The following is a guest post by the Director of the Global Legal Research Center Peter Roudik. Peter is a frequent contributor to In Custodia Legis. He has written a number of posts, including on “Ukraine: Two Understandings of Lustration,” “Crimean History, Status, and Referendum,” “Regulating the Winter Olympics in Russia,” “Soviet Law and the Assassination of JFK,” and the “Treaty on the Creation of the Soviet Union.” This blog post is part of our Frequently Asked Legal Questions series.
Recently, people all over the world remembered how the Auschwitz concentration camp was liberated 70 years ago on January 27, 1945. Our readers might be interested to learn about the legal basis for the Soviet authorities’ involvement in the collection of evidence, investigation of crimes committed in the camp, and the prosecution and punishment of the perpetrators of these and other crimes. While the most notorious Nazi war criminals were tried in Nuremberg, and those accused of murdering people in Auschwitz were prosecuted later in separate trials in Poland and Germany, the collection of evidence and prosecution of war crimes had started well before the Soviets liberated Auschwitz.
1. How were crimes committed in Auschwitz investigated?
Auschwitz was the first large extermination camp discovered by the Red Army outside of the Soviet territory. The scale of the atrocities witnessed by the Soviet officers was incomparable to anything they had seen while fighting the Germans before. The first information about Auschwitz came as eyewitness reports in which liberators informed their military superiors about what they had seen. Similarly, Russian journalists, who followed the troops, provided their reports and interviews with survivors to the Soviet secret police and justice authorities. Today, these reports are an important part of Auschwitz-related archives. These documents are preserved in several archives within the Russian Defense Ministry system and the archives of the Federal Security Service (former KGB). For this 70th anniversary, many documents from these archives were declassified and published on the RF Ministry of Defense website.
Within two weeks after the liberation, a technical commission of forensic experts arrived at Auschwitz. The commission, which included army engineers, Soviet and Polish scholars in the field of civil engineering, chemistry, transportation, and public health, among others, collected evidence through March 1945. The work of this commission is described in The Case for Auschwitz by Robert Jan van Pelt. The committee’s experts’ findings were forwarded to the Extraordinary State Commission for Identification and Investigation of Atrocities Committed by German Fascist Occupants (ES Commission). This Commission was created in November 1942 by a Decree of the USSR Supreme Council Presidium (then the legislature) and was the main institution responsible for “collecting information about heinous crimes committed by the Nazis on occupied territories and damage they inflicted to Soviet citizens and the state.” The ES Commission was charged with the duty to identify individual perpetrators of crimes and bring them to justice. The Statute on the Commission adopted by the USSR Council of Ministers on March 16, 1943, said that the Commission has the right to initiate investigations, request prosecutions, collect evidence, interview victims of Nazi crimes, and conduct other procedural activities necessary to charge occupants and their collaborators for crimes they had committed.
The ES Commission consisted of 10 people. Its chairman was the head of the Soviet Trade Union Association. Among other members there was a Communist party ideologue (who was very close to Stalin); the famous writer Aleksei Tolstoy; the head of the Russian Orthodox Church in Ukraine; a celebrity female pilot; and five leading Soviet scholars and scientists. The commission had its own staff of 116 people and had branches in all regions liberated from the Germans. Members of the Commission and its staff personally collected evidence in Auschwitz, which was used later in trials in Poland and Germany.
2. What were the legal grounds for the Soviets to prosecute war crimes?
The legal act that established the legislative framework for prosecuting Nazi war criminals by Soviet authorities was the Decree of the USSR Supreme Council Presidium of April 19, 1943, on Punishment of German and Fascist Villains Guilty of Killing and Torturing Soviet Civil Population and Army Prisoners, Spies, and Traitors, who are Soviet Citizens, and their Collaborators. The Decree stated that crimes against Soviet people committed by Germans were unprecedentedly brutal and no measure of punishment prescribed by Soviet law could be appropriate to them. Naming violence against people in the occupied territory the most despicable crime, the Decree provided for the hanging of German, Italian, Romanian, Hungarian, and Finnish fascists if they murdered or tortured civilian populations or Soviet POWs. The same punishment was prescribed for Soviet nationals recognized as spies or traitors. According to the Decree, all hangings were supposed to be conducted in public in the presence of a crowd and the leaving of bodies on gallows for several days in order to make it “obvious for everyone what a person who collaborates with the enemy expects.” Local collaborators were subject to exile and hard forced labor for a term from 15 to 20 years.
Both forms of punishment were unique for the Soviet legal system because they were never used during the entire Soviet history in any other situation. Trials were conducted by military tribunals established at the division level, with executions immediately following pronouncement of the ruling. The Decree did not say anything about the right of the accused to defense counsel; however, it appears that public defenders were provided to the prosecuted persons in some trials. According to defense attorneys’ memoirs, they could not find any extenuating circumstances, and simply asked the judges for mercy. Russian historians say that the decree applied retroactively, and crimes committed by Nazis and their allies before April 19, 1943, were prosecuted the same way. The issue of a criminal’s citizenship was similarly interpreted broadly. One Russian military historian argues that even though the Decree mentioned nationals of five particular countries who could be prosecuted under this document, provisions of the Decree were applied by Soviet justice authorities when citizens of Austria, Belgium, Denmark, Poland, Japan, and some stateless individuals were prosecuted. It appears that between 1943 and 1952, almost 82,000 people were prosecuted by the Soviets as Nazi criminals and their collaborators; 25,000 of them were foreign nationals.
Even though the Decree was issued in April 1943, and military tribunals were formed in May of the same year, this law was not applied and no trials were conducted until the commitment to prosecute war criminals was confirmed by the allies. On October 30, 1943, Foreign Ministers of the Allied Powers concluded their Moscow conference by signing the Declaration of the Four Nations on General Security. A separate section of the Declaration, called “A Statement on Atrocities,” expressed the intent to bring war criminals to justice at the places where they committed their brutalities under the laws of the recently freed countries.
3. Where was the first trial against Nazi war criminals held?
Members of the German military were first tried as war criminals in the Ukrainian city of Kharkiv on December 15-18, 1943, almost two years before the famous Nuremberg Trials. The trial was conducted by the Military Tribunal of the 4th Ukrainian Army Group, which participated in liberating this large industrial East Ukrainian city with a significant Jewish population. Kharkiv was occupied by the Germans from October 1941 through August 1943, and became the second most devastated Soviet city after Stalingrad with 30,000 civilians killed, 16,000 of whom were Jews. In Kharkiv, Germans for the first time tested and then used the so-called “gas vans,” covered trucks reequipped into gas chambers by transmitting exhaust fumes into the cabins where people died from carbon monoxide poisoning.
The war crime trials in Kharkiv were conducted against a Russian military deserter who worked during the period of Kharkiv occupation as a gas van driver, two German low-rank officers who conducted executions of Soviet prisoners of war in a local concentration camp, and a German police officer who killed and tortured civilians. After three days of hearing witnesses and prosecutors, all four of the defendants, who claimed to have simply obeyed orders, were found guilty of committing war crimes and mass killings, and were sentenced to hanging. The trial was widely reported and its minutes were later published in different languages.