Research & Litigation
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The following is a guest post by the Director of the Global Legal Research Center Peter Roudik. Peter is a frequent contributor to In Custodia Legis. He has written a number of posts, including on “Ukraine: Two Understandings of Lustration,” “Crimean History, Status, and Referendum,” “Regulating the Winter Olympics in Russia,” “Soviet Law and the Assassination of JFK,” and the “Treaty on the Creation of the Soviet Union.” Recently, people all over the world remembered how the Auschwitz concentration camp was liberated 70 years ago on January 27, 1945. Our readers might be interested to learn about the legal basis for the Soviet authorities’ involvement in the collection of evidence, investigation of crimes committed in the camp, and the prosecution and punishment of the perpetrators of these and other crimes. While the most notorious Nazi war criminals were tried in Nuremberg, and those accused of murdering people in Auschwitz were prosecuted later in separate trials in Poland and Germany, the collection of evidence and prosecution of war crimes had started well before the Soviets liberated Auschwitz.
1. How were crimes committed in Auschwitz investigated?
Auschwitz was the first large extermination camp discovered by the Red Army outside of the Soviet territory. The scale of the atrocities witnessed by the Soviet officers was incomparable to anything they had seen while fighting the Germans before. The first information about Auschwitz came as eyewitness reports in which liberators informed their military superiors about what they had seen. Similarly, Russian journalists, who followed the troops, provided their reports and interviews with survivors to the Soviet secret police and justice authorities. Today, these reports are an important part of Auschwitz-related archives. These documents are preserved in several archives within the Russian Defense Ministry system and the archives of the Federal Security Service (former KGB). For this 70th anniversary, many documents from these archives were declassified and published on the RF Ministry of Defense website.
Within two weeks after the liberation, a technical commission of forensic experts arrived at Auschwitz. The commission, which included army engineers, Soviet and Polish scholars in the field of civil engineering, chemistry, transportation, and public health, among others, collected evidence through March 1945. The work of this commission is described in The Case for Auschwitz by Robert Jan van Pelt. The committee’s experts’ findings were forwarded to the Extraordinary State Commission for Identification and Investigation of Atrocities Committed by German Fascist Occupants (ES Commission). This Commission was created in November 1942 by a Decree of the USSR Supreme Council Presidium (then the legislature) and was the main institution responsible for “collecting information about heinous crimes committed by the Nazis on occupied territories and damage they inflicted to Soviet citizens and the state.” The ES Commission was charged with the duty to identify individual perpetrators of crimes and bring them to justice. The Statute on the Commission adopted by the USSR Council of Ministers on March 16, 1943, said that the Commission has the right to initiate investigations, request prosecutions, collect evidence, interview victims of Nazi crimes, and conduct other procedural activities necessary to charge occupants and their collaborators for crimes they had committed.
The ES Commission consisted of 10 people. Its chairman was the head of the Soviet Trade Union Association. Among other members there was a Communist party ideologue (who was very close to Stalin); the famous writer Aleksei Tolstoy; the head of the Russian Orthodox Church in Ukraine; a celebrity female pilot; and five leading Soviet scholars and scientists. The commission had its own staff of 116 people and had branches in all regions liberated from the Germans. Members of the Commission and its staff personally collected evidence in Auschwitz, which was used later in trials in Poland and Germany.
2. What were the legal grounds for the Soviets to prosecute war crimes?
The legal act that established the legislative framework for prosecuting Nazi war criminals by Soviet authorities was the Decree of the USSR Supreme Council Presidium of April 19, 1943, on Punishment of German and Fascist Villains Guilty of Killing and Torturing Soviet Civil Population and Army Prisoners, Spies, and Traitors, who are Soviet Citizens, and their Collaborators. The Decree stated that crimes against Soviet people committed by Germans were unprecedentedly brutal and no measure of punishment prescribed by Soviet law could be appropriate to them. Naming violence against people in the occupied territory the most despicable crime, the Decree provided for the hanging of German, Italian, Romanian, Hungarian, and Finnish fascists if they murdered or tortured civilian populations or Soviet POWs. The same punishment was prescribed for Soviet nationals recognized as spies or traitors. According to the Decree, all hangings were supposed to be conducted in public in the presence of a crowd and the leaving of bodies on gallows for several days in order to make it “obvious for everyone what a person who collaborates with the enemy expects.” Local collaborators were subject to exile and hard forced labor for a term from 15 to 20 years.
Both forms of punishment were unique for the Soviet legal system because they were never used during the entire Soviet history in any other situation. Trials were conducted by military tribunals established at the division level, with executions immediately following pronouncement of the ruling. The Decree did not say anything about the right of the accused to defense counsel; however, it appears that public defenders were provided to the prosecuted persons in some trials. According to defense attorneys’ memoirs, they could not find any extenuating circumstances, and simply asked the judges for mercy. Russian historians say that the decree applied retroactively, and crimes committed by Nazis and their allies before April 19, 1943, were prosecuted the same way. The issue of a criminal’s citizenship was similarly interpreted broadly. One Russian military historian argues that even though the Decree mentioned nationals of five particular countries who could be prosecuted under this document, provisions of the Decree were applied by Soviet justice authorities when citizens of Austria, Belgium, Denmark, Poland, Japan, and some stateless individuals were prosecuted. It appears that between 1943 and 1952, almost 82,000 people were prosecuted by the Soviets as Nazi criminals and their collaborators; 25,000 of them were foreign nationals.
Even though the Decree was issued in April 1943, and military tribunals were formed in May of the same year, this law was not applied and no trials were conducted until the commitment to prosecute war criminals was confirmed by the allies. On October 30, 1943, Foreign Ministers of the Allied Powers concluded their Moscow conference by signing the Declaration of the Four Nations on General Security. A separate section of the Declaration, called “A Statement on Atrocities,” expressed the intent to bring war criminals to justice at the places where they committed their brutalities under the laws of the recently freed countries.
3. Where was the first trial against Nazi war criminals held?
Members of the German military were first tried as war criminals in the Ukrainian city of Kharkiv on December 15-18, 1943, almost two years before the famous Nuremberg Trials. The trial was conducted by the Military Tribunal of the 4th Ukrainian Army Group, which participated in liberating this large industrial East Ukrainian city with a significant Jewish population. Kharkiv was occupied by the Germans from October 1941 through August 1943, and became the second most devastated Soviet city after Stalingrad with 30,000 civilians killed, 16,000 of whom were Jews. In Kharkiv, Germans for the first time tested and then used the so-called “gas vans,” covered trucks reequipped into gas chambers by transmitting exhaust fumes into the cabins where people died from carbon monoxide poisoning.
The war crime trials in Kharkiv were conducted against a Russian military deserter who worked during the period of Kharkiv occupation as a gas van driver, two German low-rank officers who conducted executions of Soviet prisoners of war in a local concentration camp, and a German police officer who killed and tortured civilians. After three days of hearing witnesses and prosecutors, all four of the defendants, who claimed to have simply obeyed orders, were found guilty of committing war crimes and mass killings, and were sentenced to hanging. The trial was widely reported and its minutes were later published in different languages.
Elin Hofverberg, a foreign law research consultant covering the Nordic countries at the Law Library of Congress.
February 6 is National Sami Day. The purpose of the day is to celebrate the Sami, the indigenous people of the northern parts of the Nordic countries–Norway, Sweden, and Finland–as well as the Kola Peninsula of Russia, which is an area known as Sápmi . It is estimated that the Sami have lived there for over 2,000 years. Population estimates for the region range from 80,000 to 150,000, and the area which they inhabit spans over 150,000 square miles.
This national holiday is celebrated among the Sami with flags, singing and festivities; yet, observance of the day is given varied recognition at the national level across the region. In Norway it receives the greatest attention: Norway has legally designated it as a national flag day, requiring that government offices display the Norwegian flag on this day. The City Hall in Oslo also plays the Sami national anthem this day.
Regardless of whether the day is designated as a flag day, as is the case of Sweden and Finland, the local communities typically display the Sami flag. (Så firas Samernas nationaldag, DN, Feb. 6, 2014 ; Samernas nationaldag firas i fyra länder, Finnish Foreign Ministry, Feb. 6, 2014)
Just as with the holiday, the rights of the Sami vary between the nations. This was one of the main incentives for creating the Sami Council, which aims to promote more uniform laws for all Sami people. The council was first created in 1956 in Karasjok, Norway; however, representatives from the Sami communities had already celebrated their first assembly on February 6, 1917 as part of a Sami National Convention in Trondheim, Norway. As a result, this is the date commemorated by the National Sami Day. Furthermore, the Sami Council Conference was established in 1953, in Jokkmokk, Sweden. So, as we can see, there were certainly precursors to the creation of the Council in ’56.
The Sami Council is composed of national member organizations from the Sami community and is headed by 15 representatives. The Council meets every four years and is hosted by one of the community countries on a rotating schedule. Issues discussed include the arctic, culture, environment and human rights. The Council has previously adopted the Sami flag and the Sami National Anthem.
Not to be confused with the Sami Council, there is also a Sami Parliamentary Council which was established in 2000. It is made up of seven representatives from each of the respective Nordic Sami parliaments, from Norway, Sweden, and Finland. Parliamentary meetings are held every other year. Although Russian representatives are not formally members, they are certainly represented. The Sami Parliamentary Council, like the Sami Council, works to promote and safeguard Sami interests, not least of these the promotion of language. It also represents the interest of the Sami before the European Union.
A draft Nordic Sami Convention is currently being negotiated at the multinational level between Norway, Sweden and Finland to approximate the rights of the Sami people across the region and is expected to be finalized in 2016.
At the national level, Sami parliaments differ both in constitution and power. In Norway, where the first Sami Parliament was created in 1989, the Sami interests are also represented in the National Parliament (Stortinget) with a special Sami undersecretary, who is tasked with giving attention to Sami issues. The special status of the Sami people can be seen in the Norwegian Constitution, whereby “it is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life.” As an indigenous population, the Sami also have rights–in accordance with consultation agreements–to be consulted by the Norwegian parliament on issues that directly affect them.
The Sami Parliament of Finland was created in 1996. The Finnish constitution designated the Sami as an indigenous people; as such, they are entitled to develop and preserve their language and culture. Their cultural autonomy is regulated by special legislation. This legislation prescribes, among other matters, that international representation of the Sami people of Finland rests in the Finnish Sami Parliament. Like Norway, the Finnish Parliament must consult with the Finnish Sami Parliament in issues that directly affect them.
In Sweden, the Sami gained recognition as an indigenous population in 1977. As of 2011, the Sami are described as a people in the Swedish Constitution as opposed to other minority groups. The distinction here being that denomination as a people rather than a group gives the Sami special status. A Swedish Sami parliament was created in 1993. It is, however, not a typical parliament; it is a government agency. Its objectives, as well as its organization, are regulated by a special law known as the sametingslagen. In 2007, it was designated the government agency responsible for reindeer husbandry. In 2011, the Sami population won a Supreme Court case recognizing their right to heard reindeer on private land: The Nordmaling case (NJA 2001 s.109) marks a major victory for the Sami.
For more on the sociology, history and law of the Sami, the Library of Congress houses a number of interesting titles.
- Hunters in Transition: An Outline of Early Sámi History
- Indigenous Rights Claims in Welfare Capitalist Society: Recognition and Implementation: The Case of the Sami People in Norway, Sweden, and Finland
- The Language Rights of the Indigenous Saami in Finland: Under Domestic and International Law
- The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights
- Self Determination and Indigenous Peoples : Sámi Rights and Northern Perspectives
If you are interested in learning more about legislation of America’s indigenous population, I invite you to visit the Law Library’s new Indigenous Law Portal.
Moving from a 20-year-old system to our new, modern Congress.gov platform has many advantages. One of these is that, starting today, email alerts are available on Congress.gov. There are three different types of alerts in this initial release: Member of Congress, legislation, and the Congressional Record. Bill and member alerts were an often-requested feature on THOMAS and I’m excited that we are now able to fulfill those requests in the new system.
You can now get an email alert letting you know that a specific Member of Congress (from the current Congress) has either sponsored or cosponsored legislation. There will be up to one email a day that links to new sponsored and cosponsored bills. I have picked a few members from my home state of Indiana to follow.
The second type of alert, legislation, is one daily email when there is a new summary, text, cosponsor, or action on a particular bill. If you want a quick way to follow a specific piece of legislation that you heard about on the news or one from the top ten list, this new alert will be perfect for you.
The third type of alert lets you know when a new issue of the Congressional Record is available on Congress.gov. This is similar to one of the alerts that was available on THOMAS.
To receive any of these alerts, the first step is to create an account. It’s a quick form where you submit your email so we know where to send the alert and a password so you can modify your alerts.
You could previously use accounts for saved searches.
Sign into your account to subscribe to an alert. Simply find a member or bill that you would like to track, then select “Get alerts.” You will be asked “Receive this alert by email?” Hit confirm and that’s it!