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«KATYN FOREST MASSACRE: OF GENOCIDE, STATE LIES, AND SECRECY Milena Sterio* The Soviet secret police murdered thousands of Poles near the Katyn ...»

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KATYN FOREST MASSACRE: OF GENOCIDE, STATE LIES, AND SECRECY

Milena Sterio*

The Soviet secret police murdered thousands of Poles near the

Katyn Forest, just outside the Russian city of Smolensk, in the early spring

of 1940. The Soviets targeted members of the Polish intelligentsia—military

officers, doctors, engineers, police officers, and teachers—which Stalin, the Soviet leader, sought to eradicate preventively. At the start of World War II, the Soviet Union viewed Poland as attractive territory, to be conquered and potentially annexed after the war. The Katyn massacre was not discovered until 1943, by the Germans, who instantly blamed the Soviets.

The latter, however, blamed the Germans, and the Western Allies begrudgingly accepted this untruthful claim. The Katyn Forest Massacre remained taboo for many years, and it has only attracted significant scholarly, historical and political interest in the last two decades, following the fall of the Iron Curtain. This Article seeks to decipher the Katyn myth, by describing in Part II, the events which led to the Katyn Forest Massacre, as well as the killings themselves. In Part III, this Article focuses on subsequent investigations into Katyn, including the U.S. congressional inquiry in 1952, as well as post-Cold War revelations about Katyn, permitting to officially inflict responsibility on the Soviet Union. In Part IV, this Article examines the Katyn killings in light of international law, concludes that the killings constitute war crimes and, crimes against humanity, and that they may perhaps constitute genocide, under a more expansive reading of the Genocide Convention. Finally, Part V concludes that the admission of guilt by Russia about its role at Katyn is necessary and plays a crucial role in the thawing of Russian-Polish relations.

* Associate Professor of Law, Cleveland-Marshall College of Law. J.D. & Maitrise en droit, Cornell Law School and Université Paris I-Panthéon-Sorbonne, magna cum laude;

Master’s degree, Private International Law, Université Paris I-Panthéon-Sorbonne, cum laude.

615 File: Sterio 2 Created on: 6/17/2012 6:54:00 PM Last Printed: 9/1/2012 5:02:00 PM CASE W. RES. J. INT’L L.

616 [Vol. 44:615 I. INTRODUCTION

II. KATYN FOREST MASSACRE: A HISTORICAL OVERVIEW

III. THE U.S. CONGRESSIONAL INVESTIGATION, POST-COLD WAR

REVELATIONS, AND RUSSIA’S ACKNOWLEDGMENT OF

RESPONSIBILITY

IV. KATYN AND INTERNATIONAL CRIMINAL LAW

A. Genocide

B. Crimes Against Humanity

C. War Crimes

V. CONCLUSION AND POSTSCRIPT: TOWARD RECONCILIATION BETWEEN

POLAND AND RUSSIA?

I. INTRODUCTION Near the Katyn Forest, just outside the Russian city of Smolensk, in the early spring of 1940, the Soviet secret police (NKVD) murdered thousands of Poles—military officers, doctors, engineers, police officers, teachers, and other members of the Polish intelligentsia—which Stalin, the Soviet leader, sought to eradicate preventively.1 At the start of World War II, Germany and the Soviet Union viewed Poland as attractive territory, to be conquered and divided by the two powerful nations.2 The Katyn massacre was not discovered until 1943, by the Germans, who instantly blamed the Soviets.3 The latter, however, blamed the Germans, and the Western Allies begrudgingly accepted this untruthful claim.4 In fact, Western countries remained fearful of the Soviet Union during the Cold War. Reluctant to alienate this powerhouse, they officially supported the laying of blame upon Germany.5 The Katyn Forest Massacre remained 1 See Benjamin B. Fischer, The Katyn Controversy: Stalin’s Killing Field, CENTRAL INTELLIGENCE AGENCY, https://www.cia.gov/library/center-for-the-study-of-intelligence/csipublications/csi-studies/studies/winter99-00/art6.html (last updated June 27, 2008) (noting Stalin “signed their death warrant” when he ordered the NKVD to shot the prisoners). See generally GEORGE SANFORD, KATYN AND THE SOVIET MASSACRE OF 1940: TRUTH, JUSTICE AND MEMORY (2005) (studying Katyn and the Soviet Massacre by using Soviet documents to uncover the truth that the Soviet government had tried to hide).

2 In fact, in September 1939, Nazi Germany invaded Poland, followed by the Soviet Union, on September 17, 1939, in accordance with the Molotov-Ribbentrop Pact, signed by Hitler and Stalin. Fischer, supra note 1.

3 Id.

4 For example, unofficial and classified British documents concluded that the Soviet guilt in the Katyn massacre was almost a “certainty,” but because of the strategic importance of the war-time alliance with the Soviets, the British, in their official stance, supported the Soviet denial of guilt. See NORMAN DAVIES, EUROPE: A HISTORY 1004–05 (1998).

5 Id.

File: Sterio 2 Created on: 6/17/2012 6:54:00 PM Last Printed: 9/1/2012 5:02:00 PM 2012] GENOCIDE, STATE LIES, AND SECRECY 617 taboo for many years, and it has only attracted significant scholarly, historical and political interest in the last two decades, following the fall of the Iron Curtain.

This Article seeks to decipher the Katyn myth, by describing in Part II the events that led to the Katyn Forest Massacre, as well as the killings themselves. Part III focuses on subsequent investigations into Katyn, including the U.S. congressional inquiry in 1952, as well as post-Cold War revelations about Katyn, permitting to officially inflict responsibility on the Soviet Union. Part IV examines the Katyn killings in light of international law and concludes that the killings constitute war crimes, crimes against humanity, and perhaps even genocide under a more expansive reading of the Genocide Convention. Finally, Part V concludes that the admission of guilt by Russia about its role at Katyn is necessary and plays a crucial role in the thawing of Russian-Polish relations.





II. KATYN FOREST MASSACRE: A HISTORICAL OVERVIEW

In the spring of 1940, the NKVD murdered close to 22,000 Polish nationals in the Katyn Forest in Russia, in the nearby prisons of Kalinin and Kharkov, at more remote sites such as the Soviet headquarters in Smolensk (a prisoner-of-war camp in Moscow), and in Starobelsk and Ostashkov. 6 The term “Katyn massacre” originally referred only to the massacre carried out at Katyn Forest, but the more modern-day investigations of this crime cover both the massacre at Katyn Forest as well as the killings carried out at the sites mentioned above.7 The orders for the mass murder had been given by Lavrenty Beria, the head of NKVD, and had been signed and approved by the Soviet Politburo, including its leader, Joseph Stalin.8 The Polish victims included about 8,000 officers who had been taken prisoner of war during the 1939 Soviet invasion of Poland and about 14,000 doctors, professors, lawmakers, public servants, and police officers arrested by the Soviets for being “intelligence agents and gendarmes, spies and saboteurs, former landowners, factory owners and officials.”9 The Soviet motivation for killing the Poles was to rid Poland of all intelligentsia who could offer meaningful resistance to the Soviets after 6 See Fischer, supra note 1 (noting the different locations of the massacre); see also

JANUSZ K. ZAWODNY, DEATH IN THE FOREST: THE STORY OF THE KATYN FOREST MASSACRE

1–11(1962) (describing the prisoners who vanished).

7 See Decision to Commence Investigation into Katyn Massacre, INST. NAT’L REMEMBRANCE (Jan. 12, 2004), http://www.ipn.gov.pl/portal/en/2/77/Decision_to_comm ence_investigation_into_Katyn-Massacre.html (noting the other areas included in the “Katyn Massacre”).

8 Fischer, supra note 1; SANFORD, supra note 1, at 43–44.

9 Decision to Commence Investigation into Katyn Massacre, supra note 7.

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618 [Vol. 44:615 World War II.10 In fact, the Soviet Union and Germany had signed a wellknown pact, the Molotov-Ribbentrop Pact, according to which they agreed to conquer and divide Poland.11 Pursuant to the Molotov-Ribbentrop Pact, Nazi Germany invaded Poland on September 1, 1939, and the Soviets followed on September 17, 1939.12 Historical records show that the Soviet plans for Poland included the creation of a Soviet-ruled puppet state in which no dissent would be tolerated. According to historian Gerhard Weinberg, “[s]ince [Stalin] intended to keep the eastern portion of the country in any case, Stalin could be certain that any revived Poland would be unfriendly. Under those circumstances, depriving it of a large proportion of its military and technical elite would make it weaker.”13 Despite the Molotov-Ribbentrop Pact and the pro forma allegiance of Germany and the USSR at the beginning of World War II, the Soviets kept the Katyn killings secret from the Germans. When the Germans overtook Poland in their successful surge toward the east in 1943, they accidentally discovered mass graves in the Katyn Forest.14 Germany saw this discovery as an excellent vehicle to drive a wedge between Poland, the Soviet Union, and the Western Allies.15 Thus, immediately upon discovering these mass graves, the Germans charged the Soviets with carrying out the massacre in 1940.16 In order to prove their claim, the 10 Historian Gerhard Weinberg has suggested that the true motivation of the Soviets was to rid Poland of any meaningful resistance and intelligentsia. GERHARD L. WEINBERG, A WORLD AT ARMS: A GLOBAL HISTORY OF WORLD WAR II 107–08 (2d ed. 2005).

11 Fischer, supra note 1.

The considerable logistic effort required to handle the prisoners coincided with the USSR's disastrous 105-day war against Finland. The Finns inflicted 200,000 casualties on the Red Army and destroyed tons of materiel--and much of Russia's military reputation. That war, like the assault on Poland, was a direct result of Stalin's nonaggression pact with Hitler.

Id.

12 See Fischer, supra note 1; see also Invasion of Poland, Fall 1939, U.S. HOLOCAUST MEMORIAL MUSEUM, http://www.ushmm.org/wlc/en/article.php?ModuleId=10005070 (last visited Mar. 9, 2012).

13 WEINBERG, supra note 10, at 107.

14 Fischer, supra note 1.

15 Id. (“[Nazi] propaganda minister Josef Goebbels hoped that international revulsion over the Soviet atrocity would drive a wedge into the Big Three coalition and buy Germany a breathing space, if not a victory, in its war against Russia.”).

16

DAVID ENGEL, FACING A HOLOCAUST: THE POLISH GOVERNMENT-IN-EXILE AND THE

JEWS, 1943–1945, at 71 (1993) (“The German broadcast [announcing the discovery of the Katyn graves] charged that these officers had been shot by the Soviets in March 1940....”).

File: Sterio 2 Created on: 6/17/2012 6:54:00 PM Last Printed: 9/1/2012 5:02:00 PM 2012] GENOCIDE, STATE LIES, AND SECRECY 619 Germans brought in an independent European commission consisting of twelve forensic experts from a variety of European countries.17 The Soviets vehemently denied their involvement in the massacre.

Instead, they claimed that the Polish victims had been German prisoners of war and had been killed by the Germans in the summer of 1941.18 Consequently, the Soviets broke off diplomatic ties with the Polish government-in-exile, accusing the latter of collaborating with Nazi Germany.19 Moreover, when the Soviets retook the Katyn area toward the end of World War II, they organized a cover-up in order to solidify the claim that the Germans were indeed responsible for the Katyn massacre.20 The Soviets thus formed a special commission, the Burdenko Commission, to investigate the Katyn incidents again.21 No foreign countries were allowed to participate in the Burdenko Commission, which concluded in 1944 that the Polish victims had been killed by the German forces in the fall of 1941.22 In fact, the Soviet Union continued to deny responsibility for the massacres until 1990, when it finally acknowledged its role in the Katyn killings and condemned their perpetration.23 In subsequent investigations, the Soviet Union and the Russian Federation have confirmed Soviet responsibility for the killing of roughly 1,800 Polish citizens at Katyn Forest, but both have refused to classify these acts as war crimes or acts of genocide.24 In November 2010, the Russian Parliament (Duma) voted a 17 See ALLEN PAUL, KATYŃ: STALIN’S MASSACRE AND THE TRIUMPH OF TRUTH 234–36 (N.

Ill. Univ. Press 2010) (1991) (describing the makeup of the international commission and its work at the site).

18 ZAWODNY, supra note 6, at 15.

19 Fischer, supra note 1 (“When the Polish government-in-exile in London demanded an international inquiry, Stalin used this as a pretext to break relations.”).

20 Id. (“For 50 years, the Soviet Union concealed the truth. The coverup [sic] began in April 1943, almost immediately after the Red Army had recaptured Smolensk. The NKVD destroyed a cemetery the Germans had permitted the Polish Red Cross to build and removed other evidence.”).

21 Id. (“In January 1944, Moscow appointed its own investigative body, known as the Burdenko Commission after the prominent surgeon who chaired it.”); see also ZAWODNY, supra note 6, at 49–55 (describing the investigation of the Burdenko Commission).

22 Fischer, supra note 1 (“Predictably, [the Burdenko Commission] concluded that the Polish prisoners had been murdered in 1941, during the German occupation, not in 1940.”);

ZAWODNY, supra note 6, at 49 (“The Commission and the medical experts associated with it included a number of distinguished Soviet names, but no foreign medical representatives were invited and even the Polish communists were barred from the participation in exhumations.”).

23 An investigation conducted by the Prosecutor General’s Office of the Soviet Union in 1990–91 and the Russian Federation (1991–2004) has confirmed Soviet responsibility for the Katyń killings. See, e.g., PAUL, supra note 17, at 348–49.

24 It is significant to note that the Soviets only admitted responsibility for the killing of 1,800 Poles, thus denying their role in the killing of the remaining 19,000 Poles—the official File: Sterio 2 Created on: 6/17/2012 6:54:00 PM Last Printed: 9/1/2012 5:02:00 PM CASE W. RES. J. INT’L L.



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