1

2nd Biennial War Crimes Conference 2011

Bill Bowring, Birkbeck College

The ECtHR Grand Chamber in Kononov v Latvia (17 May 2010): is the Russian
Federation correct in its understanding of the relationship between politics and
international law?
Introduction

The Grand Chamber judgment of 17 May 2010 in Kononov v Latvia caused a furore
in Russia. In view of the former Agent of the Russian Federation at Strasbourg, Pavel
Laptev, a tragedy had taken place.1 However, for William Schabas, incidentally
counsel for Latvia before the Grand Chamber, this was an “authoritative decision by
the Grand Chamber of the European Court of Human Rights that upholds the
legitimacy of the Nuremberg trial”2, and for Lauri Mälksoo, the chair of international
law at the University of Tartu, Estonia (like Latvia, illegally occupied by the USSR
from 1945 to 1991) commenting for the AJIL, the Grand Chamber “… made a
courageous choice, essentially maintaining that in terms of war crimes, the winners of
World War II can be measured by the same normative yardstick that they were
themselves instrumental in establishing.”3 However, he criticised the Court “for its too
diplomatic maneuvering regarding the question of the Soviet occupation of Latvia.”
These are both highly reputable scholars; but they are also both engaged on one side.4

In this paper I start by investigating the facts in Kononov’s case. I turn then to the
rather predictable Russian reaction; but next ask whether perhaps the Russians have
some reason for their unhappiness. Finally, I ask whether the Strasbourg Court is in
any event having increasing difficulty in dealing with complex question of
international law, rather than interpretation of the Convention.

However, underlying the Court’s judgment not only in Kononov, but in other cases to
which I refer, notably Ilaşcu and others v Moldova and Russia, and Ždanoka v Latvia,
is not only what the Russians feel – wrongly in my view – to be “Russophobia”; but a

1
Bartul, Snezhana (2010) “Srok zhizhni Evropeiskogo suda mozhet byt sokrashen (The length of life
of the European court may be shortened)” Interview with Pavel Laptev Kommersant 31 May at
http://www.kommersant.ru/doc.aspx?DocsID=1378599 (accessed on 3 March 2011)
2
Schabas, William A. (2010) “Victor’s Justice: Selecting ‘Situations’ at the International Criminal
Court” The John Marshall Law Review 43 pp. 535-552, 536
3
Mälksoo, Lauri (2011) “Kononov v Latvia” American Journal of International Law pp.101-108, 107
4
Mälksoo, Lauri is also the author of "Soviet Genocide? Communist Mass Deportations in the Baltic
States and International Law". Leiden Journal of International Law 14, pp. 757–787
 2

much more troubling campaign, especially by countries of Central and Eastern Europe
to use all means including judicial decisions to condemn communism as such. Thus,
Resolution 1481/2006 of the Council of Europe Parliamentary Assembly (PACE)
adopted on 26 January 2006 "strongly condemns crimes of totalitarian communist
regimes". This resolution was supported by the EPP/CD, ED, liberal groups and some
social democrats, especially from countries like Hungary, the Czech Republic or the
Baltic countries, and was passed by 99 to 42, with 12 abstentions, of 153
parliamentarians out of 317 present.

In an unusually lucid article5, Slavoj Žižek had the following to say:

“It is here that one has to make a choice. The ‘pure’ liberal attitude towards Leftist and
Rightist ‘totalitarianism’ – that they are both bad, based on the intolerance of political and
other differences, the rejection of democratic and humanist values etc – is a priori false. It is
necessary to take sides and proclaim Fascism fundamentally ‘worse’ than Communism. The
alternative, the notion that it is even possible to compare rationally the two totalitarianisms,
tends to produce the conclusion – explicit or implicit – that Fascism was the lesser evil, an
understandable reaction to the Communist threat. When, in September 2003, Silvio Berlusconi
provoked a violent outcry with his observation that Mussolini, unlike Hitler, Stalin or Saddam
Hussein, never killed anyone, the true scandal was that, far from being an expression of
Berlusconi’s idiosyncrasy, his statement was part of an ongoing project to change the terms of
a postwar European identity hitherto based on anti-Fascist unity. That is the proper context in
which to understand the European conservatives’ call for the prohibition of Communist
symbols.”

I return to Žižek in my conclusion.

The Kononov case

The facts of the case were as follows. Vasiliy Kononov was born in Latvia in 1923.
Latvia, which had been part of the Russian Empire since the 18th century, won its
independence from the Soviet Union in 1920, becoming an independent state for the
first time. Kononov had Latvian citizenship until Latvia was incorporated into the
USSR in 1940, following the infamous Molotov-Ribbentrop Pact.

From 1941 until 1944, Latvia was occupied by Nazi Germany. After Germany
attacked the USSR on June 22, 1941, Kononov was recruited to serve in the Red
Army. Kononov was transferred to Russia, where he received a special training for
sabotage operations, and became leader of a group of Soviet partisans.
5
Žižek, Slavoj (2005) “The Two Totalitarianisms” London Review of Books 27(6) pp.8-10, at
http://www.lrb.co.uk/v27/n06/slavoj-zizek/the-two-totalitarianisms
 3

The Nazis immediately began to implement their plan for the elimination of all Jews
and Gypsies in Latvia. The SS were assisted by Latvian collaborators, including the
1,500 members of the infamous Arajs Commando (which alone killed around 26,000
Jews) and the 2,000 or more Latvian members of the SD. By the end of 1941 almost
the entire Jewish population had been killed or placed in the concentration camps. In
addition, some 25,000 Jews were brought from Germany, Austria and
Czechoslovakia, of whom around 20,000 were killed. The Nazis murdered
approximately 85,000 people in Latvia, the vast majority of whom were Jews, many
of them Russian speaking. In 1943 and 1944 two divisions of Waffen-SS were formed
from Latvian conscripts and volunteers to fight with Nazi Germany against the Red
Army.

Former SS fighters are organised in the Latvian Legion, which every year on 16
March, parade, with tacit and sometimes explicit Government support, through Riga.
On 16 March 2010, some 200 former Waffen-SS members marched through Riga, the
capital of Latvia, accompanied by at least 1000 Neo-Nazis and other ordinary
Latvians.6 There was outrage when, on 22 June 2009, the Conservative Party decided
to leave the Centre-Right European Peoples group, to form a new group, the European
Conservatives and Reformists Group, of 55 MEPs, together with Polish and Czech
right-wingers, and the Latvian “For Fatherland and Freedom/Latvian National
Independence Movement” (TB/LNNK), which supports the Latvian Legion march
each year.7 This is the party whose policies have created a large group of Russian
speaking non-citizens – persons many of whom were born in Latvia who hold
“Alien’s Passports”.

The case of Kononov concerned events on 27 May 1944 in the eastern Latvian village
of Mazie Bati on May 27, 1944. The village was at that time controlled by the
German Wehrmacht, but Soviet partisans were operating nearby. Incidentally, it is not
disputed that Kononov’s parents lived in a neighbouring village.

According to the Latvia authorities, Kononov and his unit, wearing Wehrmacht
uniforms, entered the village, where the Latvian inhabitants were preparing to

6
http://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-
holocaust/
7
Jean Eaglesham and Joshua Chaffin “Conservatives unveil anti-federalist European alliance”
Financial Times 23 June 2009, at
http://www.ft.com/cms/s/0/b294fa82-5f8d-11de-93d1-00144feabdc0.html#axzz1FZsbEGbM
 4

celebrate Pentecost. The unit, found weapons in some of them, and killed, in a
gruesome manner, nine villagers, including a woman who was nine months pregnant.

According to Kononov, the attack had been undertaken as an act of retaliation because
villagers had disclosed to the Germans the location of a Soviet reconnaissance unit,
which was then destroyed. Kononov maintained that villagers had been given
weapons by the Germans and were collaborating with them. He also insisted that he
had refused to lead the operation, since the villagers had known him since childhood
and he feared for the safety of his parents who lived in the neighbouring village.

In 1945 following the defeat of Nazi Germany, the USSR once more occupied Latvia,
in my view illegally. Kononov continued to live in Soviet Latvia, and was decorated
for his military activities with the Order of Lenin, the highest distinction awarded in
the USSR. In November 1946 he joined the Communist Party of the Soviet Union.
Subsequently, and until his retirement in 1988, he worked as an officer in various
branches of the Soviet police force. When Latvia again became independent in 1991
following the collapse of the USSR, Kononov reverted to his pre-World War II
Latvian citizenship. In 2000, Kononov was granted Russian nationality by a special
presidential decree.

In 1998, seven years after Latvia's independence was restored, Kononov was charged
with war crimes under Article 68-3 of the 1961 Soviet-Latvian Criminal Code, which
remained in force. Subject, that is, to a law passed on 6 April 1993, which inserted a
new Chapter 1-a, which contained provisions criminalising acts such as genocide,
crimes against humanity or peace, war crimes and racial discrimination. A new
Article 68-3 dealt with war crimes, and reads as follows:

“Any person found guilty of a war crime as defined in the relevant legal conventions, that is to
say violations of the laws and customs of war through murder, torture, pillaging from the civil
population in an occupied territory or from hostages or prisoners of war, the deportation of such
people or their subjection to forced labour, or the unjustified destruction of towns and
installations, shall be liable to life imprisonment or to imprisonment for between three and fifteen
years.”

The same law also inserted Article 6-1 into the 1961 Criminal Code permitting the
retrospective application of the criminal law with respect to crimes against humanity
and war crimes. Neither Schabas nor Mälkoo mention this retrospective amendment.
 5

The case went through all three stages of the Latvian court system. In April 2004, the
Criminal Affairs Division found Kononov guilty of offenses contrary to the 1961
Code as amended in 1993. That court imposed an immediate custodial sentence of one
year and eight months, which Kononov was deemed to have served on the basis of his
pretrial detention. Five months later, the Latvian Supreme Court dismissed Kononov's
appeal. Kononov complained to the Strasbourg Court on 27 August 2004. An
admissibility decision dismissed his claim under Article 6 (fair trial), leaving a
complaint under Article 7 (prohibition of retrospective criminal legislation).

On 24 July 2008 the Chamber delivered a judgment in which it found, by four votes
to three, that there had been a violation of Article 7 and that just satisfaction should be
awarded to the applicant. They had to consider whether a plausible legal basis existed
on which to convict Kononov of war crimes and whether he could reasonably have
foreseen that the conduct of his unit on 27 May 1944 would render him guilty of such
offences. They found that he had legitimate grounds for considering the villagers to be
collaborators with the German forces and, even if they did not satisfy all of the
elements of the definition of combatant, jus in bello did not a contrario automatically
consider them to be “civilians”. On the basis of this legal status of the villagers and
Kononov being a “combatant”, the Chamber found that it had not been demonstrated
that the attack on 27 May 1944 was per se contrary to the laws and customs of war as
codified by the Hague Regulations 1907, or, consequently, a basis for convicting the
applicant as the commander of the unit.

The Grand Chamber accepted that Kononov and his unit were “combatants”. They
considered that by May 1944 war crimes were defined as acts contrary to the laws and
customs of war and that international law had defined the basic principles underlying,
and an extensive range of acts constituting, those crimes. Thus, they said, Kononov’s
actions were capable of amounting to war crimes in 1944, and he could reasonably
have foreseen that consequence.

The President of the European Court of Human Rights, Jean-Paul Costa, led the three-
judge dissent. In their opinion, the retrospective nature of the legislation meant there
was no legal basis for Kononov’s conviction in domestic law. A distinction must be
made between international law as in force at the material time and as it subsequently
emerged and gradually became established, mainly from the time of the Nuremberg
trial, which began in November 1945, and was, and continues to be, of vital
 6

importance in many respects. It was not until after the facts of Kononov’s case that
international law laid down the rules of jus in bello with sufficient precision. They
then made what is in my view a very pertinent point.

The fact that the Nuremberg trial punished ex post facto the persons brought before the
Tribunal does not mean that all crimes committed during the Second World War could be
covered retroactively, for the purposes of Article 7 § 2 of the Convention, by the definition of
war crimes and the penalties attached to them. The “general principles of law recognised by
civilised nations” were, in our opinion, clearly set forth at Nuremberg, and not before – unless
one were to assume on principle that they pre-existed. If so, from what point did they exist?
The Second World War? The First? The War of Secession and the Lieber Code? Is it not, with
all due respect, somewhat speculative to determine the matter in a judgment delivered at the
start of the twenty-first century? This is a question worth asking.

In respect of Article 7, therefore:

(a) the legal basis of the applicant's prosecution and conviction was not
sufficiently clear in 1944;

(b) it was not reasonably foreseeable at that time either, particularly by the
applicant himself;

(c) prosecution of the offence was, moreover, statute-barred from 1954 under
the applicable domestic legislation;

(d) and, as a consequence, the finding that the applicant's acts were not
subject to statutory limitation, thus resulting in his conviction, amounted to
retrospective application of the criminal law to his detriment.

With respect to Bill Schabas, I find Judge Costa’s dissent convincing. In his comment
Marko Milanovic said that while he found “the majority’s approach to be
pragmatically far more palatable, I wonder whether it is the minority’s opinion which
is actually the more intellectually honest.”8

The Russian reaction

Russia’s reaction was perhaps predictable: Russia has an irritating history of accusing
the court of political decisions, and of double standards.

8
Milanovic, Marko (2010) “Was Nuremberg a Violation of the Principle of Legality?” 18 May 2010, at
http://www.ejiltalk.org/was-nuremberg-a-violation-of-the-principle-of-legality/
 7

First off the mark was the official Russian Gazette on 17 May, with the headline
“Soviet partisan Vasiliy Kononov lost his case against Latvia at the Strasbourg Court.9
It pointed to the fact that the Court had found Mr Kononov’s complaint under Article
6 inadmissible, despite the fact he had spent 209 months in detention, and great delays
in the prosecution.

On 18 May 2010 Vadim Radionov asked whether the judgment was a dangerous
precedent.10 Mr Kononov himself said that the judgment was an attempt to reconsider
the decision of the Nuremburg Tribunal, and to re-write the history of World War II.
The Russian Foreign Ministry said that “this was an attempt to cast doubt on a whole
series of decisive political and legal principles worked out as conclusions to World
War II and the consequent regularising in Europe, including bring Nazi war criminals
to responsibility.” The Committee of the State Duma for International affairs
considered the Court’s decision “political” – the first deputy chairman Leonid
Slutskiy said that “the verdict of the majority of the ECtHR in this case has obvious
political colouration”, and was “directed to supporting and defending the line of the
Latvian authorities to review the results of World War II.” He added “This is not only
scandalous for Europe itself, which suffered from the Hitler yoke not less than the
Soviet people, but can also assist in the creation of the negative tendency of acquitting
Nazi Germany of its crimes.”

On 24 May, Mikhail Margelov, chairman of the Committee of the Federation Council,

the Upper House of the Russian Parliament, for International Affairs, wrote in the
Russian Gazette, under the headline “Strasbourg against Nuremburg. Russia must
reconsider the perspectives for its participation in international judicial instances.”11
He asked – “were we, Russian legislators, not hasty in ratifying Protocol 14?”.

On 1 June, in the same newspaper, Leonid Radzikhovskiy wrote under the headline
“In the Europe of the hanged men.”12 According to him, Mr Kononov’s enemies in
Latvia say – you see, the “partisans” were the most common bandits, the German
propaganda was correct, accusing the partisans of murdering pregnant women.

9
http://www.rg.ru/2010/05/17/kononov-anons.html
10
http://www.inosmi.ru/baltic/20100518/159995012.html
11
"Российская газета" - Федеральный выпуск №5189 (110) от 24 мая 2010 г, at
http://www.rg.ru/2010/05/24/kononov.html
12
"Российская газета" - Федеральный выпуск №5196 (117) от 1 июня 2010 г., at
http://www.rg.ru/2010/06/01/kononov.html
 8

On 7 June Aleksandr Mezyaev, Deputy Chief Editor of the Kazan Journal of

International Law wrote in Komosomolskaya Pravda, under the headline “Kononov
against Latvia, or the falsification of history at the highest level.”13 In his view, the
Latvian case was not against Kononov, but against Russia itself. He noted that in the
Chamber judgment, judges from Slovenia, Armenia, Netherlands and Romania were
the majority, against judges from Latvia, Sweden and Iceland. There was quite a
different line-up in the Grand Chamber. In favour of the prosecution of the former
partisan were judges from Germany, Norway, Finland, Greece, Albania and Portugal.
The vote of the British judge was not surprising, while the votes of the Belgian and
Danish judges were absolutely logical. The only illogical position was that of the
judges from Serbia and Montenegro. He reminded his readers of Ilascu v Moldova
and Russia, and the interstate case brought by Georgia arising out of the August 2008
war, and by Poland arising out of Katyn.

On 8 September the Russian Gazette reported Aleksandr Konovalov, the Russian

Minister of Justice, to the effect that Russia may lodge claims against the accomplices
of the Nazis in answer to the case of Kononov.14 He remarked that the ECtHR’s
decision in the case of the partisan Kononov was political. In his opinion neither Mr
Kononov nor his advocate had a serious chance of appealing the decision. However,
he could not exclude the possibility that someone of the people who marauded during
the time of World War II, were now calmly walking the streets of Riga or Talinn. At
the minimum it would be worth seeking out concrete people who committed these
crimes in the war years, in order to lay claims against them. Claims should be laid
against the state authorities which encourage the activities of the so-called heroes,
responsible for the gravest defamation of the memory of the people annihilated in the
USSR.

Is there something in what the Russians say?

Prior to Kononov, the case which upset the Russians the most was Ilaşcu and others v
Moldova and Russia, judgment of the Grand Chamber of 8 July 2004. The relevant
issue was whether the applicants, who suffered at the hands of the authorities of the
breakaway and unrecognised entity “Moldovan Republic of Transdniestria”, came
within the jurisdiction of the Russian Federation, so that Russia could be held

13
http://news.km.ru/kononov_protiv_latvii_ili_falsif
14
http://www.rg.ru/2010/09/08/kononov-anons.html
 9

responsible for the alleged violations (paras 376-7). The Court held that the applicants
came within the jurisdiction of the Russian Federation within the meaning of Article 1
of the Convention, although at the time when the alleged violations occurred the
Convention was not in force with regard to the Russian Federation. With, in my view,
a notable lack of logic, the Court found that the “MRT” remained under the effective
authority, or at the very least under the decisive influence, of the Russian Federation,
and in any event that it survives by virtue of the military, economic, financial and
political support given to it by the Russian Federation.

The Russian judge, Anatoliy Kovler, gave a powerful dissenting opinion15. Kovler is
in the opinion of many one of the best judges on the Strasbourg Court, He is
completely independent. In most cases against Russia, including the first six Chechen
cases, in which I represented the applicants, and the first environmental case against
Russia, Fadeeva, also my case, he was against Russia, and asked searching questions
of the Russian Agent during the oral hearing. His judgment was in Franch – he taught
for some years at the Sorbonne – and started with a quotation from Andrée Lajoie: she
is professor of law at the University of Montreal.

“The frontier between the judicial and the political is not what it was. Nor are
the foundations of legitimacy, still less normativeness, which is becoming
plural and increasingly diffuse.” (A. Lajoie, Jugements de valeurs, Paris, PUF,
1997, p. 207)

Kovler made a series of trenchant criticisms of the majority judgment, as to facts and
also as to the issues of jurisdiction and responsibility, and the Court’s conclusions.
Analysing the evidence with great care, he could not find “in the factual material
concerning the military, political and economic aspects any valid evidence capable of
establishing a limited or continuing intervention by Russia in favour of Transdniestria,
or proof of the “MRT”'s military, political or economic dependence on Russia.”. He
added:

The other argument pleading in favour of the Russian Federation's responsibility, according to the
majority, is that the “MRT” was set up in 1991-92 with the Russian Federation's support. I am
obliged to point out that the birth of the “MRT” was proclaimed on 2 September 1990, more than a
15
On dissenting opinions, including Kovler’s, see Bruinsma, Fred J. (2008) “The Room at the Top:
Separate Opinions in the Grand Chambers of the ECHR (1998-2006)” Ancilla Juris (anci.ch) 2008: 3
at
http://www.anci.ch/lib/exe/fetch.php?media=beitrag:ancilla2008_32_bruinsma.pdf and at
http://www.uu.nl/uupublish/content/RdWRoomatthetopSeparateopinionsECHR.pdf
 10

year before the USSR broke up and Russia attained independence as a sovereign State. Here I am
reminded of La Fontaine: “If it wasn't you, it must have been your brother. – I have no brother. –
Well, it must have been one of your family anyway.”

If I may be forgiven, I will refer also to my own case of Ždanoka v Latvia (application
no. 58278/00). The applicant, Tatyana Zhdanoka, is an ethnic Russian and Jew, a
Latvian citizen and native Latvian speaker, whose family lived for generations in
Latvia, and whose grandparents were murdered by the Nazis.

Under legislation introduced in 1995 just for her, a person who was an active member
of the Communist Party between January and September 1991 could not be a
candidate. In 1998 she was prevented from standing as a candidate for the Latvian
Parliament, the Saeima, and was removed from her seat on the Riga City Council to
which she had been elected in 1997. She complained to Strasbourg. Her case was
found partially admissible on 6 March 2003 and I represented her at the oral hearing
on 15 May 2003. On 17 June 2004 the Chamber decided by five to two that her
permanent ineligibility to stand for election to the Latvian parliament was not
proportionate to the legitimate aims it pursued, that it curtailed her electoral rights to
such an extent as to impair their very essence, and that its necessity in a democratic
society had not been established. Her rights under Article 3 of Protocol 1 (right to free
elections) and Article 11 (freedom of assembly) were found to have been violated. It
should be noted that Latvia failed to find a shred of evidence that Zhdanoka had been
in any way disloyal to independent Latvia. In my view, she performed a great service
for Latvia, by directing the attention of ethnic Russians away from Moscow and
towards Brussels and Strasbourg.

However, Latvia appealed to the Grand Chamber, and I represented Zhdanoka at the
hearing on 1 June 2005. On 16 March 2006, the Grand Chamber, by thirteen to four,
delivered its judgment, holding that her rights had not been violated, and that Latvia
had acted within its “margin of appreciation”. This was a highly controversial
decision, described by Judge Rozakis, a Vice-President of the ECtHR, who led the
dissent, as “dubious” and “obscure”, and in 2007 I published a critical article, arguing
that the majority had forgotten that it is the right of the electors to vote for the
candidate of their choice.16 This article was translated into Russian and published in

16
Bill Bowring “Negating Pluralist Democracy: The European Court Of Human Rights Forgets the
Rights of the Electors” (2007) 11 KHRP Legal Review pp.67-96, at http://www.bbk.ac.uk/law/about/ft-
academic/bowring/negatingpluralistdemocracy
 11

2008 in the leading Russian journal on the ECHR.17 The government failed to prevent
Zhdanoka from standing for the European Parliament following Latvia’s accession to
the EU, and she is now in her second term as an MEP for the party “For Human
Rights in a United Latvia”.

The attentive listener may have noted the date of the judgment. As it transpired, the
Registry Lawyer who had charge of the case and made the first draft of the majority’s
judgment was a passionate Latvian nationalist and anti-Russian. He ensured that the
judgment was delivered on the very day the Latvian Legion march through Riga.
Zhdanoka rightly saw this as a provocation, and did not attend the Court. Outside the
Court he told me in a jocular manner that I should wait to see what he had done to the
case-law.

Suspicions that there is a strong wind blowing against Russia at Strasbourg are
confirmed by a recent article by another Mälksoo, Maria Mälksoo, entitled “The
Discourse of Communist Crimes in the European Memory Politics of World War
II”.18 She is also at the University of Tartu in Estonia, where she is a senior researcher.
Her paper includes the following, cited at length for its special spicy flavour:

Putin has frequently demonstrated the cunning pick-and-choose approach to history that
Russia so commonly entertains whilst engaging with its communist legacy: when useful to
today’s Russia, the country’s direct legal succession from the Soviet Union is emphasised;
when harmful, however, such as in case of admitting to the criminal acts of the previous
regime, Russia’s direct succession from the USSR is refuted.

Russia’s selective remembrance of WWII exemplifies vividly how present concerns determine
which past is remembered and how. For Russia that is resolutely seeking to re-establish its
international position amongst the ‘great powers’ of today, the role of the MRP in sowing the
seeds of WWII as well as leading to the ultimate subjugation of Eastern Europe under the
Soviet yoke is largely irrelevant for it conflicts with Russia’s ‘usable remembrance’ of the
war. Focusing on the Soviet Union’s hugely costly victory over Nazism instead enables

17
Bill Bowring “Pozitsiya Yevropeiskovo Suda po Pravam Cheloveka v Voprose ob Izbiratelnikh
Pravakh Grazhdan v Kontekste Latviiskoi Praktiki: Kriticheskii Vzglyad (The European Court of
Human Rights and the Question of the Electoral Rights of the Citizen in the Context of Latvian
Practice: Critical Comments)” v.6(27) (2008) Pravo Cheloveka: Praktika Yevropeiskovo Suda po
Pravam Cheloveka (Human Rights: Practice of the European Court Human Rights) pp.28-80
18
Maria Mälksoo “The Discourse of Communist Crimes in the European Memory Politics of World
War II” Paper presented at the Ideology and Discourse Analysis conference Rethinking Political
Frontiers and Democracy in a New World Order, Roskilde University, Denmark, 8-10 September
2008, at
http://www.icds.ee/fileadmin/failid/Maria_Malksoo_on_criminalising_communism.pdf
 12

Putin’s regime to position Russia firmly amongst the ‘normal’ European countries. The
attempts to institutionally monopolise and fix certain meanings of the past further demonstrate
that the ‘interpretation wars’ over the past events are substantially struggles over power – as
the control over the narratives of the past facilitates control over the construction of further
narratives for an imagined future. Hence, the Russian political elites’ maintenance of the
narrative of the Baltic states’ voluntary joining with the Soviet Union consequently allows it
to shed its responsibility for the communist crimes in the region as well as to demand full
citizenship and political rights for the Russians living there since the Soviet period.

Problems of the Strasbourg Court

Leaving aside the issue of Russian complaints, justified or not, there is evidence that
the Court really does have a problem when it ventures out of its primary role of
interpreting and applying the Convention, into complex issues of international law.

The present nadir is the Grand Chamber judgment of 31 May 2007 in Behrami v.
France (application no. 71412/01) and Saramati v. France, Germany and Norway
(no. 78166/01), on the attribution of state responsibility for the actions of forces in
Kosovo: the complaints were held to be inadmissible. Heike Krieger, for example,
wrote of “A Credibility Gap”19, while Aurel Sari wrote that the Court “sidestepped the
central issue”, and that its “reasoning regarding the attribution of KFOR’s conduct to
the UN suffers from serious shortcomings. In particular, the Court failed to fully
comprehend the legal relationship between KFOR and the UN, and misapplied the
rules governing the responsibility of international organisations.” If this precedent is
followed, it “could create a void in the protection of human rights under the ECHR.”
20

Alexander Breitegger has also written a strong critique, “Sacrificing the Effectiveness
of the European Convention on Human Rights on the Altar of the Effective
Functioning of Peace Support Operations”, taking the Court to task for its “restrictive
and legally flawed stance”.21 For Marko Milanovic and Tatjana Papic, writing in the
ICLQ, the judgment is “as bad as it gets.”22 This is the consensus.
19
Heike Krieger “A Credibility Gap: The Behrami and Saramati Decision of the European Court of
Human Rights” Journal of International Peacekeeping 13 (2009) pp. 159–180
20
Aurel Sari “Jurisdiction and International Responsibility in Peace Support Operations:The Behrami
and Saramati Cases” Human Rights Law Review (2008) 8 (1): 151-170.
21
Breitegger, Alexander (2009) “Sacrificing the Effectiveness of the European Convention on Human
Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami &
Saramati and Al Jedda” International Community Law Review, 11(2) pp: 155-183
22
Milanovic, Marko and Papic, Tatjana (2009) “As Bad as it Gets: The European Court of Human
Rights' Behrami and Saramati Decision and General International Law” International and
Comparative Law Quarterly 58(2) pp. 267-296, and at
 13

My own view is that with Kononov, it got worse.

Conclusion

I end where I started. Kononov v Latvia is not a great victory for Nuremburg and the
IMT. It is symptomatic of an acute crisis facing the Strasbourg Court as, increasingly,
it finds itself obliged to engage with highly political issues, and complex questions of
international law.

Also at stake in this case is the campaign now waged by Poland, the Czech Republic,
Hungary and the Baltic states to commit the European institutions not only to a
condemnation of the crimes of Stalin, for crimes they were, but to the moral
equivalence of Soviet communism and fascism. Slavoj Žižek has given in my view an
accurate rejoinder:

“…the difference between the Nazi and Stalinist universes is clear, just as it is when we recall
that in the Stalinist show trials, the accused had publicly to confess his crimes and give an
account of how he came to commit them, whereas the Nazis would never have required a Jew
to confess that he was involved in a Jewish plot against the German nation. The reason is
clear. Stalinism conceived itself as part of the Enlightenment tradition, according to which,
truth being accessible to any rational man, no matter how depraved, everyone must be
regarded as responsible for his crimes. But for the Nazis the guilt of the Jews was a fact of
their biological constitution: there was no need to prove they were guilty, since they were
guilty by virtue of being Jews.”

I agree that it is precisely at this point that a stand must be taken.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1216243##
 14

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 15

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