JOINT DISSENTING OPINION OF JUDGES FURA-SANDSTRÖM, DAVÍD THÓR BJÖRGVINSSON AND ZIEMELE

We do not share the view of the majority that there has been a violation of Article 7 as concerns the prosecution and conviction of the applicant in Latvia for war crimes committed during the Second World War.

I.

1. The case raises the following questions of principle: (1) In view of the travaux préparatoires of the Convention and the existing case-law should the cases concerning trials for war crimes committed during the Second World War be dealt with under Article 7 § 1 or 7 § 2? (2) What is the standard of legality and foreseeability in such cases? (3) What effect does the time element have for the purposes of the application of the relevant international law, general principles and the Convention?

2. The Court describes its task in the present case as follows: “[I] t is necessary for the Court to examine the criterion of foreseeability in the present case. More specifically, it must determine objectively whether a plausible legal basis existed on which to convict the applicant of a war crime and, subjectively, whether at the material time the applicant could reasonably have foreseen that his conduct would make him guilty of such an offence” (see paragraph 122 of the judgment). In so doing, it treats the case as being within the ambit of Article 7 § 1. It does not explain that choice and makes no comparison with the existing case-law or attempt to distinguish this case from other similar cases. It advances a rather circular explanation, saying that because the Court has chosen to examine the case under Article 7 § 1 it does not need also to examine it under Article 7 § 2 (see paragraph 147 of the judgment). As the judgment recognises, until now the Court has always dealt with cases involving international crimes under Article 7 § 2. In the past, the Court has always held that, in principle, the prosecution and punishment of international crimes committed many years ago is not contrary to the Convention where Article 7 § 2 rule applies. The standard was explained in the case of Touvier (see Touvier v. France , no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports (DR)) in which the Commission explained:

“The Commission notes that the applicant was sentenced to life imprisonment ... on 20 April 1994 for aiding and abetting a crime against humanity. ... The Commission considers it unnecessary to rule on whether the offence with which the applicant was charged could, at the time it was committed, be classified as such .

The Commission must now examine whether the exception provided for in paragraph 2 of Article 7 is applicable to the circumstances of this case.

The Commission recalls that it transpires from the preparatory work to the Convention that the purpose of paragraph 2 of Article 7 is to specify that this Article

does not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish war crimes, treason and collaboration with the enemy and does not in any way aim to pass legal or moral judgment on those laws (see No. 268/57, Dec. 20.7.57, Yearbook 1, p. 241). ...

The Commission recalls, lastly, that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for example, No. 13926/88, Dec. 4.10.90, D.R. 66, p. 209, at p. 225; No. 17722/91, Dec. 8.4.91, D.R. 69, p. 345, at p. 354). The Commission recalls further that the interpretation and application of national law are, as a general rule, matters for the national courts (see, among other authorities, No. 10153/82, Dec. 13.10.86, D.R. 49, p. 67).”

As far as we can see, the Touvier standard is different from the one adopted in the instant case. Until now the Court limited itself to an overall assessment of whether the application and interpretation of international law is compatible with the Convention and not arbitrary.

3. Judge Myjer in his concurring opinion argues that the Court is justified in its approach in applying Article 7 § 2 in cases in which the applicants had links with Nazi crimes and thus fell within the scope of the Nuremberg principles. This case is allegedly different since the applicant belonged to the Allied powers fighting against the Nazis. The legal basis for such an approach is unclear. Why should criminal responsibility depend on which side those guilty of war crimes were fighting on? There is certainly nothing in the Convention itself to limit the application of Article 7 to Nazi crimes alone. On the contrary the Article is drafted broadly and with a specific purpose as the travaux préparatoires amply show. True enough, today the Convention covers many more States then at the time of its drafting. However, now that this expansion has taken place, does that mean that more recent States Parties have different rights and obligations under Article 7? Or, in other words, that the Convention should operate with double standards? We do not think so. In the case of Kolk and Kislyiy v. Estonia ( dec. ), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I , the Court clearly ruled that the Nuremberg principles had universal validity despite the limited scope of the Tribunal ' s jurisdiction ratione personae at the time (pp. 8-9).

4. However, the idea could be developed that the Court from now on and contrary to the intention of the States when drafting the Article will examine the prosecution of international crimes within the ambit of Article 7 § 1. This paragraph does refer to international law. The assessment of legality and foreseeability, however, should still be compatible with the understanding of those principles in international criminal law. There are obvious differences between the understanding of legality and foreseeability in domestic penal law and international criminal law, not least because international law is a different legal system from national legal systems (the differences between the common-law and civil-law systems in the definition

of these principles should also be noted) in terms of how the rules come into existence and are related to each other. [1]

5. It could be argued that under the Convention the Court can develop new standards regarding legality and foreseeability where trials of international crimes are concerned. The majority in this case does not seem to suggest such a role for the Court. This in any event is a fundamental judicial-policy issue in a case where the application of equally important areas of international law is concerned. [2] Of relevance in this connection is the following comment by the International Court of Justice (ICJ) on the purpose of international humanitarian law: “... a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ' elementary considerations of humanity ' ”. [3] It appears that both human-rights and humanitarian law share the same commitment, but often at different times and in different contexts. The ICJ went further and explained the relationship between international humanitarian law and human-rights law as follows: “In principle, the right not arbitrarily to be deprived of one ' s life applies also in hostilities.” [4] The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis , namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. In the Advisory Opinion on the ' Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ' , the ICJ expanded as follows: “More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation ... As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis , international humanitarian law.” [5]

In other words, a special body of law has been developed to deal with situations of armed hostilities which is adapted to the special features of such situations. It entails different rights, obligations and responsibilities for different parties. Before the European Court of Human Rights decides to apply its own standard to such situations, it should make a careful assessment of what is at stake. In any event, the Court has always been mindful of global trends and aims that developments in international humanitarian law and international criminal law represent. If through the instant case the Court not only decides to develop a new approach but also to apply it retroactively, its decision should be based on weighty legal arguments. Such arguments in the Convention system are typically formulated by the Grand Chamber.

6. The difficulty with the case lies mainly in the fact that the trial took place almost sixty years after the alleged facts. As noted by the majority, the international legal regulation of armed conflict has indeed evolved in the meantime. The Court does not say, however, that the respondent State is prohibited from trying war criminals. The question then becomes much more technical and has to do with the application of law in time or in our case more specifically with the rule of inter-temporal law. [6] The widely cited dicta by Judge Huber in the Island of Palmas case states the rule as follows: “A judicial fact must be appreciated in the light of the law contemporary with it, and not of the law at the time such a dispute in regard to it arises or falls to be settled.” [7]

The ICJ explained in the Namibia Advisory Opinion that in some cases the evolution of the concepts have to be taken into consideration, “Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the Court is bound to take into account the fact that the concepts ... were not static, but were by definition evolutionary ... . That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”. [8] This in fact is part of the rules of interpretation of international treaties, as set forth in the Vienna Convention on the Law of Treaties which codified the relevant rules of customary international law at the time. In addition to the ordinary meaning to be given to the terms in their context and the object and purpose methods, the Court should also bear in mind inter alia “any relevant rules of international law applicable in the relations between the parties”. [9] The Court has consistently held that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention.

7. The majority states that the Latvian Supreme Court has applied two international instruments retroactively (§§ 118–119 and 131). The problem would indeed arise both under the Convention and in terms of international criminal law if the post facto law was applied by the national courts in such a way as to broaden the scope of the war crimes the applicant was convicted of. [10] However, the majority has not examined or discussed this question properly. Where the Court states in its judgment that the national court relied on Article 50 of Additional Protocol to the Geneva Conventions of 12 August 1949 (Protocol I) but should not have done so since the Protocol was adopted 30 years later, the proper course for establishing a relevant international-law fact would have been for the Court to at least attempt to determine whether Article 50 represented a new development in international humanitarian law or whether it was a codification of customary international law.

II.

8. The majority concludes that the applicant could not have foreseen that his acts constituted a war crime in the jus in bello sense at the time because, inter alia , nine villagers should have foreseen that their behaviour invited reprisals (see paragraph 130 of the judgment) and that they represented a legitimate danger to the Soviet Partisans in view of their pro-Nazi views and collaboration (paragraphs 130 and 134). In the view of the majority, the national courts did not sufficiently show that the 27 May 1944 attack on the village of Mazie Bati in Latvia was contrary to the laws of war and thus that there was a legal basis in international law on which to convict the applicant for commanding his Partisans to kill the six men and three women, one of whom was pregnant (paragraph 13 8 ).

9. In overruling the findings of the national courts on the status of the inhabitants of the village, the majority relies on the following understanding of the 1907 Hague Convention and the regulations annexed to it (hereafter “the Hague Regulations”). According to the Court, the Hague Regulations do not define the notions of ' a civilian ' and ' civilian population. Jus in bello at the time did not provide that if a person did not qualify as a combatant he/she should be afforded the guarantees enjoyed by civilians ( see paragraph 131).

10. This is a mistake in terms of the international humanitarian law applicable at the time. First of all, it is true that the regulation concerning the protection of civilians was in a relatively rudimentary state at that time, but it did exist. It is well-known that: “A central feature of the laws of armed conflict ever since the eighteenth century has been the distinction between combatants and civilians”. [11] Where the text of the Hague Regulations was not sufficiently clear to the majority and since it considered that the reasoning of the national courts was insufficient, it should have resorted to all the other means available in international law to establish the scope of the relevant regulations in order to assess whether the national courts had arrived at arbitrary findings. This would have led the Court to pay attention among other things to the Preamble to the 1907 Hague Convention which includes the so-called Martens clause, which provides: “[T]he high contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders”. It goes on to explain: “[I]n cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience”. [12]

11. True enough, the Court has no competence to interpret the Hague or Geneva laws ( see paragraph 122). For the European Court of Human Rights, other rules and principles of international law are facts that may be relevant in the case. These are facts, however, that ought to be established carefully having regard to all the tools that international law offers. Moreover, the Court has always adhered to this procedure in the cases where the context of applicable rules of international law is important. [13] For the purposes of the presence case, developments such as the 1863 Lieber Code, the 1868 Declaration of St. Petersburg or the Oxford Manual, all establishing the principle that there is no unlimited freedom for belligerents as to the choice of means and methods of warfare and that unnecessary suffering should not be inflicted are relevant. The 1863 Lieber Code was referred to in the admissibility decision but has been omitted from the judgment (see Kononov v. Latvia ( dec. ), no. 36376/04, 20 September 2007, p. 23).

12. The fact that the Court ascribes ' pro-Nazi views ' to the inhabitants of the village cannot per se deprive them of the protection afforded to civilians in international humanitarian law (see paragraph 130 of the judgment), any more than the villagers ' lack of sympathy for the Soviet Partisans for well-documented historical reasons. [14] If the majority wanted to establish that these six men and three women were not civilians, but combatants and in that capacity directly involved in armed activities (whether one calls it collaboration or otherwise), it should at least have examined the four conditions that Article 1 of the Hague Regulations sets forth for distinguishing combatants from non-combatants, namely: “1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war”. [15] The Court ' s main difficulties with the approach it has adopted are as follows. First, it has no competence to add new criteria to the existing rules or to substitute its understanding of the concepts for that generally adopted in international law for the purposes of qualifying persons as combatants. Second, it cannot re-examine all the evidence, including testimonies of the victims of this crime ( see paragraph 36 of the judgment ).

13. Ultimately, the scope of the foreseeability principle endorsed by the majority remains unclear. Recently, the ICTY in the Vasiljević case stated with reference to the judgments of the Nuremberg Tribunal: “For criminal liability to follow, it is not sufficient, however, merely to establish that the act in question was illegal under international law, in the sense of being liable to engage the responsibility of a state which breaches that prohibition, ... . [T]he Trial Chamber must satisfy itself that this offence with which the accused is charged was defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible. When making that assessment, the Trial Chamber takes into account the specificity of international law, in particular that of customary international law. The requirement of sufficient clarity of the definition of a criminal offence is in fact part of the nullum crimen sine lege requirement, and it must be assessed in that context.” [16] In the case of Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II , the Court, while primarily concerned with the application of domestic criminal law by German courts, concluded, inter alia : “The Court considers that at the time when they were committed the applicants ' acts also constituted offences defined with sufficient accessibility and foreseeability by the rules of international law on the protection of human rights” (at § 105). We remain of the view that taking into consideration all relevant international normative developments at the time, to murder members of the civilian population of a hostile nation without any apparent military necessity was a war crime and that “the essence of the crime” was defined with sufficient accessibility and foreseeability by the rules of international law (see also Jorgic v. Germany , no. 74613/01, § 114, ECHR 2007 ‑ ... (extracts)) . Like the Chamber, we agree that the applicant in his capacity as a military commander must have known the relevant laws of war ( see paragraph 12 4 of the judgment ).

14. As concerns the criminal intent or consciousness, the following standard applies: “ Mens rea cannot be negated if the illegality of the war crime is obvious to a reasonable man. When an act is objectively criminal in nature, the accused will not be exculpated on the ground of an alleged subjective belief in the lawfulness of his behaviour” [17] or the belief that because of State policy he will never be prosecuted. [18] However, the competence of the Court does not extend so far as to enable it to assess in the necessary detail issues pertaining to the actus reus and mens rea . These remain within the competence of the national courts or international criminal tribunals, where available.

For all these reasons, and since we are not persuaded that the national courts, in convicting the applicant, went beyond the essence of the definition of a war crime as it existed in 1944, we are firmly convinced that the national courts were better placed than this Court to decide the Kononov case. Our conclusion is that there has been no violation of Article 7.