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Earlier this week we talked about how Article 7 of the European Convention on Human Rights (ECHR) protects our right not to be punished for something which wasn’t a crime at the time we acted. Today, we examine its application in the European Court of Human Rights (ECtHR) case of Vasiliauskas v. Lithuania. Vasiliauskas, a Soviet Security Officer, was convicted of genocide as a result of his involvement in the “liquidation” of two Lithuanian partisans. While he never denied being involved in the operation that killed the men, he argued that the crime he was convicted of did not exist when he carried it out.
Genocide
Genocide is an evocative word. Seyla Benhabib describes it as the “destruction of human variety.” Formally, the Genocide Convention of 1948 defines the crime as follows:
[A]ny of the following … with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing Serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
I have argued elsewhere that the forced sterilisation of Roma women in Slovakia potentially constituted genocide. However, my conclusion was tentative because, as the reader will have noticed, the crime requires the specific intention to destroy the group in whole or in part – a high threshold. So high, in fact, that the International Court of Justice (ICJ) found last year that despite the slaughter of ethnic Croatians by Serbia and vice versa, neither side was guilty of genocide because they lacked specific intention.
Nonetheless, the word has acquired a “peculiar political magic” and is often invoked to energise debates around the gravity of particular atrocities and prompt political players to act. This politicisation seeped into the courtroom in 2007 when the ICJ – asked by Bosnia and Herzegovina to find that Serbia and Montenegro had committed genocide against Bosnia’s Muslim population – handed down their judgement. Nikolas Rajković describes how the claim was filed in the early stages of the Bosnian war in an effort to use the ICJ as a “conduit through which to gain political and military support.” He adds that the Court was stuck between a “’legal rock’ and a political ‘hard place’”.
In a similar fashion, the judges of the ECtHR were wedged between powerful competing interests last year in the Vasiliauskas case to which we now turn our attention.
The case of Mr Vasiliauskas
Vytautas Vasiliauskas was a member of the Ministry for State Security (MGB) of the Union of Soviet Socialist Republics (USSR), which occupied Lithuania between 1944-1990. During that time, a nation-wide movement of partisans sought, via both armed and unarmed resistance, to re-establish an independent Lithuania.
On 2 January 1953, Mr Vasiliauskas was deployed as part of an operation to capture or kill two such partisans. The targets were ultimately shot and killed and the head of the MGB in the area confirmed Vasiliauskas’s contribution to the successful “liquidation” of the two individuals.
After regaining her independence, Lithuania convicted Vasiliauskas of genocide for his role in an organisation that aimed to eradicate the partisans as a “separate political group.” Immediately, this is problematic because – as we saw above – the definition of genocide only covers “national, ethnical, racial and religious groups” and omits “political” and “social” groups from its ambit.
In 2004 the Court of Appeal upheld his conviction, but, crucially, they added that the Lithuanian partisans were also a representative part of a national and ethnic group (namely, Lithuanians) and were therefore protected under the Genocide Convention.
The Supreme Court upheld the conviction again and Mr Vasiliauskas decided to take his case to Strasbourg.
A judicial rift
The European Court were divided. The bare majority found for the applicant because, while genocide was clearly criminal at the time of Vasiliauskas’s actions, neither “political” nor “social” groups were included in that definition. Therefore, they said that, even with the help of a lawyer, he could not have predicted a conviction for committing genocide against such a group.
Secondly, they interpreted the words “in part” restrictively, finding that at the time the Genocide Convention was created it required there to be a substantial number of victims before genocide could be made out. While the law has since changed to include small groups which are representative of the whole, the Chamber decided that Vasiliauskas could not have predicted at the time that the definition would include the destruction of small groups of people, however important a role they played in the larger national or ethnic group.
Eight of the 17 judges disagreed and their critique was biting. Most ferocious of all was the individual dissent of Judge Kūris. It deserves to be quoted at length:
It is obvious that the occupied Lithuanian nation did not joyfully embrace the occupation with open arms. It is obvious that the repressions of Lithuanians by the occupying regime were on a massive scale. It is obvious that the resistance against the occupation was nation-wide. It is obvious that the partisans were the spearhead of the resistance … It is obvious that their main goal – an independent Lithuania – was also the main goal of the Lithuanian nation. And it is obvious that by performing the function of defenders of independence … the partisan movement represented the body and the spirit of the Lithuanian nation.
… [W]hat meaning have we given to their deaths by this miserable judgement?
The common thread running through the 30-odd pages of dissent was that the majority had rejected the obvious and clear conclusion that the partisans, in their fight for an independent Lithuania, were an emblematic and representative part of the Lithuanian nation. Therefore, by killing key members of the partisan movement, Vasiliauskas, even in 1953, could have predicted a conviction for genocide.
Some thoughts
While it is clear that political and social groups were intentionally left out of the Genocide Convention, it is not a great leap from the original definition to find that the destruction of a crucial “part” of a national group can constitute genocide where the intention is to cripple the group itself. In this respect, the International Criminal Tribunal for the Former Yugoslavia (ICTY) importantly found in Prosecutor v. Krstić that the intent to destroy the group “will always be limited by the opportunity presented to [the perpetrator].”
But to attempt to understand this case through the lens of the law alone is futile. In my view it was a decision rooted not in legal nuance but in politics. In this respect, it is telling that the Russian Federation, who intervened in the case, asserted the following:
[t]he Russian Government objected to what they considered to be a blatant distortion of historical realities and the obvious intention of the Baltic Governments to modify history in accordance with their own preferences …
To repeat the phrase a final time, the Court was wedged between a legal rock and a political hard-place. It found itself embroiled in the history of the USSR occupation of Lithuania, a history dense with conflicting accounts. Lithuania alleged that the USSR were the genocidaires, while Russia and the applicant asserted that the partisans were Nazi sympathisers and an illegitimate insurgency. For the ECtHR to find that genocide had occurred in Lithuania would have been monumentally politically divisive.
However, they must now bear the consequences of their decision to interpret both Article 7(1) and the phrase “in part” in the Genocide Convention so strictly. The findings may yet have important ramifications far beyond the walls of the Grand Chamber. As Alexander Garland highlights, it creates difficulties for the Extraordinary Chambers in the Courts of Cambodia (ECCC) which could now find that “in part” did not include small and representative portions of the group during the reign of the Khmer Rogue (1975-1979) – restricting the Court’s ability to prosecute individuals for the crime of genocide.
On the other hand, the Grand Chamber were so heavily divided that very little weight might ultimately be placed upon their decision.
Only time will tell.