The Grand Chamber of the European Court of Human Rights today issued its ruling in Kononov v. Latvia, dismissing the complaint based upon article 7 of the European Convention and the alleged retroactive prosecution of war crimes committed by the applicant in 1944. The ruling reverses a decision of a Chamber of the Court in 2008. I acted as counsel to Latvia in the case before the Grand Chamber.
The decision affirms that the conviction of Kononov with respect to a massacre of villagers that took place in Nazi-occupied Latvia in early 1944 did not constitute retroactive prosecution. International war crimes were sufficiently clear as a legal concept at the time as to respond to the requirements that crimes be 'foreseeable' and 'accessible'.
Kononov had been the leader of a small band of partisans who were operating behind Nazi lines. They entered the village and executed nine people who were suspected of Nazi sympathies. The Chamber of the Court, in the 2008 reuling, had debated whether the villagers could be described as combatants. Concluding this to be the case, it held that their summary execution was not a crime under the laws of war as they were known at the time.
The Grand Chamber today took a different perspective. Without ruling on the issue, it said it would take the applicant’s argument at its highest, and assume that the victims were combatants. But it said that even if they were in fact combatants, at the time they were murdered there was no suggestion of armed activity, they were therefore hors de combat and could not be executed. This is what I had argued before the Grand Chamber last May at the oral hearing.
Three of the seventeen judges dissented. They adopted the very general proposition that international war crimes were not adequately defined in 1944. and that therefore the prosecution in Latvia (which actually took place in the 1990s) violated the prohibition on retroactive prosecution found in article 7(1) of the European Convention. In effect, they also said that the Nuremberg trial should be deemed a violation of article 7(1) of the European Convention.