TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The applicant gave the order to protect the woman and he did not involve in the armed encounter.
AP1 (Applicant): The woman confirmed that all the other soldiers participated in the conflict.
AP1 (Applicant): The applicant complied with the order and the woman was protected.
AP1 (Applicant): Under military rules, he did not participate in the battle because the applicant's commanders had not ordered to him participate there.
AP1 (Applicant): I have to notice that the state must prove their guilt based on applicable laws and evidence rather than abstract reasoning or disagreement with the applicant's assertions.
AP1 (Applicant): For instance, the government brothers' collaboration with the Nazis is denied a one-page statement rather than a serious investigation.
AP1 (Applicant): However, the sheer number of people killed civilians exceeded more than 1,000 victims.
AP1 (Applicant): Finally, neither the government nor anyone else can challenge the thousands of Lithuanian young men and women who have fought for Lithuania's and its people's freedom and purpose, that Lithuania should be a democratic state.
AP1 (Applicant): They really did not want any alliance whose politicians responsible for the destruction and suffering of their citizens was revered as saints.
AP1 (Applicant): I think they had hoped that in Lithuania, human rights and freedoms, including the applicants, would be respected.
AP1 (Applicant): No one can be convicted without law and not according to the law.
AP1 (Applicant): Therefore, the application of the applicant, Mr. Vasiliauskas, against Lithuania, dated on 26 July 2005,
AP1 (Applicant): is reasonable, and I hereby request to satisfy it because Lithuania violated the Article No. 7
AP1 (Applicant): of the European Convention on Human Rights.
AP1 (Applicant): The damage must be compensated.
AP1 (Applicant): The damage, according to applicants' claims, must be compensated from the Republic of Lithuania.
AP1 (Applicant): If I've done any mistake, these mistakes are mine, but not my clients.
Dean Spielmann (JudgeP): Thank you Mr. Vilčinskas, as I turn now to the judges, are there any questions?
Dean Spielmann (JudgeP): Judge Power-Forde.
Ann Power-Forde (Judge): I have a question to put to the representatives of the government.
Ann Power-Forde (Judge): And of course, the applicant is free to comment by way of reply.
Ann Power-Forde (Judge): I appreciate the distinction that was drawn between the resolution number 96 adopted by the United Nations in 1946 and the subsequent UN Convention on Genocide two years later.
Ann Power-Forde (Judge): The former being declaratory, as you say, and the latter imposing major legal obligations upon states.
Ann Power-Forde (Judge): I also appreciate the number of incidents or the number of instruments that you cited in terms of what had already transpired by the time this applicant had committed the acts in question.
Ann Power-Forde (Judge): But what I would like your observations on, I'd like you to address the court on the applicability, if at all, of international case law on the meaning of the phrase within Article 2 of the 48 Convention, in whole or in part.
Ann Power-Forde (Judge): We see from the court of appeal's judgment that it regarded the partisans as part of a protected group, namely the nation.
Ann Power-Forde (Judge): And I would like to if you could address the court on the international case law and its applicability, if any, to the facts of this case in terms of the phrase in whole or in part.
Dean Spielmann (JudgeP): Judge Ziemele.
Ineta Ziemele (Judge): Indeed, a question to the government, but the applicant also is welcome to express his position.
Ineta Ziemele (Judge): It is a follow-up to Judge Power-Forde's question, and it concerns the fact that we have two victims in the case.
Ineta Ziemele (Judge): And the question is, indeed, from the case file, it doesn't clearly transpire in what manner the domestic courts, if at all, address the quantitative aspect of the circumstances.
Ineta Ziemele (Judge): Or am I right in understanding the government's submissions that there was, in the legal reasoning, a switch to the qualitative aspect, meaning the belonging to the protected group?
Ineta Ziemele (Judge): So what difference did it make that there were attacks on two, allegedly on two partisans?
Ineta Ziemele (Judge): And if you would maybe present, from the reasoning of the domestic courts, how this was addressed.
Paulo Pinto de Albuquerque (Judge): A question addressed to Professor Schabas, and of course, the applicant can also reply to this.
Paulo Pinto de Albuquerque (Judge): You have presented to us evidence that in 1953, there was already a principle of criminalization, of persecution and extermination of political groups.
Paulo Pinto de Albuquerque (Judge): And that evidence cited by you was the declaration of the United Nations General Assembly in 1946 and the position of the Soviet Union in that same General Assembly in 1946 and 1948.
Paulo Pinto de Albuquerque (Judge): My question is, having in account that political genocide is not included in the Genocide Convention, the ICTR statute, the ICTY statute, the Rome Treaty of the International Criminal Court, the statute of the Special Panel for East Timor, and the extraordinary chambers in Cambodia, having in account all this history of criminal international law, can we still say, can we still argue that there is a customary norm of criminalization of political genocide?
Paulo Pinto de Albuquerque (Judge): My second question addresses the ethnic genocide, the other perspective under which the case can be dealt with.
Paulo Pinto de Albuquerque (Judge): In fact, it is the position of the respondent government and the domestic courts.
Paulo Pinto de Albuquerque (Judge): The Court of Appeal has stated clearly in its judgment that the facts can be understood as a form of ethnic genocide.
Paulo Pinto de Albuquerque (Judge): The Supreme Court accepted that point of view.
Paulo Pinto de Albuquerque (Judge): And recently, the Constitutional Court confirmed that point of view.
Paulo Pinto de Albuquerque (Judge): Can you, Professor Schabas, envisage the killing of these two brothers as a part of this selective ethnic genocide insofar that it targeted groups of people, partisans, farmers, small property owners, intellectual elite, priests, public officials, which were selected for the impact that their disappearance would have upon the survival of the lithuanian  nation as such?
Paulo Pinto de Albuquerque (Judge): So my question does not address the development of case law as Judge Power's question.
Paulo Pinto de Albuquerque (Judge): Mine is a little bit different, is on your views about the assessment of this case under ethnic genocide, under the perspective of an ethnic genocide.
Dean Spielmann (JudgeP): Thank you, Judge Sajó.
András Sajó (Judge): My question concerns basically specific intent.
András Sajó (Judge): The International Court of Justice, among others, in the Bosnia-Herzegovina versus Serbia-Montenegro case refers to the requirement of specific intent.
András Sajó (Judge): My first question is whether the government is of the view that this is a constitutive element of the crime of genocide.
András Sajó (Judge): Secondly, in the domestic judgment, there is an expression which is translated as direct intent.
András Sajó (Judge): Allow me to quote the original "tiesioginė tyčia".
András Sajó (Judge): I wonder whether this is the same as specific intent, and if not, what is the relation between the two?
András Sajó (Judge): I ask this with a specific background assumption in mind, or actually I don't have an assumption, but I would like a specific clarification.
András Sajó (Judge): The applicant claimed that on the one hand, the action, the impound action, cannot be genocide because this was an action against members of a partisan army, and there can be no genocide of a partisan army.
András Sajó (Judge): This is a question that requires answer.
András Sajó (Judge): And secondly, if this was the intention of the MGB operation or the Soviet occupying forces, then how is this satisfying the requirement of specific intent required in the context of genocide?
András Sajó (Judge): Moreover, is specific genocide a matter of personal knowledge, or is this a specific intent of the group of which the applicant was part of?
András Sajó (Judge): The applicant claims that the MGB actions were directed against fascists and nationalists, and I think it's fair to say that it was also part of what the Soviet authorities called a class war.
András Sajó (Judge): So I wonder whether the activities of the MGB were referring to specific intent to carry out action to satisfy these goals, or these goals fall under specific intent required by a certain interpretation of the Genocide Convention.
András Sajó (Judge): A very technical question, completely unrelated, just to be on the safe side, the Constitutional Court judgment gives reference to a number of applications.
András Sajó (Judge): I assume that none of these applications, or none of the applicants to the Constitutional Court is the applicant present here.
Dean Spielmann (JudgeP): Thank you. I have two questions, one to both parties and one to Mr. Schabas.
Dean Spielmann (JudgeP): First to both parties, we know that the applicant has been convicted of genocide.
Dean Spielmann (JudgeP): My question would be, could the applicant have been prosecuted for any other offence?
Dean Spielmann (JudgeP): And if you could also give some explanations as to the effect of time limits, potential time limits, prescription periods.
Dean Spielmann (JudgeP): My second question is directed to Professor Schabas, and it's a follow-up question to Judge Paulo Pinto de Albuquerque's question.
Dean Spielmann (JudgeP): Is it your submission, Professor Schabas, that the presence of political groups within the 1946 definition, I refer to the General Assembly Resolution 96, suggests the existence of a broader concept of genocide under customary law than that expressed in the 1948 Convention?
Dean Spielmann (JudgeP): So if there are no other questions, I would suggest that we have a break until another question.
Dean Spielmann (JudgeP): Yes, Judge Turković, yes please.
Ksenija Turković (Judge): My question is directed to Professor Schabas.
Ksenija Turković (Judge): If I have understood correctly, your presentation, your claim, basically was that for the applicant, it was sufficient for the foreseeability to realize that at the time when he was acting, this was some type of international crime.
Ksenija Turković (Judge): It was not important that was in particular a genocide.
Ksenija Turković (Judge): Do you think that this would be sufficient to satisfy the requirement of Article 7 if we are taking into consideration that not only fair notice is important, but also the limitation of the discretion of the government?
Ksenija Turković (Judge): And this is also in continuation to the question posed by our president to what extent war crimes and crimes against humanity are actually applicable in this case, since two applicants were not civilians, or at least I understood that they are not civilians from the presentation today.
Ksenija Turković (Judge): And at the time when they were killed, there was no war in Lithuania.
Dean Spielmann (JudgeP): Judge Vučinić.
Nebojša Vučinić (Judge): Yes, thank you, Mr. President.
Nebojša Vučinić (Judge): I have one question concerning to Professor Schabas, concerning the definition, or better to say, a notion of political group as a possible object of the protection under the Genocide Convention.
Nebojša Vučinić (Judge): Actually, do we have more closer criteria or elements to define, to determine what is the political group as an object of protection on the Genocide Convention, specifically in the context of the recent case law of international courts and tribunals concerning application of Genocide Convention?
Dean Spielmann (JudgeP): Thank you. So we will have a break of 20 minutes and we will resume the hearing at 10.45.
Dean Spielmann (JudgeP): Who wants to take the floor on behalf of the government?
Dean Spielmann (JudgeP): Yes, Ms. Bubnytė.
GR2 (Government): Now, answering to the question put by Honorable Judge Ziemelle as regards quantitative aspect in present case, I would like to note that, in general, no requirement on the large number of victims is contained in the construction of genocide.
GR2 (Government): But still, the line of the case law of Lithuanian courts is very clear to approach these cases from the perspective of qualitative approach.
GR2 (Government): And the Constitutional Court, actually, in approving such a perspective followed by the national courts, it referred to some numbers.
GR2 (Government): And if you are interested, you can find them in the ruling of the Constitutional Court of 18th March, 2014, in close to our observations.
GR2 (Government): And I wanted to stress that this line, this qualitative argumentation, is visible in the applicant's case, was further developed by the Lithuanian courts.
GR2 (Government): And now, the actions addressed against the partisans are qualified like actions aimed against national ethnic political group.
GR2 (Government): So that's it for that question.
GR2 (Government): Now, turning to the question posed by Honorable Judge Sajo, what's the relation between direct intent and specific intent required for genocide, I would like to answer that direct, it is clear from the argumentation of the national courts in the applicant's case that direct intent covered the specific intent, because it was not only established that the applicant had that direct intent for his participation in MGB structure as an operational agent, but also his personal intent was established very clearly as well, because he participated in the planning of that operation.
GR2 (Government): And it is very clear from the argumentation, maybe it is not formulated legally very precisely, but it's very clear that direct intent covers specific intent in the applicant's case.
GR2 (Government): And as regards these references that acts were aimed against fascist and nationalists, I would like to note that it was usual practice of Soviet repressive institutions to use actions, to justify their actions as aimed against fascists and Nazis.
GR2 (Government): But it appears from the archives and other documental material analyzed by Lithuanian courts, it was established very clearly that the brothers killed in the present case belonged to the partisans, and they acted as the participants of the resistance against occupation of Lithuania and as fighters for restoration of its independence.
GR2 (Government): And as regards to the technical question of Judge Tsayo, yes, one of the five cases which were stopped and in which the case, the courts addressed the Lithuanian constitutional court, one of these cases was against the applicant in the present case.
GR2 (Government): Now I would like to turn to the question posed by Mr. President and Honorable Judge Turkovic.
GR2 (Government): And where were other possibilities of the applicant's conviction for some other crimes?
GR2 (Government): And technically, from legal point of view, yes, his acts could be qualified as crimes against humanity, for example.
GR2 (Government): And no prescription period is provided in Lithuanian law for such crimes.
GR2 (Government): But I would like to draw the attention of the Honorable Court that there is not a single case before the Lithuanian courts where some criminal actions aimed against partisans would be qualified under some other article of criminal code, except from that of genocide.
GR2 (Government): You can call it a matter of criminal justice policy.
GR2 (Government): But of course, technically, yes, there is a possibility to qualify both criminal acts and other crimes.
Dean Spielmann (JudgeP): Thank you, Professor Schabas.
GR1 (Government): I have only a few minutes.
GR1 (Government): I don't think I've had more questions since I defended my doctoral thesis.
GR1 (Government): The, let me turn to your first question, Mr. President,
GR1 (Government): because I think in many ways it goes to the heart of the issue and it's, it raises issues that also were part of the questions of Judge Pinto, Nelbeckert, and Judge Turcovich.
GR1 (Government): And that's the, this fascinating relationship between Resolution 96 of 1946 of the General Assembly and the subsequent codification in 1948.
GR1 (Government): And although the question is one of great interest and has been written about a fair amount, the only discussion in a court that I found actually was Judge, was Shabtai Rosen before the International Court of Justice in the advisory opinion proceedings in 1951, which I quoted in my submissions.
GR1 (Government): The, you asked, Mr. President, can we talk
GR1 (Government): about customary law prior to 1946?
GR1 (Government): Of course, the Genocide Convention itself in the preamble talks about how genocide was committed at all periods of history.
GR1 (Government): So there's the notion that genocide could have been committed long before, this is Judge Turcovich's question as well, is it, does it have the specificity?
GR1 (Government): Can you charge someone with a crime that is not precise or vague?
GR1 (Government): And of course, charging people with genocide before 1946 or let's say 1944 when the word was invented, how can you charge someone with genocide before 1944 when the word didn't even exist?
GR1 (Government): And yet you can.
GR1 (Government): And there were many of the proceedings, the post-Second World War trials, not the International Military Tribunal, but the subsequent proceedings by the American Military Tribunals.
GR1 (Government): There were several times when people were convicted of genocide for acts committed before the word even existed.
GR1 (Government): And this was also the case in some of the domestic prosecutions.
GR1 (Government): There were prosecutions in Poland by Polish courts for genocide in 1945 and in 1946.
GR1 (Government): And they dealt with acts committed before the word existed.
GR1 (Government): It's a bit like asking whether you could die of smallpox before 1820 when the disease was discovered.
GR1 (Government): Of course, you could always die of it.
GR1 (Government): It's just wasn't codified in a sense.
GR1 (Government): And so now we get to this problem of the two codifications, if you want, Resolution 96 and the Convention of 1948.
GR1 (Government): I wrote something in my book on genocide in international law that the Russian Federation quite ably cited on this.
GR1 (Government): And looking back on it, I think I could have been perhaps more precise in talking about customary law and its application in a case involving Article 7 and the Nullum-Crimmon issue.
GR1 (Government): And that's because the codifications of international crimes in the specific treaties, like the Genocide Convention, while a useful guide to the legal prohibitions that existed before they were adopted, is also in some ways an imperfect guide.
GR1 (Government): And we can see that in the Genocide Convention.
GR1 (Government): There was a wide catalog of international crimes recognized at Nuremberg.
GR1 (Government): But there were not a lot of treaties that followed Nuremberg to codify these in a way that would be of general application.
GR1 (Government): There's the Genocide Convention, which is much narrower in scope.
GR1 (Government): It doesn't include crimes against humanity in a broad sense.
GR1 (Government): There are the Geneva Conventions of 1949 that codify war crimes, but a much narrower category than what were prosecuted at Nuremberg.
GR1 (Government): And so the codification is not always the most helpful guide in the treaty.
GR1 (Government): I can give a recent example where we can see this, that states are prepared to accept obligations with respect to certain international crimes or offenses and not others.
GR1 (Government): Think of the United Nations Torture Convention of 1984.
GR1 (Government): Defines torture.
GR1 (Government): It sets out a series of obligations for torture.
GR1 (Government): And then at the very end, it also refers to cruel, inhuman, or degrading treatment or punishment.
GR1 (Government): But the same obligations don't all apply to cruel, inhuman, or degrading treatment or punishment.
GR1 (Government): States are reluctant.
GR1 (Government): They're nervous in this area.
GR1 (Government): And I think this is how we have to explain what happened with the Genocide Convention.
GR1 (Government): The real question that the court has to ask, I think, is whether the persecution and destruction of political groups was prohibited as an international crime, whether it was contrary to international law, Article 7, Paragraph 1, or whether it was contrary to general principles of law, Article 7, Paragraph 2, at the time it was perpetrated.
GR1 (Government): And of course, the difference in this case that we have with respect to Nuremberg or Kononov or the earlier cases is that we have the codifications.
GR1 (Government): The issue of the accessibility and foreseeability is much simpler because you have these messages that are sent, even though we have these debates that follow about where they fit.
GR1 (Government): And Judge Pinto d'Albacore referred to the fact that the definition in the 48 Convention has become very entrenched in modern day law, in all of the different instruments that you cited, Judge.
GR1 (Government): And I absolutely agree with that, except that the part that's not included, the destruction of political groups, is also included in those codifications under another rubric, which is crimes against humanity.
GR1 (Government): The danger of taking an overly positivistic approach to the acts committed in the 1940s and 1950s is that some of them may escape criminality.
GR1 (Government): And that cannot be the result that is intended by the Convention.
GR1 (Government): That's probably why Article 7, Paragraph 2 is there, to make sure that doesn't happen.
GR1 (Government): I think my time is up, Mr. President.
GR1 (Government): If you'd give me two more minutes, I'll speak to the other questions.
GR1 (Government): The question of in whole or in part was raised in questions by Judge Simile, Judge Powerford, and Judge Pinto d'Albacore.
GR1 (Government): The term in whole or in part, of course, doesn't require, obviously, that individual perpetrators have to kill a large part of the group.
GR1 (Government): The term in whole or in part has been interpreted in the case law as if there is an additional adjective which is substantial part.
GR1 (Government): And most of the case law requires that the overall intent of the genocidal policy is to destroy a substantial part of the group.
GR1 (Government): The case law is not entirely clear on this, by the way.
GR1 (Government): It's not 100% foreseeable, even today, where the case law goes.
GR1 (Government): Because we have different approaches at the International Criminal Court than at the International Criminal Tribunal for the former Yugoslavia.
GR1 (Government): A recent decision by the International Criminal Tribunal for the former Yugoslavia, by a trial chamber, the Tolomir case, decided last year.
GR1 (Government): Tolomir holds that the killing of three officials in a town, the town of Zepa, near Srebrenica, amounted to a crime of genocide.
GR1 (Government): That case is under appeal.
GR1 (Government): But that case is authority for the idea that it can also be the significant part, the part that threatens the existence.
GR1 (Government): As for specific intent, I don't know that I can add a great deal.
GR1 (Government): It's obvious that the specific intent is required according to the case law.
GR1 (Government): The term specific is not in the definition in the convention.
GR1 (Government): The specific has been added by the case law of the Yugoslavian and the Rwanda tribunals, essentially.
GR1 (Government): And at the International Criminal Court, there's another notion that's introduced through the elements of crimes, which is a manifest pattern of similar acts, which has the foreseeable possibility of actually destroying the group.
GR1 (Government): That's in the elements of crimes.