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Human rights court overturns war crimes ruling

July 25, 2008

In a 4-3 decision, the European Court of Human Rights (ECHR) has awarded EUR 30,000 compensation to a former Soviet soldier accused of war crimes allegedly committed in 1944 in Latvia.

The court ruled that while Vassili Makarovich Kononov may have been involved in the killing of civilians, there was no basis in law for charging and convicting him for war crimes. Inete Ziemele of Latvia, one of the seven judges, sided with those writing a dissenting opinion in the July 24 judgment issued at the court in Strasbourg, France.

The award is far less than the EUR 5 million the ex-soldier’s lawyer at one point said his client would win.

The case began in 1998 when Kononov, who was born in Latvia in 1923, was charged with war crimes stemming from a May 27, 1944, operation by Soviet commandos at Mazie Bati, near Kārsava in eastern Latvia. Nine civilians—six men and three women, one of whom was pregnant—were killed. The men, all heads of families, were executed on suspicion of collaborating with German forces, including reporting the location of Soviet partisans who were subsequently killed.

An investigation by the Centre for the Documentation of the Consequences of Totalitarianism (Totalitārisma seku dokumentēšanas centrs) determined that Kononov had been in charge of the attack, but Kononov said he had not led the unit nor had he entered the village. The Rīga Regional Court convicted Kononov of war crimes, but in 2000 the judgment was overturned.

After a second investigation, Kononov again was charged with war crimes. The Latgale Regional Court in 2003 acquitted him of those charges, but found him guilty of a lesser charge. In military terms the deaths of the six men may have been justified, the Latgale court found, but killing the three women and setting fire to the village amounted to banditry.

Latvia’s Prosecutor General appealed the judgment to the country’s Supreme Court, which in 2004 overturned the regional court and found Kononov guilty of war crimes. The former Soviet fighter appealed, but lost.

Kononov brought the case to European Court of Human Rights in August 2004.

In its judgment, the human rights court said the only law covering war crimes that was in force at the time of the Mazie Bati operation was the Hague Convention of 1907—and neither Latvia nor the Soviet Union had signed the convention. Other laws on war crimes appeared only after the Mazie Bati incident. Kononov, the court said, “could not reasonably have foreseen on 27 May 1944 that his acts amounted to a war crime under the international rules governing conduct in war applicable at the time.”

The ECHR also questioned whether the six men who were executed by the commandos could be considered civilians. The men—Ambrozs Buļs, Meikuls Krupniks, Modests Krupniks, Bernards Šķirmants, Juliāns Šķirmants and Vladislavs Šķirmants—were not part of the military or of the Latvian auxiliary police, but they had received rifles and grenades from the Germans, the court said.

Regarding the deaths of the three women—Meikuls Krupniks’ pregnant wife and his mother, as well as Bernards Šķirmants’ wife—the ECHR criticized the Latvian courts for what it called the “overly general and summary nature” of their reasoning. It is not clear, the ECHR said, if the three women also collaborated with German forces and thus their civilian status could be questioned, or if their deaths were the result of an “abuse of authority” by the commandos. If the latter, the court said, no evidence exists that Kononov was involved in killing them.

Ziemele, the ECHR judge from Latvia, joined Elisabet Fura-Sandström of Sweden and David Thór Björgvinsson of Iceland in dissenting from the majority.

The majority, they wrote, ignored how the Hague Convention clearly discerns between combatants and non-combatants. Given what the convention and other international “normative developments” said about the conduct of war at the time, “to murder members of the civilian population of a hostile nation without any apparent military necessity was a war crime,” Ziemele, Fura-Sandström and Björgvinsson wrote.

In a separate dissent, Björgvinsson went further, blasting the majority for going beyond consideration of legal questions and instead reinterpreting crucial facts. It is useful, he wrote, to remember that Latvia was the victim of hostile occupation from 1940-1991. Nazi Germany and the Soviet Union fought each other on Latvian territory, and the Soviet Union’s aim was not to liberate Latvia but to regain control over it.

“History teaches us,” Björgvinsson wrote, “that such a situation facilitates conditions of war where both powers are inclined to be on the look out for likely collaborators with the enemy among the people of the occupied territory and use their own criteria—military, political or otherwise—to determine who should or should not be considered a collaborator, in accordance with their own aims and interests.”

Latvia’s Foreign Minister Māris Riekstiņš said in a July 25 press release that he will ask the government to appeal the decision to the ECHR’s Grand Chamber. Unlike the seven-member Chamber, the Grand Chamber consists of 17 judges.

Andris Straumanis is a special correspondent for and a co-founder of Latvians Online. From 2000-2012 he was editor of the website.

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