Katyń - was it a war crime or a genocide?

There has been a debate for several decades on how to qualify the Katyń crime. Was it a war crime, a genocide, or perhaps another classification would be appropriate? Let's try answering this question.

During the trial at the International Military Tribunal in Nuremberg, which lasted from November 1945 to October 1946, the Katyń massacre was referred to as a crime against Polish prisoners of war committed by the Nazis. On 14 February 1946, during the presentation of evidence of these crimes, Yuri Pokrovsky, the deputy of the chief Soviet prosecutor Roman Rudenko, remarked: I would now like to address the atrocities committed by the Nazis against members of the Czechoslovak, Polish and Yugoslav armies. As the indictment reads, among the most prominent criminal acts for which the greatest war criminals are responsible is the mass execution of Polish prisoners of war shot in the Katyń Forest near Smolensk by the German fascist invaders. Pokrovsky claimed that it was German soldiers who shot the Polish prisoners of war. He assigned responsibility for this crime to a unit called Staff 537 of the Engineering and Construction Battalion under the command of oberleutnants Arnes and Rex and leutnant Hott. He claimed that it happened in 1941.

Interestingly, Pokrovsky referred to the victims as 'prisoners of war' or 'soldiers of the Polish Army', thus indicating that by executing Polish prisoners of war in the Katyń Forest, the German fascist invaders were pursuing a policy of exterminating the Slavic peoples. During the Nuremberg trial, the victims of the Katyń crime were identified as soldiers - prisoners of war protected by international conventions.

The lies of Soviet propaganda

Pokrovsky has failed to prove German liability for the Katyń massacre. Had it happened otherwise, it would have been an embarrassment for the Nuremberg Trial, which was the first international criminal trial to judge individuals, and which today is a benchmark for historians and lawyers researching the development of the international criminal justice system. In spite of that, the Soviet lie was repeated for 50 years, blaming the Germans for the 1941 murder of more than 20,000 Polish prisoners of war from the camps at Starobelsk, Kozelsk and Ostashkov, as well as prisoners from the pre-war eastern provinces of the Republic of Poland.

The reality is that the crime in the Katyń Forest was committed by the Russians in 1940, but they did not officially admit it until 50 years later. On 13 April 1990, Mikhail Gorbachev handed over documents from the Soviet archives to Wojciech Jaruzelski. A press release from the TASS agency reported Russian responsibility for the Katyń massacre, calling it one of the cruellest crimes of Stalinism and officially admitting for the first time that it was committed by the NKVD. Blame for it was assigned to, among others, his boss Lavrenty Beria and his assistants.

To this day, we do not know the answers to many of the questions surrounding the perpetration of this crime. The guilty have not been convicted either. In addition, Poland's relations with Russia have never been friendly enough to attempt to clarify these doubts and achieve reconciliation. Meanwhile, there is an ongoing dispute in the literature regarding the legal classification of the committed crimes. It is particularly on the occasion of round anniversaries that we repeat the question of how to label the Katyń crime: a common crime, a war crime, a crime against humanity or genocide.

The Katyń massacre

The most important facts are as follows: as a result of the USSR's aggression against Poland on 17 September 1939, approximately a quarter of a million Polish citizens were taken into Soviet captivity (they were subjected to selection, some were later released or consigned for forced labour, while others were indoctrinated to create model Soviet citizens). The captured soldiers, considered counter-revolutionary forces, were handed over to the 'custody' of the NKVD or, more precisely, to the POW Board of the People's Commissariat of Internal Affairs of the USSR, which was set up for this purpose. In addition, a network of prisoner of war camps was also established. The Polish Army officers and police officers were imprisoned at the camps in Starobelsk, Ostashkov and Kozelsk.

In March 1940, Beria submitted a note to Stalin in which he wrote that the Polish prisoners of war and prisoners in the area of Western Belarus and Ukraine had been declared enemies of the Soviet authorities and showed no prospect of improvement. This has sealed their fate. They were murdered with a shot to the back of the head, without investigation or trial, and buried in mass graves. This was done pursuant to a resolution of the Political Bureau of the Central Committee of the Communist Party issued on 5 March 1940, which included the phrase: they are all sworn enemies of the Soviet regime, filled with hatred of the Soviet system. The 22,000 killed prisoners of war were mainly officers of the Polish Army, Police and Border Protection Corps, but also representatives of other professions: doctors, lawyers, public officials or university teachers. According to Polish researcher Janusz Kazimierz Zawodny, the missing officers accounted for 45 per cent of the entire officer corps of the land forces. There is no doubt that this mass murder deprived Poland of its military and civilian elite. Potential resistance leaders were killed in the Katyń Forest.

Legal classification of the crime

Undoubtedly, the Katyń crime should not be classified merely as a common crime falling under the jurisdiction of Russia alone. Both Poland and Russia have a legitimate interest in clarifying all its circumstances. The murder of 22,000 prisoners of war, citizens of another country, is not just a common murder, but a mass crime, committed with the support of the state apparatus, which requires universal criminalisation and sanctioning under both domestic and international law. On top of that, which is very important, common crimes, unlike international crimes, may be subject to a statute of limitations. If the Katyń massacre was considered a common crime, it should long ago have been declared time-barred, which would have prevented the prosecution of the perpetrators and hampered the investigation of its circumstances.

In the literature and press, the Katyń crime is very often described as genocide. However, for a number of rather obvious reasons, it cannot be classified as such. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in December 1948 and became effective in January 1951, which is 11 years after Katyń. Applying its provisions to the trial of the perpetrators of the Katyń crime would constitute a violation of the principle of legalism, in particular the principle of nullum crimen sine lege, as both the crime and the penalty for committing it must be defined in legal acts passed before the time when the crime is committed.

It is true that the very word 'genocide' existed earlier. It was first used by a Polish lawyer of Jewish origin, Rafał Lemkin, author of the first definition of genocide and a great advocate for the adoption of a convention to sanction this crime. References to the term 'genocide' are linked to the definition laid out in his book Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, published in Washington in 1944.

The word 'genocide' was used several times both in Nuremberg and in the parallel trials before the Supreme National Tribunal in Poland (e.g. during the trial of Amon Goeth). In both cases, it was used to describe the Nazi policy of extermination, destruction and persecution of the Jewish people. Although genocidal practices were referred to with this term, from a legal perspective these acts were classified differently - as crimes against humanity. Neither the Nuremberg Judgement nor the NTN Judgement contains the term 'crime of genocide'. The judges were not able to consider this plea since the Convention on the Prevention and Punishment of the Crime of Genocide was still being drafted at the time (the last trial before the NTN: that of Joseph Bühler, ended in July 1948, five months before the Convention was adopted by the UN).

Had this Convention entered into force earlier, could the Katyń massacre have been characterised as genocide? This document provides protection for four specific groups: race, religion, nationality and ethnicity. Assuming that, with regard to Katyń, we are talking about a national or ethnic group, we would have to prove that the crime was committed against all or a significant part of the group, preventing its rebirth in the territory. According to the 1938 statistics, there were nearly 35 million people living in Poland (about 70 per cent Poles, around 15 per cent Ukrainians and around 8 per cent Jews). It is therefore unrealistic to consider that the murder of 22,000 Poles could significantly affect the capacity of a national or ethnic group to regenerate. The Katyń crime did not threaten the very existence of the entire group. The Convention does not protect other groups, such as political or cultural groups, nor does it specifically protect the intelligentsia murdered at Katyń.

A genocidal intention, the so-called dolus specialis, i.e. the intention to exterminate a specific group, is also a prerequisite for the qualification of the Katyń massacre as genocide. Any perpetrator of a genocide must have the intention to commit it. However, it is difficult to find any such intention with regard to the Katyń crime. There is no evidence that Beria or Stalin wanted to murder the entire Polish nation. The idea was rather to get rid of military power, so that no one would be able to fight against the Soviet occupier on behalf of the Polish army. It was about eliminating the so-called counter-revolutionary factor, the enemies of the Soviet regime. At that time, 'anti-Soviet' elements were eliminated en masse. Accordingly, the Katyń crime does not meet the qualifications of genocide within the meaning of the 1948 Convention in terms of genocidal intent or the protected group. Furthermore, note that the convention defining said crime entered into force many years after the crime was committed and, again, according to the principle of legalism, the law cannot operate backwards.

It is a crime against humanity or a war crime?

Can the Katyń crime be considered a crime against humanity? This type of crime is not regulated in an international convention like genocide, but it appears in Article 6c of the Nuremberg Charter, based on which the Nuremberg Tribunal acted, and could be a reference point for the present considerations. The provisions of the Nuremberg Charter reflect the state of international obligations binding on states at the time, and the Soviet Union was a party to the international agreement that contained these provisions (namely the International Agreement on the Prosecution and Punishment of the Major War Criminals of the European Axis, concluded in London in August 1945).

The term 'crime against humanity' refers to crimes committed against the civilian population and can therefore in no way apply to persons who have been granted the status of prisoners of war. For the case of Katyń massacre, this classification could only apply to a limited number of victims, that is, the civilian prisoners from Western Belarus and Ukraine. However, assuming the provisions of the Nuremberg Charter, we would be bound by yet another restriction - crimes against humanity could only be committed in connection with other crimes. Thus, they would not be independent crimes; it would be necessary to simultaneously prove that crimes against peace or war crimes had also been committed.

It seems reasonable to consider whether Katyń can be classified as a war crime. Individuals with the status of prisoners of war (such as the soldiers confined in Starobelsk, Ostashkov and Kozelsk) are protected by, among others, the provisions of the Fourth Hague Convention and its 1907 Regulations on the Laws and Customs of War on Land. Russia signed these documents in 1909, but the Soviet Union did not consider itself bound by their provisions. The Fourth Hague Convention requires humane treatment of prisoners of war, and violations of its provisions would result in the offending state's liability to provide compensation (Article 3). A convention on the treatment of prisoners of war (the so-called Geneva Convention) was also adopted in 1929, with a reference to the fact that prisoners of war should be treated humanely and protected from violation, insult and public curiosity. The provisions of the Geneva Convention were more detailed than the 1907 Hague Convention, but the Soviet Union chose not to adopt it.

As a consequence, it would seem that at the start of the war, the Polish prisoners of war were not protected by any international laws. However, Article 6b of the Nuremberg Charter indicates that a war crime is a violation of the laws and customs of war and may include mistreatment of prisoners of war, while the Nuremberg Tribunal has emphasised the habitual nature of the provisions of the Hague Convention in its judgment. Specifically, it pointed out that in 1939 its provisions were recognised by civilised nations as reflecting the laws and customs of war referred to in Article 6b of the Nuremberg Charter, so the Soviet Union, although it did not consider itself a party to the 1907 Convention, was bound by its provisions.

Summary

Going back to the legal dilemma on how to classify the Katyń massacre, it should be assumed that it constituted, first and foremost, a war crime; the mistreatment of the prisoners of war - their murder without trial - was nothing less than a violation of the laws and customs of war. This assessment has also been confirmed by the European Court of Human Rights, which ruled in the case of Yanovets and Others v. Russia (judgment of 16 April 2012) and indicated that the mass murder of the Polish prisoners by the Soviet secret police bears the hallmarks of a war crime. The classification of crimes against humanity could be applied to the detainees in prisons in Ukraine and Belarus.

Then why have we been debating for so many decades trying to qualify the Katyń massacre as a genocide crime, even though there is no longer any chance of the guilty being punished? There is a persistent perception that genocide is an aggravated form of crime against humanity and is therefore the gravest and most serious crime of all. In fact, however, there is no hierarchy of international crimes. Each category of crime has different legal attributes. That being said, it is not a given that if a crime fails to qualify as genocide, the other prerequisites are sufficient to classify it as a crime against humanity. The doubts about that were reinforced by the fact that crimes against humanity were not defined in the convention dedicated to them. Since 2002, however, the International Criminal Court - the first permanent international court that can judge perpetrators of crimes - has been in place. Its statute clearly defines crimes against humanity as acts committed as part of a widespread or systematic, deliberate attack targeting a civilian population. It is important to note, given these provisions, that crimes against humanity clearly have a different underlying rationale and a different object of protection than genocide.

It should be emphasised that the Katyń case is long past the point of punishing the guilty, who have been dead for decades or are about to die. It is about the historical truth, the memory of the victims, the families' right to know the truth, the proper commemoration of the dead based on truth and open dialogue, not the spectacle of political games and ambiguity. Ultimately, we all want reconciliation between the nations and we want to ensure that crimes of this sort are never committed again.

Karolina Wierczyńska, professor at the Institute of Political Science of the Polish Academy of Sciences, vice-chairman of KNP PAN, deputy editor-in-chief of the ‘Polish Yearbook of International Law’