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The crime of genocide committed against the Poles by the USSR before and during World War II: an international legal study.

The USSR's genocidal activity against the Polish nation started before World War II. For instance, during the NKVD's "Polish operation" of 1937 and 1938, the Communist regime exterminated about 85,000 Poles living at that time on the prewar territory of the USSR. In Soviet newspapers and literature the image had been created of the Pole as an enemy. The USSR citizens were afraid to acknowledge Polish nationality because that meant death. After the aggression of the Third Reich and the USSR against Poland in 1939, this policy was extended into territory annexed by the USSR and its Polish inhabitants. On the basis of the Political Bureau of the All-Union Communist Party (Bolsheviks) decision of March 5, 1940 about 22,000 Poles were exterminated. Despite the different places of the slayings, activities included in its execution are described as the Katyn Massacre. Further, four waves of deportations from 1940 to 1941 were conducted as a way of disintegrating ethnic ties. This genocide lasted until the moment when the USSR--not of its own will--became a member of the anti-Hitler coalition in 1941.

Genocide was legally separated as a new type of international crime by virtue of the 1948 Genocide Convention. Post-war genocide cases, including the Adolf Eichmann trial, are not affected by nullum crimen sine lege principle, since acts, especially murders, being elements of the crime of genocide were already forbidden by international law at the time of its commission. Their new classification based on the intent, which is the destruction of the group, does not violate that principle. On the basis of the 1948 Genocide Convention, German perpetrators of pre-war and the World War H genocide were brought to justice. On the Soviet and then Russian side no one has been punished for the Katyn Massacre.
CONTENTS

I.    INTRODUCTION
II.   NKVD's "POLISH OPERATION" OF 1937-1938 AS AN EXAMPLE
      OF GENOCIDE CRIME COMMITTED BY THE USSR AGAINST THE
      POLES BEFORE THE OUTBREAK OF WORLD WAR II
III.  THE KATYN MASSACRE AS AN EXAMPLE OF GENOCIDE CRIME
      COMMITTED BY THE USSR AGAINST THE POLES AFTER THE
      OUTBREAK OF WORLD WAR II
IV.   THE CONCEPT OF THE CRIME OF GENOCIDE
V.    THE DOCTRINE ON THE CLASSIFICATION OF THE KATYN
      MASSACRE UNDER INTERNATIONAL LAW--AN OUTLINE
VI.   THE POLICY OF THE SOVIET AUTHORITIES WITH REGARD TO THE
      POLES AND THE POLISH NATION
VII.  THE NKVD's POLISH OPERATION IN 1937 1938 AND THE KATYN
      MASSACRE AS THE CRIME OF GENOCIDE WITH REGARD TO THE
      PRINCIPLES OF LEX RETRO NON AGIT AND NULLUM CRIMEN
      SINE LEGE
VIII. THE PROBLEM OF RESPONSIBILITY
IX.   CONCLUSION


I. INTRODUCTION

"People belonging to national minorities 'should be forced to their knees and shot like mad dogs.' It was not an SS officer speaking, but a communist party leader, in the spirit of the national operations of Stalin's Great Terror." (1) Timothy D. Snyder makes us realize that the communist propaganda was highly effective in shaping the narrative concerning the Stalinist terror in a way that would discourage us, as much as possible, from associating it with the German Nazi terror. (2) He notes that:
   [T]he picture of Stalin's terror, both in the West and in Poland,
   was shaped by Khrushchev's 1956 speech in which he talked
   about repressions against the party, against the communists.
   Not against those who really suffered, i.e., the people, peasants
   and also some nationalities. (3)


During the Great Terror period in the USSR there were cases of whole nationalities being destroyed. (4) The motives behind the Soviet authorities' actions varied, although they were largely political. As a result, both political and national groups were annihilated. (5) Under modern principles of international law, if a national group is destroyed for any reason, we are dealing with a case of genocide crime. (6)

According to the Russian historian Natalia Lebedeva, Soviet Stalinism and German Nazism were an example of twin regimes. (7) As Yuri Stetsovsky, a Russian lawyer, points out, even before the USSR's and Third Reich's attack on Poland (i.e., before the beginning of World War II), the USSR authorities launched a smear campaign against Poles and began to create a negative Polish stereotype in Soviet society. (8) Stetsovsky stresses that the "image of Poles as enemies could be found not only in newspapers but also in fiction, in works by Sholokhov, Babel and Ostrovsky." (9) The anti-Polish attitude created by the Soviet authorities gave birth to the image of the "Polish lord" as a dangerous and untrustworthy exploiter of other nations. (10)

Joseph Stalin's anti-Polish sentiment has been a well-known and widely described fact. (11) George Sandford discusses this issue in detail. (12) There were many manifestations of this attitude. For instance, when the People's Commissar for Internal Affairs, Nikolai Yezhov, reported that as part of the Soviet secret police's (NKVD) so-called Polish operation between 1937 and 1938, as many as 23,216 people had already been arrested, the dictator was very pleased: "Very good! Keep on digging up and cleaning out this Polish filth. Eliminate it in the interest of the Soviet Union." (13)

II. NKVD's "POLISH OPERATION" OF 1937-1938 AS AN EXAMPLE OF GENOCIDE CRIME COMMITTED BY THE USSR AGAINST THE POLES BEFORE THE OUTBREAK OF WORLD WAR II

Deportations and murders of Poles living in the USSR as well as the destruction of "Polishness" in that country had been going on, with greater or lesser intensity, from the very moment the Bolsheviks came to power. (14) By definition, the Poles were regarded as a nationality with a particular predilection for spying, sedition and wreaking havoc, a view that can be seen in the surviving extermination instructions issued by the Soviet authorities. As the American historian Terry Martin has calculated, among the various national groups subjected to repression, it was the Poles who suffered most in the USSR in terms of loss of life. (15)

In the period preceding World War II, the extermination of Poles in the USSR reached its apogee during the Great Terror. (16) The so-called Polish operation was one of the national operations carried out at the time by the NKVD. It was based on an order issued by the People's Commissar for Internal Affairs, Nikolai Yezhov, and approved by the Political Bureau of the All-Union Communist Party (Bolsheviks) (hereinafter the Politburo) on August 9, 1937. (17) The broad scope of repressions meant that in practice the action covered all Poles, regardless of their social group or class. (18) What constituted a crime and could lead to death was, for instance, having relatives in Poland and staying in touch with them, even if only through correspondence. The decisive factors were national origin and links to Poland and Poles. In order to be shot, one did not even have to be a pronounced member of the "Polish Military Organisation;" (19) "potential membership" was enough. (20) There is some logic in it, if we bear in mind the fact that the Soviet authorities knew that this organisation did not exist. (21)

According to Snyder:
   Between 1937 and 1938 Poles were blamed in the USSR for the
   failures of collectivisation and the Great Famine, allegedly
   caused by an extensive spy network masquerading as the Polish
   Military Organisation. Of course the name of this WWI
   independence-oriented organisation is well-known, but in areas
   that came under Soviet rule it ceased to operate in ... 1921.
   However, the NKVD decided to reactivate it for its own
   purposes; as a result, among the 143,000 people arrested on a
   charge of spying for Poland, 111,000, including at least 85,000
   Poles, were executed. As far as I know, none of the victims of
   this terror against a nation was a spy. (22)


When it comes to sheer numbers, this was NKVD's largest operation against members of a specific nationality, in this case Polish. (23) Those who were arrested but not murdered were deported to the Central Asian republics and to Siberia. (24) The scale of the operation was so huge that, for instance, in Berdichev, 60% of Poles living there were arrested by June 1938. The graves of people murdered at the time are scattered throughout the former USSR. (25) Dariusz Kucharski notes that:
   There are well-known cases of Poles (and Latvians) being
   arrested in Rostov-on-Don on the basis of information received
   from address bureaus (for their Polish-sounding names), often
   without any charges; only after they were executed were actions
   "unworthy of Soviet citizens" attributed to them. People,
   including minors and pregnant women, were shot without
   exception for [Polish] nationalism. (26)


During the NKVD's so-called Polish operation, "data on local Poles would be collected on a mass scale. The anti-Polish pressure created in society was so huge that in practice the very fact of being Polish and admitting it was tantamount to suicide." (27)

Even the "correct ideological attitude" was no protection against extermination. It was at that time that members of the Communist Party of Poland (KPP) who had found themselves in the USSR were murdered. Among the members of the KPP's Central Committee, those that survived were kept in Polish prisons at the time, which meant that they could not be political refugees in the USSR. As Tomasz Sommer emphasizes:
   A genocide of Poles took place in the Soviet Union in the late
   1930s. The victims were selected on the basis of national and
   political criteria, with their ethnicity being cited in both cases
   as a function that determined their alleged "guilt." The decision
   to carry out the genocide was made by the highest ranking
   Soviet officials. (28)


III. THE KATYN MASSACRE AS AN EXAMPLE OF GENOCIDE CRIME COMMITTED BY THE USSR AGAINST THE POLES AFTER THE OUTBREAK OF WORLD WAR II

As Germany and the USSR started World War II in September 1939, millions of Poles found themselves under these two invaders' power. (29) The USSR expanded its criminal policy against the Poles to its expanding territories. (30) Nationalistic anti-Polish slogans were bandied about during the USSR's attack on Poland. (31) The Ukrainian historians Nikolai Kucherepa and Valentin Visyn point out that the Soviet army entering Poland on September 17, 1939, "called on the locals to murder the 'Polish lords.'" (32) The locals were supposed to be Russians, Belarusians, and Ukrainians persecuted by the allegedly few Poles living there. The "Polish lords" included all the Poles living in the area annexed by the USSR at the time. Shaped by Soviet propaganda, this was a synonym of every Pole, a person deserving nothing but hate and contempt, allegedly exploiting the Belarusians, and Ukrainians living in these lands--that is, the people whom the Red Army came to "protect." (33)

Six months after the Third Reich's and the USSR's aggression on Poland, on March 5, 1940, (34) the Politburo approved the conclusions concerning the intellectual elite of the Polish nation imprisoned by the USSR. These conclusions were included in a note written by the People's Commissar for Internal Affairs of the USSR, Lavrenty P. Beria, to Stalin. (35) A decision was made at the time to murder "the 14,700 former Polish officers, officials, landowners, police, intelligence agents, gendarmes, [military] settlers, and prison officers" as well as "the 11,000 members of various [counter-revolutionary] espionage and sabotage organisations, former landowners, manufacturers, former Polish officers, officials and refugees...." (36) The decision made at the time meant the extermination of about 25,700 Polish nationals held in camps located in Kozelsk, Starobelsk, and Ostashkov as well as in various prisons, including those in Minsk, Kharkhov, Kiev, and Kherson. In the end, a total of 21,768 people, both civilians and military men, were killed on the basis of this decision. (37) The latter group included landowners, government officials, settlers, refugees, and even pupils. (38) The victims of the Katyn Massacre were not, as it is commonly believed, only soldiers taken prisoner during military operations, but also civilians and soldiers arrested after the military operations had already ended. (39) The murder itself--institutionalised and carried out on behalf of the Soviet state--took place between April 3 and May 19, 1940. (40) Regardless of the number of sites where Poles were slaughtered, for the international community this will always be the Katyn Massacre, because Katyn, where the first mass graves of the victims were discovered, has become its symbol.

This massacre is often classified as genocide. (41) However, there are opinions to the contrary. People who voice their views on the issue are not only lawyers, but also politicians, sociologists, political scientists, and historians. We should, therefore, establish whether this crime--for there is no doubt that it was a crime--can be treated as the crime of genocide under international law. (42)

Genocide could have been committed during World War II both by the Germans and by the USSR and its officials. Symptomatically, the Soviet prosecutor, Colonel Yury Pokrovsky, accused the Germans before the International Military Tribunal (Nuremberg Tribunal) of committing genocide in Katyn. Referring to the statements of the indictment concerning genocide conducted by the Germans on February 14, 1946, he presented the Katyn Massacre as a planned "physical extermination of the Slav peoples." (43) This was part of the indictment into which the USSR added the information that the massacre was a German crime. In the end, the Nuremberg Tribunal, having examined the witnesses, did not attribute this crime to the Germans. In its judgment, it did not refer to this matter at all. As scholars have pointed out, attributing this crime to its real perpetrator--Germany's totalitarian Soviet ally at the time when the crime was committed could have led to the collapse of the trial and the Soviet judge's refusal to sign the entire judgment. (44)

The USSR did not hesitate in trying to obtain a confirmation of the "Katyn denial" from the Nuremberg Tribunal. In this way, the Soviet crime would have been attributed to the German Nazis thanks to the authority of this judicial body. At the same time the Soviet Union tried--and, incidentally, failed--to ban evidence to the contrary, including evidence from the examination of witnesses. It hoped that one official document submitted by the Soviet government would be sufficient. The USSR was a state, which treated the international justice system as an instrument of its own policy. When commenting on the Soviet attempt to put the blame for its crime on the Germans, the Russian historian Nikita Petrov said:
   Moscow had to lose the [Nuremberg] battle for Katyn, because those
   in the Kremlin did not understand (just like they do not understand
   it today) what an independent court was. There was and there still
   is a belief that the role of judges is to confirm the government's
   decisions by issuing their rulings, and witnesses are just a
   decoration. The script is written outside the courtroom. (45)


IV. THE CONCEPT OF THE CRIME OF GENOCIDE

The concept of genocide emerged during World War II. (46) The term's creator, Raphael Lemkin, said at the time that this new word denoted "an old practice in its modern development." He defined it as "a crime of destruction of national, racial and religious groups." (47) He also added that genocide:
   [D]oes not necessarily mean the immediate destruction of a nation,
   except when accomplished by mass killings of all members of a
   nation. It is intended rather to signify a coordinated plan of
   different actions aiming at the destruction of essential
   foundations of the life of national groups, with the aim of
   annihilating the groups themselves. The objectives of such a plan
   would be disintegration of the political and social institutions,
   of culture, language, national feelings, religion, the economic
   existence of national groups, and the destruction of the personal
   security, liberty, health, dignity and even the lives of the
   individuals belonging to such groups. (48)


This was repeated--many years late--by the International Criminal Tribunal for Rwanda, which stated that:
   Contrary to popular belief, the crime of genocide does not imply
   the actual extermination of a group in its entirety, but is
   understood as such once any one of the acts mentioned in Article
   2(2)(a) through 2(2)(e) [of the Tribunal's Statute] is committed
   with the specific intent to destroy 'in whole or in part' a
   national, ethnical, racial or religious group. (49)


These acts are:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group; and

e) Forcibly transferring children of the group to another group. (50)

The solution adopted in Article 2(2)(a) through 2(2)(e) of the Statute of the Tribunal repeats the definition included in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on December 9, 1948. (51)

As Lemkin noted, "Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group." (52) In this light a special meaning can be attributed to a statement included in a decision of the Politburo on March 5, 1940. This decision said that, all people--both civilians and military me--should, "using the special procedure, apply to them the supreme punishment, [execution by] shooting. Examine these cases without calling in the arrested men and without presenting [them with] charges, the decision about the end of the investigation or the document of indictment...." (53) They were treated not as individuals but as members of a collective, as members of a group.

The UN General Assembly, in a unanimously adopted resolution, number 96(I) of December 11, 1946, affirmed that "genocide is a crime under international law ..." and moreover, "is contrary to moral law...." (54) Generally speaking, this resolution reflects the nature of this crime as Lemkin perceived it. The Convention on the Prevention and Punishment of the Crime of Genocide defines the crime of genocide providing that genocide is a crime under international law. According to Article 2(a), genocide is an act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and involving killing members of the group. (55) Unlike the resolution, the Convention enumerates the groups that can be subjected to genocide. It also removes from the list political groups, which were included in the resolution. (56) What does come to the fore in the Convention among the vast group of "other"--is the protection of national groups. The Convention also clarifies that genocide is an act intended to destroy specific groups "in whole or in part." (57)

In order to establish whether a given act falls within the definition of genocide, it is just as important to clarify the legal regulations, as it is to establish the real state of affairs. With regard to the latter, the decisive factor is the intent to destroy a group in whole or in part. Given the lack of access to Bolshevik Party documents and documents of the Soviet authorities, as well as the impossibility of questioning both the perpetrators and the witnesses of the Katyn Massacre, it is difficult to establish the intentions of the officials who ordered, organized, and committed the murders of Poles. But these are problems that international tribunals set up to try individuals accused of committing genocide have already faced. (58) However, as Malcolm Shaw notes:
   The importance of establishing the specific intent to destroy the
   group in question in whole or in part was emphasised by the
   Yugoslav Tribunal in the Jelisic case, while it has been held
   with regard to the difficulties in establishing the critical intent
   requirement, the recourse may be had in the absence of
   confessions to inferences from facts. (59)


In this, we must not confuse the intent with the motive. As Maria Szonert-Binienda rightly points out:
   In criminal law these are separate concepts. In order to
   demonstrate that Katyn was genocide under the 1948
   Convention, we must prove the intent to destroy the Polish
   national group. On the other hand, the question why the
   perpetrators had this intent, i.e. what their motive was, does
   not matter. The definition of genocide was deliberately
   constructed in such a way so as not to limit the motives of the
   perpetrators destroying a protected group. Just as the number
   of protected groups was reduced-by listing them in the
   definition itself, the possible motives of the perpetrator were
   deliberately not listed. Already at that time the authors
   predicted that the perpetrators might try to defend themselves
   by citing political motives in order to demonstrate their actions
   were not genocidal in nature. The authors of the definition of
   genocide debated for a long time about the question of motive.
   The Soviet Union representatives insisted that the definition of
   genocide contained possible motives, which should be limited to
   national, racial, ethnic or religious motives--corresponding to
   the protected groups. However, other states did not agree to
   such a solution, warning even that it would be used as a pretext
   for avoiding responsibility for genocidal acts. For it is extremely
   easy to hide a genocidal motive behind a political one. (60)


Thus, the USSR's suggestion to limit the possible motives was rejected. (61) The solution adopted in the end was the one proposed by Venezuela, in which motives were neither listed nor limited. (62)

The Russian Federation is today trying to take advantage of this partial success achieved by the USSR. However, there are no reasons why the 1948 Genocide Convention should be redefined today. Under this Convention, we will not regard as genocide the physical destruction or attempt at destruction of a political group (e.g., Trotskyites) for political reasons. What will be regarded as genocide, however, will be the same act committed for political reasons with regard to a national, racial, ethnic or religious group. We must bear in mind the fact that the motives of the Soviet authorities, though mainly political, also involved, nevertheless, inciting and using aversion to the Poles as a nation.

V. THE DOCTRINE ON THE CLASSIFICATION OF THE KATYN MASSACRE UNDER INTERNATIONAL LAW--AN OUTLINE

As Adam Basak rightly concludes:
   [I]n the light of that ... decision of the Soviet Politburo, there
   is no doubt that its intent was to destroy a part of the Polish
   national group; namely, the part made up of the nearly twenty-six
   thousand representatives of the intellectual elite, selected
   because of their social status and social function. (63)


That is why Cezary Mik writes about a "genocidal murder of the Polish elite in Katyn and other places." (64) Marian Flemming concludes, on the other hand, that the formulation of the concept of genocide and the attribution of normative content to it after the Katyn Massacre was committed means that the massacre must be classified in this category. (65) He adds that the massacre was also a war crime. (66) Karolina Kosinska, too, sees the Katyn Massacre as an element of the crime of genocide. (67) Discussing the definition of this international crime, she states unequivocally:
   If we talk about a specific plan to destroy a group, we can
   undoubtedly point to the USSR's policy with regard to the
   Polish lands that found themselves under Soviet rule after the
   Soviet attack. This policy was exactly such a plan, implemented
   through various genocidal acts against the Polish nation, acts
   the most spectacular of which was the Katyn Massacre. (68)


On the other hand, Matgorzata Kuzniar-Plota--incidentally, a prosecutor in charge of the Polish investigation into the matter--states that acts comprising the Katyn Massacre "had all the characteristics of the crime of genocide specified in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. " (69) Witold Kulesza, who regards the massacre as both an act of genocide and a war crime, refers to it as "wartime genocide." (70) Tadeusz Jasudowicz, in turn, makes a general statement, that during World War II the USSR committed "a series of horrible war crimes, crimes against humanity and the crime of genocide." (71) He also concluded that the Katyn Massacre was "an act of Soviet genocide." (72)

During the conference Katyn: Justice Delayed or Justice Denied?, which took place at Case Western Reserve University School of Law in Cleveland, Ohio, on February 4-5, 2011, the view that the Katyn Massacre could also be regarded as an act of genocide was expressed by the U.S. Ambassador-at-Large for War Crimes Issues, Stephen Rapp, and by the former Prosecutor of the Special Court for Sierra Leone, David M. Crane. (73) William A. Schabas, on the other hand, pointed out that a court or tribunal hearing such a case would be under tremendous political pressure from the Russian Federation, which would make it difficult for it to give such a ruling. (74) However, this is an extra-legal conclusion in the sense that a legal classification of an event is made in the context of a practical possibility of enforcing this internationally. Yet, possible objections of the other party and the difficulties--which are, after all, to be expected in any international dispute--cannot constitute an objective argument for a revision of the legal classification.

What must be noted here is that a committee of experts set up by the Chief Military Prosecutor's Office of the Russian Federation on March 17, 1992 concluded that the Katyn Massacre was an act of genocide under international law. (75) This group included lawyers, Boris Topornin (member of the Russian Academy of Sciences, director of its Institute of Law and the State) and Aleksandr Yakovlev (head of the Department of Criminal Law and Criminology at the Institute), as well as representatives of other disciplines, Inessa Yazhborovska (historian), Valentina Parsadanova (historian), Yuriy Zoria (military sciences) and Lev Belayev (medical sciences). A statement of August 2, 1993, signed by all members of the committee reads, "The murder ... of Poles has all the characteristics of genocide, the responsibility for which lies with Stalin, Beria, Molotov, Voroshilov, Mikoyan, Kalinin, Kaganovich, Merkulov, Kobulov, Bashtakov and other individuals who committed the murder in practice." (76) The authors of the documents also add that:
   [A]n accurate legal assessment ... of the crimes committed as
   part of the state-sanctioned terror should be based on the
   principles of international law developed in detail after World
   War II, the system of special norms of substantive and
   procedural law, with genocide and crimes against humanity
   being recognised as having taken place and as not being subject
   to the statute of limitations. (77)


In addition, the authors concluded that these acts had also been war crimes. (78) The committee also recommended that those who had committed these crimes--listed by name--be arrested and tried before a Russian court. (79)

The term genocide is also used by authors of non-legal publications. For instance, a distinguished Polish historian, Wojciech Materski refers to the Katyn Massacre as "genocide" and to the Politburo decision of March 5, 1940 as a "genocidal decision." (80) Stanislaw Jaczynski describes it as an act "ordering the crime of genocide." (81) The military historian Jedrzej Tucholski describes these actions as "the crime of mass genocide." (82) This opinion is shared by some Russian historians as well. For example, Lebedeva--in her monograph about the Katyn Massacre--writes about the "genocidal practices used by Stalin's regime against the Polish nation." (83) The same view on the problem is expressed by a Canadian political scientist specializing in genocide, Adam Jones, who--when describing the Katyn Massacre--notes that, though terrifying, "It]his was only a small part of a wider Soviet campaign against the Polish nation." (84) He points out that these authorities committed the crime of genocide against the Poles at the time. (85) The American historian Norman Naimark emphasizes that the Katyn Massacre was only a part of a consistently implemented plan of genocide of Poles that had taken place in the USSR since the early 1930s. (86) He even called in an emblematic case of Stalinist genocide. (87)

In June 1952, Zdzislaw Stahl wrote:
   During its deliberations, the American Congress, and especially
   members of the Katyn Committee of the House of
   Representatives were right in describing the mass murder
   committed in 1940 ... as an act of genocide. The crime of
   genocide, made current by the total systems and still posing a
   real danger to the world as long as the Soviet tyranny lasts, has
   been defined anew and condemned by international law.... It
   has also been reflected in the Genocide Convention. (88)


When quoting the definition of genocide as included in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, Stahl concluded that the Katyn Massacre fell within this definition. (89)

As we can read in a monograph published by Stahl and Jozef Mackiewicz, entitled The Katyn Massacre in the Light of Documents, with an introduction by General Wladyslaw Anders:
   The above definition suggests the mass murder in Katyn must
   be classified as a classic example of the horrible crime of
   genocide. For the Polish prisoners were murdered in a
   premeditated fashion and according to a plan, and only because
   they were Poles, (i.e., with the intent of destroying a valuable
   part of the Polish nation).... The history of this crime testifies
   to this beyond any doubt.... This blow was dealt in order
   to destroy the Polish nation (i.e., in order to commit the crime
   of genocide against this nation) by the government of the Soviet
   Union, which organized the mass murder in Katyn. (90)


As Roman Kwiecien rightly notes, "For Poland, this is a crime under international law; for Russia--an 'ordinary' crime the statute of limitations of which has expired." (91) The Katyn Massacre cannot be perceived as a one-off act outside the historical and geopolitical context. It should be perceived as part of the policy of the Soviet authorities vis-a-vis the Poles as a nation--including the policy implemented in the USSR before the outbreak of World War II. The opening of archives and new scholarly publications allow us to add new facts to the legal assessment of the classification of these events.

It must be stressed at this point that the acts committed by the perpetrators of the Katyn Massacre can be classified not only as acts of genocide, but can also be regarded as other international crimes, including war crimes. There are no legal obstacles to declaring one act as having the characteristics of two or more crimes. (92) The conclusion that the Katyn Massacre is either an act of genocide or a war crime, and the juxtaposition of the two, does not find enough justification in law. This is not an exclusive disjunction. In this context it is worth bearing in mind the official and publicly expressed position of the Polish state formulated by the Prime Minister of Poland, Jerzy Buzek, who, during the opening of the Polish War Cemetery on June 28, 2000, said that, "The word 'Katyn' will, for whole generations in Poland and in the whole world, signify genocide and a war crime." (93)

One act can have the characteristics of several types of crimes. Depending on the solution adopted by the legislator, the punishment is imposed for each of such crimes separately (ideal concurrence of offenses) or only for the crime carrying the highest penalty (eliminative concurrence of offenses). In the case of international crimes discussed here, given the fact that they involved the murder of people, they all carry the same maximum penalty, the highest penalty known to every legal system. There is no doubt, however, that among international crimes that can be attributed to the perpetrators of the Katyn Massacre the most serious is the crime of genocide. (94)

This classification has been used from the very beginning of the official investigation of the Katyn Massacre and prosecution of its perpetrators by the Polish authorities after the transformations of 1989. As early as October 1989, the Prosecutor General of the People's Republic of Poland, Jozef Zyta, submitted to the Prosecutor General of the USSR, Alexander Sukhariev, the first Polish request to launch an investigation into the case. (95) In describing the basis for the request, he invoked the duties of this state under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968, Article 1, of which states that:
   No statutory limitation shall apply to the following crimes,
   irrespective of the date of their commission: (a) war crimes ...
   (b) crimes against humanity ... and the crime of genocide
   as defined in the 1948 Convention ... even if such acts do
   not constitute a violation of the domestic law of the country
   in which they were committed. (96)


The European Court of Human Rights in the Chamber judgment of April 16, 2012 in Janowiec and Others v. Russia (concerning the effectiveness of the Russian investigation into the Katyn Massacre) confirmed that the murder committed on Polish prisoners was a war crime. (97) In so doing, the Tribunal did not negate that this action was also a crime of genocide or a crime against humanity. It analyzed whether it was one of the types of crime for which prosecution is not subject to a statute of limitations. It established this with the simplest example, showing that in 1939 during the use of the Soviet-Polish armed conflict, war crime occurred. Nothing more--to justify the argument that it is a crime--for which the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity is applicable--is needed, so nothing more was done. In the same verdict, the Tribunal also named the Holocaust a crime against humanity. Yet in so doing, it did not negate that it was also a crime of genocide.

VI. THE POLICY OF THE SOVIET AUTHORITIES WITH REGARD TO THE POLES AND THE POLISH NATION

There are suggestions that the Poles in the USSR were not treated as one nation, and that the repressions affected only some of them, those that the Soviet authorities found convenient. However, the facts are against such a conclusion. A description of one of the waves of mass deportations of Polish families in 1940 can be found, for instance, in Beata Obertyfiska's reminiscences, recorded during the war:
   They knew that the only way to "depolonize Poland" was to
   deprive it of Poles. So they concocted a devilishly perfidious
   plan not to take away a country from people but people from a
   country. The plan was carried out suddenly, deviously, one
   night over the entire occupied territory.... Suddenly, at night,
   the surprised village got half an hour to assemble, after which
   its entire population, put on sledges, was driven for miles, in
   biting cold, and then was put on trains. No one was left alone.
   Old men and infants, cripples and cretins were among those
   taken. Women in labour were chased off their beds and told to
   get on the sledges. The bedridden and the paralysed were
   dragged too. Not a living soul had the right to remain in a
   village or settlement condemned to extinction. Their cattle and
   livestock from then on automatically belonged to the state,
   forming the germs of the future collective farms. The victims
   were, first of all, purely Polish villages and settlements, as well
   as soldiers' settlements in the borderlands. (98)


This is a typical description not of political but of ethnic cleansing. In the USSR at that time, all Poles were politically suspect and what decided who among them was to be the first victim and according to what "sub-criteria" was the specific, murderous whim of the Soviet authorities. (99) As we can read in the monograph The Katyn Massacre in the Light of Documents:
   In the Bolsheviks' colloquial parlance--and those who had the grim
   opportunity to be under Soviet rule, especially in the hands of the
   NKVD, must have heard this technical term--the operation of
   destroying the leading elements of a nation conquered by communism
   is called 'obezkholovenye' [decapitation], (i.e., depriving society
   of its head and, consequently, spiritual leadership).... The germs
   of genocidal plans are also to be found in the fundamental theories
   of Soviet communism.... We find them ... in the Stalinist theory of
   nationality with its principle of "culture--national in its form
   and socialist in its content" providing a convenient theoretical
   foundation for the destruction of any nation under Soviet rule with
   the destroyed nation allowed to keep the external marks of
   independence and separateness. For the Sovietization process
   destroys the roots of national individuality and source of
   civilizational power, while leaving the external marks and forms.
   (100)


The Secretary of the Council for the Protection of Struggle and Martyrdom Sites of the Republic of Poland, Andrzej Przewoznik, has reminded us that, "Having attacked Poland, the Nazi and the Soviet regimes, which had formed an alliance in August 1939, began to carry out their programmes of 'destroying the leadership of the Polish nation' (Germans) and 'obezkholovenye' (Soviets)." (101) Both states decided to subjugate the Polish nation by depriving it of its leading, culture-creating parts. Materski notes that, "What both [occupying powers] had in common was deliberate destruction of the Polish intellectual elite." (102) As the then-ally of the USSR, Adolf Hitler said in autumn 1939, "Only the nation whose leaders have been destroyed can be turned into a nation of slaves." (103) A recently discovered note by Beria suggests that the number of Polish nationals arrested by Soviet authorities just between September 1939 and December 1, 1940 was 409,000. (104)

Organized campaigns against Poles were instigated in the USSR even before the outbreak of World War II. As Lebedeva points out:
   Fight[ing] against entire nations and nationalities became an
   organic component of the policy of eliminating 'hostile' and
   'socially dangerous' elements and spreading its rule over ever more
   new territories. The first victim of this policy was the Polish
   nation. In April 1936 the Council of People's Commissars adopted a
   top secret resolution, no. 776-120 ss, On resettling politically
   suspect Poles front the Ukrainian SSR to the Kazakh SSR. The
   resulting repressions affected 30,000 families from Marchlewski and
   Dzerzhynsky Raions. Between 1922 and 1925 Poles from all parts of
   the country were brought there to autonomous national raions
   created by the Soviet authorities. However, the rejection by those
   Poles of collective farming led not only to the disbanding of the
   Marchlewski Raion in 1935 and the Dzerzhynsky Raion in 1938 but
   also to the persecution of the Polish community. (105)


Naimark, too, notes that the actions of the Soviet authorities against Poles immediately after the outbreak of World War II did not result from any new policy. The territorial spread of Soviet rule only led to another part of the Polish nation being covered by it. Thus, the Soviets continued their existing genocidal policy towards this nation. Naimark stresses that:
   The attack [of the Soviet authorities] against specific "hostile"
   nations was in some cases genocidal in its form. Early in the
   1930s those nationalities that had ostensible homelands
   abroad--the Poles, Germans and Koreans in particular--were
   separated out from the rest of the Soviet national groupings and
   deemed inherently dangerous to the Soviet state. In particular,
   the actions against the Poles, starting with mass deportations to
   the special settlements in 1934, and culminating in the arrests
   and deportations of 1939-1940 and the Katyn Massacre of June
   1940, can be thought of as genocidal. (106)


The punishing of entire nations reached its height in 1944. The destruction and deportations affected, among others, the Ingrian Finns living near Leningrad, the Kalmyks from the Caspian Sea, the Chechens and the Ingush, people living in the Karachay Republic in the Caucasus, Crimean Tatars, and several thousand Greeks, who had settled on the peninsula centuries earlier. (107) In order to carry out mass deportations, the Soviet authorities created permanent new structures within the Soviet NKVD, including the Convoy Troops of the NKVD. It is worth bearing in mind that there is a surviving letter from Lemkin to August Heckscher II from 1951, in which Lemkin used the term genocide to refer to the mass deportations conducted by the Soviet authorities of the Volga Germans in 1941, and of the Crimean Tatars, Chechens, the Ingush, Karachays, and Balkars in 1944 to 1945. (108) This is worth noting because Lemkin did not include members of political groups, persecuted for political reasons, among the victims of genocide. (109) It seems, however, that he believed that the destruction of nations for political and not only racial reasons did deserve to be Classified as such. (110) For him, political groups were not protected by the 1948 Convention, although he did want to provide that protection at the Convention preparation stage. (111) However, he did not protest too much against the removal of political groups from its definition, because of the Convention. Yet, he was right in maintaining that in the light of an already adopted international agreement, when a national group was physically eliminated "in whole or in part" for political reasons, such a situation did fall within the definition included in the agreement.

It has to be said at this point that the so-called Polish operation conducted by the NKVD caused the destruction of around 30% of the total number of Poles living in the USSR at the time. As scholars point out, "Poles, persecuted and punished by the authorities, came to the very top of the list of the persecuted. They were subjected to destruction more than others, and were also the first to be treated in this manner for reason of their nationality." (112)

Lemkin's authority is invoked by, for instance, the International Criminal Tribunal for the Former Yugoslavia in the Appeals Chamber judgement of March 22, 2006 in the case of Milomir Stakic. (113) The Tribunal affirmed the words of the "scholar who first conceptualised the term," according to which genocide signifies "a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups," with the aim of annihilating the groups themselves. (114) In addition, the Tribunal stated that according to the author of the term, the perpetrator's objective "would be disintegration of the political and social institutions, of culture, language, national feelings, religion, the economic existence of national groups." (115)

We should remember that both the Third Reich and the USSR pursued the policy of depriving the Poles of their national rights. (116) In a secret additional protocol to the non-aggression pact between Germany and the USSR of August 23, 1939 (Ribbentrop-Molotov Pact), the sphere of influence over the territory of Poland was divided in the context of a question posed in the document of "whether the interests of both parties make desirable the maintenance of an independent Polish state ..." as well as the statement that this question would be resolved by future will of the contracting powers, expressed "by means of a friendly agreement." (117) Following a suggestion submitted by the USSR on September 19, 1939, Germany agreed to a total liquidation of Poland as a state. This was reflected in the agreement on friendship and the border between the USSR and Germany of September 28, 1939. (118) The Polish state was to cease to exist once and for all.

The Soviets did not provide for any formal conditions of the existence of a separate Polish national grouping or nationality within the territory annexed by the USSR. For instance, they did not establish a Polish-Soviet republic, like they did in 1940 with regard to the annexed territories of Lithuania, Latvia, and Estonia, or parts taken from Romania (Moldavian SSR) and Finland (Karelo-Finnish SSR). (119) The annexed lands of the Second Polish Republic were incorporated directly into the Belarussian SSR and Ukrainian SSR. (120) Nor did the Soviets create--within these latter two--a Polish autonomous republic or a Polish autonomous district, though such a solution was known in the Soviet constitutional system. (121) The fact that--contrary to the prevailing standard at the time--no administrative Polish unit was created in the USSR in 1939 demonstrates that the status of Poles was lower than that of nationalities with their own Soviet republics or autonomous districts. That nations with "their place on the map" of the USSR were, too, subjected to murderous repression cannot change the fact that such a place was not even earmarked for the Poles.

The Poles were not a nation that was supposed to continue to exist and maintain its identity, even to the extent known in Soviet practice and law. (122) Its members were to be deprived of their national identity, while their culture-creating leaders and those who resisted were to be murdered. The Poles were victims of mass repressions. (123) Their Polish citizenship was disregarded. They were given Soviet citizenship en bloc. They were arrested, sent to the Gulag camps, and forcibly conscripted into the Soviet army, where they had to swear allegiance to the Soviet Nation, Soviet Fatherland, and the Workers' and Peasants' Government. (124) "The Poles--regardless of their domicile at the time--were to be sent to ... military districts" outside the annexed territories. (125) "The soldiers who would not let their Polish patriotism be eradicated," and would show that either actively or passively, "exposed themselves to repressions on the part of the secret service." (126)

Between 1940 and 1941, citizens of the Second Polish Republic who were Poles were subjected to mass deportations. A "total of over 1,200,000 Polish citizens, mainly Poles" were deported in four mass transports during that period. (127) For instance, among those deported in the first transport, between February 8 and February 10, 1940, 82% were Polish. (128) The number of Polish citizens of all nationalities deported to the USSR is estimated at 1.4-1.5 million, 1.2 million of those being ethnic Poles. (129) Thus, Poles constituted as much as 80-86% of all the deported, though they constituted less than half--just 38%--of people living in the territories annexed by the USSR. (130) In referring to the subsequent waves of deportations, Lebedeva calls them collectively "deportations of the Poles from western Ukraine and Belarus." (131) She also adds that "[p]ercentage-wise, the number of the displaced was no lower than that in areas occupied by the Third Reich." (132) Historians note that "the Soviet attack was directed mainly at the leaders of the Polish nation" and that the actions were to "weaken the Polish element in the Eastern Borderlands." (133)

This genocide was not an exception but a manifestation of the working of the Soviet system:
   The Soviet system ... cannot maintain its hold over nations
   with individuality and culture; in order to hold on to power, it
   must turn nations into a shapeless mass of terrorised slaves....
   The Soviet practice with regard to the Polish nation can in
   addition to the murder of prisoner--'boast' a number of other
   genocidal acts, making up a consistent whole of a cruel plan to
   destroy the Polish nation. During the first occupation of the
   eastern part of Poland, following the joint attack with Hitler in
   1939, Moscow managed, over less than two years of governing
   half of Poland, to deport over 1.5 million of the best elements of
   the local population, totalling 13 million people. Thus over 10%
   of the population of eastern Poland--and culturally the most
   active part at that--was doomed to extinction or, at best, to
   vegetation or deprivation of national identity. (134)
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Title Annotation:Union of Soviet Socialist Republics; I. Introduction to VI. The Policy of the Soviet Authorities With Regard to the Poles and the Polish Nation, p. 703-731
Author:Karski, Karol
Publication:Case Western Reserve Journal of International Law
Date:Mar 22, 2013
Words:7911
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