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Analysis & Opinion
17.05.10 The Final Say
By Roland Oliphant

The battle over 20th century history returned to the headlines on Monday when the European Court of Human Rights upheld the conviction of a former Soviet partisan for war crimes committed in Latvia during the Second World War. The decision means that Vasily Kononov, who lives in Latvia, will not receive compensation for his conviction and imprisonment over the killings of nine Latvian civilians in 1944. Latvian historians call the decision a victory for justice. Russians say it is tantamount to a revision of the findings of the Nuremburg tribunal.

Vasily Kononov has spent much of the last decade in courtrooms. First accused of war crimes for his part in the war-time killing of nine Latvian civilians in 1998, he served nearly two years in jail and in pre-trial detention, has been tried no less than six times, and has taken his case all the way from Riga to Strasbourg. Today, the highest court in Europe – the Grand Chamber of the European Court of Human Rights in Strasbourg – gave its “final and irreversible” judgment on his 12-year legal saga when it overturned his earlier successful appeal to the court.

The Grand Chamber voted by 14 to three to overturn an earlier order from the Strasbourg court to pay Kononov ?30,000 in moral compensation for jailing him in 2004. He will face little further punishment since he has already served the jail term given to him by the Latvian Supreme Court, and it was reduced on account of his age and infirmity.

But the symbolic – and, perhaps, legal implications – have already drawn intense criticism.

Kononov’s case became a cause c?l?bre for Russia in its crusade against what it sees as the systematic rewriting of the history of the Second World War and the “rehabilitation of Nazism.” Russia gave him citizenship in 2000, and when he first took his case to Strasbourg in 2004 the court’s president gave Russia permission to intervene as a third party. The Russian Ministry of Foreign Affairs immediately issued a statement calling the decision “a dangerous precedent” of “great concern.” Georgy Matyushkin, Russia’s envoy to the European Court of Human Rights, told RIA Novosti that “if you evaluate in a larger context, then it can only evoke regret. Because it is obviously an attempt to reevaluate the Nuremburg trials.”

Legal murk

The case against Kononov dates back to February of 1944, when German forces surrounded and burnt to the ground a barn in the Latvian village of Malye Batne, where 12 Red Partisans – including two women and a young child – were spending the night. All of them perished.

The Germans had evidently been tipped off, and a local partisan battalion – led at the time by Kononov, who had been parachuted behind enemy lines the previous year – vowed revenge. In May that year, the partisans returned to Malye Batne and killed nine villagers – including three women, one of whom was heavily pregnant – whom they identified as Nazi collaborators.

Put briefly, the Latvian prosecutors say the victims were innocent civilians. Kononov (and the Russian state, which backs him) says they were armed Nazi collaborators who had played an active role in the February killings.
Since Kononov does not deny that the killings were carried out by men under his command (though he insists he himself stayed away from Malye Batne to avoid being recognized, as his father was from a neighboring village), and almost all the witnesses are dead, the legal battle has been fought in a shadowy quagmire of definitions. What constitutes “reasonable doubt?” Were there “extenuating circumstances?” Were the executions illegal “under the law of the time?” Are the documents on which much of the conviction is based “reliable?”

There’s a great deal of confusion, and not just for legal minds. “It’s not like the 1940 Katyn massacre, where we have thousands of documents that prove absolutely beyond doubt what happened,” said Natalia Lebedeva, a senior researcher at the Institute of General History at the Russian Academy of Sciences and an expert on the Nuremberg Tribunal and Second World War era war crimes. “It’s actually an extremely difficult case, and I wouldn’t want to comment on it unless I had seen all of the documentation.”

As a result, the legal decisions have been far from conclusive. Even in Latvia, which some Russians would have you believe is hell-bent on crucifying the good name of every Soviet soldier and clearing the name of fascism, Kononov won an appeal against his first conviction and was acquitted at a second trial (when prosecutors dropped the “war crimes” charges and settled for the lesser offense of “banditry” – the term or criminal liability had expired). He won his first appeal at Strasbourg in 2008 on the narrowest of margins – on a four against three vote. And although the latest decision is more decisive, the three dissenting judges included the court’s president.

While Russians would rather the court had given Kononov the better of that considerable doubt, it doesn’t look like they will challenge its legitimacy. Matyushkin insisted that the decision was “final and irreversible,” but said the Russian Ministry of Justice would be examining the decision carefully to see whether it could be used for historical revisionism. “The only thing we will do is to examine not just the court’s decision, but its reasoning. It’s extremely important to understand why the court came to the decision that it did,” he told RIA Novosti.

Whether it really endangers the outcome of the Nuremburg trial is a moot point. Lebedeva for one is dismissive of the connection. “It’s got nothing to do with Nuremburg. If he killed civilians, that’s a war crime that will have its own trial. If he killed collaborators, he was an anti-fascist and he had the right to do so,” she said.

But the real question is not about Nuremburg at all – no one is going to overturn the convictions handed down to Nazi war criminals in that trial – but whether allied troops who committed atrocities should be subject to the same kind of justice.
The source
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