72 years later: still seeking accountability for the Katyn Forest massacre.

• Author: Gerson, Allan
• Position: Confronting Complexities Through the Diversity of International Law

1. INTRODUCTION II. ACCOUNTABILITY AND INTERNATIONAL LAW A. Accountability in International Criminal Law B. Customary Norms for Measuring Accountability 1. Renunciation and acceptance 2. Compensation C. Relatives of Victims of Katyn Seek Venues for Accountability III. ACCOUNTABILITY IN U.S. COURTS IV. CONCLUSION I. INTRODUCTION

   For more than forty years Russia dismissed as lies charges that it was responsible for the systematic murder in 1940 of over 22,000 Polish citizens at Katyn Forest, primarily around Smolensk, Russia overlooking the Dnieper River) Instead, at the Nuremberg War Crimes Trials and after, it pinned the blame on the Nazis. (2) Only after the fall of Communism did Russia admit its responsibility and release relevant documents. But Russia has not released all of the pertinent documents, especially those identifying the persons who ordered the cover-up, euphemistically referred to as "the Katyn Lie." (3) The path to accountability was muddled once again in 2004 when Russia halted its investigation into the matter. (4) And now, eight years after Russia ceased its investigation, and 72 years after the massacre, the question remains whether Russia will ever fully release all pertinent information and responsibly deal with the Katyn Forest atrocities.

   My own professional experience may be pertinent in understanding the depth of the emotions involved in the quest for accountability. In 1979, I served as the first trial attorney with the U.S. Department of Justice's Office of Special Investigations (OSI) dealing with denaturalization and deportation of Nazi collaborators. My involvement in OSI's first trial required that I coordinate the appearance of many witnesses from Israel and abroad. I asked them, "Why did you come?" "Not," they would answer, "because I care about punishment. It doesn't mean anything to me at this point. Nor do I care about compensation. No, I care about having a true account of what actually happened." The same sentiment was expressed to me by families of victims of the Pan Am 103 bombing and the attack on the Twin Towers in my representation of both these groups. Above and beyond anything else, I discovered that the families of the victims want a true account of what happened.

   Accountability may lead to punishment. That, however, is a matter reserved for the criminal justice system. In the civil context, accountability generally takes the form of compensation for the victims or their families. Or, it may do no more than create a historical record. Yet, that is valuable in itself. Ideally, accountability would include all three: a historical record, appropriate punitive action, and compensation. It is against this framework that this article examines what avenues, in justice and in contemporary international law, are accorded the families of the victims of the Katyn Massacre.

2. ACCOUNTABILITY AND INTERNATIONAL LAW

   1. Accountability in International Criminal Law

      International law proscribes certain egregious acts as embodied in treaties (conventional law) or as embodied in jus cogens (customary preemptory norms). Although pertinent conventional international law does not necessarily bind Russia insofar as it may not be a party to these conventions, (5) it nevertheless sets forth standards of behavior appropriate for measuring responsibility for Katyn.

      Questions of jurisdiction aside, it is indisputable that the Katyn Forest Massacre is a crime under both conventional and customary international law. It was a war crime within the meaning of the 1907 Hague Convention on Land Warfare, (6) as well as customary international law later codified by the 1949 Geneva Conventions. (7) Article 23 of the 1907 Hague Convention forbids the "kill[ing] or wound[ing] treacherously [of] individuals belonging to the hostile nation or army," as well as the "kill[ing] or wound[ing] of an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion." (8) Likewise, the Geneva Convention requires the humane treatment of prisoners of war. (9) The Soviets, by individually murdering over 22,000 Poles with shots to the back of the head, clearly committed war crimes within meaning of these conventions. (10) And under international criminal law principles of responsibility, a state adjudged guilty of war crimes must pay compensation to victims or their families--or restitution to the state involved--through monetary, or at least, symbolic means. (11) Under contemporary international law, as defined by U.S. courts, Katyn also represented state-sponsored genocidal terrorism. (12) The standard set forth by the U.S. district court in Almog v. Arab Bank regarding Hamas suicide bombers is applicable here, at least in principle. (13) There, the court held that because Hamas aims to "liberate the area [Israel] by replacing it with an Islamic or Palestinian State through the use of suicide bombings ... [this] reflect[s] an intent to target people based on criteria prohibited by both the Genocide Convention and the Rome Statute." (14) By that measure, the Soviet killings at Katyn were genocidal acts as well as war crimes, to the extent that the Soviet Union's aim in the killings was to eliminate the entire officer corps in order to rob Poland of its intellectual and military elite, (15) necessary for the formation of a viable independent post-war...