Oleksii Plotnikov, PhD (international judiciary)

On May 18, Ukraine commemorated the Day of Remembrance of the deportation of Crimean Tatars. In Ukraine, this crime of the totalitarian regime is recognized as genocide [1]. The question of the criminality of deportation of the Crimean Tatar people has already been researched in detail [2]. As a rule, researchers point to the recognition of the criminal nature of deportation in the Soviet Union’s (USSR’s) own legal acts. Indeed, in 1989, the Declaration of the Supreme Soviet of the USSR condemned the practice of “forcible resettlement of entire peoples” as a crime “contrary to the foundations of international law, the humanistic nature of the socialist system”.

The Law of the Soviet Russia (RSFSR) of 1991 “On the Rehabilitation of Repressed Peoples” recognized “illegal and criminal acts of repression against these peoples” [4]. Researchers also generally point to the 1948 Convention against Genocide, which recognizes an international crime, inter alia the actions of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. In modern international law and in the national law of Ukraine, the act of deportation of Crimean Tatars would certainly be considered the most serious international crime.

At the same time, it is known that the criminal law has no retroactive effect. This fundamental principle of criminal law means that in no case can any act that was not considered a crime under the criminal law in force at the time the act is committed be criminally punishable. Therefore, the above-mentioned legal acts of the USSR were rather political in nature. They can also be seen as recognition of the criminality of the ongoing state of exile of entire peoples, and as a basis for the abolition of any restrictions on the repatriation of representatives of such peoples. However, the question remains whether the deportation of the Crimean Tatar people would be considered criminal at the time of its beginning, i.e. in 1944? To answer this question, it is necessary to consider the criminal law of the RSFSR and international law of this period.

The criminal law of the USSR as a whole and the law of individual republics in this period is a nightmare for any lawyer. Of course, there was a criminal code of the Union and codes of republics. However, in fact, criminal liability and the procedure for dealing with cases that would now be called “resonant” were governed not by laws but by orders.

Here is a striking example. During the Second World War, and in the first years after its end, the USSR arranged trials against Nazi criminals and their accomplices from among Soviet citizens (Kharkiv process, Smolensk process, Krasnodon process, etc.). Soviet citizens were convicted under the infamous Article 58, which combined crimes such as treason and counter-revolutionary crimes. For criminals from among the Germans and their allies, the rules of the criminal code did not apply at all, although Soviet criminal law included such crimes as murder, bodily harm, beatings, unlawful imprisonment, and others that could be applied to the Nazis.

Instead, their conviction was usually based on the order of the Presidium of the Supreme Soviet of the USSR of April 19, 1943 № 39 “On measures to punish Nazi thieves guilty of killing and torturing Soviet civilians and captured Red Army soldiers, spies and traitors” [6]. It is useless to look for at least some legal technique in this order, and at least some compliance with the principles of criminal law. Therefore, Soviet trials also having some value in terms of establishing the facts are difficult to call legitimate in terms of the basics of criminal law.

Such criminal offenses as genocide or deportation were unknown to Soviet criminal law at the time. Therefore, condemnation of deportation as such would hardly be possible under the Criminal Code (CC) of the RSFSR in 1926 [7]. The very idea of crimes against people as a collective entity did not exist. However, there were a number of norms of Soviet criminal law that were clearly violated during the deportation of peoples. There are at least four groups of relevant rules.

The first group includes crimes against the established order of government (part 2 of chapter 1 and chapter 2 of the Criminal Code of the RSFSR in 1926). This is clearly article 59-7 – propaganda or agitation aimed at inciting national or religious hatred. Part two of this article provides for liability for the commission of such a crime in a military situation, the sanction for which is set in the range from 2 years of imprisonment to the death penalty. Another article in this group is arbitrary behavior, i.e. the arbitrary exercise of a right outside the established authority, for which Article 90 provided for liability in the form of correctional labor for up to six months or a fine.

The second group of crimes – crimes of officials (Chapter 3 of the Criminal Code of the RSFSR). This refers to Article 109 – abuse of power or official position, i.e. actions that were not caused by considerations of official necessity, and led to a violation of public order or legally protected rights and interests of individual citizens. The penalty for this crime is imprisonment for a term of at least six months. If the excess of power was accompanied by “violence, use of weapons, or painful or insulting acts of the victim, then Article 110 of the Code establishes liability for such a crime in the form of imprisonment for at least two years.

The third, most obvious group of crimes are crimes against life, health, freedom, and the dignity of the individual (Chapter 6 of the Criminal Code of the RSFSR). These include Articles 136-137 (various forms of murder), 142-146 (various forms of bodily harm and beatings), 147 (forcible unlawful deprivation of liberty), 157 (failure to provide assistance to a patient), 159-161 (various forms of insult and defamation).

One can also speak about certain components of property crimes (Chapter 7). These are Articles 162-167 (various thefts, robbery, burglary), 175 (deliberate destruction or damage to the property of individuals).

Thus, we one can speak about the existence of corpus delicti under Soviet law as in the actions of the organizers of the deportation of peoples, including the Crimean Tatars, in the form of crimes against the established order of government and official crimes, and perpetrators of deportation in the form of crimes against the person and property which accompanied the deportation.

Alongside with criminality under Soviet criminal law, one can consider the crime of deportation under international law in force in 1944. Of course, the concept of international crime in this period has not yet been formed. Among other things, the concept of genocide existed only in the form of an idea, and more than a year remained before the creation of the first-ever international criminal tribunal. However, as early as 1944, there were a number of concepts that allowed the Nuremberg tribunal to prosecute Nazi criminals for the crimes committed before its creation, and also made it possible to shape the very concept of international crime as it exists today. Among other things, there existed the very idea of an international crime, the idea of the crime of collective punishment, the concept of a criminal order.

The concept of crimes against humanity dates back to the nineteenth century. The need to comply with the requirements of humanity during armed conflict is mentioned in the Hague Conventions on the Laws and Customs of Land Warfare of 1899 [8] and 1907 [9]. The concept of “crime against humanity” was first used internationally in 1915 in connection with reports of Armenian genocide. In their declaration, the allied states in the First World War threatened to bring to justice those guilty of “crimes against humanity and civilization”, in terms of personal criminal responsibility [10]. Although this concept was not eventually included in the text of the peace treaties that ended World War I, it certainly existed in international practice, including with respect to acts that were later referred to as genocide. In particular, the Nuremberg and Tokyo tribunals relied on this notion as an existing one and one that created grounds for criminal liability of persons for crimes committed during the Second World War.

Although in 1944 the concept of crimes against humanity remained insufficiently developed, there was a clear understanding of the illegality of certain acts, which later became considered as specific components of crimes against humanity in international criminal law. A clear example of this is the criminality of so-called collective punishments, i.e. the punishment of a group for crimes committed by individual members of this group.

This rule is unequivocally enshrined in the aforementioned Hague Conventions, according to which “no general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.” Thus, the justification of the deportation of peoples to the USSR by crimes allegedly committed by some of their representatives, clearly violated the international legal prohibition of collective punishment.

One can speak about the existence in 1944 and the concept of a criminal order, the execution of which in itself is a crime. The perpetrator cannot refer to the order as an excuse, and is liable on a par with the person who gave such an order. In its final form, the concept of a criminal order, which was later used by the Nuremberg tribunal, was formed in the case of German general Anton Dostler, which was considered by the US military tribunal in 1945. The tribunal found the general guilty of passing a criminal order to execute prisoners of war from the high command to the executors, which took place in March 1944. Although Dostler himself did not give the order, and did not carry out the shooting, he was executed for following and organizing the execution of a clearly criminal order [11]. The Nuremberg tribunal relied on the precedent of the Dostler case in determining the degree of responsibility of those who carried out criminal orders. Therefore, as of 1944, the execution of a clearly criminal order was already considered an international crime.

So, in USSR’s criminal law there were no concepts of international crimes, crimes against humanity, deportation. But the organization and implementation of forced resettlement of peoples without a doubt resulted in acts that could not be considered other than crimes under Soviet law. As for international criminal law, as of 1944 there were sufficient preconditions for the international tribunal to convict the organizers and perpetrators of the deportation of Crimean Tatars.

1. https://zakon.rada.gov.ua/laws/show/792-VIII#Text.

2. http://nbuv.gov.ua/UJRN/Nzizvru_2015_3_14

3. http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=1687#021307049397446143.

4. https://docs.cntd.ru/document/9003294.

5. https://zakon.rada.gov.ua/laws/show/995_155#Text.

6. http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=9446#0729773991751856.

7. https://docs.cntd.ru/document/901757374.

8. https://www.icrc.org/ru/doc/resources/documents/misc/hague-convention-iv-181007.htm.

9. https://zakon.rada.gov.ua/laws/show/995_222#Text.

10. https://en.armradio.am/2020/05/24/105-years-ago-entente-powers-called-the-massacre-of-armenians-crimes-against-humanity.

11. http://www.worldcourts.com/imt/eng/decisions/1945.10.12_United_States_v_Dostler.htm.