Vasiliauskas v Lithuania (European Court of Human Rights, Grand Chamber, Application No 35343/05, 20 October 2015)
The European Court of Human Rights has reversed the conviction of a former Lithuanian state security agent on charges of genocide in the case of Vasiliauskas v. Lithuania no. 35343/05. In a 9:8 split between the 17 judges of the Grand Chamber, the Court examined the definition of the crime of genocide. Specific attention was given to the question of what constitutes genocide of a 'part' of a group.
Mr Vasiliauskas was an officer in the Lithuanian state security services from 1952 until 1975. During this period, Mr Vasiliauskas took part in an operation against anti-Soviet rebels and, in 1953, killed two partisans associated with a Lithuanian independence group.
In 2004, a Lithuanian trial court convicted Mr Vasiliauskas of genocide based on amendments made to the Lithuanian Criminal Code in 2003, which included protections for political groups. The conviction was upheld by an appeals court, which found the brothers were representatives of the Lithuanian people and had been targeted by Soviets due to their nationality and ethnicity. On further appeal, the Lithuanian Supreme Court also upheld Vasiliauskas' conviction, finding that he knew that the Soviet Government’s goal was to eradicate the Lithuanian resistance.
Mr Vasiliauskas was sentenced to four years imprisonment, suspended due to his infirmity and old age.
Mr Vasiliauskas complained to the European Court of Human Rights that the wide interpretation of the crime of genocide, as adopted by the Lithuanian courts, did not have a basis in international law. Accordingly, he claimed that his conviction under Article 99 of the Lithuanian Criminal Code was retroactive and therefore amounted to a breach of Article 7 of the European Convention of Human Rights (the Convention), which relevantly provides:
“1. no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed…”
The Court accepted that Mr Vasiliauskas’ conviction was based upon legal provisions that were not in force in 1953 and that such provisions applied retroactively. It found that this would constitute a violation of Article 7 of the Convention unless it could be established that his conviction was based upon international law as it stood at the relevant time.
The Court found that the crime of genocide was clearly recognised as a crime under international law in 1953. It was codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the 1948 Convention). Notably, in 1946, the United Nations acknowledged and condemned genocide as a crime under international law.
However, the Court differed as to whether Mr Vasiliauskas’ actions fell within the definition of genocide as it stood in 1953.
Definition of genocide
According to the interpretation of the Court of Appeal, the Lithuanian partisans constituted 'part' of the ethno-national group and therefore the Mr Vasiliauskas’ conviction for genocide could be justified under Article II of the 1948 Convention, which defines genocide as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.
The majority of the European Court of Human Rights found that the 1953 definition of genocide covered acts committed to destroy a national, ethnical, racial or religious group, but did not extend to political groups. The subsequent decision of certain States to criminalise genocide of a political group as part of their domestic laws did not alter the reality that the text of the 1948 Convention did not do so.
The majority next considered whether the partisans could be considered ‘part’ of an ethnic or national group. The Genocide Convention itself provides no indication of what constitutes intent to destroy ‘in part’. However, the majority recognised that the intentional destruction of a 'distinct' part of the protected group could be considered as genocide of the entire protected group, provided that the 'distinct' part covered a substantial number of its members.
The majority also recognised that modern international criminal tribunal decisions have since found that genocide intent can be found in the 'desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of a group as such' (see Prosecutor v. Jelisić (Case IT-95-10-T, Judgment, 14 December 1999)). Accordingly, the majority confirmed that ‘part’ may extend to a qualitatively significant section of the group, such as its leadership.
However, the majority found that as this interpretation of the phrase ‘in part’ had only emerged in recent years, it could not have been foreseen by Mr Vasiliauskas in 1953. Moreover, even if the contemporary judicial interpretation of the term ‘in part’ was available in 1953, the majority found that the Lithuanian trial court and appellate courts had failed to establish the facts necessary to enable the court to assess the basis on which the domestic courts concluded that in 1953 the Lithuanian partisans constituted a 'significant' part of the national group. Accordingly, the Court decided that Mr Vasiliauskas’ conviction could not be justified under Article 7 of the Convention.
The leading minority opinion
The eight minority judges, across various different judgments, took a different interpretation of what constitutes a ‘part’ of a group.
In the leading minority opinion, Judges Villiger, Power-Forde, Pinto de Albuquerque and Kuris argued that the fact that judicial interpretation of the 1948 Convention took time to develop cannot in itself mean that genocide did not occur prior to such interpretation.
They found that the brothers were targeted specifically for their membership of a partisan movement whose members were a ‘significant and emblematic’ part of the national group and whose very purpose was the protection of the Lithuanian nation from destruction by the Soviet regime. They found that, within the general context of large-scale and systematic actions against the Lithuanian population, Mr Vasiliauskas’ actions could reasonably be regarded as falling within the ambit of the offence of genocide under the 1948 Convention. Accordingly, they found it likely that Mr Vasiliauskas could have foreseen that he risked being charged with and convicted of genocide for his intention to destroy a 'significant part' of the Lithuanian ethno-national group.
The leading minority also found that the Lithuanian courts based their decisions on an acceptable assessment of the relevant facts, and did not reach arbitrary conclusions.
They found that Mr Vasiliauskas’ wilful participation in the extermination of the partisans constituted an act of genocide on an ethno-national basis and was therefore a crime provided for in the text of Article II of the 1948 Convention.
In this case, the European Court of Human Rights clarified that the contemporary definition of genocide includes the intent to destroy a significant part of a national, ethnical, racial or religious group, and that that 'part' can be measured either quantitatively or qualitatively.
However, the majority found that the qualitative approach only arose following judicial consideration of the term 'part' in the 1990s and 2000s. For acts committed prior to this time, such as in the case of Vasiliauskas v Lithuania, only a quantitatively significant part of a group is likely to meet the definition of 'part' under the 1948 Convention.
This is a significant development, as many modern trials involving the crime of genocide relate to acts which occurred during the early or middle part of the twentieth century, well before much of the judicial consideration of genocide.
This outcome may present a challenge to future cases brought before the courts which concern acts committed prior to the 1990s, as defendants may argue that it was not reasonably foreseeable that an intention to destroy a qualitatively significant part of a protected group, such as its leadership, would constitute genocide.
Alice Crawford is a lawyer at Allens.