Katyn: justice delayed or justice denied? Report of the Cleveland Experts' Meeting.

• Author: Scharf, Michael P.
• Position: Confronting Complexities Through the Diversity of International Law

1. INTRODUCTION II. CHARACTERIZATION OF THE KATYN CRIME III. ACCOUNTABILITY FOR THE KATYN CRIME IV. RECONCILIATION THROUGH DISCLOSURE, DISSEMINATION & ACCOUNTABILITY A. USSR/Russian Federation B. The United States V. REMEDIES AT THE GOVERNMENTAL LEVEL A. Poland 1. Prosecution for the Katyn Crime 2. Regional Forums a. The European Union b. Council of Europe 3. United Nations a. International Court of Justice b. Establishment of a Commission of Experts or Special Tribunal 4. Dissemination of Truth B. USSR/Russian Federation 1. Prosecute the Katyn crime as an international crime 2. Refrain from justifying the Katyn crime 3. Provide adequate legal remedies to victims' families 4. Provide Poland with symbolic monetary compensation 5. Reimburse Poland for the cost of building & maintaining cemeteries of the victims 6. Establish the Katyn Museum & correct history books C. The United States 1. Consider implementing the Madden Commission's recommendations 2. Assure full disclosure of all Katyn-related materials 3. Assure dissemination of knowledge on Katyn 4. U.S. Congressional Resolution as moral compensation 5. U.S. Helsinki Commission VI. REMEDIES FOR PRIVATE PARTIES A. European Court of Human Rights B. U.S. Alien Tort Statute C. Alternatives to the Alien Tort Statute VII. OTHER REMEDIES AND APPROACHES A. Non-Governmental Organizations B. Academic Community I. INTRODUCTION

   The Katyn massacre of 1940 involved murders at the Katyn forest and in other locations throughout the Soviet Union of about 22,000 Polish officers, prisoners of war, and members of the Polish leading elite, combined with mass deportations of the victims' families and hundreds of thousands of Polish citizens to the remote provinces of the Soviet Union. (1) For fifty years, the massacres in the Katyn forest and other locations were subject to massive cover-up and obfuscation operations. (2) Initially the Soviet Union blamed the Nazis for the murders, saying that the killings took place in 1941 when the territory was in German hands. It was not until 1990 that the Russian government admitted that the executions actually took place in 1940 and were carried out by the Soviet secret police. (3) In 1990, Russian prosecutors launched a criminal investigation into the murder of 22,000 Polish officers and prisoners, but the case was classified as an ordinary crime of "exceeding official authority" and was terminated in 2004 on the ground of the application of the ten-year statute of limitations. (4) Records and findings were classified as top secret, (5) and it appeared that the tragedy would once again be subject to "historical amnesia."

   On February 4-5, 2011, in commemoration of the 70th anniversary of the Katyn massacre, the Frederick K. Cox International Law Center and the Libra Institute, Inc. hosted a Symposium and Experts Meeting at Case Western Reserve University School of Law. This provided an opportunity to bring together leading international experts in jurisprudence, international criminal law, and the Katyn crime, as well as representatives from Poland and Russia in order to debate the law and policy related to Katyn in a neutral setting. During four panel-style discussions on the first day, a diverse group of highly qualified scholars presented and discussed Polish, Russian, and third-party views on the Katyn murders. The second day of the meeting consisted of a round-table discussion with all the expert participants.

   The Cleveland Symposium and Experts' Meeting was chaired by Michael P. Scharf, Director of the Cox Center and the John Deaver Drinko--Baker & Hostetler Professor of Law at Case Western Reserve University School of Law. The event kicked off with introductory speeches by Hon. Dennis Kucinich, U.S. Representative (D, OH-10), and Hon. Marcy Kaptur, U.S. Representative (D, OH-9), and video-taped remarks presented by Sherrod Brown, U.S. Senator (D, Ohio). Stephen Rapp, U.S. Ambassador-at-Large for War Crimes Issues presented a Keynote Address.

   The experts included (in alphabetical order): Wesley Adamczyk, victims' representative; Prof. John Q. Barrett, St. John University School of Law; Prof. Janusz Cisek, Centre for European Studies, Jagiellonian University; Hon. David Crane, Founding Chief Prosecutor at the Special Court for Sierra Leone; Allan Gerson, Chairman, AG International Law, PLLC and former Senior Counsel to U.S. Ambassadors to the U.N., Jeane Kirkpatrick and Vernon Walters; Alexander Guryanov, Ph.D, Polish Program Coordinator, Memorial Group, Moscow, Russia; Prof. Kenneth Ledford, Department of History, Case Western Reserve University; Dr. Teresa Kaczorowska, Polish journalist and author; Prof. Mark Kramer, Director of the Cold War Studies Project, Harvard University; Prof. William A. Schabas, Director, Irish Centre for Human Rights, Galway; Prof. Milena Sterio, Cleveland-Marshall College of Law, Cleveland State University; and Maria Szonert-Binienda, Esq., President, Libra Institute, Inc.

   The goal of the Symposium and Experts Meeting was to explore options for accountability, disclosure, dissemination of knowledge, and reparations related to the Katyn crime. In accordance with the understanding of the participants, this report follows the "Chatham House Rule." Therefore, the views of particular experts remain unidentified in the text. In some places, the discussion has been re-ordered to enhance organizational clarity. This Report does not seek to reflect a consensus or majority view of the participating experts, but rather to indicate expert opinions on a variety of issues and proposals relating to contemporary efforts to address the Katyn crime. (6)

2. CHARACTERIZATION OF THE KATYN CRIME

   Katyn is often described as a "massacre," but the assembled experts did not believe "massacre" adequately characterized the Katyn crime. Some characterized Katyn as a particularly serious war crime, in violation of the 1907 Hague Regulations (7) and customary international law later codified in the 1949 Geneva Conventions. (8) Others believed it to be a crime against humanity (9) aimed at Polish civilians and the military. Several of the experts felt that Katyn constituted an act of genocide (10) aimed at destroying the Polish national group. One expert argued that the most useful label was "genocidal terrorism." (11) Whatever the label, all of the experts agreed that Katyn represents one of history's most serious international crimes.

3. ACCOUNTABILITY FOR THE KATYN CRIME

   The day of accountability for the Katyn crime has not yet arrived. In 1952, the Special Committee of the U.S. House of Representatives that investigated the Katyn Forest Massacre (the Madden Committee) concluded that the Katyn crime represents a violation of the general principles of law recognized by civilized nations, and therefore it determined that the international community should hold the Soviet Union accountable for the atrocity. (12) In 1990, Russia finally admitted responsibility for the Katyn crime, and in that same year, the Russian government initiated a criminal investigation into the Katyn murders. (13) After fourteen years of investigating the mass murder of Polish citizens on the authority of the March 5, 1940 order of the Soviet Politburo, the Russian Courts discontinued their investigation in 2004 on the basis of the statute of limitations, classifying the murder of at least 21,768 Polish prisoners of war as an ordinary crime of "exceeding official authority." (14) While the investigation was terminated on September 21, 2004, it was not until March 11, 2005 that this decision was announced publicly. (15) Together with the decision to terminate the investigation into the Katyn crime, the entire documentation from the fourteen year-old Russian investigation--comprising 183 volumes of documents--was classified as secret and withheld from the public together with the names of the defendants. (16) Although sixty-seven volumes were declassified after three months, the remaining eighty volumes were classified "for official use only," and thirty-six volumes were classified as secret. (17) In 2009, the Supreme Court of the Russian Federation upheld the decision to discontinue the Katyn case. (18) Thus, the Katyn families and the Polish people continue to wait in vain for justice to be rendered for one of the most horrific crimes of World War II.

   If the Katyn massacre had occurred today, it would be subject to universal jurisdiction and a duty to prosecute under the "Grave Breaches" provision of the 1949 Geneva Conventions. (19) To the extent that this crime could be deemed an act of genocide, the 1948 Genocide Convention requires prosecution by the state in whose territory the crime occurred. (20) Since the territory in question was seized by the Soviet Union, whose obligations have devolved to Russia, this would mean that Russia would have a duty to prosecute under the Convention. (21) Currently, Russia is only a signatory to the Rome Statute establishing the International Criminal Court, but has not yet chosen to ratify it. (22) States that are party to the Statute of the International Criminal Court have an obligation to prosecute acts that constitute crimes against humanity under customary international law. (23) Under the Vienna Convention on the Law of Treaties, states that have signed a treaty but not yet ratified it have a duty not to defeat the treaty's object and purpose, which suggests that a general duty to prosecute crimes against humanity may be applicable to Russia. (24)

   What complicates accountability for the Katyn crime is that it pre-dated the modern international criminal law instruments mentioned above. However, as the crime occurred during World War II, Katyn represents the same type of offense as the atrocities adjudicated by the Nuremberg Tribunal. While recognizing that the ICC could not exercise jurisdiction over acts committed prior to 2002, several of the participating experts argued that if retroactivity did not bar...