Monday 17 May 2010

Kononov War Crimes Judgment Issued by European Court of Human Rights Grand Chamber

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.


Brian said...

Well done. I'm glad the Grand Chamber was willing to time this so perfectly with your presentation on retroactivity during the seminar.

Unknown said...

Nice note at the end (re Nuremberg)!
Bill Hartzog

Not for publication just a note to you.

Unknown said...

I really and trully hope Mr. W. A. Schabas will not pass over in silence when Latvia will procede glorifying former nazis, who murdered not few alledged collaborants, but approximitily 100,000 Jews. The murders were carried out mostly by Latvian subunits – for example, by the SS-Sonderkommando led by Viktors Arajs.
Right now, the Europe's highest court ruling puts almost any surviving resistance fighter in Europe unlucky enough to have killed a Hitlerite or his accomplice in jeopardy of trial.

Unknown said...

I must admit I have seen little materials with respect to this case, but I wonder why this is ever being considered as a war crime? The nazi collaborators met Russian partisan troops armed although maybe opted not to fight them or probably the partisans advanced too quickly for them to react that they therefore could have been caught napping (which was not something unsusual for the partisans to do).

Then, if so, a Russian army commander had a lawful right to execute the treators- Latvia was a part of the USSR since 1940, therefore anyone who had been supporting nazis, e.g. receiving weaponry from nazis- with obviously no other means as to fight the Soviet troops, was a collaborator and combatant- any army at that time would execute traitors immediately. He, in his capacity of a regular Soviet Army commander (and partisan troops by 1944 were already considered such) had a lawful right to decide on the matter.

Pursuing absurd logic further, Borman, Hitler or other nazis could have been excused from his crimes if they would not resist when caught.

Luckily, the Grand Chamber has agreed that they persons were indeed were combatants.

Anyway, the Grand Chamber says that they we hors de combat, but how does this correspond with the fact that they had guns with them?

I understand it had to be something similar to what German SS did in Finland: these "villagers" were supposed to fight and kill the Soviet army militants.

I am not really an expert in these matters, but is not that the combatants traitors caught with weapons in the war field should be a good reason for a small scout unit to execute the SS militants ?

As to comments the tone of the comment it looks like there is too much of anti-Russian hysteria in Latvia.

It is sad that you guys do not find the guts to confess that you were on a very very very wrong side.

The world was on the edge of a total disaster, and you should not now toy with it whether you think you have good reasons or not. The reason you can find here:

Lubomir Majercik said...

"In effect, they also said that the Nuremberg trial should be deemed a violation of article 7(1) of the European Convention."

I respectfully disagree with the last sentence. The dissenting judges (both Rozakin, Tulken, Spielmann, Jebens and Costa, Kalaydjieva, Poalelungi) note that it was in 1944, before Nuremberg and Tokyo, when the individual criminal responsibility had not yet attained a degree of sophistication and completeness. They all emphasize the constituting role of Nuremberg. This does not suggest anything mentioned in the last sentence of the post. Given this wording and given the "Groatian moment" character of the Nuremberg trials the Court might find Nuremberg trials in line with Article 7.