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?

8/7/2019 The ECtHR Grand Chamber in Kononov v Latvia (17 May 2010): is the Russian Federation correct in its understandi

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2nd Biennial War Crimes Conference 2011

Bill Bowring, Birkbeck College

The ECtHR Grand Chamber in Kononov v Latvia (17 May 2010): is the RussianFederation correct in its understanding of the relationship between politics andinternational 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 trial2, and for Lauri Mlksoo, 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 Kononovs 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 Courts judgment not only in Kononov, but in other cases to

which I refer, notably Ilacu and others v Moldova and Russia, and danoka 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 lifeof the European court may be shortened) Interview with Pavel Laptev Kommersant 31 May athttp://www.kommersant.ru/doc.aspx?DocsID=1378599(accessed on 3 March 2011)2 Schabas, William A. (2010) Victors Justice: Selecting Situations at the International CriminalCourt The John Marshall Law Review 43 pp. 535-552, 5363

Mlksoo, Lauri (2011) Kononov v Latvia American Journal of International Law pp.101-108, 1074 Mlksoo, Lauri is also the author of "Soviet Genocide? Communist Mass Deportations in the BalticStates and International Law". Leiden Journal of International Law 14, pp. 757787

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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 iek 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 andother 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

Berlusconis 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 understandthe European conservatives call for the prohibition of Communist

symbols.

I return to iek 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 iek, Slavoj (2005) The Two Totalitarianisms London Review of Books 27(6) pp.8-10, athttp://www.lrb.co.uk/v27/n06/slavoj-zizek/the-two-totalitarianisms

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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.7This 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

Aliens 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 theGerman Wehrmacht, but Soviet partisans were operating nearby. Incidentally, it is not

disputed that Kononovs 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

6http://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 allianceFinancial Times 23 June 2009, athttp://www.ft.com/cms/s/0/b294fa82-5f8d-11de-93d1-00144feabdc0.html#axzz1FZsbEGbM

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http://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-holocaust/http://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-holocaust/http://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-holocaust/http://www.ft.com/cms/s/0/b294fa82-5f8d-11de-93d1-00144feabdc0.html#axzz1FZsbEGbMhttp://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-holocaust/http://clemensheni.wordpress.com/2010/03/22/riga-viktor-arajs-march-16-the-latvian-legion-and-the-holocaust/http://www.ft.com/cms/s/0/b294fa82-5f8d-11de-93d1-00144feabdc0.html#axzz1FZsbEGbM


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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 inthe 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 civilpopulation 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 Mlkoo mention this retrospective amendment.

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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 existedon 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 basisfor 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, Kononovsactions 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 Kononovs 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 Nurembergtrial, which began in November 1945, and was, and continues to be, of vital

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importance in many respects. It was not until after the facts of Kononovs 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 theTribunal 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 Costas dissent convincing. In his comment

Marko Milanovic said that while he found the majoritys approach to be

pragmatically far more palatable, I wonder whether it is the minoritys opinion which

is actually the more intellectually honest.8

The Russian reaction

Russias 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, athttp://www.ejiltalk.org/was-nuremberg-a-violation-of-the-principle-of-legality/

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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 Kononovs 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 criminalsto responsibility. The Committee of the State Duma for International affairs

considered the Courts 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 headlineIn the Europe of the hanged men.12 According to him, Mr Kononovs 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.html10http://www.inosmi.ru/baltic/20100518/159995012.html11 " " - 5189 (110) 24 2010 , at

http://www.rg.ru/2010/05/24/kononov.html12 " " - 5196 (117) 1 2010 ., athttp://www.rg.ru/2010/06/01/kononov.html

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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 ofIlascu 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 ECtHRs

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 Ilacu 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_falsif14 http://www.rg.ru/2010/09/08/kononov-anons.html

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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 Chechencases, 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 Andre 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 becomingplural 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 Courts 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 Kovlers, 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

athttp://www.anci.ch/lib/exe/fetch.php?media=beitrag:ancilla2008_32_bruinsma.pdf and athttp://www.uu.nl/uupublish/content/RdWRoomatthetopSeparateopinionsECHR.pdf

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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 ofdanoka 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.16This article was translated into Russian and published in

16

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

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2008 in the leading Russian journal on the ECHR.17 The government failed to prevent

Zhdanoka from standing for the European Parliament following Latvias 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 majoritys

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 Mlksoo, Maria Mlksoo, entitled The

Discourse of Communist Crimes in the European Memory Politics of World War

II.18She 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 totodays Russia, the countrys 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, Russias direct succession from the USSR is refuted.

Russias 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 theSoviet yoke is largely irrelevant for it conflicts with Russias usable remembrance of the

war. Focusing on the Soviet Unions hugely costly victory over Nazism instead enables

17 Bill Bowring Pozitsiya Yevropeiskovo Suda po Pravam Cheloveka v Voprose ob IzbiratelnikhPravakh Grazhdan v Kontekste Latviiskoi Praktiki: Kriticheskii Vzglyad(The European Court ofHuman Rights and the Question of the Electoral Rights of the Citizen in the Context of LatvianPractice: Critical Comments) v.6(27) (2008) Pravo Cheloveka: Praktika Yevropeiskovo Suda poPravam Cheloveka (Human Rights: Practice of the European Court Human Rights) pp.28-8018 Maria Mlksoo The Discourse of Communist Crimes in the European Memory Politics of WorldWar 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 September2008, athttp://www.icds.ee/fileadmin/failid/Maria_Malksoo_on_criminalising_communism.pdf

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Putins 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 thenarrative 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 Gap19, while Aurel Sari wrote that the Court sidestepped the

central issue, and that its reasoning regarding the attribution of KFORs conduct to

the UN suffers from serious shortcomings. In particular, the Court failed to fullycomprehend 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 restrictiveand 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 ofHuman Rights Journal of International Peacekeeping13 (2009) pp. 15918020 Aurel Sari Jurisdiction and International Responsibility in Peace Support Operations:The Behramiand Saramati Cases Human Rights Law Review (2008) 8 (1): 151-170.21 Breitegger, Alexander (2009) Sacrificing the Effectiveness of the European Convention on HumanRights 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: 155-18322

Milanovic, Marko and Papic, Tatjana (2009) As Bad as it Gets: The European Court of HumanRights' Behrami and Saramati Decision and General International Law International andComparative Law Quarterly 58(2) pp. 267-296, and at

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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 iek 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##

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References

Bartul, Snezhana (2010) Srok zhizhni Evropeiskogo suda mozhet byt sokrashen (Thelength of life of the European court may be shortened) Interview with Pavel LaptevKommersant31 May at http://www.kommersant.ru/doc.aspx?DocsID=1378599.

Bodeau-Livinec, Agim Pierre, Buzzini, Gionata P., Villalpando, Santiago (2008)Behrami & Bekir Behrami v. France; Ruzhdi Saramati v. France, Germany &Norway. Joined App. Nos. 71412/01 & 78166/01 American Journal of InternationalLaw, v.102 n.2 (2008) pp. 323-331

Bowring, Bill (2007) Negating Pluralist Democracy: The European Court Of HumanRights Forgets the Rights of the Electors 11 KHRP Legal Review pp.67-96

Breitegger, Alexander (2009) Sacrificing the Effectiveness of the EuropeanConvention on Human Rights on the Altar of the Effective Functioning of PeaceSupport Operations: A Critique ofBehrami & Saramati and Al Jedda InternationalCommunity Law Review, 11(2) pp: 155-183

Bruinsma, Fred J. (2008) The Room at the Top: Separate Opinions in the GrandChambers of the ECHR (1998-2006) Ancilla Juris (anci.ch) 2008: 3 athttp://www.anci.ch/lib/exe/fetch.php?media=beitrag:ancilla2008_32_bruinsma.pdfand athttp://www.uu.nl/uupublish/content/RdWRoomatthetopSeparateopinionsECHR.pdf

Farrior, Stephanie (2007) Comment on Behrami and Behrami v France and Saramativ France, Germany & Norway (31 May 2007) Vermont Law School Legal StudiesResearch Paper Series Research Paper No. 09-23 at http://ssrn.com/abstract=1417982

Krieger, Heike (2009) A Credibility Gap: The Behrami and Saramati Decision of the

European Court of Human Rights Journal of International Peacekeeping13 (2009)pp. 159180

Margelov, Mikhail (2010) Strasbourg against Nuremburg. Russia must reconsiderthe perspectives for its participation in international judicial instances 24 MayRossisskaya Gazeta at http://www.rg.ru/2010/05/24/kononov.html

Mezyaev, Aleksandr (2010) Kononov against Latvia, or the falsification of history atthe highest level. 7 June Komosomolskaya Pravda athttp://news.km.ru/kononov_protiv_latvii_ili_falsif

Mlksoo, Maria (2008) The Discourse of Communist Crimes in the EuropeanMemory Politics of World War II Paper presented at the Ideology and DiscourseAnalysis conference Rethinking Political Frontiers and Democracy in a New WorldOrder, Roskilde University, Denmark, 8-10 September 2008, athttp://www.icds.ee/fileadmin/failid/Maria_Malksoo_on_criminalising_communism.pdf

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

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Sari, Aurel (2008) Jurisdiction and International Responsibility in Peace SupportOperations: The Behrami and Saramati Cases Human Rights Law Review 8 (1) pp.151-170

Schabas, William A. (2010) Victors Justice: Selecting Situations at theInternational Criminal Court The John Marshall Law Review 43 pp. 535-552

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Documents

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?