Last month, whilst the international community was getting ready to commemorate the 70 years of the United Nations, the European Court of Human Rights (ECtHR) in the case of  Vasiliauskas v. Lithuania decided, with a 9:8 split, to dismiss the relevance of the ICJ, ICTY and ICTR’ jurisprudence. The ECtHR majority stated that they were not convinced that in 1953 a lawyer could have foreseen the international courts and tribunals ‘judicial guidance’ offered in the post 1990s on the meaning of the phrase “in part” in the definition of genocide.

In this post I have two aims. First, I want to highlight that in this case the Strasbourg Court has been much more cautious than in its previous jurisprudence on whether a legal innovation is in conformity with the rule of non-retroactivity. Second, I want to stress (some of) the implication of the ECtHR’s take on the value of the ad hoc tribunals and ICJ’ judgments for charges of genocide pre-dating the 1990’s.

Could a lawyer have foreseen in 1953 that the Killings of Lithuanian partisans was genocide?

The Vasiliauskas v. Lithuania case concerned a violation of Article 7 (nullum crimen/nulla poena sine lege: no crime/punishment without law) of the European Convention for Human Rights (ECHR). The ECtHR has long taken the view that there is no violation of Article 7 if, at the time of conduct, it was sufficiently accessible and foreseeable for the accused to reasonably expect that his actions would entail criminal liability under national or international law. Mr Vasiliauskas, an officer at the Ministry of Interior of the Lithuanian Soviet Socialist Republic in 1953, was convicted in 2004 by a Lithuanian court for the crime of  genocide for his involvement in the killings of Lithuanian partisans who resisted Soviet rule after the Second World War.  The ECtHR concluded that his prosecution in 2004 was in violation of Article 7.

In May 2003, Lithuania enacted a new Criminal Code. The Code provided a definition of genocide, inclusive of social and political groups and allowed for retroactive application. The 1948 Genocide Convention (GC) does not extend to social and political groups. Quite the opposite these two groups were deliberately removed by the drafters of the GC in order not to inhibit some states from ratifying the Convention. In fact, it is commonly believed that “political group” was removed from the draft GC upon the insistence of the Soviet Union. The chapeau of Article II, GC reads as follows:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: […]”

The vast majority of States follow the GC’s definition to the letter in their domestic laws. Lithuania, however, is not the only State extending genocide to political groups. Bangladesh, Panama, Costa Rica, Peru and Slovenia, to name a few, also do. The point at issue when a domestic prosecution for international crimes is based on a retroactive law is whether it can be established that the conduct in question was criminalized under international law applicable at the relevant time.

There is no doubt that “political groups” were neither protected by Article II GC nor under the customary international law definition of genocide in the 1950s. Hence, the ECtHR turns to the question of whether because of their prominence the Lithuanian partisans were “part” (and even better “representatives”) of the Lithuanian national group, that is, a group protected by Article II, GC (para. 176). And, here, the divide between the majority and minority judges is stark. Whilst both camps seem to agree that under the ICTY, ICTR and ICJ jurisprudence the extermination of the Lithuanians partisan would qualify as “a part” of the national or ethnic Lithuanians in qualitative terms, they disagree over whether the international case law, which articulated this aspect, developed the international law on genocide or simply reaffirmed it.

The ICTY held in numerous cases that the intent to destroy a group may, in principle, be established if the destruction is related to a significant part of the group, such as its leadership. For instance, in Sikirika, the Trial Chamber stated:

“The important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimisation […] would impact upon the survival of the group, as such.”

This is essentially what is considered the ‘qualitative’ approach (which focuses on the prominence of the targeted part of the group or on the geographic location) – in contrast with the quantitative approach (numerical assessment). The existence of these approaches on the meaning of destruction of a group “in part” has been upheld by the ICJ in the Bosnia and Herzegovina v. Serbia 2007 judgment and the recent Croatia v. Serbia 2015 judgment.

This was not the first time that the ECtHR had to deal with a case where an applicant was retroactively convicted under a broader definition of genocide than the one established in Article II of the 1948 Convention. In Jorgić v. Germany, the ECtHR had to decide whether a conviction by German Courts of cultural genocide committed in Bosnia and Herzegovina violated Article 7 ECHR. Article 220a of the German Criminal Code reads in the same fashion as Article II of the GC, which is normally understood as excluding cultural genocide. The ICTY in Krstić and the ICJ in Bosnia and Herzegovina v. Serbia expressly rejected the concept of cultural genocide. Nevertheless, the German courts interpreted their genocide definition as including cultural genocide. According to the ECtHR, Jorgić, with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of cultural genocide. However, the ECtHR acknowledged that the only source which could have provided Jorgić a notice of this interpretation of the genocide definition was the writings of some scholars. Obviously, the ECtHR approach to Article 7 was criticized by many. Kenneth Gallant, who wrote one of the most comprehensive studies on the principle of legality in international and comparative criminal law, deems that the foreseeability requirement “may swallow the principle of legality whole.” One may argue that the Vasiliauskas judgment proves that it is possible to circumscribe the concept of foreseeability so as not to offend nullum crimen sine lege.

So what is the difference between the Jorgić case and the Vasiliauskas case? As striking as it may appear, the difference between these two cases is that the conviction for genocide of Vasiliauskas existed under international law at the time of the impugned conduct, while the one of Jorgić never really existed at the international level but was argued for by a thin minority of scholars. The other difference is that in Jorgić this thin minority wrote its opinions at (and before) the time of the conduct, while at the time of the conduct of Vasiliauskas the literature and the case law interpreted the phrase ‘in part’ under a quantitative rather than a qualitative approach. However, according to at least the ad hoc tribunals and the ICJ, the qualitative approach transpires from the object and purpose of the Convention. The object and purpose of the Convention may lead to evolutionary interpretation (or restrict it), but they themselves emerge from the Convention as it stood at the time of its entry into force.

A risk of fragmentation? At least in part…

While Vasiliauskas is to be commended as one of the rare ECtHR cases where a violation of Article 7 was found in respect of an international crime (see Korbely v. Hungary), it raises the notorious issue of fragmentation. In reality, the crux of the disagreement between the majority and minority of the Strasbourg Court is not about the interpretation of ‘in part’ but about whether this interpretation has been expanded by the international courts in the 1990’s. It is true that this term has not been interpreted before the Akayesu judgment, but still the GC contained these words in 1948.

In comparison to war crimes, crimes against humanity and modes of liabilities (such as JCE III) the ad hoc tribunals left the definition of genocide relatively untouched. The ECtHR always seemed to show utmost deference towards the ad hoc tribunals in its case law. In one of its first cases (Naletilić v. Croatia) re the jurisdiction of the ICTY, the Strasbourg Court considered that – despite the doubts expressed by some States and observers -an application challenging the independence and impartiality of the ad hoc tribunal was manifestly ill-founded. Deference is even more evident in the case of the ICJ. Famously in Jones and others v. U.K. the Strasbourg Court stated that the judgment of the ICJ in Germany v. Italy must be considered as authoritative as regards the content of customary international law on State immunity.

One may argue, that the jurisprudence of the ad hoc tribunals asserts the state of customary international law applicable at the time of the offence over which they exercise jurisdiction –mostly in the 1990’s. Be that as it may, the judgments of the ICJ, for their part, are not authoritatively affirming the state of the customary international law on genocide at the time of the alleged violations, but are confined to “the interpretation, application or fulfilment of the Convention” (Croatia v. Serbia, para. 87-89). This was indeed one of the points of the minority in the Vasiliauskas case.  Judge Ziemele in her dissenting opinion affirms this view as follows:

“The ICJ discloses the scope of genocide as it was accepted at the time of the Convention’s adoption in 1948. It is true that it had this possibility several decades later, but this does not change the fact that we have an authoritative interpretation of the 1948 Convention as it would also have applied several decades earlier.  (para. 16)”

Nonetheless, the majority found that the international case law interpretation of the phrase “in part” could not have been foreseen by the applicant at the relevant time. Not “even with the assistance of a lawyer”! But if the international case law found the qualitative approach in the object and purpose of the Convention, why could a lawyer in the 1950s not arrived to the same interpretation?

While the Vasiliauskas case is remarkable for its strict assessment of the foreseeability requirement, and thus its protection of nullum crimen sine lege, it leads to an uncertainty as to whether the qualitative approach ever existed before the ICTY came up with it. The Vasiliauskas case is not only problematic for the individuals that were convicted by the ad hoc tribunals, as Marko Milanovic pointed out. It could also lead the Extraordinary Chambers in the Courts of Cambodia to hold in Case 002/02 that the qualitative approach did not exist under customary international law at the time of the Khmer Rouge regime (1975-1979). And, I am sure that this is not the only case where the ad hoc tribunals and ICJ jurisprudence on the crime of genocide will be challenged with respect to events pre-dating their delivery.