Katyn at Strasbourg and Nuremberg

In what is known as the Katyn forest massacre, perhaps as many as 20,000 Polish officers and other officials were summarily executed by the Soviets, then buried in mass graves in what is today Belarus.

An application by several relatives of those who were murdered was granted in part by a chamber of the European Court of Human Rights in a decision released last week, in the case of Janowiec et al. v. Russia. The seven-judge chamber was quite divided, as can be seen in the various dissenting opinions. Typically, this sort of case works its way to the Grand Chamber, where 17 judges will re-consider it.

The Court described the massacre as follows:

140. The Court accepts that the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime. Both the Hague Convention IV of 1907 and the Geneva Convention of 1929 prohibited acts of violence and cruelty against war prisoners and the murder of prisoners of war constituted a “war crime” within the meaning of Article 6 (b) of the Nuremberg Charter of 1945. Although the USSR was not a party to the Hague or Geneva Conventions, the obligation to treat prisoners humanely and abstain from killing them clearly formed part of the international customary law which it had a duty to respect. In its declaration of 26 November 2010, the Russian Parliament recognised that the mass extermination of Polish citizens had been “an arbitrary act by the totalitarian State”. It is further noted that war crimes are imprescriptible in accordance with Article I (a) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, to which Russia is a party.

The Court found a violation of article 3 of the European Convention, which prohibits torture and inhuman or degrading treatment or punishment. The violation  concerned the anxiety and frustration suffered by the family members of the victims because of  ‘the Russian authorities’ flagrant, continuous and callous disregard for their enquiries’.

The Court noted that ‘Article 3 requires it to exhibit a compassionate and respectful approach to the anxiety of the relatives of the deceased or disappeared person and to assist the relatives in obtaining information and uncovering relevant facts’ (para. 163). In itself, this was not a novel finding, but never has the Court applied Article 3 to facts that took place so long ago.

Here are the core paragraphs:

164. In conclusion, the applicants suffered a long ordeal during the entire post-war Communist era in which political factors put insurmountable obstacles to their quest for information. The institution of Katyn proceedings gave them a spark of hope in the early 1990s but it was gradually extinguished, in the post-ratification period, when the applicants were confronted with the attitude of official denial and indifference in face of their acute anxiety to know the circumstances of the death of their close family members and their burial sites. They were excluded from the proceedings on the pretence of their foreign nationality and barred from studying the materials that had been collected. They received curt and uninformative replies from Russian authorities and the findings that had been made in the judicial proceedings were not only contradictory and ambiguous but also contrary to the historic facts which, nonetheless, were officially acknowledged at the highest political level. The Russian authorities did not provide the applicants with any official information about the circumstances surrounding the death of their relatives or made any earnest attempts to locate their burial sites.

165. Furthermore, the Court reiterates its constant position that a denial of crimes against humanity, such as the Holocaust, runs counter to the fundamental values of the Convention and of democracy, namely justice and peace (see Lehideux and Isorni v. France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy (dec.), cited above), and that the same is true of statements pursuing the aim of justifying war crimes such as torture or summary executions (see Orban and Others, cited above, § 35). By acknowledging that the applicants’ relatives had been held prisoners in the Soviet camps but declaring that their subsequent fate could not be elucidated, the Russian courts denied the reality of summary executions that had been carried out in the Katyn forest and at other mass murder sites. The Court considers that such approach chosen by the Russian authorities has been contrary to the fundamental values of the Convention and must have exacerbated the applicants’ suffering.

The question now is how much further beyond 1940 it may go following the approach it has taken in Janowiec. Could the Court consider in a similar fashion the repeated denials of Turkey with respect to massacres perpetrated against the Armenians in 1915, an event that we today describe as the Armenian genocide? Readers of the blog will no doubt be able to cite other examples prior to 1940 when European states were responsible for atrocities that they have either denied or whose importance they have dismissed.

In Janowiec, the Court rejected the portion of the application based upon article 2 (‘right to life’). Of course, the actual violation of the right to life took place in 1940, more than half a century before Russia had ratified the European Convention on Human Rights. But the Court has already held that it can exercise jurisdiction with respect to a failure to investigate violations of the right to life, even if it cannot consider the actual killing as such. This is known as the ‘procedural obligation’ associated with article 2. But the Court decided that even that issue was outside its temporal jurisdiction.

The operative date is 5 May 1998, when Russia ratified the European Convention. The Court noted that while there had been investigative steps in the years immediately following the break-up of the Soviet Union, in the early 1990s, ‘no piece of evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues has been produced or uncovered. The Court is therefore bound to conclude that there were no elements capable of providing a bridge from the distant past into the recent post-ratification period and that the special circumstances justifying a connection between the death and the ratification have not been shown to exist.’ (para. 140).

The decision incorrectly describes the treatment of the Katyn case during the Nuremberg Trial (para. 19). The Soviet prosecutors had insisted that the Nazi defendants be charged with responsibility for the massacre. According to the European Court of Human Rights, ‘[t]he charge was dismissed by the US and British judges for lack of evidence’. That’s not quite right. There is no reference whatsoever to the charge in the final judgment. It would be better, perhaps, to say that it was simply ignored. The Chamber of the European Court of Human Rights seems to have entirely forgotten about the French judges, who also signed the final judgement, and about the Soviet judge, who wrote a dissenting opinion but who also chose to say nothing about Katyn.

Prompted by a conference on the subject organised by Michael Scharf at Case Western University last year, I spent some effort researching the treatment of Katyn at Nuremberg and write about this in my new book Unimaginable Atrocities. Critics of Nuremberg often point to the inclusion of the Katyn massacre in the indictment as evidence that the trial was ‘victors’ justice’. But evidence was led by both sides, the Germans and the Soviets, and if the judges found it to be inconclusive that makes perfect sense. Ignoring the whole business was the best they could do at the time. Nuremberg would be vulnerable to legitimate criticism had the judges, or even one of them, blamed the Nazis for Katyn, but that is not what they did.