Saturday, 5 February 2011


I've spent the last couple of days participating in a conference at the Case Western Reserve University School of Law, in Cleveland, on the Katyn massacre of 1940. Historians, lawyers and other professionals met under the auspices of the Cox Centre, which is directed by Professor Michael Scharf, and the Libra Institute, to discuss a range of issues associated with this historic atrocity. For nearly half a century, the Soviets denied any responsibility, and there are records indicating that they contemplated destroying all historical records. Then, in 1990, Boris Yeltsin admitted that the killiings were the work of the Soviet NKVD,
Conference participants.
My paper was on Katyn and Nuremberg. The Soviet prosecutor had insisted upon including the accusation in the indictment that the Nazis were responsible for the murder of 11,000 Polish officers and intellectuals in late 1941 in the Katyn forest, located near Smolensk. A Soviet commission of inquiry had investigated the mass grave once the German forces were driven out of the region and its report was tabled into evidence. The German defendants. who knew that it had been the Soviets who were responsible for the mass executions, insisted upon producing exculpatory evidence. In the final days of the great trial, Germans and soviets each produced witnesses to bolster their competing explanations.
The judgment is silent on the subject. Even the Soviet judge said nothing in his dissenting opinion. My reading of the testimony, which is in volume 17 of the Nuremberg proceedings, is that neither side really did a good job of proving its version. The judges did the right thing under the circumstances.
Among the interesting materials on Katyn and Nuremberg can be found the proceedings of the US Select Committee, which examined the evidence in 1952. Robert Jackson testified before the Committee. There is also a fascinating memorandum from the historian of the British foreign office.
The Katyn charge is often invoked in the victors' justice critique of Nuremberg. It is not the only atrocity committed by the victors, of course. To Katyn, one can add the firebombing of German cities, the use of the atomic bomb at Hiroshima and Nagasaki, and other Allied crimes. None of these has ever  been properly punished. I've been intrigued by this question recently, not only because of the historic dimension, but for what we can learn in terms of prosecutorial decisions before our modern-day tribunals. In reality, the same types of problems remain with us. Personally, I do not attach validity to the charge that Nuremberg was flawed because it only prosecuted one side of the conflict. I will develop these ideas more thoroughly in my paper, which will be published along with the other proceedings at the conference later this year.
One of the big debates at the conference was the appropriate legal characterization of the Katyn massacre. Many of the participants were anxious to pin the label genocide on the killings. The argument here is quite a stretch, in my view, but readers of the blog can consult the whole debate in the videos of the proceedings and in the published version, when it appears.
Much attention was given to how the Katyn case might be litigated today. Currently, there are at least two cases pending before the European Court of Human Rights directed against Russia.


mihai martoiu ticu said...

==The Katyn charge is often invoked in the victors' justice critique of Nuremberg.==

Prosecuting 50% of the criminals is always better than 0%. Law is conservative and attaches value to precedent. If the precedent does not prosecute anybody, then future people keep that tradition. But if one prosecutes at least a part of the criminals, one can hope that the law will be improved in the future to prosecute all of the criminals.

Mark Kersten said...

Thank you, Prof. Schabas, for posting this and more importantly, for taking the time to explore the question of Katyn from this perspective. I have wondered for some time now if any scholars of ICL are looking at the issue of Katyn.

My grandfather perished at Katyn. My grandmother, Krystyna Kersten, a renowned Polish historian, was involved in cataloging those who died as well as ascertaining Soviet responsibility towards the end of the Cold War. This family history inspires my own work looking at issues of international justice as a PhD student at LSE and through my own blog (

I think Poles have seen important progress, particularly this past summer, on achieving some sense of historical justice with regards to Katyn. I know many Poles were impressed by Russia's response to both commemorations of the massacre and Katyn 2 - the plane crash as well as Russia's airing of Wajda's film 'Katyn', etc.

While it's important to consider Katyn in a discourse of international criminal law, I think it may be just as important to consider this an issue of politics. I'm not sure Poles expect anyone to be brought to court over Katyn. However, a greater reckoning with the past and perhaps an official apology from Russia would contribute significantly to the ongoing quest for closure.

Many thanks again and I look forward to reading and viewing the proceedings when they are available.

Mark Kersten