crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
Lauri Mälksoo *1
Reparation and reconciliation in international law:
the view of an Estonian lawyer
I fully support the idea that has been expressed a number of times during this hearing: that
reconciliation is one of the most important goals when dealing with past crimes. I am also thankful
for the opportunity to sit at the same table and discuss with our Russian academic colleagues. I wish
we would do that kind of debating more often, more collaboratively and more constructively. I would
not be prepared to accept the idea that Estonian and Russian legal scholars and historians would only
be able to discuss these difficult matters with the participation of a third party or institution, only with
‘Europe’ as mediator.
Reconciliation cannot emerge in a vacuum, in the lack of dialogue. In order to ask for forgiveness,
you need to know for what forgiveness is asked. In order to be able to forgive you need to be asked to
forgive. Reconciliation cannot usually go around the question of the historical truth. On the basis of the
truth as established by historians, certain normative conclusions can and must be drawn by lawyers. In
interstate relations, the law that forms the basis of drawing this kind of normative conclusions is public
international law.
The law is already there. It was established when the London Agreement was signed by the Allied
Powers in August 1945. In that agreement, for the purposes of the Nuremberg trial, the following three
crimes were defined: crimes against peace, crimes against humanity and war crimes. Moreover, in 1948
the United Nations defined and prohibited the crime of crimes: genocide.
Some of the definitions of crimes included elements that seemed politically motivated already when
they were adopted. For example, the definition of crime against humanity in the London Agreement
included the so-called “nexus to war” (“Crimes against humanity: namely, murder, extermination,
enslavement, deportation or other inhumane acts committed against any civilian population, before or
during the war; or persecutions on political, racial, or religious grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic
law of the country where perpetrated.”). Later on, the nexus was abolished in international criminal
law. However, the nexus was clearly there for the purposes of the Nuremberg trials. Can it be that the
political importance of the nexus included avoiding asking the question whether Joseph Stalin did not
extensively practice these horrible things in his own country much before World War II broke out? But
altogether, the definition of crimes against humanity, as it was adopted in 1945, was a huge step forward
for international law. One may also welcome the fact that the nexus to war has been deleted from its
definition, for example in the Rome Statute establishing the International Criminal Court.
The other problematic definition was and is that of genocide. William Schabas, the foremost
authority in this field of law, has described the travaux préparatoires of the 1948 Genocide Convention:
the reasons why social and political groups were left out of the definition were essentially political. The
USSR argued that the definition of the crime of genocide was tailored to fit the Nazi crimes solely.
The Aristotelian maxim of justice is that similar cases must be treated alike. If Stéphane Courtois
and his colleagues are even approximately right about the number of the victims of Communist regimes
over the 20 th century, it is strange that such a large number of victims cannot be qualified with the help
of the definition of the crime of crimes. In order to kill that many people in so many different places,
there had to be a lot of mens rea and intent to kill there. Excluding political and social groups from the
definition of genocide certainly did look unjust when Pol Poth slaughtered millions of his own people
in Cambodia. However, the definition of genocide in the 1998 Rome Statute has still not been changed
in comparison with the 1948 definition. Nevertheless, a number of states such as France and Estonia,
for example, have included social and political groups (murdering with the intent to destroy any group)
in the definition of genocide in their respective Criminal Codes. The silence of the definition on the
international level has at least been corrected in the domestic setting.
* Dr Lauri Mälksoo, Associate Professor of International Law at the University of Tartu.
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