviet citizens convicted of similar war
crimes. Indeed the looseness of the Soviet de nition of treason made it unnecessary to draft
special provisions for punishing Soviet citizens who had acted against the Soviet Union in
wartime. When we speak, therefore, of war crimes committed by Soviet citizens, we have in
mind what is technically the crime of treason.
31
As a result, it may be di cult to tell who during this period were actually convicted
of war crimes and who were convicted of some perceived disloyalty to the Soviet
regime.
Finally, only during the later trials was there any speci c concern for the persecution
and extermination of ethnic and racial groups. e earlier trials were xated on the
anti-Soviet dimension of the defendants’ conduct rather than any speci c violations
of the law of armed con ict or more general principles of humanity. us, Jewish
victims were initially not designated as ‘Jews’ or ‘people’ or ‘civilians’, but as ‘Soviet
citizens of Jewish descent’ or some such, in an attempt to cast the Soviet state as
the greatest victim.
Having said all this, one cannot deny the atrocities committed by Nazi Germany in
the territory that it occupied during World War II. ere is also no doubt that locals—
be they Estonians, Latvians or Lithuanians, or Russians, Byelorussians or Ukrainians—
for a variety of reasons, and sometimes quite enthusiastically, collaborated with the
27 Sorokina, above n 13, 804–806.
28 For an English translation of the provision, see ‘Criminal Code of RSFSR’, < http://www.
cyberussr.com/rus/uk58-e.html > (accessed 3 March 2013). Section 59 of the Code, addressing ‘crimes
against the administrative order that are especially dangerous to the USSR’, also proved useful.
29 As Aleksandr Solzhenitsyn rhetorically asked in e Gulag Archipelago , ‘[w] ho among us has not
experienced its all-encompassing embrace? In all truth, there is no step, thought, action, or lack of
action under the heavens which could not be punished by the heavy hand of Article 58’: Aleksandr
Solzhenitsyn , e Gulag Archipelago ( NewYork, NY : Harper & Row , 1st edn, 1973 ), 60 .
30 Section64a. 31 Feldbrugge, above n 20,293.
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European Histories III: Contemporary Trials254
Germans and actively partook in the atrocities.
32 It is probable that many of these
individuals were caught in the vast net cast by the Soviet authorities. us, grossly
imperfect as the Soviet investigations and trials may have been, they generated at
least a semblance of accountability for o ences committed in Eastern Europe in
the interests of the Axis powers.
(III) Soviet Crimes in the Baltic States
e conduct of the Soviet regime itself was, of course, never critically evaluated.
us, when the Baltic states regained independence in 1991, the situation was
such that while Nazi crimes in their territories had at least to some extent been
investigated and judicially processed, no legal assessment had been given to the
conduct of members of the Red Army or other authorities of the Soviet Union in
the Baltic territories. e three Baltic states were determined to rectify the situation.
(1) Preparatory steps
In 1992 all three states established national institutions to compile evidence of
o ences committed by the occupying regimes—both German and Soviet, though
admittedly focusing on the latter. us, in Estonia a State Commission for the
Investigation of Policies of Repression operated until 2004, while the Latvian
Centre for the Documentation of the Consequences of Totalitarianism
33 and the
Genocide and Resistance Research Centre of Lithuania
34 continue their work to
this day. Furthermore, in 1998, the presidents of the Baltic states set up expert bod-
ies with international or mixed membership to speci cally consider the occupation
period in their respective countries in a historical perspective. us emerged the
Estonian International Commission for Investigation of Crimes against Humanity
(replaced in 2008 by the Institute of Historical Memory),
35 the Latvian History
Commission, 36 and the International Commission for the Evaluation of the Crimes
of the Nazi and Soviet Occupation Regimes in Lithuania.
37
Furthermore, all three states embarked on a distinctly legal process of evaluating
Soviet-occupation-era atrocities. 38 e rst obstacle was the lack of adequate
32 For example, with respect to Estonia, see generally Estonia 1940–1945:Reports of the Estonian
International Commission for the Investigation of Crimes against Humanity (Tallinn,2006).
33 See Centre for the Documentation of the Consequences of Totalitarianism (CDCT) [website], < http://
www.sab.gov.lv/index.php?lang=en&page=15&sub=260 > (accessed 3 March2013).
34 See Genocide and Resistance Research Centre of Lithuania [website], < http://www.genocid.lt >
(accessed 3 March 2013).
35 See Estonian Institute of Historical Memory [website], < http://www.mnemosyne.ee > (3 March
2013).
36 See ‘Latvia’s History Commission’, Ministry of Foreign A airs of Latvia [website], < http://www.
mfa.gov.lv/en/policy/4641/4661/4664/ > (accessed 3 March2013).
37 See e International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation
Regimes in Lithuania [website], < http://www.komisija.lt > (accessed 3 March2013).
38 All three became parties to the Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity, GA Res. 2391 (XXIII) (26 November 1968), in force 11
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Competing Histories: Soviet War Crimes in the BalticStates 255
legislation. Obviously the Soviet approach of classifying war crimes as a form of
treason was out of the question. In any event, even though all three states initially
continued to apply the existing Soviet-era criminal legislation, they purged these
instruments of all distinctly Soviet o ences. Accordingly, all three states rst had to
modify their legislation—a process that in hindsight looks rather peculiar.
In 1992, Lithuania passed a special Act providing for the responsibility for
the genocide of the Lithuanian people. 39 Section 1 of the Act de ned genocide,
broadly following the de nition of the Genocide Convention.
40 Section 2 added
that ‘killing and torturing the people of Lithuania, deportation of its population
carried out during the years of Nazi and Soviet occupation and annexation of
Lithuania, corresponds to the de nition of the crime of genocide as it is described
by international law’. In an e ort to codify Lithuanian criminal law, the crime of
genocide was incorporated into the Criminal Code in 1998. e de nition of the
o ence referred to ‘actions committed with intent to physically destroy, in whole
or in part, residents belonging to a national, ethnical, racial, religious, social or
political group’ and then listing the various modalities. 41
In 1993, Latvia amended its Criminal Code with a new chapter, dealing with
international crimes. Notably, section 68/1 provided that ‘crimes against human-
ity, including genocide’, are certain deliberate acts committed with intent to destroy,
in whole or in part, a particular national, ethnical, racial or religious group.
42 Section
68/3 proscribed war crimes, de ned as ‘violations of the laws and customs of war’.
In 1994, Estonia inserted a provision dealing with genocide and crimes against
humanity into the Criminal Code as section 61/3, which referredto:
[c] rimes against humanity, including genocide, as these o ences are de ned in international
law, that is, the intentional commission of acts directed to the full or partial extermination of
a national, ethnic, racial or religious group, a group resisting an occupation regime, or other
social group, the murder of, or the causing of extremely serious or serious bodily or mental
November 1970, 754 UNTS 73—Estonia acceded on 21 October 1991, Latvia on 14 April 1992 and
Lithuania on 1 February1996.
39 Įstatymas dėl atsakomybės už Lietuvos gyventojų genocidą [ Law on the Responsibility for the
Genocide of the Population of Lithuania ], 9 April 1992, No. I-2477, Valstybės žinios (1992), No.
13-342. See also Justinas Zilinskas , ‘Broadening the Concept of Genocide in Lithuania’s Criminal
Law and the Principle of nullum crimen sine lege ’ , Jurisprudencija , 4 ( 118 ) ( 2009 ), 335 ; Rytis
Satkauskas , ‘Soviet Genocide Trials in the Baltic States: e Relevance of International Law’ , Yearbook
of International Humanitarian Law , 7 ( 2004 ), 392 .
40 But for two points of di erence, see Zilinskas, above n 39,336.
41 Baudžiamasis kodeksas [ Criminal Code ], 1961/1990, Section 71(1), cited in Compliance of
the Republic of Lithuania Law ‘On Compensation for the Damage In icted by the USSR Occupation’
(Wording of 12 March 1998), the Republic of Lithuania Law ‘On Restoring the Rights of Persons Repressed
for Resistance Against the Occupation Regimes’ (Wording of 12 March 1998)and the Republic of Lithuania
Law ‘On Liability for Genocide of Residents of Lithuania’ (Wording of 9 April 1992 with Subsequent
Amendments) with the Constitution of the Republic of Lithuania , Case No. 09/2008 (Constitutional
Court, Lithuania, 2010). Aseparate section created an aggravated form of the o ence, involving the
killing of the victims or organizing the commission of genocide by other persons. Criminal Code
1961/1990 (Lithuania), section71.
42 Cited in ‘ ird Periodic Report of States Parties Due in 1997—Latvia’, Committee on the
Elimination of Racial Discrimination, Doc. CERD/C/309/Add.1 (25 March 1999),[21].
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European Histories III: Contemporary Trials256
harm to, a member of such group or the torture of him or her, the forcible taking of children,
an armed attack, the deportation or expulsion of the native population in the case of occupation
or annexation and the deprivation or restriction of economic, political or social human rights.
43
At the same time, three provisions regarding war crimes were introduced into the
Criminal Code, dealing respectively with the abuse of the civilian population in
a zone of hostilities, mistreatment of prisoners of war, and the use of prohibited
means and methods of warfare.
44
Before looking at the proceedings undertaken within this legal framework, a
few general observations are in order. First, all three states have since adopted com-
pletely new codi cations of substantive criminal law—Latvia in 1998,
45 Lithuania
in 2000, 46 and Estonia in 2001. 47 Ihave mentioned the early legislation above
because the lion’s share of criminal cases concerning Soviet o ences were dealt with
under the earlier legislation.
Second, a striking feature of the Estonian and Lithuanian legislation is the broad-
ening of the de nition of genocide. According to the 1948 Genocide Convention,
the crime of genocide encompasses certain violent or coercive acts ‘committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such’. 48 Lithuanian law adds ‘social or political group[s] ’ to the list, whereas
Estonian law mentions ‘a group resisting an occupation regime, or other social group’
(the former being a thinly veiled reference to the forest brethren). e extension of
the de nition of genocide to social and political groups is not a uniquely Baltic
phenomenon—numerous other states have done so
49 —but it doubtless has special
signi cance in the case of the Baltics (and also, for example, for Ethiopia in view
of the Red Terror of the 1970s).
ird, early Estonian and Latvian de nitions of crimes against humanity hardly
quali ed as masterpieces of legal craftsmanship. For whatever reason, the legislators
tried to address crimes against humanity and genocide jointly. ey did not succeed
very well and in fact caused considerable confusion. e recent codi cations have
resolved the problem by treating the two o ences separately.
43 Criminal Code (Estonia), section 61/1(1), as introduced by Eestis inimsusevastaseid kuritegusid
või sõjakuritegusid toimepannud isikute kriminaalvastutuse seadus [ Act on the Criminal Liability of
Persons Who Have Committed Crimes against Humanity or War Crimes in Estonia ], 9 November 1994,
Riigi Teataja I1994, 83,1447.
44 Criminal Code (Estonia), above n 43, sections 61/2, 61/3, and 61/4.
45 Krimināllikums [ Criminal Code ], 17 June 1998, Latvijas Vēstnesis No 199/200 (8 July 1998). See,
in particular, section 71 (genocide), section 71/2 (crimes against humanity) and section 74 (war crimes).
46 Baudžiamasis kodeksas [ Criminal Code ], 26 September 2000, Valstybės žinios 2000 No. 89-2741.
See, in particular, section 99 (genocide), section 100 (crimes against humanity), sections 101–113
(war crimes).
47 Karistusseadustik [ Penal Code ], 6 June 2001, Riigi Teataja I2001, 61, 364. See, in particular, sec-
tion 89 (crimes against humanity), section 90 (genocide) and sections 94–109 (war crimes).
48 Convention on the Prevention and Punishment of the Crime of Genocide, GA Res. 260 A(III)
(9 December 1948), in force 12 January 1951, 78 UNTS 277, ArticleII.
49 See John B. Quigley , e Genocide Convention:An International Law Analysis ( Farnham : Ashgate ,
2006 ), 17–18 .
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Competing Histories: Soviet War Crimes in the BalticStates 257
But from these premises, imperfect as they may have been, the Baltic states
proceeded to investigate, indict and try a number of persons suspected of having
perpetrated international crimes against Estonians, Latvians and Lithuanians.
e defendants were mainly regional heads and operational commissioners of
the Ministry of Internal A airs (MVD), the NKVD and the Ministry of State
Security (MGB).
ere is, unfortunately, no de nitive list or count of all the trials, letalone of
all the investigations that did not lead to trials. But by my last count, Estonian
courts have convicted eleven persons,
50 Latvian courts nine, and Lithuanian courts
another dozen or so. Yet the total number of investigations is in the order of several
hundred as many cases were closed due to a shortage of evidence, or the death or
ill-health of the accused, who were by this time in their 70s and 80s. us, Iwill
mention here only a few representative cases, focusing especially on those which
garnered international attention due to proceedings before the European Court of
Human Rights.
(2) Prosecution for crimes against humanity and genocide
e bulk of the cases addressed two aspects of Soviet repression:the deportation of
civilians and the extrajudicial execution of forest brethren. Yet the way these acts
have been quali ed as a matter of law has di ered from state tostate.
In Estonia, virtually all of the cases have proceeded under section 61/1 of the
old Criminal Code, which, as already mentioned, contained the awkward amalga-
mation of genocide and crimes against humanity. An important case came before
the Estonian courts in 1998, when Karl-Leonhard Paulov, a former ‘combat agent’
( agent-boyevik ) of MGB was prosecuted for having killed three forest brethren in
1945 and 1946 by shooting them in theback.
e case is notable because this appears to have been the rst occasion where such
an agent was actually prosecuted. Furthermore, the case allowed the Supreme Court
to clear up the confusion created by the legislature in de ning international o ences
in Estonian law. e Court, by relying on the de nitions contained in Article 6(2)
of the Nuremberg Charter and Article 2 of the Genocide Convention, outlined
the elements of genocide, distinguishing it from crimes against humanity.
51 Finally,
the case allowed the Supreme Court to clarify the status of the forest brethren.
e Supreme Court agreed with the position of the appellate court that they were
civilians for the purposes of the law of armed con ict. 52 erefore depriving them
50 See ‘Aegumatud rahvusvahelised kuriteod—Kriminaalasjad’, Estonian Security Police [website],
< http://www.kapo.ee/est/toovaldkonnad/aegumatud-rahvusvahelised-kuriteod/kriminaalasjad >
(accessed 3 March2013, in Estonian).
51 In re Paulov , Case No. 3-1-1-31-00, Riigi Teataja III 2000, 11, 118 (Supreme Court, Estonia, 2000).
52 e Courts, somewhat problematically, based themselves here on Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Con icts, signed at Geneva, 8 June 1977, in force 12 July 1978, 1125 UNTS 3, Article
50(1):‘A civilian is any person who does not belong to one of the categories of persons referred to in
Article 4 (A)(1), (2), (3)and (6)of the ird Convention and in Article 43 of this Protocol. In case of
doubt whether a person is a civilian, that person shall be considered to be a civilian.’
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European Histories III: Contemporary Trials258
of the right to life and the right to a fair trial could be quali ed as other ‘other
inhumane act[s] ’ falling within the de nition of crimes against humanity in Article
6(2)(c) of the Nuremberg Charter. In a later case, concerning a MGB agent named
Vladimir Penart, who in 1953 had shot another of the forest brethren, the Supreme
Court had the occasion to further explain the point.
53 e Court noted that whether
or not the forest brethren quali ed as combatants had to be evaluated in light of the
1907 Hague Regulations which codi ed customary international law at the time.
e Court noted that since the forest brethren did not meet the criteria of Articles
1 and 2 of the Regulations de ning combatants, they were to regarded as civilians.
In only one instance has there been prosecution for genocide in Estonia. In 2007,
one Arnold Meri was indicted under the provision in the new Penal Code dealing
exclusively with genocide for his alleged involvement in the deportation of 251
civilians from the island of Saaremaa during Operation Priboi . However, the trial
was suspended because of the aged defendant’s ill health, and subsequently closed
when he died. us, Estonian courts have not had the occasion to pronounce on
whether the deportation campaign amounted to genocide.
In Latvia, the intermingling of the de nitions of crimes against humanity and
genocide also caused some di culty. However, there the authorities and courts
opted for genocide. For example, in a rming the conviction of Alfons Noviks, the
former People’s Commissar of the Interior of the Latvian SSR, for his involvement
in the deportation, the Latvian Supreme Court explicitly quali ed this conduct
as ‘[g] enocide against those inhabitants of Latvia whom Alfons Noviks marked as
socially dangerous and detrimental to the Soviet regime’.
54
In Lithuania, there was little alternative in respect of the early cases to quali-
fying similar conduct as genocide, as the de nition of crimes against humanity
was introduced into Lithuanian law by the entry into force of the new Criminal
Code in 2003.
55
In this context, the charge of crimes against humanity is clearly the less problematic
one. e deportation campaign certainly satis es either of the two contextual
elements of crimes against humanity. ere can be little doubt that, given the
large number of persons a ected by the measures, especially in relation to the size
of the total population of the Baltic countries, the acts were widespread. In light
of the deportation being carried out meticulously against speci c segments of the
population according to lists previously drawn up, they were also systematic. As
regards modalities of crimes against humanity, that is to say the speci c acts that
amount to the o ence if the contextual element is satis ed, both murder and
deportation are recognized as such by internationallaw.
56
53 In re Penart , Case no.3-1-1-140-30, Riigi Teataja III 2004, 2, 23 (Supreme Court, Estonia,2003).
54 In re Noviks , Case No. #PAK-269 (Supreme Court, Latvia, 1996), Baltic Yearbook of International
Law, 1 (2001), 261,298.
55 Zilinskas, above n 39,338.
56 Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis, UK–US–France–USSR, signed
at London, 8 August 1945, in force upon signature, 82 UNTS 279, Article 6(1)(c); Rome Statute of
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Competing Histories: Soviet War Crimes in the BalticStates 259
e genocide charges, in contrast, are far more problematic. e main question
is whether the activities of the Soviet authorities were undertaken with a view to
eliminating a speci c group, and if so, whether the group was covered by the de -
nition of genocide. Here one stumbles on the innovation of the law of the Baltic
states with respect to the range of protected groups. Whatever may be the status
of customary law today, it is di cult to make the argument that, in the 1940s and
1950s, the destruction of social or political groups amounted to genocide under
customary law. Hence, the genocide of a ‘group resisting occupation’ or of ‘those
inhabitants . . . marked as socially dangerous and detrimental to the Soviet regime’
is a notion fraught with di culty.
However, there is a di erent way of approaching the matter. As the International
Criminal Tribunal for the former Yugoslavia has recognized, genocidal intent need
not be manifested in ‘desiring the extermination of a very large number of the
members of the group’, but ‘may also consist of the desired destruction of a more
limited number of persons selected for the impact that their disappearance would
have upon the survival of the group as such’.
57 An Estonian legal scholar, Lauri
Mälksoo, has argued that the context of the Soviet repressions in the Baltic states
indicates a genocidal intent in this sense.
58 e repressions were directed against
the political, economic and intellectual elites, with the further hidden agenda of
subjugating national groups. However, as Mälksoo notes, it may be di cult to
prove such intent on the level of the o cials who actually carried out the deportation
orders. 59
As regards modalities, while the execution of individuals would certainly qualify as
an act of genocide if the necessary dolus specialis is present,
60 the status of deportation
is far less certain.
61
In view of all this, Justinas Žilinskas, a Lithuanian legal scholar who has extensively
studied the approach to the crime of genocide in Lithuania,
62 sensibly concludes
that ‘[i] n many instances, it may be advisable to qualify crimes of the Soviet regime
as crimes against humanity to avoid possible problems with the principle of nullum
crimen sine lege’ . 63
the International Criminal Court, Rome, 17 July 1998, in force 1 July 2000, 2187 UNTS 90, Article
7(1)(a) and(d).
57 Prosecutor v Jelisić , Case no. IT-95-10, ICTY Trial Chamber, Judgment (14 December 1999),[82].
58 Lauri Mälksoo , ‘Soviet Genocide? Communist Mass Deportations in the Baltic States and
International Law’ , Leiden Journal of International Law , 14 ( 2001 ), 784–5 .
59 Mälksoo, above n 58,785.
60 Rome Statute, above n 56, Article6(a).
61 UN Secretary-General, ‘Draft Convention on the Crime of Genocide’, UN Doc. E/447 (26 June
1947), 24:‘Mass displacement of populations from one region to another also does not constitute
genocide. It would, however, become genocide if the operation were attended by such circumstances
as to lead to the death of the whole or part of the displaced population (if, for example, people were
driven from their homes and forced to travel long distances in a country where they were exposed to
starvation, thirst, heat, cold and epidemics)’.
62 Justinas Žilinskas , Nusikaltimai žmoniškumui ir genocidas tarptautinėje teisėje bei Lietuvos
Respublikos teisėje ( Vilnius : Lietuvos teisės universitetas , 2003 ) .
63 Zilinskas, above n 39,344.
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European Histories III: Contemporary Trials260
(3) Prosecution for war crimes
Although there exists a fairly large body of cases where the o ence was characterized
as a crime against humanity or as genocide, there have not been many war crimes
trials.
is may seem curious in light of the fact that it has been an article of judicial
faith in the Baltic states that their territories were militarily occupied by the USSR
until 1991. Hence, the law of armed con ict (in particular, the law of occupation)
should have applied and its serious violations ought to be prosecutable as war
crimes. Moreover, the law of armed con ict (and hence war crimes law) was far better
developed at the relevant time compared to the international law relating to crimes
against humanity and genocide, which should have made laying war crimes charges
technically much simpler. However, crimes against humanity and genocide appear
as powerful and self-explanatory labels for the Soviet crimes, whereas war crimes
might be viewed by the public as mere technicalities. In other words, describing
the Soviet conduct as crimes against humanity (or, better yet, genocide) better
re ects the subjective su ering felt by the victims.
at said, it is interesting that the most controversial of all the cases involving
Soviet crimes in the Baltic states has been one of the very few war crimes trials—
the prosecution of Vasily Kononov in Latvia.
64 e facts of the case relate to the
period after the Baltic states had been annexed by the Soviet Union and had then
been occupied by Germany. Units of Soviet guerrillas, known as the Red Partisans ,
operated in the occupied territories, spreading political propaganda among the
local population and engaging in acts of sabotage. To get a sense of the modi oper-
andi of the Partisans, one can refer to the Soviet Supreme Command order of 17
November 1941, which instructed that ‘[a] ll settlements in the rear of the German
troops, 20–60 km deep behind the front line and 20–30 km to the right and to the
left of the roads, must be destroyed and burned to ashes’.
65
In 1944, Kononov was a sergeant in command of a platoon of Red Partisans in
Latvia. His unit suspected that a number of the inhabitants of a village called Mazie
Bati had revealed to the Germans the location of another group of partisans, who
had been subsequently ambushed and killed by German soldiers. At the same time,
the villagers, apparently fearing an attack by the partisans, turned for assistance to
the German military administration, which supplied several households with a ri e
and two grenades.
64 For more detailed examinations, see Rain Liivoja and Ieva Miluna , ‘Latvia’ in ‘Correspondent’s
Reports: A Guide to State Practice in the Field of International Humanitarian Law’ , Yearbook of
International Humanitarian Law , 13 ( 2010 ), 571–4 ; Lauri Mälksoo , ‘Kononov v Latvia’ , American
Journal of International Law , 105 ( 2011 ), 101–8 ; Giulia Pinzauti , ‘ e European Court of Human
Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical
Discussion of Kononov v Latvia ’ , Journal of International Criminal Justice , 6 ( 2008 ), 1043–60 ; Mariya
S. Volzhskaya , ‘ Kononov v Latvia :APartisan and a Criminal— e European Court of Human Rights
Takes a Controversial Stance on War Crimes’ , Tulane Journal of International & Comparative Law , 19
( 2011 ), 651–68 .
65 Cited in Pavel Polian , Against eir Will: e History and Geography of Forced Migration in the
USSR ( NewYork, NY : Central European University Press , 2005 ), 124 .
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Competing Histories: Soviet War Crimes in the BalticStates 261
On 27 May 1944, Sergeant Kononov led his unit, wearing German army uniforms
to avoid detection, into the village where the inhabitants were preparing to celebrate
Pentecost. ey split into groups and searched several farmhouses, nding the weapons
supplied by the Germans. ey ordered the heads of families—altogether six men,
who o ered no resistance—into the yard from their houses. ey bolted the doors
after them and shot the men. e partisans then set re to two farmhouses, thereby
burning to death the people inside—one man and three women, one in the nal
stages of pregnancy.
In 1998, the Latvian authorities opened an investigation into Kononov’s wartime
conduct. He was subsequently prosecuted for war crimes under the 1993 amendment
to the Latvian Criminal Code. e proceedings were long and complex, making two
cycles through the courts. In the end, the Latvian courts found that Mr Kononov
had violated several rules of the law of armed con ict, namely ill-treatment,
wounding and killing of persons hors de combat , 66 treacherous wounding and killing
(by making improper use of enemy uniforms),
67 breach of the special protection
accorded to women, 68 and destruction of property not imperatively demanded by
the necessities of war.
69 He was sentenced to eighteen months’ imprisonment, time
already served in pre-trial detention.
(IV) Proceedings before the European Court of Human Rights
Several defendants in these cases have complained to the European Court of Human
Rights of various violations of the European Convention on Human Rights. Some
applicants have questioned the procedural fairness of the trials or the surrounding
circumstances. e Court has not been particularly receptive to allegations that due
process guarantees have been violated and has on a number of occasions declared
complaints along those lines manifestly ill-founded.
70 Somewhat more problematic
has been the fact that the defendants have been rather old and not in the best health.
us, at least in one instance the Court found that the conditions of detention were
incompatible with the age and ill-health of the particular defendant and therefore
amounted to a violation of the prohibition of degrading treatment. 71
e brunt of the legal challenge has related, however, to the possibility that the
defendants have been tried under retroactive law:as already noted, the proceedings
66 Regulation respecting the Laws and Customs of War on Land, annexed to the Hague Convention
(IV) Respecting the Laws and Customs of War on Land, e Hague (Hague Regulations), 18 October
1907, in force 26 January 1910, 205 CTS 277, Article23(c).
67 Hague Regulations, above n 66, Article23(b).
68 General Orders No. 100—Instructions for the Government of Armies of the United States in the
Field, 24 April 1863 (US), Articles 19 and 37; Geneva Convention (IV) relative to the Protection of
Civilian Persons in Time of War, signed at Geneva, 12 August 1949, in force 21 October 1950, 75
UNTS 287, Article16.
69 Hague Regulations, above n 66, Article25.
70 See Kononov v Latvia , Application no.36376/04, ECtHR, Decision (20 September 2007); Tess v
Latvia (No. 2) , Application No. 19363/05, ECtHR, Decision (4 January2008).
71 Farbtuhs v Latvia , Application no.4672/02, ECtHR, Judgment (2 December2004).
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European Histories III: Contemporary Trials262
have been conducted with respect to events taking place in the 1940s and 1950s
but under legislation enacted in the1990s.
e relevant provision of the Convention is Article 7, which reads as follows:
(1) No one shall be held guilty of any criminal o ence on account of any act
or omission which did not constitute a criminal o ence under national or
international law at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the crimi-
nal o ence was committed.
(2) is article shall not prejudice the trial and punishment of any person for
any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognised by civilised nations.
In early 2006, the Court made two decisions regarding Estonia. e applicants had
complained of a violation of Article 7 because they had been convicted of crimes
against humanity committed before the Estonian Criminal Code was amended
to incorporate such o ences. In dismissing the arguments, the Court held that
deportation and extrajudicial execution committed post-Nuremberg had doubtless
been criminal according to international law, which satis ed the requirement of
Article 7(1). 72 While individual points in the court’s reasoning are open to criticism,
the conclusion appears valid. 73
Regarding Mr Kononov’s allegation as to the retroactivity of Latvian law, the main
question was ‘whether on 27 May 1944 the applicant’s acts constituted o ences
that were de ned with su cient accessibility and foreseeability by domestic law or
international law’. 74 In 2008, a Chamber of the Court, by a narrow majority of four
votes to three, found that they were not.
75 In 2010, the Grand Chamber reversed
that decision, by fourteen votes to three, nding that they were.
76
At rst sight, the disagreement between the Latvian courts and the Chamber
seems to relate to the status of the villagers and any possible protection deriving from
international law due to that status. e Latvian courts had regarded the villagers
as civilians with the attendant protection against attack. e Chamber disagreed.
77
It considered the villagers ‘collaborators of the German Army’ who could not be
deemed civilians. 78 is suggests that collaboration turned them into combatants—a
72 Kolk and Kislyiy v Estonia , Application nos 23052/04 and 24018/04, ECtHR, Decision (17 January
2006); Penart v Estonia , Application no.14685/04, ECtHR, Decision (24 January2006).
73 Antonio Cassese , ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity
of Criminal Law: e Kolk and Kislyiy v Estonia Case before the ECHR’ , Journal of International
Criminal Justice , 4 ( 2006 ), 410–18 .
74 Kononov v Latvia , Application no.36376/04, ECtHR, Judgment (24 July 2008), [116]. ere was
also the question whether, by intervening domestic statutory law, the crimes had become statute barred—
Russia thought so. Kononov v Latvia (Chamber) , [105]. But Iwill leave that issue aside for the moment.
75 Kononov v Latvia (Chamber) , above n 74. Majority:President Zupančič (Slovenia), Judges Bîrsan
(Romania), Gyulumyan (Armenia) and Myjer ( e Netherlands).
76 Kononov v Latvia , Application no.36376/04, ECtHR GC, Judgment (17 May2010).
77 Kononov v Latvia (Chamber) , above n 74, [107]. See, however, Diss. Op. of Judge David ór
Björgvinsson, [1] :‘ is Court is in no position to refute the nding or to override the conclusions of
the national courts as regards the facts of the case and the applicablelaw’.
78 Kononov v Latvia (Chamber) , above n 74, [129] and[131].
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Competing Histories: Soviet War Crimes in the BalticStates 263
position that is rather odd. Moreover, the argument put forward by the applicant
that Latvia had lawfully become part of the USSR
79 is di cult to reconcile with the
idea that the villagers were targetable as enemy combatants, that is ‘persons belonging
to a hostile army’. If the annexation was lawful, and the villagers were Soviet nation-
als on Soviet territory, surely they could not have been regarded as part of a hostile
army. 80 e Grand Chamber later simply hedged its bets, observing that even if the
villagers were considered combatants or civilians having taken part in hostilities, they
were still entitled to protection upon capture, and their extrajudicial execution con-
travened the law of armed con ict. And as civilians they would have been entitled
to even greater protection. 81
On one level, the whole case can be seen as a dispute about the identi cation and
interpretation of speci c rules of the law of armed con ict, and their application to
the case at hand. e Chamber may have simply misapplied the law and the Grand
Chamber recti ed this. It is not as if there has not been a struggle with the concepts
of combatants and civilians elsewhere; plus, the Court’s expertise is not really in the
law of armed con ict.
But there appears to be a more fundamental disagreement buried beneath the
legal niceties of ‘retroactivity’. One of the revealing points of controversy was whether
the villagers, by arming themselves with weapons provided by the Germans, ostensibly
for defensive purposes, lost their status as civilians. Russia, intervening in the pro-
ceedings in support of the applicant, certainly thought so. Russia suggested that any
argument as to self-defence against the anti-Nazi partisans was ‘unacceptable, since
it went against the tenor of the Nuremberg judgment. No legitimacy whatsoever
could attach to the collaboration with the Nazi criminal regime.’
82 e Chamber
agreed. It dismissed the idea that the villagers engaged in collaboration in order to
defend themselves against potential attacks of the Red Partisans:‘National Socialism
is in itself completely contrary to the most fundamental values underlying the
[European] Convention [on Human Rights] so that, whatever the reason relied on,
it cannot grant any legitimacy whatsoever to pro-Nazi attitudes or active collabora-
tion with the forces of Nazi Germany’.
83 I n e ect, the Chamber took the position that
the alleged ‘pro-Nazi’ views of the villagers deprived them of protection accorded to
civilians under international humanitarian law.
84 Indeed, the Chamber was somehow
very insistent in suggesting that the villagers ‘had it coming’. As the Chamber said
itself, ‘the villagers must have known that by siding with one of the belligerent
parties they would be exposing themselves to a risk of reprisals by the other’.
85
79 Kononov v Latvia (Chamber) , above n 74,[94].
80 Kononov v Latvia (Chamber) , above n 74, [97]. is question was explicitly brought up by Lithuania.
Kononov v Latvia (GC) , above n 76, [179]. See also [217] (‘persons belonging to the hostile army’).
81 Kononov v Latvia (GC) , above n 76, [194], [202]–[203],[227].
82 Kononov v Latvia (Chamber) , above n 74,[106].
83 Kononov v Latvia (Chamber) , above n 74,[130].
84 Kononov v Latvia (Chamber) , above n 74, [130]; and Diss. Op. of Judges Fura-Sandström, Davíd
ór Björgvinsson and Ziemele,[12].
85 Kononov v Latvia (Chamber) , above n 74, [130]. Cf. Pinzauti, above n 64, 1058. Moreover, reprisals
are used to compel an enemy to follow the law. Germany admittedly violated all sorts of rules, but
what was this putative reprisal directed against?
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European Histories III: Contemporary Trials264
In short, Russia suggested, and the Chamber accepted, that the protection deriving
from the law of armed con ict depends on where one’s sympathies lie. To take the
argument to its logical conclusion—the law of armed con ict only protects the
‘good guys’. is, however, goes against the very core principles of this body of
law, which is supposed to apply quite independently of the justness of one’scause.
e ‘good guys’ versus ‘bad guys’ theme appears in a rather striking fashion once
more in Russia’s arguments:
[T] he Latvian courts should not have applied by analogy the Charter of the Nuremberg
Tribunal—whose purpose was to punish crimes committed by the Axis powers in the occupied
territories—to the applicant, who had fought alongside the anti-Hitler coalition in his
own country, the USSR. Such an extension was unacceptable and manifestly contrary to
the judgment of the Nuremberg Tribunal on which the entire post-war legal and political
system was based. 86
At least some of the judges were persuaded by this reasoning. In his Concurring
Opinion attached to the Chamber judgment, Judge Myjer recorded his understanding
that ‘the Nuremberg trials and the subsequent trials of the Nazis and their henchmen
at the international and national level were to be the nal ‘judicial settlement’
under criminal law of what had happened during the Second World War’.
87 H e
then referred to the applications made to the European Court previously by indi-
viduals who had many years after the war been tried for war crimes perpetrated
in the interest of Axis powers. But they were ‘Nazi collaborators and had no right
to complain about the fact that they were tried for war crimes or crimes against
humanity many years after the end of the Second World War’.
88 e Kononov case
was di erent, as this was ‘the rst case before this Court relating to events which
took place during the Second World War in which the person on trial was not asso-
ciated with the Nazis or their allies and collaborators, but was on the side of the
Allied powers ghting the Nazis’.
89 Apparently a distinction was to be made here.
is point was picked up by three dissenting judges of the Chamber who observed:
is case is allegedly di erent since the applicant belonged to the Allied powers ghting
against the Nazis. e legal basis for such an approach is unclear. Why should criminal
responsibility depend on which side those guilty of war crimes were ghtingon? 90
(V) By Way of Conclusion
Why indeed? Yet the line of reasoning adopted by Russia, and accepted by some of
the European judges, is not novel. During the drafting of the Nuremberg Charter,
86 Kononov v Latvia (Chamber) , above n 74, [104]; see also Kononov v Latvia (GC) , above n 76,
[174]–[175].
87 Kononov v Latvia (Chamber) , above n 74, Conc. Op. of Judge Myjer, [5] .
88 Kononov v Latvia (Chamber) , above n 74,[6] .
89 Kononov v Latvia (Chamber) , above n 74,[5] .
90 Kononov v Latvia (Chamber) , above n 74, Diss. Op. of Judges Fura-Sandström, Davíd ór
Björgvinsson and Ziemele,[3] .
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Competing Histories: Soviet War Crimes in the BalticStates 265
the Soviet Union took a similar stance. Justice Robert Jackson, the US representative
during the Charter negotiations and chief prosecutor at the trial, has written that:
[t] he Soviet Delegation proposed and until the last meeting pressed a de nition which, in
our view, had the e ect of declaring certain acts crimes only when committed by the Nazis.
e United States contended that the criminal character of such acts could not depend on
who committed them and that international crimes could only be de ned in broad terms
applicable to statesmen of any nation guilty of the proscribed conduct. At the nal meeting
the Soviet quali cations were dropped and agreement was reached on a generic de nition
acceptable toall. 91
e quali cations of course made their way into the Charter as jurisdictional
limitations—the tribunal was only competent to deal with Axis war crimes. But
the point is that already in the preparatory stages of the Nuremberg process, the
Soviet Union was of the view that certain crimes are by their very de nition only
capable of being committed by someone else—the enemy, in this instance, the
‘Fascist-German invaders’. 92
e survival of this view points to a deeper problem, namely the persistence
in the Soviet, and now Russian, ideology of what has been called the ‘myth of
the war’. Marina Sorokina from the Russian Academy of Sciences has astutely
observed that:
[a] mong the many and varied Stalinist political myths that have been gradually destroyed in Russia
in recent decades, the ‘myth of the war’ has proved to one of the most resilient. . . . According
to its simple and bewitching logic, everything ‘ours’ consisted of heroes and victims, and
everything ‘alien’ was associated with enemies and criminals.
93
Sorokina further argues that the Extraordinary State Commission, tasked with
investigating the damage done by Nazi Germany to the Soviet Union, was ‘[o] ne
of the immediate participants in the creation of the Stalinist war myth’.
94 e same
can no doubt be said about the war crimes trials conducted in the Soviet Union.
Perhaps one of the most successful individual components of this myth-creation
was the shifting of the blame for the Katyn massacre to the Germans. When in
2010 the lower house of the Russian parliament nally condemned Katyn as a
91 Report of Robert H.Jackson, United States Representative to the International Conference on Military
Trials, London, 1945 , Publication 3080, International Organisation and Conference Series II,
European and British Commonwealth 1 (Washington, DC:US Department of State, 1949), vii–viii.
92 Interestingly, French case law prior to 1994 interpreted crimes against humanity to mean ‘inhu-
mane acts and persecution committed in a systematic manner in the name of a State practising a
policy of ideological supremacy , not only against persons by reason of their membership of a racial
or religious community, but also against the opponents of that policy, whatever the form of their
opposition’ (emphasis added): Barbie (1985) 78 ILR 136 (Court of Cassation), 137; (1998) 100 ILR
330 (Court of Cassation), 336; Touvier (1992) 100 ILR 337 (Court of Appeal of Paris), 350–351.
is neatly excluded possible French (Vichy Government) crimes during World War II, the Algerian
War, and French operations in Indochina. See Luc Reydams , ‘National Laws’ , in Dinah L. Shelton
(ed), Encyclopaedia of Genocide and Crimes Against Humanity , Vol. 2 ( Detroit, MI : Gale , 2005 ), 730 .
See also Leila Nadya Sadat , ‘ e Legal Legacy of Maurice Papon’ , in Richard J. Golsan , e Papon
A air:Memory and Justice on Trial ( NewYork, NY : Routledge , 2000 ), 131–160 .
93 Sorokina, above n 13,800–1. 94 Sorokina, above n 13,801.
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European Histories III: Contemporary Trials266
crime of Joseph Stalin, the Communist Party voted against the motion, because it
did not believe that the USSR had anything to do with the atrocity.
95
In view of the ‘myth of the war’, it is easier to understand why Russia got so
worked up about the Kononov case, while its reaction to the previous cases was more
muted. e previous defendants had mostly been people doing the dirty work of
the NKVD or the MGB. Little love has been lost between the ordinary Russian
and various forms of Stalinist secret police. But Kononov was a partisan—a heroic
ghter against Nazism—with the Order of Lenin, the highest Soviet decoration,
pinned to his chest. While in many Western countries it is the prisoner-of-war
who enjoys the status of the ultimate war hero, in the Soviet Union it was the Red
Partisan. us, the prosecution attacked not just Kononov the man, but the Soviet
partisan as a mythical gure.
e biggest complaint against the trials in the Baltic states has been that they are
rewriting history. ‘It is true’, notes Yulia Latynina, a prominent Russian journalist,
‘that the verdicts of the Latvian court and the [Grand Chamber of the] European
Court of Human Rights are vivid examples of an attempt to rewrite history. But
this is precisely the history that needs to be rewritten’.
96 Several contributors to this
volume have elsewhere discussed the expressive value and the history-writing function of
criminal law. 97 As Mark Drumbl explains, ‘[e] xpressivism . . . transcends retribution
and deterrence in claiming as a central goal the crafting of historical narratives,
their authentication as truths, and their pedagogical dissemination to the public’.
98
is indeed appears to be the main function of the trials undertaken by the Baltic
states. In the majority of cases, the defendants, when found guilty, have not been
given any actual punishment.
99 In Estonia, for example, the seemingly standard
practice is to mete out a sentence of eight years, suspended for three years.
But, interestingly, the public, who the Baltic states wish to educate, is not actu-
ally the society in which the trials take place. Every Estonian, Latvian or Lithuanian
can tell a story about a relative or a family friend who was somehow a ected by the
Soviet oppression. ey do not need proof—though they probably appreciate the
judicial authentication of their stories. e public who is being educated is the world
community. And as long as there are judges in Strasbourg who believe the Soviet war
myth, the history lesson may well be necessary.
95 ‘Russian Parliament Condemns Stalin for Katyn Massacre’, BBC News , 26 November 2010,
< http://www.bbc.co.uk/news/world-europe-11845315 > (accessed 3 March2013).
96 Yulia Latynina, ‘ e Red Partisans’, e St. Petersburg Times , 11 June 2010, < http://www.sptimes.
ru/index.php?action_id=2&story_id=31668 > (accessed 3 March2013).
97 See, in particular, Mark A. Drumbl , Atrocity, Punishment and International Law ( Cambridge :
Cambridge University Press , 2007 ), 173–80 ; Gerry Simpson , Law, War and Crime ( Cambridge : Polity ,
2007 ), Chapter4 .
98 Drumbl, above n 97,173.
99 Even though a punishment may also serve an expressive purpose. See Drumbl, above n 97, 174.
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