Crossing the line

-- May 26, 2010 --
TEXT: J. Vermin
PHOTO: Sergey Kamshylin -


The West has little idea of what WWII – the Great Patriotic War as it is known here – means to Russians. Nearly 27 million Soviet people, every seventh, were killed in the war. This is 48 Russians for each French casualty, 60 - for British, and 65 - for American.

More than half a century has passed since the beginning of WWII, but the pain from the unprecedented losses, the suffering and the sacrifice of so many people unconnected with politics or the army (nearly 60% of all deaths was among civilians), still hurts. The war here is more than history. It is a story where the whole nation stood against evil; strength and character were tested; a better future was promised.

Reality is more complex than a fairytale. Some episodes of the war pull the archetypal rug from under the conventional narrative of Ivan the Perfect fighting against monstrous Nazis. Yet distortions mustn’t blur the picture as a whole: Russians fought a just war and it is by their hardship and sacrifice that Europe was saved from the worst evil of the 20th century.

Has the Strasbourg court’s decision in the Kononov v Latvia case crossed this line? Is the distinction between the Nazi and the anti-Hitler forces still made, even if they sometimes seem alike?

Some episodes of the war pull the archetypal rug from under the conventional narrative of Ivan the Perfect fighting against monstrous Nazis.

In February 1944 Red Partisans, including women and a small child, hiding in a barn in the Latvian village of Mazie Bati were killed. The villagers, allegedly, assured the partisans that the Germans had left, fed them, let them sleep and then alerted German soldiers who machine-gunned the barn with incendiary bullets causing it to catch fire. Those who tried to escape were shot dead. The German military command then rewarded the villagers with firewood, sugar, alcohol and money and gave them rifles and grenades for protection.

On 27 May 1944 a partisan platoon led by Vasiliy Kononov, then 19 years old, entered Mazie Bati. They searched the houses for weapons and killed those whom they believed were Nazi collaborators - nine people including three women. One group attacked the house where their comrades had been wiped out by Wehrmacht soldiers, shot the people inside, doused the building with petrol and set it alight. The farmer’s wife, who was nine months pregnant, tried to escape, but was seized and pushed through a window into the flames. Her body was identified by the burnt skeleton of a baby lying next to her.

Kononov denied personal involvement in the attack. The villagers had known him since childhood, he claimed, and he feared for the safety of his parents who lived nearby. He assigned the mission to another partisan. He also maintained that the platoon acted on the orders of an ad hoc military court that had convicted the Nazi collaborators.

Whether Kononov’s actions constitute a crime wasn't the point

Contrary to general belief, whether Kononov’s actions constitute a crime has never been the point of legal wrangles. What he and his squad may have done is indefensible. The question that judges of the European Court of Human Rights had to answer was different: can he be tried for war crimes in the same manner as if he was a Nazi soldier?

In 1944 Latvia was a part of the Soviet Union. The Criminal Code of 1926, then in force, contained a 10 year time bar for prosecution. Kononov, however serious his crime may have been, could not be tried after 1954.

In 1998 the Latvian Prosecutor’s Office, now of an independent country, charged him with war crimes and in 2004, after a long battle, he was convicted. The Latvian judges suggested that during WWII Latvia was occupied by both the Soviet Union and Germany. They stepped over Soviet legislation and appealed to international law.

Whether the concept of a war crime had been formed by 1944 at the supranational level is a matter of debate. If not, Kononov was convicted, more than half a century after the events, on the basis of law that did not exist.

Despite the Strasbourg court’s lengthy yet unconvincing trawl in search for the evidence of a universal criminal legal system at the time, all pre-WWII war crime trials were held under domestic rather than international laws. This was the case in Leipzig in 1919 when Germans were tried under German law for crimes committed during the First World War. Similarly, in 1921 Turkish law was used in Turkey to prosecute those accused of the massacre of Armenians.

Before and during WWII it was widely believed that international law had not been developed with sufficient precision and vigour. The US delegate to the High Tribunal was concerned that ‘creation of a new tribunal, of a new law, of a new penalty, which would be ex post facto in nature, and thus contrary to an express clause of the Constitution of the United States and in conflict with the law and practice of civilized communities.’

Reality equates war crimes committed in 1939 - 1945 with Nazi

British leaders, and Prime Minister Winston Churchill in particular, did not favour the idea of an international trial for Nazis. Anxious not to repeat the ‘Leipzig fiasco’ they suggested summary executions of captured enemy leaders and speedy court-martial by national tribunals for ordinary offenders. ‘I am convinced that we should avoid commitments to try the war criminals,’ British Foreign Minister Anthony Eden told the War Cabinet in 1942, ‘and to hang the Kaiser (alias Hitler)’.

If there were rules of war in 1944 what were they? More specifically, what was the law of the partisan war in Eastern Europe? This is a difficult question. Still, there is something infantile in the court’s suggestion that what happened there, a mayhem where more than 12 million civilians died, could be seen through the prism of the instructions for the United States Army of 1863.

In theory, law is impartial and unbiased. It should treat those who stand trial equally regardless of nationality, political affiliation or status. Reality, however, equates war crimes committed in 1939 - 1945 with the Nazis. Though denied, the link is real. No soldier of the anti-Hitler coalition, before Kononov, had been convicted of war crimes based on the Charter of the International Tribunal at Nuremberg.

In our culture the Nazi regime remains the epitome of absolute evil. If Kononov had been treated as an ‘ordinary’ criminal the trial would not have become such an ordeal for ordinary Russians. At times, it appeared as if Russia itself stood beside Kononov as a co-defendant accused of crimes of this war.


Are the Allies and the Nazi now alike?