Was Katyn a genocide?

• Author: Szonert-Binienda, Maria
• Position: I. Introduction to III. Legal Analysis C. Do Katyn Victims Belong to a Protected Group, p. 633-672 - Confronting Complexities Through the Diversity of International Law

On April 13, 1990, after five decades of lies and cover-ups, the Union of Soviet Republics put forward a Communique on Katyn that stated: "The archival materials that have been discovered, taken together, permit he conclusion that Beria and Merkulov and their subordinates bear direct responsibility for the evil deeds in Katyn Forest. The Soviet side, expressing deep regret in connection with the Katyn tragedy, declares that it represents one of the most heinous crimes of Stalinism." (1) This announcement of Profound historical significance was made in the midst of turbulent demise of the mighty Soviet Union. Thus the world that was rejoicing in the prospects of democratic Russia was eager to close the books on Katyn and once again brushed aside the cry of the Katyn victims for justice. It was not until April 10, 2010 when the Polish presidential plane on its way to Katyn crashed on landing in Smolensk, Russia, killing the President of Poland, First Lady, and eighty seven top Polish officials including nine generals of the Polish Armed Forces, that the world had to turn its attention once again to Katyn. What the world learned as a result of this crash was neither comforting nor encouraging. With respect to Katyn, justice has not been served and Russia has not been forthcoming in meeting its basic obligation of post-conflict reconciliation through full disclosure, compensation and remembrance. Hence, the mistrust and tension between Poland and Russia has been growing steadily.

1. INTRODUCTION II. PRESENTATION OF FACTS A. Poland Reborn B. German-Soviet Attack on Poland C. German-Soviet Collaboration Against Poland 1939-1941 D. Katyn Killings E. Mass Deportations from Soviet-Controlled Poland F. Exodus from the Soviet Union G. Those Left Behind III. LEGAL ANALYSIS A. Definition of Genocide B. Killing and Causing Death C. Do Katyn Victims Belong to a Protected Group? D. "In Whole or In Part" 1. Quantitative evaluation 2. Qualitative evaluation 3. "In whole" 4. "In part" E. Intent to Destroy 1. Direct proof 2. Motive a. Legislative history of the motive b. "As such" c. Manipulation of motive by the Soviet Union d. Motive behind the Katyn crime 3. Intent and knowledge inferred from facts and circumstances a. Nazi-Soviet conspiracy to destroy Poland b. Hatred directed at the Polish national group c. Sovietization of the Polish nation F. Manifest Pattern of Similar Conduct 1. Polish operation of 1937-1938 2. 1943 and thereafter IV. STATUS OF THE KATYN CRIME SEVENTY YEARS LATER V. CONCLUSION VI. EPILOGUE I. INTRODUCTION

   The Katyn crime, commonly understood as the murder of Polish prisoners of war (POWs) of officer rank in the Katyn forest near Smolensk, casts an ominous shadow over the legacy of Nuremberg justice by bringing to the forefront the fundamental question: can justice be served when a powerful empire does harm to a smaller country? As long as the Katyn crime remains unpunished, the international justice system born out of Nuremberg does not meet this basic standard.

   The Katyn crime attracted international attention in 1943 when the Nazi troops advancing towards Moscow discovered mass graves of Polish officers in the Katyn forest. (2) It took historians decades to realize that Katyn was only one of many sites of mass murder of Polish nationals by the Soviet regime between 1939 and 1941. Today the Katyn massacre symbolizes the Soviet policy of mass persecution of the Polish nationals during World War II. For fifty years, the Soviet Union covered up the Katyn atrocity, banishing the memory of the crime and the memory of the victims by effectively suppressing any mention of Katyn at home and abroad. (3)

   In this paper, I will explore whether the leadership of the Soviet Union committed genocide on the Polish national group, as such, during the period between September 17, 1939 and June 20, 1941, when the Soviet Union acted in alliance with Nazi Germany pursuant to the Ribbentrop-Molotov Pact of August 23, 1939 (4) and the Friendship and Boundary Treaty of September 28, 1939. (5) The author is mindful of the daring character of a genocide charge. After half a century of denial and twenty years of minimizing the significance of the Katyn crime, the people in Russia and in the West are not prepared to absorb the Katyn crime in its entirety. Upon murdering the Poles, the Soviets committed "memoricide" by destroying the memory of the victims. The complicity of the Western democracies in covering up the Katyn crime makes the truth about Katyn much harder to accept. As much as Katyn continues to represent the inconvenient truth of that complicity, the notion that Katyn may constitute genocide makes the inconvenient truth much more uncomfortable. Accordingly, the psychological phenomenon of genocide denial comes to forefront with full force in this instance, both in Russia and in the West.

   In judging any genocide, two opposite forces come to play: interests that aim at restricting the charge of genocide, often in order to preserve the status quo for political expediency, and interests that demand it in the name of justice and long-term well-being of the international community. The unwillingness of the international courts in the early International Criminal Court (ICC) era to pursue genocide charges because of their powerful political impact and stigmatizing effect limited the applicability of genocide. Also, some scholars warned that overusing the charge of genocide could lead to trivializing this crime, considered as the crime of crimes, or advocated a complete shift away from genocide and recommend replacing it with the charge of crimes against humanity as "an elegant and rather moving encapsulation of the tendency towards universalism and cosmopolitanism." (6) However, the proponents of limiting the applicability of genocide disregard the trivializing effect this approach has on genocide when the genocidal crime that aims at destroying protected human groups is not recognized as such. (7) If pursued too far, such approach may lead to challenging the underlying premise of the genocide crime by questioning whether the protected national, ethnic and religious groups are worth protecting.

   It shall be noted that most scholars agree that genocide denial is a harmful and dangerous phenomenon. They recognize that genocide denial tends to be deeply entrenched, often representing a societal consensus where "individual and collective narcissism plays a pivotal role." (8) They point out that genocide denial can pay well since it fortifies the status quo and serves powerful and prosperous constituencies, while failure to deny genocide may result in painful economic and social consequences. (9) Frequently that is the key reason why two people who process the same facts come to opposite conclusions: one recognizes genocide while the other views the events as "an unfortunate but understandable effort to quell a security threat." (10) However, genocide denial conceals the horror of the crime, helps preserve the distortion of history, and prevents healing of the wounds inflicted by genocide for many generations to come. (11) It also poses a threat to humanity for the future.

   In considering the facts of the Katyn case, it is important to keep in mind that both the scholarship and jurisprudence contribute to the shared consciousness and therefore have profound implications for the struggle of humanity in dealing with large, disturbing and deadly historical events. Nowhere is scholarship more demanding of civic courage than in challenging one of the most powerful countries in the world. And nowhere is scholarship more significant than with respect to genocide where extremity of human harm brought about by genocidal policies and actions raises the stakes to the highest level. (12) Let us hope that the scholarship on genocide will be, above all, a quest for truth.

2. PRESENTATION OF FACTS

   1. Poland Reborn

      As a result of three consecutive partitions of Poland by Russia, Prussia and Austria between 1772 and 1795, Poland, that was one of the largest countries in Europe at the time, disappeared from the map for 123 years. (13) Owing to the matchless leadership of Marshal Josef Pilsudski, Poland reemerged from the chaos of World War I as an independent state. (14) But there was a price to pay for the reclaimed independence: Poland was the first country ever required to sign the Minority Protection Treaty with the League of Nations. (15) While this first modern treaty on minority protection assured protection to numerous ethnic groups living within the new Polish borders, the powerful neighbors that partitioned Poland at the end of 18th century effectively used the Minority Protection Treaty as a tool to infiltrate and destabilize resurrected Poland. (16) Furthermore, no reciprocal minority protection was given to the Polish minorities left outside the new Polish borders in Germany and in the Soviet Union. (17) While no mass murder of any minority took place in pre-war Poland, the Soviet Union murdered at least 111,000 ethnic Poles living in the Soviet Union only in the Polish Operation of 1937-1938, while Germans only in August 1939 arrested two thousand ethnic Poles living in Germany. (18) Furthermore, both Germany and the Soviet Union justified their 1939 aggression on Poland by the need to protect their "persecuted minorities" living in Poland. (19) Accordingly, the minority protection argument served as a pretext to start World War II, whereby both aggressors reclaimed the territory they lost as a result of the rebirth of Poland in 1918. (20)

      By attacking Poland, the Soviet Union violated a number of bilateral and multilateral treaties. In particular, the U.S.S.R. violated the Treaty of Riga signed on March 18, 1921, which established the permanent border between Poland and the Soviet Union. (21) The border so-established was subsequently approved on March 15, 1923 by the resolution of the Conference of Ambassadors acting...