Processing History

One of the profound consequences of the “Autumn of Nations” was the obligation on the part of the newly independent polities of Central and Eastern Europe to engage in what in Germany is known as a Vergangenheitsbewältigung, or “struggle to come to terms with the past.” Though the “initial overall tendency was to forgive and forget” communist-era crimes [1], as the revolutionary euphoria faded it became increasingly clear that many of the enormities committed over the course of the foregoing decades were neither forgivable nor forgettable, and it was not long before the post-authoritarian nations of Mitteleuropa turned to lustration or the establishment of truth commissions to effectuate the “processing of history.” [2] In the Baltic region in particular, this Vergangenheitsbewältigung took on a distinctly legalistic aspect, as former officials of the Latvian Soviet Socialist Republic, including Alfred Noviks, Mikhail Farbtukh, and Jevgenijs Savenko, and former officials of the Lithuanian Soviet Socialist Republic, including Kirilas Kurakinas, Petras Bartasevicius, and Juozas Sakalys, all found themselves subjected to prosecution under national genocide statutes [3] .

The Latvian government, not content to limit its prosecutorial campaign to members of Cold War-era commissariats, would go one step further, using its legal system to address the sinister legacies of the Second World War’s fascist-communist partisan campaigns. By prosecuting Vasiliy Makarovich Kononov, octagenarian veteran of the Soviet partisan campaign, Latvia managed to secure something altogether unique: the conviction of a Soviet soldier for war crimes committed during the Second World War. In doing so, Latvia touched off a legal and diplomatic controversy that would raise hackles in Riga and Moscow and would make its way to the European Court of Human Rights in Strasbourg. The recently concluded case of Kononov v. Latvia, decided May 17 by the ECHR’s Grand Chamber, has thus provided ample evidence that there has yet to be a ceasefire in the post-Soviet struggle to come to terms with the past.

At the center of this international legal imbroglio is one Vasiliy Kononov, born in Strauja, Latvia in 1923, and a member of a Soviet commando unit by the age of twenty. On May 27, 1944, according to the facts later established by Latvian courts, Kononov “led a unit of Red Partisans wearing German uniforms on an expedition on the village of Mazie Bati, certain of whose inhabitants were suspected of having betrayed to the Germans another group of Red Partisans,” during which “the Partisans shot the six heads of family concerned. They also wounded two women. They then set fire to two houses and four people (three of whom were women) perished in the flames.” [4] “The villagers killed were unarmed; none attempted to escape or offered any form of resistance.” [5] Kononov would later maintain, when confronted with mounting allegations of complicity in wartime atrocities, that “the victims of the attack were collaborators who had delivered a group of 12 Partisans into the hands of the Germans some three months earlier,” and that in any event “he had not personally led the operation or entered the village.” [6] Others, like Villis Samsons, a Latvian historian and Soviet partisan wartime commander, would object to any attempt to “condemn and discredit the entire partisan movement that fought against Hitler,” [7] while outside observers like Efraim Zuroff, a Nazi war crimes researcher and head of the Simon Wiesenthal Centre in Jerusalem, have complained “Not once of their own volition have the Latvians prosecuted anyone for the murder of the Jews, in great contrast to the energy with which they are trying to bring communists to trial.” [8] Yet as further evidence came to light, Kononov nevertheless found himself an individual of interest to the Latvian authorities.

By 1998, fifty-four years after the Mazie Bati killings, the Latvian Totalitārisma seku dokumentēšanas centrs (Centre for the Documentation of the Consequences of Totalitarianism) was sufficiently convinced of Kononov’s culpability with regards to the massacre that it forwarded a criminal investigatory file to the Latvian Principal Public Prosecutor, whereupon Kononov was brought to trial for war crimes. In a country where many can still recall the barbarism of Soviet rule, the forced collectivization of farms, and the NKVD torture chambers described as “one-man cells so small that their inmates had no room except in a bent position,” replete with “soundproof walls, a drain for blood, and special torture equipment;” [9] in a country which looks back with horror at a time when the Council of People’s Commissars could issue an order instructing saboteurs “to destroy and burn down all the settlements in the German rear at a distance of 40 kilometers to 60 kilometers from the front and within 20 kilometers to 30 kilometers of both sides of the road;” [10] and in a country where in recent years the very matter of citizenship for minority ethnic Russians has proven a magnet for controversy, Kononov’s supposedly heroic service in the liberation of his country from Nazi oppressors counted for far less than he might have imagined at the time of his partisan activity. As the former guerilla went on trial in Riga, the struggle over Latvia’s past had entered a new phase.

Criminal Accountability

The Latvian Criminal Affairs Division of the Supreme Court duly convicted Kononov on April 30, 2004, relying on Article 68-3 of the 1961 Criminal Code of the Soviet Socialist Republic of Latvia, the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), and Article 23(b) and Article 25 of the Hague Regulations of 1907. Kononov’s appeal, based on the contention that “the acts of which he had been accused had not, at the time of their commission, constituted an offence under either domestic or international law,” [11] was unavailing in Latvia, and was taken up by the European Court of Human Rights, which was called upon to consider whether Latvia had violated Article 7 § 1 (no punishment without law) of the European Convention. On July 24, 2008, the court found that such a violation had occurred, and awarded Kononov 30,000 euros in damages (far less than the 5,187,000 euros Kononov had originally requested). It was the Latvian government’s turn to appeal, and the court’s Grand Chamber of 17 took up the matter, ultimately delivering its opinion in the case of Kononov v. Latvia on May 17, 2010.

The court [12], noting that the “laws of war were not only to be found in treaties,” but also “in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts” (Par. 52), determined that, however tenebrous the situation on the ground was during the Baltic partisan campaign, it was “a rule of customary international law in 1944 that civilians could only be attacked for as long as they took a direct part in hostilities,” and “if it was suspected that the civilians who had participated in hostilities had committed violations of jus in bello in doing so…then they remained subject to arrest, fair trial and punishment by military or civilian tribunals for such any acts, and their summary execution without that trial would be contrary to the laws and customs of war” (Par. 203). Thus, despite the lengthy passage of time between 1944 and 1998, “the applicant’s prosecution (and later conviction) by the Republic of Latvia, based on international law in force at the time of the impugned acts and applied by its courts, cannot be considered unforeseeable” (Par. 243). Fourteen of the seventeen judges agreed that there had been no violation of Kononov’s Article 7 § 1 rights. While President Jean-Paul Costa’s dissent questioned the “foreseeability, in 1944, of a prosecution brought in 1998, on the basis of an instrument dating from 1993, for acts committed in 1944” (Dissenting Opinion, Par. 20), the majority maintained that “even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable” (Par. 238).

The Russian reaction to the court’s ruling was as sharp as expected, given the Russian government’s longstanding disapproval of “the hardship of [Kononov’s] imprisonment, the psychological and moral harassment unleashed against him, and a long-running illegal prosecution in Latvia,” [13] and the various public plaudits the former guerilla received from the Kremlin over the years. President Dmitry Medvedev promptly suggested that the “open reassessment of a verdict previously reached definitely has political motives behind it,” and could “undermine the basis of international law,” [14] while the deputy chairman of the Duma’s International Affairs Committee, Andrei Klimov, claimed that a “continuation of this logic will ultimately lead to whitewashing of Hitler and his accomplices.” [15] “It is incorrect,” Klimov continued, “to reappraise the events of the war under the laws of peacetime. No one can replace the Nuremburg Tribunal that tried Fascism and its crimes against humanity. This is the reason why many countries are continuing to prosecute Nazis.” [16] The Voice of Russia declared that “Strasbourg sides with Nazis,” [17]]] and Russia’s permanent representative to the European Court of Human Rights, Georgy Matyushkin, likewise appealed to the sanctity of Nuremberg, warning that “there are signs of attempts to revise the results of the Nuremberg processes.” [18]

Nuremberg Revisited

The revision of the results of the Nuremberg processes that Georgy Matyushkin lamented was very much the point of the Kononov prosecution. To understand why, it is instructive to look back to February 14, 1946 – day fifty-nine of the Trial of the Major War Criminals before the International Military Tribunal at Nuremberg. On that day the Soviet prosecutor Colonel Yuri Pokrovsky addressed the “monstrous fascist directives regarding the ill-treatment of prisoners of war and their mass extermination,” enormities “before which the horrors of the Middle Ages pale.” [19] Submitting gruesome photographic evidence of Nazi war crimes and crimes against humanity, Pokrovsky admitted that “neither time nor any word of living human speech will ever suffice to describe even a thousandth part of the sufferings borne by the soldiers of my Motherland and of the other democratic countries who had the misfortune of falling into the hands of the fascist executioners,” but he nevertheless called for the accused to be “forced to answer to the martyrs to the full extent of the law of international justice for the indescribable atrocities which you will see with your own eyes, and for the many other crimes which will forever remain unknown.”

One of these atrocities, indeed “one of the most important criminal acts for which the major war criminals are responsible,” Pokrovsky alleged, “was the mass execution of Polish prisoners of war, shot in the Katyn Forest near Smolensk by the German fascist invaders.” Though the Soviet colonel acknowledged the existence of claims that the “Polish prisoners of war had been shot by organizations of the Soviet authorities in the spring of 1940,” he calmly introduced the findings of a Soviet Extraordinary State Commission that had determined that “in the autumn of 1941, in Katyn Forest, the German Occupational Authorities carried out mass shootings of the Polish prisoners of war.” No mention, of course, was made of the Soviet Politburo’s “Protocol No. 13” of March 5, 1940, which imposed the “obligatory sentence of capital punishment – shooting” on those “former Polish Army officers, government officials, landowners, policemen, intelligence agents, military policemen, settlers and jailers” [20]] unfortunate enough to be detained in the prison camps of the Soviet Union, and who today can be found beneath the iron slabs that mark the mass graves of Katyn, Piatykhatky, Mednoye, and elsewhere.

The defense, eager to implicate the Soviets and thereby claim tu quoque, called for a further consideration of the evidence, and by early July the Soviet chief prosecutor Roman Rudenko was laboring to prove that the Katyn massacre had taken place eighteen months later than it had. The contradictory testimony of a Bulgarian pathologist who had examined some of the bodies in 1943, and the risible claim that the method of execution at Katyn (a bullet in the back of the head or neck) was “exclusively German,” did not strengthen the Soviet case, and the evidence was dismissed. As Ann and John Tusa later observed in their 1983 account of the Nuremberg trials, “the Russians were perhaps fortunate that the judges chose to make no mention of the Katyn massacre in their judgement. Conclusions very different from those they desired might well have been drawn from the evidence they presented; a tacit hint that they had merely failed to prove their case let them off lightly.” [21]

The Nuremberg trials were, for the most part, well intentioned, and proved to be of immense precedential value in the ripening of international human rights and humanitarian legal norms, but they have also been criticized as “victors’ justice,” or a “high-grade lynching party,” [22] with the role of the Soviets in meting out post-war justice central to the faultfinding. After all, the Second World War began with the “territorial and political rearrangements” stipulated under the Molotov-Ribbentrop Pact of 1939, yet six years later Soviet magistrates would be sitting in judgment of the USSR’s former allies for the crime of “conspiracy to wage aggressive war.” And while the Nazi architects of the Babi Yar massacres – Friedrich Jeckeln, Otto Rasch, and Paul Blobel – would meet their deserved fates (the hangman’s noose or a lonely death in prison), those who orchestrated the similar Katyn massacres, including Lavrenty Beria and Vasili Blokhin, were never “forced to answer to the martyrs to the full extent of the law of international justice.” This disparity was inevitable, of course, but it served to tarnish the Nuremberg tribunals and has never sat well with those in the “other democratic countries who had the misfortune of falling into the hands” of communist, as opposed to fascist, executioners.

The Highest Morality of Humankind

It was thus Latvia’s aim, in prosecuting a Soviet partisan, to provide some corrective to what has been perceived as the historical injustice at work in the Nuremberg trials. As Valters Nollendorfs, the director of external affairs at the Museum of Occupation in Riga put it, “crimes have to be prosecuted and justice has to be brought. Justice not carried out is just as bad as the injustice that has taken place,” [23] regardless of the perpetrators. The Latvian Ministry of Foreign Affairs, reacting to Russian criticism of the judgment in Strasbourg, released a statement describing Kononov v. Latvia as a confirmation of the “the generally recognized principle of international law that responsibility for the committed war crimes shall be individual and effective, and that such crimes may not be justified by the perpetrator’s belonging to a certain state, political, ideological or other group.” [24] Though Kononov’s lawyer Aleksandrs Ogurcovs complained back in 2000 that he had “never heard of anyone who fought the Germans being jailed for war crimes,” [25] for those backing the prosecution that is precisely the point. The Russian historian Yelena Zubkova has posited that “maybe this court case will encourage a calm, objective, historical analysis of this period,” as it is “high time to examine these historical events, including who partisans were. After all, it was a very mixed, ambiguous movement.” And what is more, the Kononov trial provided an opportunity to revisit the Nuremberg precedent and the odious Soviet machinations that resulted in what could be called international criminal law’s original sin (a legal shadow of a larger geopolitical tragedy embodied in the Yalta Conference agreement). Ultimately, “it is true,” Yulia Latynina has opined, “that the verdicts of the Latvian court and 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.” [26]

The Latvian authorities, appealing to the truth-seeking, liberal-democratic values that led the poet Andrejs Pumpurs to write in his nineteenth-century epic Lāčplēsis (The Bear Slayer) that

It is difficult to know justice, But it is even more difficult to speak justly and truthfully. Whoever overcomes this difficulty in works Attains the highest morality of humankind! [27]

have sought to overcome the difficulties of the past by seeking retributive justice, albeit well after the fact. That such a course of action has served to needle the Kremlin – just as Estonia managed to by removing the infamous Tallinn bronze solder in 2007, and just as the Lithuanian parliament managed to by issuing its recent pro-Georgian resolution declaring Russia an “aggressor” [28] – constituted an added benefit. It is difficult to say, however, whether the Kononov prosecution will serve to further the effort to overcome the difficult legacies bequeathed by the Soviet Union, for other countries have wrestled with similar legacies without resorting to the legal process, with positive results.

Had Poland’s President Lech Kaczynski not perished in a plane crash outside of Smolensk on April 10, 2010, he would have delivered a speech on the occasion of the seventieth anniversary of the Katyn massacre. In his remarks, Kaczynski would have described Katyn as a “painful wound in Polish history, poisoning relations between Poles and Russians for long decades,” but one that could “finally heal, scar over.” [29] After expressing appreciation for “Russia’s actions in recent years” in cooperating vis-à-vis investigations into the massacres in “Poland’s eastern Golgotha,” Kaczynski would have urged that the two nations “should go further on this path, which brings our two nations closer, without halting or turning back.” [30] Nevertheless, Kaczynski’s speech would have went, “all the circumstances of the Katyn crime must be made public and examined,” so that “the Katyn lie can fade forever from public discourse.” [31]

It is possible, then, that a complete reckoning of the crimes of the partisans, combined with an earnest push for symbolic historical reconciliation, might have smoothed over what was ruffled and perhaps exacerbated in the Kononov affair. Though without a doubt the “Latvian and Strasbourg court rulings have shed valuable light on a small, but extremely important, historic episode,” [32] the effect has seemingly not been to scar over the wounds of the past, but to bring to life old animosities. The process of Vergangenheitsbewältigung necessarily involves a struggle, but that struggle must lead to a proper coming to terms with the past, particularly in a country that has as its professed goal the forging of a “national multicultural state.” [33] Time will tell whether the prosecutions of Soviet officials and partisans in Latvia will prove more useful than lustration and symbolic reconciliation in leading to such an end, or whether such an approach will in actuality represent a step towards the ultimate goals of human rights law: “knowing justice” and attaining the “highest morality of humankind.” The Kononov affair has salved some wounds while reopening others, but above all it has underscored the fact that, in the Baltikum as elsewhere in Mitteleuropa and indeed in Europe as a whole, the past remains, for better or worse, “an active participant” [34] in international relations.

* Matthew Omolesky studied at the graduate and professional level at the Whitehead School of Diplomacy and The Ohio State University’s Moritz College of Law, respectively, and has worked as a researcher at the Moritz College of Law and the Institut za Civilizacijo in Kulturo (Ljubljana). He is presently completing a book on the history of the international criminal legal doctrine of universal jurisdiction.