Tuesday 18 May 2010

Kononov Revisited: No Violation of ECHR

History may repeat itself, but may also reverse itself. Vasiliy Kononov, an admired war hero in communist times for going behind enemy lines in WW II and taking action against alleged Nazi collaborators, was - after the fall of communism in Latvia - found guilty of war crimes. His partisan unit, part of the Red Army, had killed nine unarmed villagers. He went on to take his case to Strasbourg, were in 2008 a Chamber of the European Court of Human Rights, with a slight margin of four against three votes, had found that his conviction in Latvia contravened Article 7 ECHR (no punishment without law). At the time of the events, the Court held, the actions had not been contrary to international humanitarian law. See my earlier post on the Chamber's judgment here.

Subsequently, Latvia asked for a re-assessment of the case by the Grand Chamber of the Court, which issued its judgment yesterday. The Grand Chamber came to an opposite conclusion and ruled by fourteen votes to three that there had been no violation of Article 7. According to the Grand Chamber there had been a sufficiently clear legal basis, even at the time of the events in 1944, for the crimes of which Kononov was convicted. In the case it was debated whether the villagers should be seen as mere civilians or rahter as combatants who had received arms from the occupying Nazis. The Court held that, even if it were assumed that the villagers were combatants, that they were not carrying arms at the moment of the attack on the village and thus should have been allowed to surrender instead of being killed. Nor were the crimes committed decades ago statute-barred by any rule of international law. Finally, the Court held (in para. 238 of the judgment) that "having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27May 1944, even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable." By contrast, the dissenting judges, were of the opinion that clarity on the issue only came into existence with the Nuremberg trials after the war.

The case is a politically very sensitive one. Kononov acquired Russian nationality during the criminal proceedings in Latvia and Russia intervened twice on his behalf during the proceddings in Strasbourg. The first reactions from Russia are furious, accusing the Court of siding with the Nazis and of destroying the legacy of the Nuremberg trials. See this article in the Voice of Russia for an overview of reactions. Click here for the post of William Schabas on the case - he was one of the counsels on behalf of the Latvian government. As with the earlier Chamber judgment I am curious to hear what other specialists in international humanitarian law and criminal law think of the case.