In late July of this year, a chamber of the European Court of Human Rights granted the application of Vassili Kozonov, a Latvian partisan during the Second World War, decorated with the Order of Lenin, who was convicted of war crimes by Latvian courts in the 1990s: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72153&sessionId=13585696&skin=hudoc-en&attachment=true. The Court held that the prosecution was based on retroactive operation of the law, contrary to article 7 of the European Convention of Human Rights. Kosonov had participated in a massacre in a Latvian village, but he argued that the victims were combatants, not civilians, and that this was not contrary to international law at the time. The decision was by a very close vote, four judges to three, and it will almost certainly be reviewed by a Grand Chmaber of the Court, composed of 17 judges.
The dissenters sensed that underpinning the reasoning of the majority was a reluctance to condemn a partisan for fighting the Nazis. ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’ asks the minority.
This is a fascinating new chapter in the evolving ‘victor's justice’ debate. Earlier this year, the Appeals Chamber of the Special Court for Sierra Leone ruled that the side on which a person is fighting should not even be taken into account for purposes of sentencing, as an aggravating or a mitigating factor: http://www.sc-sl.org/Documents/CDF/SCSL-04-14-A-829.pdf.
I recently reported an item on this blog about prosecution of Jewish partisans in Lithuania for war crimes committed in the final stages of the Second World War. And I could add to this the ongoing debate at the International Criminal Tribunal for Rwanda about prosecuting members of the Rwandese Patriotic Front for atrocities committed against Hutu in Rwanda in the months following the genocide.
Personally, I am inclined to think that the side one is fighting on has to be relevant to certain issues of international criminal justice. The view of the Appeals Chamber of the Special Court for Sierra Leone is troubling, and seems inconsistent with the approach we would take in domestic legal systems, where the motive of the offender is always very relevant to determination of the penalty. It is also fundamental in terms of prosecutorial discretion, something now confronting the Rwanda Tribunal.
The biggest critic of Nuremberg as ‘victor’s justice’ is the notorious David Irving (see his scurrilous book on the Nuremberg trial, which you can download free from his website: http://www.fpp.co.uk/books/Nuremberg/index.html - please don’t buy it). Many think it would have been better if both sides were prosecuted at Nuremberg, but I cannot agree. It is true that the Allies committed war crimes, and that there was terribly civilian damage as a result of bombing of cities, like Dresden and Hamburg. Nuremberg is one of the great symbolic trials of our time, and if it had reflected a view by which both sides had been guilty of atrocities this would not clarify history, it would distort it. Yet isn’t that the logic of the dissenters in the Kononov judgment?