ITEMID: 001-98669
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF KONONOV v. LATVIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 7
JUDGES: Alan Vaughan Lowe;Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 12. The applicant was born in 1923 in the district of Ludza, Latvia. He held Latvian nationality until 2000, when he was granted Russian nationality by special decree.
13. In August 1940 Latvia became part of the Union of Soviet Socialist Republics (USSR) under the name “Soviet Socialist Republic of Latvia” (“Latvian SSR”). On 22 June 1941 Germany attacked the USSR. The advance of the German forces obliged the USSR forces to leave the Baltic region and withdraw towards Russia.
14. The applicant, who was living near the border at the time, followed. By 5 July 1941 all of Latvia had been overrun by the German forces. Following his arrival in the USSR, the applicant was called up as a soldier in the Soviet Army in 1942. He was assigned to the reserve regiment of the Latvian Division. From 1942 to 1943 he received special training in sabotage operations, during which he learnt how to organise and lead commando raids behind enemy lines. On completion of his training, he was promoted to the rank of sergeant. In June 1943 he and some twenty soldiers were parachuted into Belarus territory, then under German occupation, near the Latvian border and thus to the area where he was born. The applicant joined a Soviet commando unit composed of members of the “Red Partisans” (a Soviet force which fought a guerrilla war against the German forces). In March 1944 he was put in command of a platoon by his two immediate superiors, whose primary objectives were, according to the applicant, to sabotage military installations, communication lines and German supply points, to derail trains and to spread political propaganda among the local population. He claimed to have derailed sixteen military trains and caused forty-two German military targets to be blown up.
15. In February 1944 the German army had discovered and wiped out a group of Red Partisans led by Major Chugunov who were hiding in the barn of Meikuls Krupniks in the village of Mazie Bati. The German military administration had provided some men in Mazie Bati with a rifle and two grenades each. The applicant and his unit suspected the villagers of having spied for the Germans and of having turned in Major Chugunov’s men to the enemy. They decided to take reprisals against the villagers.
16. On 27 May 1944 the applicant and his unit, armed and wearing Wehrmacht (former German army) uniforms to avoid arousing suspicion, entered the village of Mazie Bati. The inhabitants were preparing to celebrate Pentecost. The unit split up into a number of small groups, each of which attacked a house on the applicant’s orders.
17. Several of the Red Partisans burst into the home of a farmer, Modests Krupniks, seized weapons they found there and ordered him out into the yard. When he pleaded with them not to kill him in front of his children, they ordered him to run towards the forest before opening fire when he did so. Modests Krupniks was left, seriously wounded, on the edge of the forest, where he died the following morning.
18. Two other groups of Red Partisans attacked the homes of two other farmers, Meikuls Krupniks and Ambrozs Buļs. Meikuls Krupniks was seized in his bath and severely beaten. The Partisans took the weapons they had found in the two villagers’ homes to Meikuls Krupniks’ house. There they fired several rounds of bullets at Ambrozs Buļs, Meikuls Krupniks and Meikuls Krupniks’ mother. Meikuls Krupniks and his mother were seriously injured. The Partisans then doused the house and all the farm buildings with petrol and set them alight. Meikuls Krupniks’ wife, who was nine months pregnant, managed to escape, but was seized by the Partisans and pushed through a window of the house into the flames. The following morning the surviving villagers found the charred remains of the four victims. Mrs Krupniks’ body was identified by the burnt skeleton of a baby next to her.
19. A fourth group of Partisans burst into Vladislavs Šķirmants’ home, where they found him on his bed with his one-year-old son. After finding a rifle and two grenades hidden in a cupboard, they ordered Vladislavs Šķirmants to go out into the yard. They then bolted the door from the outside to prevent his wife following him, took him to a remote corner of the yard and shot him dead. A fifth group attacked the home of Juliāns Šķirmants. After finding and seizing a rifle and two grenades, the Partisans took him out to the barn, where they killed him. A sixth group attacked Bernards Šķirmants’ home, seizing the weapons they found there. They then proceeded to kill Mr Šķirmants, wound his wife and set all the farm buildings on fire. Bernards Šķirmants’ wife burnt to death in the fire with her dead husband.
20. While the prosecution also claimed that the Partisans pillaged the village (stealing clothes and food), the Criminal Affairs Division of the Supreme Court (“the Criminal Affairs Division”) and the Supreme Court Senate made specific findings as regards the seizure of weapons but not as regards the stealing of any other items.
21. Before the Chamber, the applicant contested the factual findings of the domestic courts and submitted as follows.
22. He considered that all the deceased villagers were collaborators and traitors who had delivered Major Chugunov’s platoon (which included women and a small child) to the Germans in February 1944: three women (Meikuls Krupniks’ mother and wife and Bernards Šķirmants’ wife) assured Major Chugunov’s platoon that the Wehrmacht was some distance away, but Bernards Šķirmants sent Meikuls Krupniks to alert the German forces. The German soldiers arrived and machine-gunned the barn (in which Major Chugunov’s platoon was hiding) with incendiary bullets, causing it to catch fire. Any member of Major Chugunov’s group who tried to escape was shot dead. Meikuls Krupniks’ mother removed the coats from the bodies. The German military command rewarded the villagers concerned with firewood, sugar, alcohol and a sum of money. Meikuls Krupniks and Bernards Šķirmants were Schutzmänner (German auxiliary police).
23. Approximately one week prior to the events of 27 May 1944, the applicant and all the men in his platoon had received a summons from their commanding officer. He had informed them that an ad hoc military court had delivered judgment against the inhabitants of Mazie Bati implicated in the betrayal of Major Chugunov’s men and that their platoon was required to execute the order. More specifically, they were required to “bring the six Schutzmänner from Mazie Bati to stand trial”. The applicant maintained that he had refused to lead the operation (the villagers had known him since childhood so he feared for the safety of his parents who lived in the neighbouring village). The commanding officer therefore assigned the mission to another Partisan and it was that other Partisan who had given the orders during the Mazie Bati operation.
24. On 27 May 1944 the applicant had followed the men from his unit. He did not enter the village, but hid behind a bush from which he could see Modests Krupniks’ house. Soon thereafter, he had heard cries and gunfire, and had seen smoke. A quarter of an hour later, the Partisans returned alone. One had been wounded in the arm. Another was carrying six rifles, ten grenades and a large quantity of cartridges, all of which had been seized in the villagers’ homes. His unit later told him that they had not been able to carry out their mission as the villagers had “fled while firing at them and the Germans had arrived”. He denied that his unit had pillaged Mazie Bati. On returning to the base, the Partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons.
25. In July 1944 the Red Army entered Latvia and on 8 May 1945 Latvian territory passed into the control of the USSR forces.
26. The applicant remained in Latvia after the war ended. He was decorated for his military activities with the Order of Lenin, the highest distinction awarded in the USSR. In November 1946 he joined the Communist Party of the Soviet Union. In 1957 he graduated from the USSR Interior Ministry Academy. Subsequently, and until his retirement in 1988, he worked as an officer in various branches of the Soviet police force.
27. On 4 May 1990 the Supreme Council of the Latvian SSR adopted the Declaration on the Restoration of Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR in 1940 unlawful, null and void and restored force of law to the fundamental provisions of the Latvian Constitution of 1922. On the same day, the Supreme Council adopted the Declaration on the Accession of the Republic of Latvia to Human Rights Instruments. The term “accession” meant a solemn, unilateral acceptance of the values embodied in the instruments concerned: most of the conventions referred to in the declaration were subsequently signed and ratified by Latvia in accordance with the established procedure.
28. After two unsuccessful coups d’état, on 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia proclaiming full independence with immediate effect.
29. On 22 August 1996 the Latvian Parliament adopted the Declaration on the Occupation of Latvia. The declaration described the annexation of Latvian territory by the USSR in 1940 as a “military occupation” and an “illegal incorporation”. The Soviet repossession of the territory at the end of the Second World War was referred to as the “re-establishment of an occupying regime”.
30. In July 1998 the Centre for the Documentation of the Consequences of Totalitarianism, based in Latvia, forwarded an investigation file (on the events of 27 May 1944) to the Latvian Principal Public Prosecutor’s Office. In August 1998 the applicant was charged with war crimes. In October 1998 he was brought before the Riga Central Court of First Instance and his pretrial detention was ordered. In December 1998 a final bill of indictment was drawn up and the case file was forwarded to the Riga Regional Court.
31. The trial took place before the Riga Regional Court on 21 January 2000. The applicant pleaded not guilty. He repeated his account of the events of 27 May 1944, underlining that all the victims of the attack had been armed Schutzmänner. He denied any personal involvement in the events: as to the various documents (including press articles) which attested to the contrary, he explained that he had knowingly allowed the historical facts to be distorted for his own personal glory and benefit at that time.
32. The Regional Court found that the case file contained ample evidence of his guilt and that the applicant had perpetrated acts in violation of the rules set out in the Charter of the International Military Tribunal for Nuremberg, the Fourth Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (“the 1907 Hague Convention (IV)”) and the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the 1949 Geneva Convention (IV)”). He was found guilty of offences contrary to section 68-3 of the 1961 Criminal Code and an immediate six-year custodial sentence was imposed. Both the applicant and the prosecution appealed.
33. By a judgment of 25 April 2000, the Criminal Affairs Division quashed the latter judgment and returned the case file to the Principal Public Prosecutor’s Office with instructions to make additional inquiries. It considered there were lacunae in the Regional Court’s reasoning and, in particular, that the Regional Court had failed to resolve decisive questions including whether Mazie Bati was in an “occupied territory”, whether the applicant and his victims could be considered “combatants” and “non-combatants” respectively and whether the fact that the German military administration had armed the villagers would make them “prisoners of war” in the event of their arrest. In addition, the prosecution should have consulted specialists on history and international criminal law. It ordered the applicant’s immediate release.
34. The Supreme Court Senate dismissed the prosecution’s appeal by a judgment of 27 June 2000, although it struck out the requirement to obtain specialist advice since questions of law were solely for the courts to decide.
35. Following a fresh investigation, on 17 May 2001 the applicant was again charged under section 68-3 of the 1961 Criminal Code.
36. The Latgale Regional Court heard the case and delivered judgment on 3 October 2003 acquitting the applicant of war crimes, but finding him guilty of banditry (contrary to section 72 of the 1961 Criminal Code) carrying a sentence of between three and fifteen years’ imprisonment.
Having analysed the situation in which Latvia had found itself as a result of the events in 1940 and the German invasion, the Regional Court concluded that the applicant could not be considered a “representative of the occupying forces”. On the contrary, he had fought for the liberation of the country against the occupying forces of Nazi Germany. As Latvia had been incorporated into the USSR, the applicant’s conduct had to be considered in the light of Soviet law. In addition, he could not reasonably have foreseen that he would one day be classified as a “representative of the Soviet occupying forces”. With regard to the Mazie Bati operation, the Regional Court accepted that the villagers had collaborated with the German military administration and had handed over Major Chugunov’s group of Red Partisans to the Wehrmacht and that the attack on the village had been carried out pursuant to the judgment of the ad hoc military court set up within the detachment of Red Partisans. The Regional Court also accepted that the deaths of the six men from Mazie Bati could be regarded as having been necessary and justified by considerations of a military order. However, it found that such justification did not extend to the killing of the three women or the burning down of the village buildings, for which acts, as commanding officer, the applicant was responsible. Consequently, as they had acted beyond the authority of the ad hoc military court’s judgment both the applicant and his men had committed an act of banditry for which they bore full responsibility but which was, however, statute-barred.
37. Both parties appealed to the Criminal Affairs Division. Relying, inter alia, on Article 7 § 1 of the Convention, the applicant sought a full acquittal, arguing that the law had been applied against him retrospectively. The prosecution submitted that the Regional Court had made a number of serious errors of fact and law: it had neglected the fact that Latvia’s incorporation into the USSR was contrary to the Latvian Constitution of 1922 and to international law, and was therefore unlawful, and that the Republic of Latvia had continued to exist de jure. Accordingly, the applicant’s conduct in 1944 could and should have been analysed under Latvian and international law, rather than Soviet law. Further, the prosecution criticised the Regional Court’s assessment of the evidence in the case. In its view, the court had relied on a series of assertions by the applicant that were not only unsupported by any evidence, but also contrary to the tenor of the evidence, notably the applicant’s claims that the villagers from Mazie Bati were armed collaborators of the German military administration who had helped the Wehrmacht to wipe out Major Chugunov’s Red Partisans; that an ad hoc Partisan tribunal had been set up within the applicant’s detachment of Red Partisans; and that the purpose of the Mazie Bati operation was not summary execution but the arrest of the villagers.
38. By a judgment of 30 April 2004, the Criminal Affairs Division allowed the prosecution’s appeal, quashed the judgment of the Latgale Regional Court and found the applicant guilty of offences contrary to section 68-3 of the 1961 Criminal Code. Having reviewed the evidence, it noted:
“... Thus, V. Kononov and the Partisans from the special group he commanded stole the weapons that had been delivered to enable the villagers to defend themselves and killed nine civilians from the village, burning six of them – including three women, one in the final stages of pregnancy – alive in the process. They also burnt down two farms.
By attacking those nine civilians from the village of Mazie Bati, who had not taken part in the fighting, by stealing their weapons and killing them, V. Kononov and the Partisans under his command ... committed an appalling violation of the laws and customs of war as set out in:
– point (b) of the first paragraph of Article 23 of the Hague Convention [(IV)] of [18] October 1907 respecting the Laws and Customs of War on Land, which is binding on all civilised nations and forbids the treacherous killing or wounding of members of the civil population; Article 25 [of the 1907 Hague Convention (IV)], which prohibits attacks by whatever means of villages, dwellings or buildings which are undefended; and the first paragraph of Article 46 [of the 1907 Hague Convention (IV)], which lays down that family honour and rights, and the lives of persons and private property must be respected.
– Article 3 § 1, point (a), of the Geneva Convention [(IV)] of 12 August 1949 relative to the Protection of Civilian Persons in Time of War ..., which lays down that persons taking no active part in the hostilities must not be subjected to violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; point (d) [of the same paragraph], which provides ... that the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples is prohibited; Article 32, which prohibits murder, torture and all other brutality against protected persons; and Article 33, which provides that no protected person may be punished for an offence he or she has not personally committed and prohibits collective penalties and all measures of intimidation, pillage and reprisals against protected persons and their property.
– Article 51 § 2 of the [First] Protocol Additional to the [Geneva] Conventions and relating to the Protection of Victims of International Armed Conflicts adopted on 8 June 1977 ..., which lays down that the civilian population as such, as well as individual civilians, shall not be the object of attack and prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population; [Article 51] § 4, point (a), which prohibits indiscriminate attacks not directed at a specific military objective; [Article 51] § 6, which prohibits attacks against the civilian population or civilians by way of reprisals; Article 75 § 2, point (a) ..., which prohibits violence to the life, health, or physical or mental well-being of persons, in particular, murder, torture of all kinds, whether physical or mental, and mutilation; and [Article 75 § 2] point (d), which prohibits collective punishments.
By acting with particular cruelty and brutality and burning a pregnant villager alive ..., V. Kononov and his Partisans openly flouted the laws and customs of war set out in the first paragraph of Article 16 of the [1949] Geneva Convention [(IV)] ..., which lays down that expectant mothers shall be the object of particular protection and respect.
Likewise, by burning down the [dwelling] houses and other buildings belonging to the villagers ... Meikuls Krupniks and Bernards Šķirmants, V. Kononov and his Partisans contravened the provisions of Article 53 of that Convention, which prohibits the destruction of real property except where such destruction is rendered absolutely necessary by military operations and Article 52 of the First Protocol Additional [to the Geneva Conventions] ... which lays down that civilian property must not be the object of attack or reprisals.
...
In the light of the foregoing, the acts perpetrated by V. Kononov and his men must be classified as war crimes within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that the murder or torture of civilians in occupied territory, the plunder of private property, the wanton destruction of villages, or devastation that is not justified by military necessity constitute violations of the laws or customs of war, that is to say war crimes.
The acts perpetrated by V. Kononov and his Partisans must also be classified as ‘grave breaches’ within the meaning of Article 147 of the ... [1949] Geneva Convention [(IV)] ...
Consequently ..., V. Kononov is guilty of the offence under section 68-3 of the Criminal Code ...
The material in the case file shows that after the war, the surviving members of the families of the [people] killed were ruthlessly persecuted and subjected to reprisals. Following the restoration of Latvian independence, all those killed were rehabilitated. It was stated in their rehabilitation certificates that they [had] not committed ‘crimes against peace [or] humanity, criminal offences ... or taken part ... in political repression ... by the Nazi regime’ ...
V. Kononov must be regarded as being subject [to the provision governing] the war crime [in question], in accordance with Article 43 of the First Protocol Additional to the Geneva Conventions ..., which provides that combatants, that is to say, those who have the right to participate directly in hostilities, are the members of the armed forces of a party to a conflict.
During the Second World War, V. Kononov was a member of the armed forces of a belligerent party, [namely] the USSR, and played an active part in military operations it had organised.
V. Kononov was sent on a special mission to Latvia with clear orders to fight behind enemy lines [and] to organise explosions there.
The platoon led by V. Kononov cannot be regarded as a group of volunteers because it was organised and led by the armed forces of one of the belligerent parties (the USSR); this is confirmed by the material in the case file. Similarly, at the time the crime of which he is accused was committed, V. Kononov was also acting as a combatant, leading an armed group which had the right to take part in military operations as an integral part of the armed forces of a belligerent party. ...
V. Kononov fought on Latvian territory occupied by the USSR and neither the fact that there was at that time dual occupation (Germany being the other occupying power), nor the fact that the USSR was part of the anti-Hitler coalition, affects his status as a war criminal ...
The Criminal Affairs Division considers that all the villagers killed at Mazie Bati must be regarded as civilians within the meaning of section 68-3 of the Criminal Code ... and the provisions of international law.
By virtue of Article 50 of the First Protocol Additional to the Geneva Conventions ..., a civilian is defined as any person who does not belong to one of the categories of persons referred to in Article 43 of that Protocol or Article 4 (A) of the Convention.
The attributes described in the aforementioned Articles, which are specific to [certain] categories of people and exclude them from the definition of civilians, did not apply to the villagers who were killed.
The fact that they had obtained weapons and munitions did not make them combatants and does not attest to any intention on their part to carry out any military operation.
...
It has been established ... that [Major] Chugunov’s group of Partisans was wiped out by a German military detachment; this is also confirmed by reconnaissance headquarters’ records ...
The case file does not contain any evidence to show that the villagers took part in that operation.
The fact that Meikuls Krupniks had informed the Germans of the presence of Partisans in his barn did not exclude him from the category of ‘civilians’.
Mr Krupniks lived on territory occupied by Germany and there is no doubt that the presence of Partisans on his farm in wartime constituted a danger to both him and his family. ...
The fact that the villagers had weapons in their homes and [regularly] kept watch at night does not signify that they were taking part in military operations, but attests to a genuine fear of attack.
All citizens, whether in wartime or peacetime, have the right to defend themselves and their families if their lives are in danger.
The case file shows that the Red Partisans, [Major] Chugunov’s group included, used violence against civilians; thus causing the civilian population to fear for its safety.
The victim [K.] gave evidence that the Red Partisans pillaged houses and often took food supplies.
The criminal conduct of the Partisans was noted in the reports of commanding officers [S.] and [Č.], which indicate that the Red Partisans pillaged and murdered and committed other crimes against the local population. Many people had the impression that they were not really engaged in combat but in foraying. ...
The case file shows that of the villagers who were killed at Mazie Bati in 1943 and 1944 [only] Bernards Šķirmants and [his wife] were members of the Latvian National Guard [aizsargi]. The archives do not contain any information to show that any of the other victims had participated in the activities of that or any other organisation ...
The Criminal Affairs Division considers that the fact that the aforementioned persons participated in the activities of the Latvian National Guard does not enable them to be classified as combatants, as they have not been found ... to have taken part in military operations organised by the armed forces of a belligerent party.
It has been established ... that no German military formation was in the village of Mazie Bati and that the villagers were not performing any military duty, but, [on the contrary], were farmers.
At the time of the events [in issue], they were at home and preparing to celebrate Pentecost. Among the dead were not only men (who were armed) but also women, one of whom was in the final stages of pregnancy and thus entitled to special ... protection under the [1949] Geneva Convention [(IV)].
In classifying those who were killed as civilians, the Criminal Affairs Division is in no doubt about their status; however, even supposing it were, the First Protocol Additional to the Geneva Conventions states that in case of doubt everyone shall be considered to be a civilian. ...
Since Latvia has not acceded to the Hague Convention [(IV)] of 1907, the provisions of that instrument cannot serve as a basis for [finding] a violation.
War crimes are prohibited and all countries are required to convict anyone guilty of them because such crimes are an integral part of international law, irrespective of whether the parties to the conflict were parties to international treaties. ...”
39. The Criminal Affairs Division excluded two allegations that had not been proved to the requisite standard, namely alleged murders and torture by the applicant himself. Given the finding of guilt of a serious offence and since he was by then aged, infirm and harmless, the Criminal Affairs Division imposed an immediate custodial sentence of one year and eight months which he was deemed to have served given his pre-trial detention.
40. By a judgment of 28 September 2004, the Supreme Court Senate dismissed the applicant’s appeal:
“... In finding that V. Kononov was a combatant and had committed the offence in question on the territory occupied by the USSR, the Criminal Affairs Division based its judgment on the decisions of the higher representative bodies of the Republic of Latvia, on the relevant international conventions and on other evidence, taken as a whole, which had been verified and assessed in accordance with the rules of criminal procedure.
In the Declaration by the Supreme Council ... of 4 May 1990 on the Restoration of Independence of the Republic of Latvia, it was acknowledged that the ultimatum delivered on 16 June 1940 to the government of the Republic of Latvia by the former Stalinist USSR should be regarded as an international crime, as Latvia was occupied and its sovereign power abolished as a result. [However,] the Republic of Latvia continued to exist as a subject of international law, as was recognised by more than fifty States worldwide ...
...
After analysing the merits of the judgment, the Senate ... considers that, to the extent that the Criminal Affairs Division found that V. Kononov came within the scope of section 68-3 of the Criminal Code, ... his acts were correctly characterised, as, in his capacity as a belligerent and combatant on Latvian territory occupied by the USSR, he has violated the laws and customs of war, in that he planned and directed a military operation aimed at taking reprisals against civilians, namely peaceable inhabitants of the village of Mazie Bati, nine of whom were killed ... [and] whose property was stolen [or] burnt.
As the Court of Appeal (rightly) noted, neither the fact that Latvian territory was subjected to two successive occupations in the Second World War by two States (one of which was Germany; a ‘dual occupation’ in the words of the Court of Appeal), nor the fact that the USSR was a member of an anti-Hitler coalition, changed V. Kononov’s status as a person guilty of a war crime.
As regards the allegation ... that, by finding V. Kononov guilty of the war crime in question the Court [of Appeal] violated the provisions of section 6 of the Criminal Code ... concerning the temporal applicability of the criminal law, the [Senate] considers that it must be rejected for the following reasons.
The judgment shows that the Court of Appeal applied the conventions, namely the Geneva Convention [(IV)] of 12 August 1949 .., and [the First] Protocol Additional [to the Geneva Conventions] of 8 June 1977 ..., to the war crime which V. Kononov was accused of, irrespective of when they came into force. [This is consistent] with the United Nations Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. [The Court of Appeal stated] that the Republic of Latvia, which had been occupied by the USSR, had not been able to take a decision [to that end] earlier. By referring to the principle of the non-applicability of statutory limitation, the Court of Appeal complied with the obligations arising under the international treaties and held the persons guilty of committing the offences concerned criminally liable irrespective of the date they were perpetrated.
Since the judgment characterised the violation of the laws and customs of war of which V. Kononov was accused as a war crime within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg ..., and, ... by virtue of the aforesaid United Nations Convention of 26 November 1968 ..., war crimes ... are not subject to statutory limitation, ... the Senate finds that his acts were correctly found to come within section 68-3 of the Criminal Code ...
There is no basis to the argument ... that ... the Declaration by the Supreme Council of 4 May 1990 on the Restoration of Independence of the Republic of Latvia and the Declaration by Parliament of 22 August 1996 on the Occupation of Latvia were mere political pronouncements which the court was precluded from using as a basis for its judgment and which could not be given binding force retrospectively.
The [Senate] finds that both declarations constitute State constitutional acts of indisputable legality.
In its judgment, [delivered after] assessing the evidence examined at the hearing, [the Court of Appeal] found that, in his capacity as a combatant, V. Kononov organised, commanded and led a Partisan military operation intent on taking reprisals through the massacre of the civilian population of the village of Mazie Bati and the pillage and destruction of the villagers’ farms. That being so, the Court of Appeal rightly found that the acts of individual members of his group ... could not be seen as [mere] excesses on the part of those concerned.
In accordance with the criminal-law principles governing the responsibility of organised groups, members [of a group] are accomplices to the offence, independently of the role they play in its commission.
This principle of responsibility of the members of an organised group is recognised in the third paragraph of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that leaders, organisers, instigators and accomplices participating in the execution of a common plan are responsible for all acts performed by any persons in the execution of that plan.
Consequently, the argument that the Court of Appeal had used an ‘objective responsibility’ test to find, in the absence of any evidence, V. Kononov guilty of acts perpetrated by members of the special group of Partisans he led, without examining his subjective attitude to the consequences, is unfounded. ...”
41. By a decree of 6 November 1940, the Supreme Council of the Latvian SSR replaced the existing Latvian Criminal Code with the 1926 Criminal Code of Soviet Russia, which code thereby became applicable in Latvia (“the 1926 Criminal Code”). The relevant provisions of that code during the Second World War were as follows:
“This Code shall apply to all citizens of the RSFSR [Russian Soviet Federative Socialist Republic] who commit socially dangerous acts on the territory of the RSFSR, or outside the territory of the USSR if they are apprehended on the territory of the RSFSR.”
“The liability of citizens from the other Soviet Federative Socialist Republics shall be determined in accordance with the laws of the RSFSR if they have committed offences either on the territory of the RSFSR or outside the territory of the USSR if they have been apprehended and handed over to a court or investigating authority on the territory of the RSFSR.
The liability of citizens of the Federative Socialist Republics for offences committed on the territory of the Union shall be determined in accordance with the laws of the place where the offence was committed.”
“The liability of aliens for offences committed on the territory of the USSR shall be determined in accordance with the laws of the place where the offence was committed.”
42. Chapter IX of the 1926 Criminal Code was entitled “Military crimes” and included the following relevant provisions:
“Military crimes are offences committed by military personnel in the service of the Red Army of Workers and Peasants or the Red Navy of Workers and Peasants, or by persons assigned to maintenance teams or periodically conscripted into territorial detachments, [when such offences] are against the established order of military service and, owing to their nature and meaning, cannot be committed by citizens not serving in the army or navy. ...”
“Any failure by a serviceman to execute a legitimate order issued in combat shall entail the application of measures for the protection of society in the form of at least three years’ imprisonment.
Where such a failure has a deleterious effect on combat operations, the ultimate measure for the protection of society [that is, the death penalty] shall apply.
...”
“Foraying, that is to say divesting civilians of their belongings during combat by threatening them with weapons or on the pretext of requisitioning for military purposes, and removing personal belongings from the dead or injured for personal gain shall entail the application of the ultimate measure for the protection of society accompanied by confiscation of all the offender’s belongings.
In the event of mitigating circumstances, [the sentence shall be reduced to] at least three years’ imprisonment with strict solitary confinement.”
“Unlawful acts of violence by servicemen in wartime or during combat shall entail the application of measures for the protection of society in the form of at least three years’ imprisonment with strict solitary confinement.
In the event of aggravating circumstances, the ultimate measure for the protection of society [shall be applied].”
43. Section 14 (and the Official Notes thereto) of the 1926 Criminal Code provided as follows:
“Criminal proceedings may not be instituted where:
(a) ten years have elapsed since the offence was committed, in the case of offences punishable by more than five years’ imprisonment and those for which the law prescribes a minimum term of one year’s imprisonment;
(b) five years have elapsed since the offence was committed, in the case of offences punishable by between one and five years’ imprisonment and those for which the law prescribes a minimum term of six months’ imprisonment;
(c) three years have elapsed since the offence was committed, in the case of all other offences.
The statute of limitations shall apply where no procedural steps or investigative measures have been taken in the case during the entire period and the perpetrator has not, during the period stipulated by this section, committed any other offence falling into the same category or of at least equivalent seriousness.
Note 1 – In the case of prosecution for counter-revolutionary crimes, application of the statute of limitations in a given case is at the court’s discretion. However, if the court finds that the statute of limitations cannot be applied, the sentence of execution by shooting must be commuted either to a declaration that the person concerned is an enemy of the workers, accompanied by withdrawal of his or her citizenship of the USSR and lifelong banishment from the territory of the USSR, or to a term of imprisonment of not less than two years.
Note 2 – In the case of persons prosecuted for actively campaigning against the working class and the revolutionary movement in the exercise of high-level or secret duties under the Tsarist regime or in the service of the counter-revolutionary governments during the [Russian] Civil War, both the application of the statute of limitations and the commuting of the sentence of execution by shooting are at the discretion of the court.
Note 3 – The limitation periods laid down by this section do not apply to acts prosecuted under the present Code by means of administrative proceedings. Coercive measures in respect of such acts may only be imposed within one month of the acts being committed.”
44. On 6 January 1961 the Supreme Council of the Latvian SSR replaced the 1926 Criminal Code with the 1961 Criminal Code, which came into force on 1 April 1961. The relevant provisions thereof read as follows:
“It shall be an offence punishable by between three and fifteen years’ imprisonment ... or death ... to organise armed gangs with a view to attacking State undertakings, private undertakings, the authorities, organisations or private individuals or to be a member of such gangs or participate in attacks perpetrated by them.”
“The offences set out in this code shall be deemed military crimes where they are committed by military personnel ... against the established order of military service. ...”
“It shall be an offence punishable by between three and ten years’ imprisonment or death to foray, unlawfully destroy property, engage in acts of violence against the population of a region liable to attack or to seize property unlawfully on the pretext of military necessity.”
45. Section 45 of the 1961 Criminal Code stated that statutory limitation was not automatically applicable to crimes carrying the death penalty, but was within the discretion of the court.
46. The 1961 Criminal Code remained in force (with some amendments) after Latvia regained its independence.
47. By a Law passed on 6 April 1993, the Supreme Council inserted into the special section of the 1961 Criminal Code a new Chapter 1-a, which contained provisions criminalising acts such as genocide, crimes against humanity or peace, war crimes and racial discrimination.
48. A new section 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 civil population 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.”
49. The same Law also inserted section 6-1 into the 1961 Criminal Code permitting the retrospective application of the criminal law with respect to crimes against humanity and war crimes:
“Persons guilty of crimes against humanity, genocide, crimes against peace or war crimes may be convicted irrespective of when the crimes were committed.”
50. Section 45-1, inserted by the same Law into the 1961 Criminal Code, exempted such offences from limitation:
“The statutory limitation of criminal liability shall not apply to persons guilty of crimes against humanity, genocide, crimes against peace or war crimes.”
51. The 1961 Criminal Code was replaced by the 1998 Criminal Code on 1 April 1999. The substance of sections 6-1, 45-1 and 68-3 of the 1961 Criminal Code reappeared in the 1998 Criminal Code.
52. The laws of war were not only to be found in treaties, “but in the customs and practices of States which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts”.
53. The first Geneva Convention (later superseded) provided for minimum standards for “wounded or sick combatants” so that “to whatever nation they may belong” they had to be “collected and cared for”.
54. This Convention conferred protection and “prisoner of war” status on wounded and sick combatants in the power of the enemy. The relevant parts of Articles 1 and 2 provide as follows:
“Officers, soldiers, and other persons officially attached to armies, who are sick or wounded, shall be respected and cared for, without distinction of nationality, by the belligerent in whose power they are.
...”
“Subject to the care that must be taken of them under the preceding Article, the sick and wounded of an army who fall into the power of the other belligerent become prisoners of war, ...”
55. This Convention (replaced by the Geneva Convention (I) of 12 August 1949) responded to the experience of the First World War. It did not include a general participation clause. The relevant parts of Articles 1 and 2 read as follows:
“Officers and soldiers and other persons officially attached to the armed forces who are wounded or sick shall be respected and protected in all circumstances; they shall be treated with humanity and cared for medically, without distinction of nationality, by the belligerent in whose power they may be. ...”
“Except as regards the treatment to be provided for them in virtue of the preceding Article, the wounded and sick of an army who fall into the hands of the enemy shall be prisoners of war, ...”
56. This Convention provided a comprehensive set of rules for the treatment of prisoners of war. The First World War revealed deficiencies in the relevant provisions of the 1907 Hague Convention (IV) and its annexed Regulations (see paragraphs 85-91 below) which were to be supplemented by this Convention. It recognised that the entitlement to “prisoner of war” status was derived from holding the status of “legal combatant” under the Hague Regulations. It introduced protections for prisoners of war and ensured that they were treated humanely. Women were the subject of special protection. The relevant provisions read as follows:
“The present Convention shall apply without prejudice to the stipulations of Part VII:
1. To all persons referred to in Articles 1, 2 and 3 of the Regulations annexed to the Hague Convention (IV) of 18 October 1907, concerning the Laws and Customs of War on Land, who are captured by the enemy.
2. To all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war, subject to such exceptions (derogations) as the conditions of such capture render inevitable. Nevertheless these exceptions shall not infringe the fundamental principles of the present Convention; they shall cease from the moment when the captured persons shall have reached a prisoners of war camp.”
“Prisoners of war are in the power of the hostile government, but not of the individuals or formation which captured them. They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity. Measures of reprisal against them are forbidden.”
“Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex. Prisoners retain their full civil capacity.”
“Prisoners of war shall not be subjected by the military authorities or the tribunals of the detaining Power to penalties other than those which are prescribed for similar acts by members of the national forces. ...”
“Attempted escape, even if it is not a first offence, shall not be considered as an aggravation of the offence in the event of the prisoner of war being brought before the courts for crimes or offences against persons or property committed in the course of such attempt.
After an attempted or successful escape, the comrades of the escaped person who aided the escape shall incur only disciplinary punishment therefor.”
57. This draft Convention set out to improve the standards of protection of enemy civilians living in occupied territory and on belligerent territory. It was due for discussion at a conference in 1940, but the Second World War intervened. The draft was later influential in the discussions on the 1949 Geneva Convention (IV) and is notable for its negative definition of “civilians” (consistent with the Oxford Manual 1880) and for its distinction between “combatants” and “civilians”. Its Article 1 reads as follows:
“Enemy civilians in the sense of the present Convention are persons fulfilling the two following conditions:
(a) that of not belonging to the land, maritime or air armed forces of the belligerents, as defined by international law, and in particular by Articles 1, 2 and 3 of the Regulations attached to the Fourth Hague Convention, of October 18, 1907, concerning the Laws and Customs of War on Land;
(b) that of being the national of an enemy country in the territory of a belligerent, or in a territory occupied by the latter.”
58. Articles 9 and 10 required protection of “enemy civilians” against violence and prohibited measures of reprisals against them.
59. The relevant part of this Convention provided as follows:
“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
60. Special protection was offered to expectant mothers in Article 16:
“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. As far as military considerations allow, each party to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.”
61. Article 32 includes specific protections from ill-treatment for persons in the power of the enemy and Article 33 recognises a prohibition on collective penalties, pillage and reprisals against protected persons.
62. Article 53 recognises that real or personal private property should not be destroyed unless absolutely necessary.
63. The Lieber Code 1863 is regarded as the first attempt to codify the laws and customs of war. Although only applicable to American forces, it represented a summary of the laws and customs of war existing at the time and was influential in later codifications.
64. Articles 15 and 38 included the rule that life or property could be seized or destroyed when required by military necessity (see also Article 16 of the same Code below):
“Military necessity admits of all direct destruction of life or limb of ‘armed’ enemies, and of other persons whose destruction is incidentally ‘unavoidable’ in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.”
“Private property, unless forfeited by crimes or by offences of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States.
...”
65. Article 16 contained a general standard of behaviour in armed conflict and a prohibition on perfidy:
“Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.”
66. Articles 19 and 37 contained measures of special protection for women in the context of armed conflict:
“Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed ...”
“The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offences to the contrary shall be rigorously punished.
...”
67. Article 22 contained the principle of distinction between “combatants” and “civilians”:
“Nevertheless, as civilisation has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit.”
68. Article 44 contained a catalogue of offences and of severe punishments for a guilty soldier:
“All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorised officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offence. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.”
69. Article 47 referred to punishment under domestic criminal codes:
“Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred.”
70. The Code illustrated the two main rights of a “combatant”: “prisoner of war” status (Article 49) and protection from prosecution for certain acts which would be criminal for a civilian (Article 57):
“A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war.”
“So soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offences. No belligerent has a right to declare that enemies of a certain class, colour, or condition, when properly organised as soldiers, will not be treated by him as public enemies.”
71. The notion of levée en masse was covered in Article 51:
“If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorised levy ‘en masse’ to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.”
72. Article 59 indicated individual criminal responsibility for violations of the laws and customs of war:
“A prisoner of war remains answerable for his crimes committed against the captor’s army or people, committed before he was captured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory measures.”
73. Articles 63 to 65 asserted that the use of enemy uniforms was outlawed as an act of perfidy, removing the protections of the laws and customs of war from persons who engaged in such conduct:
“Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter.”
“If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy.”
“The use of the enemy’s national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.”
74. Together with Article 49, Article 71 described a particular status later referred to as hors de combat under international law:
“Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the army of the United States, or is an enemy captured after having committed his misdeed.”
75. Articles 76 and 77 created obligations to treat prisoners of war with humanity and proportionately in the event of an escape attempt:
“Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.
...”
“A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape.
...”
76. Article 101 contained a prohibition of treacherous wounding (at the time understood to be the same as perfidious wounding):
“While deception in war is admitted as a just and necessary means of hostility, and is consistent with honourable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is difficult to guard against them.”
77. Articles 88 and 104 contained provisions for punishing spies:
“A spy is a person who secretly, in disguise or under false pretence, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.”
“A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.”
78. This declaration was the first formal agreement prohibiting the use of certain weapons in war. The Preamble recalled three principles of the laws and customs of war: the only legitimate object during war is to weaken the military forces of the enemy; there is a limit to the means which can be employed against enemy forces; and the laws and customs of war do not condone violence against those hors de combat.
79. This declaration was never adopted at the diplomatic conference in Brussels in 1874, although it was another influential codification exercise. The relevant Articles of the declaration read as follows:
“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. That they be commanded by a person responsible for his subordinates;
2. That they have a fixed distinctive emblem recognisable at a distance;
3. That they carry arms openly; and
4. That they conduct their operations in accordance with the laws and customs of war. In countries where militia constitute the army, or form part of it, they are included under the denomination ‘army’.”
“The population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organise themselves in accordance with Article 9, shall be regarded as belligerents if they respect the laws and customs of war.”
“The laws of war do not recognise in belligerents an unlimited power in the adoption of means of injuring the enemy.”
“According to this principle are especially ‘forbidden’:
...
(b) Murder by treachery of individuals belonging to the hostile nation or army;
(c) Murder of an enemy who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
...
(e) The employment of arms, projectiles or material calculated to cause unnecessary suffering, as well as the use of projectiles prohibited by the Declaration of St Petersburg of 1868;
(f) Making improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;
(g) Any destruction or seizure of the enemy’s property that is not imperatively demanded by the necessity of war.”
“A spy taken in the act shall be tried and treated according to the laws in force in the army which captures him.”
“Prisoners of war are lawful and disarmed enemies. They are in the power of the hostile government, but not in that of the individuals or corps who captured them. They must be humanely treated. Any act of insubordination justifies the adoption of such measures of severity as may be necessary. All their personal belongings except arms shall remain their property.”
“Prisoners of war are subject to the laws and regulations in force in the army in whose power they are. Arms may be used, after summoning, against a prisoner of war attempting to escape. If recaptured he is liable to disciplinary punishment or subject to a stricter surveillance.
If, after succeeding in escaping, he is again taken prisoner, he is not liable to punishment for his previous acts.”
80. The Oxford Manual 1880, influenced by the Draft Brussels Declaration 1874 and drafted by the Institute of International Law, was designed to assist governments in formulating national legislation on the laws and customs of war. The relevant Articles read as follows:
“The state of war does not admit of acts of violence, save between the armed forces of belligerent States. Persons not forming part of a belligerent armed force should abstain from such acts. This rule implies a distinction between the individuals who compose the ‘armed force’ of a State and its other ‘ressortissants’. A definition of the term ‘armed force’ is, therefore, necessary.”
“The armed force of a State includes:
1. The army properly so called, including the militia;
2. The national guards, landsturm, free corps, and other bodies which fulfil the three following conditions:
(a) That they are under the direction of a responsible chief;
(b) That they must have a uniform, or a fixed distinctive emblem recognisable at a distance, and worn by individuals composing such corps;
(c) That they carry arms openly;
3. The crews of men-of-war and other military boats;
4. The inhabitants of non-occupied territory, who, on the approach of the enemy, take up arms spontaneously and openly to resist the invading troops, even if they have not had time to organise themselves.”
“Every belligerent armed force is bound to conform to the laws of war.
...”
“The laws of war do not recognise in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain especially from all needless severity, as well as from all perfidious, unjust, or tyrannical acts.”
“It is forbidden:
...
(b) To make treacherous attempts upon the life of an enemy; as, for example, by keeping assassins in pay or by feigning to surrender;
(c) To attack an enemy while concealing the distinctive signs of an armed force;
(d) To make improper use of the national flag, military insignia or uniform of the enemy, of the flag of truce and of the protective signs prescribed by the ‘Geneva Convention’.”
“It is forbidden:
...
(b) To injure or kill an enemy who has surrendered at discretion or is disabled, and to declare in advance that quarter will not be given, even by those who do not ask it for themselves.”
“Individuals who form a part of the belligerent armed force, if they fall into the hands of the enemy, are to be treated as prisoners of war, in conformity with Articles 61 et seq. ...”
81. The section containing Articles 23 to 26 was entitled “Spies” and dealt with their treatment:
Individuals captured as spies cannot demand to be treated as prisoners of war.
But:
Individuals may not be regarded as spies, who, belonging to the armed force of either belligerent, have penetrated, without disguise, into the zone of operations of the enemy, – nor bearers of official dispatches, carrying out their mission openly, nor aeronauts (Article 21).
In order to avoid the abuses to which accusations of espionage too often give rise in war it is important to assert emphatically that:
No person charged with espionage shall be punished until the judicial authority shall have pronounced judgment.
Moreover, it is admitted that:
A spy who succeeds in quitting the territory occupied by the enemy incurs no responsibility for his previous acts, should he afterwards fall into the hands of that enemy.”
82. Article 32 (b) prohibited, inter alia, the destruction of public or private property, if this destruction was “not demanded by an imperative necessity of war”.
83. Chapter III outlined the rules for captivity of prisoners of war. It described the legal basis for their detention (it was not a punishment or vengeance); it provided that they must be treated humanely (Article 63) and that arms could be used only if the prisoner attempted to flee (Article 68).
84. Part III of the Manual provided for punishments for violations of the rules in the manual and, in the event that the alleged offender could not be detained, the manual outlined the limited circumstances for legitimate belligerent reprisals:
“If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are. Therefore:
Offenders against the laws of war are liable to the punishments specified in the penal law.
This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other recourse than a resort to reprisals remains. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigour, however, is modified to some extent by the following restrictions:
Reprisals are formally prohibited in case the injury complained of has been repaired.
In grave cases in which reprisals appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be resorted to with the authorisation of the commander in chief. They must conform in all cases to the laws of humanity and morality.”
85. The International Peace Conference in the Hague in 1899 resulted in the adoption of four conventions including the Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annexed Regulations 1899. These instruments were replaced, following the second Hague International Peace Conference in 1907, by the 1907 Hague Convention (IV) and the Hague Regulations (together “the 1907 Hague Convention (IV) and Regulations”). They were based on the Draft Brussels Declaration 1874 and the Oxford Manual 1880.
86. The Preamble to the 1907 Hague Convention (IV) reads as follows:
“Seeing that while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert;
Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilisation;
Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible;
Have deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.
According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.
It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;
On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.
They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood.”
87. The eighth paragraph of the Preamble cited above is known as the “Martens Clause”. An almost identical clause had already been included in the Preamble to the 1899 Hague Convention (II) and it was in substance repeated in each of the 1949 Geneva Conventions (I-IV) as well as in the 1977 Protocol Additional (see paragraphs 134-42 below).
88. Article 2 of the 1907 Hague Convention (IV) contained a “si omnes” solidarity clause to the effect that the 1907 Hague Convention (IV) and Regulations only applied between the Contracting States and then only if all the belligerents were Contracting States. However, the International Military Tribunal (IMT) Nuremberg judgment later confirmed that by 1939 the 1907 Hague Convention (IV) and Regulations were regarded as being declaratory of the laws and customs of war (see paragraphs 118 and 207 below).
89. The other relevant provisions of the 1907 Hague Convention (IV) provide as follows:
“The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the laws and customs of war on land, annexed to the present Convention.”
“A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”
90. Articles 1 and 2 of the Hague Regulations read as follows:
“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognisable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army’.”
“The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organise themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”
91. Chapter II (Articles 4-20) of the Hague Regulations included the rules identifying prisoners of war, the requirement to treat prisoners of war humanely (Article 4) and the limitation of any measures taken for insubordination to those necessary (Article 8). The Regulations continued:
“The right of belligerents to adopt means of injuring the enemy is not unlimited.”
“In addition to the prohibitions provided by special conventions, it is especially forbidden
...
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;
...
(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;
(f) To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;
(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war;
(h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. ...”
“A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. ...”
“A spy taken in the act shall not be punished without previous trial.”
“A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”
92. This Commission was tasked by the Paris Peace Conference to prepare a report, inter alia, on facts concerning breaches of the laws and customs of war by the forces of the German Empire and allies (including Turkish officials), on the degree of responsibility for such offences attaching to members of the enemy forces as well as on the constitution and procedure of a tribunal appropriate for the trial of such offences. The report was completed in 1919 and it drew up a list of approximately nine-hundred alleged war criminals and proposed charges against Turkish officials and others for “crimes against the laws of humanity”, relying on the Martens Clause of the 1907 Hague Convention (IV). It also drew up a nonexhaustive list of thirty-two offences committed during the war regarded as contrary to existing conventions and customs including: murders and massacres; torture of civilians; the imposition of collective penalties; wanton devastation and destruction of property; as well as the illtreatment of wounded and prisoners of war.
93. As regards individual criminal liability, the Commission stated:
“All persons belonging to enemy countries, however their position may have been, without distinction of rank, including Chiefs of State, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”
94. The Treaty of Versailles 1919 contained a number of provisions providing for the international trial and punishment of war criminals, including the German Emperor. The prosecution provisions were never applied: the Emperor’s extradition was refused and an international trial of other alleged war criminals was dropped in favour of a trial by Germany itself. Article 229 also retained the possibility of bringing persons guilty of criminal acts, against the nationals of one of the Allied and Associated Powers, before the military tribunals of that Power.
95. The Treaty of Sèvres 1920 (the peace agreement between the Allied Powers and Turkey following the First World War), contains similar provisions (Articles 226-30) to those outlined in the Treaty of Versailles 1919 as regards the pursuit before military tribunals by the Allied Powers of Turkish officials accused of acts violating the laws and customs of war. This treaty was never ratified and was superseded by a Declaration of Amnesty (signed on 24 July 1923, the same date as the Treaty of Lausanne 1923) by France, Greece, Italy, Japan, Romania, Turkey and the United Kingdom. The declaration provided that Greece and Turkey granted “full and complete amnesty ... for all crimes or offences committed during the same period which were evidently connected with the political events which have taken place during that period” (the relevant period being 1 August 1914 to 20 November 1922).
96. This draft Convention was prepared by the International Law Association but never adopted by States. Its negative definition of a civilian population was consistent with the definition in the Oxford Manual 1880:
“The civilian population of a State shall not form the object of an act of war. The phrase ‘civilian population’ within the meaning of this Convention shall include all those not enlisted in any branch of the combatant services nor for the time being employed or occupied in any belligerent establishment as defined in Article 2.”
97. In 1901 and 1902 US courts martial tried a number of US military personnel accused of, inter alia, violations of the laws of war during the US counter-insurgency campaign in the Philippines and, notably, of extrajudicial executions. Few in number, the submissions of the Judges Advocates-General and the reviewing authorities contained comments on the laws and customs of war on matters including the responsibility of commanding officers and the treatment of prisoners of war. These comments were influential in later codifications. The trials constituted an early example of prosecutions at a national level of national military personnel accused of crimes against the enemy contrary to the laws of war.
98. In the trial of Major Waller, the reviewing authority observed:
“... the laws of war do not sanction, and the spirit of the age will not suffer that any officer may, upon the dictates of his own will, inflict death upon helpless prisoners committed to his care. Any other view looks to the method of the savage and away from the reasonable demand of civilised nations that war shall be prosecuted with the least possible cruelty and injustice.”
99. In Major Glenn’s case, the judge advocate pointed out that, even if US soldiers were operating in a difficult situation against isolated bands of insurgents acting as guerrillas in flagrant disregard of the rules of civilised war, they were not relieved of “their obligation to adhere to the rules of war in the efforts put forth by them ... to suppress the insurrection and restore public order”.
100. At the trial of Lieutenant Brown for the murder of a prisoner of war, the judge advocate noted that there existed a “state of public war” in the Philippines and that the culpability of the accused should therefore have been determined not by the lex loci but from the standpoint of international law which, in that case, meant the rules and customs of war.
101. Further to the Treaty of Versailles 1919, Germany brought proceedings against persons before the Supreme Court in Leipzig. The Allies presented forty-five cases (out of the almost nine hundred files included in the International Commission Report 1919) concerning the treatment of prisoners of war and the wounded as well as an order to torpedo a British hospital ship. The trials took place in 1921. Twelve trials took place in 1921 resulting in six acquittals and six convictions (the sentences imposed being symbolic). The Allies decided to refer no more cases to the German courts.
102. The convictions relied mainly on German military law but there were some express references to international law, notably in the Llandovery Castle decision:
“The firing on the boats was an offence against the law of nations. In war on land the killing of unarmed enemies is not allowed [Hague Regulations], ([Article] 23(c)), similarly in war at sea, the killing of shipwrecked people, who have taken refuge in life-boats, is forbidden. ... Any violation of the law of nations in warfare is, as the Senate has already pointed out, a punishable offence, so far as in general, a penalty is attached to the deed. The killing of enemies in war is in accordance with the will of the State that makes war (whose laws as to the legality or illegality on the question of killing are decisive), only in so far as such killing is in accordance with the conditions and limitations imposed by the law of nations. ... The rule of international law, which is here involved, is simple and universally known. No possible doubt can exist with regard to the question of its applicability. The court must in this instance affirm Patzig’s guilt of killing contrary to international law.”
103. The United Kingdom made considerable efforts to prosecute Turkish officers for ill-treating prisoners of war and for other crimes during the First World War. The United Kingdom was in favour of the crimes being prosecuted by British courts martial in the occupied territories since the crimes were not “within the sphere of municipal law” but were governed by “the customs of war and rules of international law”. A number of courts martial were launched in 1919, but intervening domestic considerations in Turkey prevented them being pursued. Turkish courts martial were also held and, while they were charged on the basis of the Turkish Criminal Code, certain convictions were based on “humanity and civilisation”. As noted above, the Treaty of Lausanne 1923 put an end to these prosecutions.
104. In November 1940 the representatives of the exiled governments of Poland and Czechoslovakia made allegations of violations of the laws of war against German troops. For the British Prime Minister, the prosecution of war crimes was part of the war effort: indeed, it was so for all States occupied by Germany and for China as regards Japanese occupying troops. In 1942 representatives from territories occupied by Axis forces adopted in London the St James Declaration on War Crimes and Punishment. Its Preamble recalled that international law and, in particular, the 1907 Hague Convention (IV), did not permit belligerents in occupied countries to perpetrate acts of violence against civilians, to bring into disrepute laws in force or to overthrow national institutions. The declaration continued as follows:
“The undersigned representatives ...
1. Affirm that acts of violence thus perpetrated against civilian populations are at variance with accepted ideas concerning acts of war and political offences as these are understood by civilised nations;
...
3. Place amongst their principal war aims punishment through the channel of organised justice of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them;
4. Determine in the spirit of international solidarity to see to it that (a) those guilty and responsible, whatever their nationality, are sought for, handed over to justice and judged; (b) that sentences pronounced are carried out.”
105. Following this declaration, the United Nations War Crimes Commission (UNWCC) was established in 1943. It was to compile evidence of war crimes which files served as warrants for prosecution by military authorities of those accused. By the end of its mandate it had succeeded in compiling 8,178 files concerning persons suspected of war crimes. The Commission adopted in full the list of offences in the International Commission Report 1919 (see paragraph 92 above) to be adapted where appropriate to the conditions of the Second World War.
106. As early as November 1941 the USSR informed all countries with which it had maintained diplomatic relations of the war crimes committed by, in particular, Nazi Germany in the occupied territories. In order to record the crimes allegedly committed by the German forces and to establish the identity of those guilty so as to bring them to justice, a decree dated 2 November 1942 established the “Extraordinary State Commission for ascertaining and investigating crimes perpetrated by the Germano-Fascist invaders and their accomplices, and the damage inflicted by them on citizens, collective farms, social organisations, State enterprises and institutions of the USSR”. The Commission’s work was used in the later “Krasnodar” and “Kharkov” trials (see paragraphs 107 and 109 below).
107. The first trials of USSR citizens (accomplices and active assistants of the German forces) took place at Krasnodar in July 1943. The accused were charged and convicted by USSR criminal courts of murder and treason under the Soviet Criminal Code.
108. The subsequent Moscow Declaration of the United Kingdom, the United States of America and the USSR (“the Mocow Declaration 1943”) was one of the most significant declarations of the Second World War concerning the prosecution of war criminals. It confirmed the legitimate role of national courts in punishing war criminals and the intention to pursue such prosecutions after the war. It read, in so far as relevant, as follows:
“... the aforesaid three Allied Powers, speaking in the interest of the thirty-two United Nations, hereby solemnly declare and give full warning of their declaration as follows:
At the time of granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein. ...
Thus, Germans who take part in wholesale shooting of Polish officers or in the execution of French, Dutch, Belgian or Norwegian hostages or Cretan peasants, or who have shared in slaughters inflicted on the people of Poland or in territories of the Soviet Union which are now being swept clear of the enemy, will know they will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.
Let those who have hitherto not imbued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done.
The above declaration is without prejudice to the case of German criminals whose offences have no particular geographical localisation and who will be punished by joint decision of the government of the Allies.”
109. This latter provision envisaged the prosecution of German war criminals by the USSR and the first trial took place at Kharkov in December 1943. The Presidium of the Supreme Council had issued a decree in 1943 laying down the punishments to be applied. The indictment alleged that they were responsible for having gassed thousands of inhabitants of Kharkov and its region, of committing brutal atrocities against civilians, of having burnt villages and exterminated women, old people and children as well as of having executed, burnt alive and tortured the wounded and prisoners of war. The prosecution relied on the rules of war laid down by international conventions (the 1907 Hague Convention (IV) and Regulations and the 1929 Geneva Convention, noting that Germany had ratified both) and universally accepted provisions of international law. The indictment not only referred to the responsibility of the German Government and Command, but to the individual responsibility of the accused (referring to the “Leipzig trials”). After admitting their own and their hierarchical superiors’ guilt, the three accused were sentenced to death by hanging. The fairness of the trials may have been called into question later, but they were widely reported. The USSR awaited the end of the war before resuming such trials: trials were also held in Kyiv, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev.
110. As soon as the territories of Bulgaria had been liberated from German forces, the Bulgarian People’s Court in December 1944 convicted eleven Bulgarians of war crimes in application of the Moscow Declaration 1943.
111. This comprehensive manual was compiled by the US War Department in 1940 and issued to forces in the field. It contains both customary rules of war and rules arising from treaties to which the United States of America was party and interprets rules of armed conflict applicable to US military forces at that time. It described the “Basic principles” as follows:
“Among the so-called unwritten rules or laws of war are three interdependent basic principles that underlie all of the other rules or laws of civilised warfare, both written and unwritten, and form the general guide for conduct where no more specific rule applies, to wit:
(a) The principle of military necessity, under which, subject to the principles of humanity and chivalry, a belligerent is justified in applying any amount and any kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money;
(b) The principle of humanity, prohibiting employment of any such kind or degree of violence as is not actually necessary for the purpose of the war; and
(c) The principle of chivalry which denounces and forbids resort to dishonourable means, expedients, or conduct.”
112. Paragraph 8 of the manual provided that:
“General division of enemy population: The enemy population is divided in war into two general classes, known as the armed forces and the peaceful population. Both classes have distinct rights, duties, and disabilities, and no person can belong to both classes at one and the same time.”
113. The manual continued at paragraphs 13, 348 and 356:
“Determination of status of captured troops: The determination of the status of captured troops is to be left to higher military authority or to military tribunals. Summary executions are no longer contemplated under the laws of war. The officer’s duty is to hold the persons of those captured and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority.
Hostilities committed by individuals not of the armed forces: Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are, when captured by the injured party, liable to punishment as war criminals. ...
Right of trial: No individual should be punished for an offence against the laws of war unless pursuant to a sentence imposed after trial and conviction by a military court or commission or some other tribunal of competent jurisdiction designated by the belligerent.”
114. In 1942 eight undercover Nazi saboteurs travelled to the United States of America, were captured and tried by a secret military commission on, inter alia, charges of offences contrary to the law of war (including wearing of civilian clothes to move by deception behind enemy lines to commit acts of sabotage, espionage “and other hostile acts”). Their lawyers took a writ of habeas corpus to the Supreme Court, which court stated as follows:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
115. The Potsdam Agreement concerned the occupation and reconstruction of Germany and other nations following the German surrender of May 1945. It was drafted and adopted by the USSR, the United States of America and the United Kingdom at the Potsdam Conference between 17 July and 2 August 1945. As regards the pursuit of war criminals, the Agreement provided as follows:
“The Three Governments have taken note of the discussions which have been proceeding in recent weeks in London between British, United States, Soviet and French representatives with a view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October, 1943 have no particular geographical localisation. The Three Governments reaffirm their intention to bring these criminals to swift and sure justice. They hope that the negotiations in London will result in speedy agreement being reached for this purpose, and they regard it as a matter of great importance that the trial of these major criminals should begin at the earliest possible date. The first list of defendants will be published before 1st September.”
116. Following the unconditional surrender of Germany, the Allied Powers signed the London Agreement 1945:
“Whereas the United Nations have from time to time made declarations of their intention that war criminals shall be brought to justice;
And whereas the Moscow Declaration of the 30th October 1943 on German atrocities in occupied Europe stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments that will be created therein;
And whereas this declaration was stated to be without prejudice to the case of major criminals whose offences have no particular geographical location and who will be punished by the joint decision of the governments of the Allies;
...”
“There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of the organisations or groups or in both capacities.”
“The constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement.”
“Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes.”
“Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals.”
117. The Charter was annexed to the London Agreement 1945. It provided, inter alia, a non-exhaustive list of violations of the laws and customs of war for which “[l]eaders, organisers, instigators and accomplices” were liable and it prescribed the penalties:
“In pursuance of the Agreement signed on the eighth day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called ‘the Tribunal’) for the just and prompt trial and punishment of the major war criminals of the European Axis.”
“The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
...
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
...
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
“The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”
“The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.”
“In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany.”
118. The judgment of the IMT Nuremberg referred extensively to the customary nature of the 1907 Hague Convention (IV) and Regulations:
“The Tribunal is ... bound by the Charter, in the definition which it gives both of war crimes and crimes against humanity. With respect to war crimes, the crimes defined by Article 6 (b) of the Charter were already recognised as war crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention [(IV)] of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.
But it is argued that the Hague Convention does not apply in this case, because of the ‘general participation’ clause in [its] Article 2. ...
Several of the belligerents in the recent war were not parties to this Convention.
In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.”
119. In the section dealing with “the law of the Charter” and in dealing with the crime against peace, the judgment noted:
“The Hague Convention [(IV)] 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention [(IV)] nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. ... In interpreting the words of the [Kellogg-Briand Pact], it must be remembered that international law is not the product of an international legislature, and that such international agreements as the [Kellogg-Briand Pact] have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of States which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.”
120. This Charter was approved by unilateral declaration of the Supreme Commander of the Allied Forces on 19 January 1946. The relevant parts of Article 5 of the Charter provide as follows:
“The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organisations are charged with offences which include crimes against peace.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
...
(b) Conventional war crimes: Namely, violations of the laws or customs of war;
(c) ... Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.”
121. As to the status of the 1907 Hague Convention (IV), the judgment of the IMT Tokyo of 12 November 1948 stated as follows:
“... The effectiveness of some of the conventions signed at The Hague on 18 October 1907 as direct treaty obligations was considerably impaired by the incorporation of a so-called ‘general participation clause’ in them, providing that the [Hague] Convention [(IV)] would be binding only if all the Belligerents were parties to it. The effect of this clause, is, in strict law, to deprive some of the conventions of their binding force as direct treaty obligations, either from the very beginning of a war or in the course of it as soon as a non-signatory Power, however insignificant, joins the ranks of the Belligerents. Although the obligation to observe the provisions of the [Hague] Convention [(IV)] as a binding treaty may be swept away by operation of the ‘general participation clause’, or otherwise, the [Hague] Convention [(IV)] remains as good evidence of the customary law of nations, to be considered by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation. ...”
122. In the mid-1950s the International Law Commission adopted the seven “Nuremberg Principles” summarising the “principles of international law recognised” in the Charter and judgment of the IMT Nuremberg:
“Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
...
Principle IV: The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
...
(b) War crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
...
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”
123. The Control Council Law No. 10 was issued in December 1945 by the Allied Council in control of Germany to establish a uniform legal basis for the prosecution in Germany of war criminals (other than those on trial at the IMT Nuremberg). Article I made the Moscow Declaration 1943 and the London Agreement 1945 integral parts of the Law. Article II (5) provided:
“In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in relation to the period 30 January 1933 to 1 July 1945 ...”
124. This Law also recognised acts, almost identical to Article 6 (b) of the Charter of the IMT Nuremberg, as constituting war crimes and provided that any person committed a war crime whether he was a principal, an accessory, if he ordered or abetted or took a consenting part in the crime or was connected with plans or enterprises concerning the commission of the crime, or was a member of any organisation or group connected with its commission. Punishments were also specified.
125. In the Hostages (Wilhelm List) case, the accused were charged with war crimes and crimes against humanity committed during the Second World War relating mainly to the institution of a scheme of reprisal killings in occupied territory and to the summary execution of Italian troops after they surrendered. The judgment noted that the crimes in the Charter of the IMT Nuremberg and in the Control Council Law No. 10 were declaratory of the existing laws and customs of war.
126. The judgment noted as follows with regard to List:
“He was authorised to pacify the country with military force; he was entitled to punish those who attacked his troops or sabotaged his transportation and communication lines as francs-tireurs; ... This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being francs-tireurs.”
127. As regards military necessity, the judgment noted as follows:
“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”
128. While the Tribunal had to admit that the absence of a formal declaration of war between Germany and Italy created grave doubts as to whether the executed Italian officers would have been entitled to “prisoner of war” status, it looked beyond this fact to find that their summary execution was “unlawful and wholly unjustified”.
129. After the Second World War, various national tribunals pursued war crimes prosecutions for acts committed during the Second World War. These included prosecutions before Australian, British, Canadian, Chinese, French and Norwegian military and civilian courts. All concerned breaches of the laws and customs of war and many concerned the necessity of fair trials prior to the punishment of those suspected of war crimes. Certain judgments stressed the legitimate referral of a domestic tribunal to the international laws and customs of war and referred to rules concerning the unnecessary destruction of civilian property, the unlawful wearing of an enemy uniform and individual command responsibility.
130. In November 1968 the United Nations General Assembly adopted this Convention in response to fears expressed that alleged war criminals (from the Second World War) not yet apprehended might escape prosecution with the passage of time.
131. The 1968 Convention came into force on 11 November 1970. It was ratified by the Soviet Union in 1969 and by Latvia on 14 April 1992. Its relevant part reads as follows:
“Preamble
Noting that none of the solemn declarations, instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation,
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of cooperation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognising that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application, ...”
132. Article 1 of the 1968 Convention provides:
“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by Resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the ‘grave breaches’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; ...”
133. This Convention applies to crimes committed prior to its adoption only if the relevant crimes have not already been prescribed. Only two States signed the 1974 Convention at its depository stage (France and the Netherlands) and it came into force in 2003 upon its third ratification (by Belgium). Neither the USSR nor Latvia has ratified this Convention.
134. This Protocol to the Geneva Conventions was intended to develop and reaffirm many of the laws and customs of war in the light of the age of many of the laws on which they were based (notably, the 1907 Hague Convention (IV)). Many of its provisions are restatements of existing laws and customs of war, while others are provisions constitutive in nature.
135. The first two “Basic rules” of warfare are described in Article 35:
“1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
...”
136. Article 39, headed “Emblems of nationality”, provides as follows:
“1. It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict.
2. It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations.
...”
137. Article 41 confirms the protection of those combatants who were hors de combat:
“1. A person who is recognised or who, in the circumstances, should be recognised to be ‘hors de combat’ shall not be made the object of attack.
2. A person is ‘hors de combat’ if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not attempt to escape.
...”
138. Article 48 recognises the principle of distinction:
“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
139. Article 50 recognises civilians as being defined by non-membership of the armed forces.
“1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) §§ 1, 2, 3 and 6 of the Third [Geneva] Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”
140. Article 51 concerned the protection to be accorded to civilians:
“1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”
141. Article 52 reiterated the customary norm that a civilian object (with no military objectives) should not be the subject of attack. Article 52 § 3 notes:
“In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
142. Article 75 offers protection to persons in the power of a belligerent party who do not qualify for superior protections (such as “prisoner of war” status) under the laws and customs of war.
NON_VIOLATED_ARTICLES: 7