DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON

In addition to the joint dissenting opinion I would like to emphasize the following.

1. The essence of the reasoning of the majority rests on its finding that the victims of the Mazie Bati massacre, because of their relations with the German armed forces, were not civilians who enjoyed protection under the relevant international rules concerning acceptable warfare. This explains why the majority confines itself to an assessment of whether Article 7 § 1 has been breached.

In this regard it should be stressed that it has been established by the national courts that the applicant was, as a commander and member of the armed forces of the Soviet Union , involved in the killings in Mazie Bati on 27 May 1944. The national courts have also, on the basis of extensive and thorough investigation into the facts of the case, found that the people killed were civilians protected under the relevant international law. Furthermore, they found that the acts of the applicant constituted war crimes under the applicable international and domestic law. This Court is in no position to refute that finding or to override the conclusions of the national courts as regards the facts of the case and the applicable law. By doing so the majority has gone beyond a mere re-characterisation in law of the evidence before it (see Streletz , Kessler and Krenz v. Germany (GC), judgment of 22 March 2001, § 111). What the majority has in fact done should rather be seen as a reassessment of the crucial factual findings of the national courts, contrary to the well established case-law of this Court, which holds that it is primarily for the national authorities, notably the courts, to establish the facts and interpret national legislation, including legislation referring to international law.

2. To further understand the situation of the victims it is also useful to put the Mazie Bati affair of 27 May 1944 into the wider historical context.

The State of Latvia was proclaimed in 1918. In 1940 the Soviet Union annexed Latvia . As described in paragraph 9 of the judgment, in 1941 Latvia was occupied by Germany and again by the Soviet Union at the end of the Second World War. After the collapse of the Soviet Union Latvia regained independence in 1991.

In other words, in the period 1940-1991 Latvia was a victim of hostile occupation by foreign powers. When the facts of this case occurred two totalitarian regimes, Nazi Germany and the Soviet Union , were fighting each other over Latvian territory in total disregard of the rights of the Latvians to self-determination, which always was, and still remains, their fundamental legitimate claim. The aim of the Soviet Union was not to “liberate” Latvia from Nazi Germany and re-establish the country as an

independent sovereign State, but to regain control over Latvia as one of the Soviet Socialist Republics . History teaches us that such a situation facilitates conditions of war where both powers are inclined to be on the look out for likely collaborators with the enemy among the people of the occupied territory and use their own criteria – military, political or otherwise – to determine who should or should not be considered a collaborator, in accordance with their own aims and interests. However, from the Latvian standpoint both powers actions were based on an equally illegitimate claim for control over their territory. It was under these conditions that the killings in Mazie Bati took place. Put in this historical context these atrocities were inflicted upon Latvian civilians by men under the command of the military representative of the Soviet Union, which was a hostile occupying power, not a liberator, of Latvia .

Being occupied by the Soviet Union until 1991 the Latvians were in no position to make Soviet Union military personnel accountable for alleged war crimes committed against their people during the Second World War, until after the country regained independence in 1991.

The historical context is relevant for three reasons. Firstly, it explains the difficult dilemma that most Latvian civilians must have found themselves in, in their relations with the occupying forces. Secondly, it explains why I agree with the majority, contrary to what the applicant has submitted, that his actions, as a military serviceman of the Soviet Union , should not be regarded as having been directed against his own people and so falling outside the ambit of international rules on acceptable warfare. Thirdly, it explains why it was not until 1998 that the applicant was charged with war crimes for his role in the Mazie Bati affair.

3. It is not disputed that Article 7, paragraph 2, refers inter alia to war crimes, as they are defined in international law. Just as the legal concept of “war crime” is neutral with regard to which State the alleged perpetrators represent as military servicemen, Article 7 § 2, makes no such distinction. Whether a given act qualifies as a war crime depends on the nature of the act itself and the circumstances under which it is committed, not on which country the perpetrators represent.

4. By the prosecution and conviction of the applicant for his role in the Mazie Bati affair on 27 May 1944 justice was served. The applicant was sentenced to a modest custodial sentence of one year and eight months, due regard being had to his old age and infirmity. More importantly he was made accountable for his crimes.

[1] Cf. M. Ch. Bassiouni , Introduction to International Criminal Law , Ardsley , New York : Transnational Publishers, Inc., 2003, pp.198-204.

[2] It is to be recalled that so far the approach by the Court is as defined in the Al- Adsani v. the United Kingdom case, which stated that the Convention “has to be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties” and, in particular, that account is to be taken of “any relevant rules of international law applicable in the relations between parties” (§ 55). See L. Wildhaber , “The European Convention on Human Rights and International Law”, International and Comparative Law Quarterly, 2006, pp. 230 – 231.

[3] ‘Threat or Use of Nuclear Weapons’ , Advisory Opinion, ICJ Reports 1996 , § 79.

[4] Ibid., p. 240, § 25.

[5] ‘ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ’, Advisory Opinion, ICJ Reports 2003 , § 106.

[6] See R. Higgins, ‘Time and Law: International Perspectives on an Old Problem’ International and Comparative Law Quarterly , vol. 46, 1997.

[7] Cited, ibid., p. 515.

[8] ‘ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276’ (1970), Advisory Opinion, ICJ Reports 1971 , § 53.

[9] For such a reading of the rule, see also Higgins, op cit.

[10] For challenges that face the Court once it enters into the assessing the scope of international offence, see Jorgic v. Germany , no. 74613/01, ECHR 2007 … (extracts). ,

[11] See Ch Greenwood, ‘The law of war (International Humanitarian Law)’, in M. D. Evans, International Law , Oxford : University Press, 2003, p. 794. The ICRC has commented that: “The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration”. See J-M. Henckaerts & L. Doswald -Beck, Customary International Humanitarian Law , Volume I: Rules, Cambridge : University Press, 2005, p. 3.

[12] According to the ICJ, a “modern version” of the Martens clause is to be found in Article 1 (2) of Additional Protocol I of 1977 and its “continuing existence and applicability is not to be doubted”. See ‘Legality of the Threat or Use of Nuclear Weapons’, Advisory Opinion, ICJ Reports 1996 , 257, 260.

[13] For extensive references to scholarly writings, etc., see e.g. Jorgic v Germany , §§ 40 - 47.

[14] A well-known historian, Norman Davis, describes the Second World War in the Baltic States as follows: “It is hard for Westerners to grasp, but from the view-point of Tallinn , Riga , or Vilnius , the growing possibility of a Nazi advance felt like blessed liberation from Liberation. … In the Baltic States, in Byelorussia , and Ukraine they were cheered as liberators. German soldiers were greeted by local peasants offering the traditional welcome of bread and salt. … In … Europe that was successively occupied both by Soviets and by Nazis, the element of choice was largely absent. Both totalitarian regimes sought to enforce obedience through outright terror. For most ordinary civilians, the prospect of serving the Soviets posed the same moral dilemmas as serving the fascists. The only course of principled action for patriots and democrats was the suicidal one of trying to oppose Hitler and Stalin simultaneously.” See N. Davis, Europe : A History . Oxford : Oxford University Press, 1996, p. 1033. As to the nature of the Soviet regime, one can refer to the following fact: “On one night alone – June 14, 1941 – over 15,000 individuals were deported from Latvia to the Gulag. Total population losses stemming from deportations, massacres, and unexplained disappearances during the first year of Soviet occupation have been estimated at 35,000”. See R.J.Misiunas and R. Taagepera , The Baltic States: Years of dependence, 1940 – 1980 , Berkley and Los Angeles : University of California Press , 1983, p. 41.

[15] See further e.g. J. Westlake, International Law . Part II. War, 2 nd ed., Cambridge University Press, 1913, pp. 64 – 65.

[16] See The Prosecutor v. Mitar Vasiljević , Trial Chamber judgment of 29 November 2002, §§ 199, 201.

[17] See Y. Dinstein , The Conduct of Hostilities under the Law of International Armed Conflict , Cambridge : University Press, 2004, p. 245.

[18] See the concurring opinion of Judge Zupančič in the Streletz , Kessler and Krentz v. Germany case.