Katyn: Justice Delayed or Justice Denied? Report of the Cleveland Experts' Meeting

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I.   INTRODUCTION
II.  CHARACTERIZATION OF THE KATYN CRIME
III. ACCOUNTABILITY FOR THE KATYN CRIME
IV.  RECONCILIATION THROUGH DISCLOSURE, DISSEMINATION & ACCOUNTABILITY
     A. USSR/Russian Federation
     B. The United States
V.   REMEDIES AT THE GOVERNMENTAL LEVEL
     A. Poland
        1. Prosecution for the Katyn Crime
        2. Regional Forums
           a. The European Union
           b. Council of Europe
        3. United Nations
           a. International Court of Justice
           b. Establishment of a Commission of Experts or Special
              Tribunal
        4. Dissemination of Truth
     B. USSR/Russian Federation
        1. Prosecute the Katyn crime as an international crime
        2. Refrain from justifying the Katyn crime
        3. Provide adequate legal remedies to victims' families
        4. Provide Poland with symbolic monetary compensation
        5. Reimburse Poland for the cost of building & maintaining
           cemeteries of the victims
        6. Establish the Katyn Museum & correct history books
     C. The United States
        1. Consider implementing the Madden Commission's
           recommendations
        2. Assure full disclosure of all Katyn-related materials
        3. Assure dissemination of knowledge on Katyn
        4. U.S. Congressional Resolution as moral compensation
        5. U.S. Helsinki Commission
VI.  REMEDIES FOR PRIVATE PARTIES
     A. European Court of Human Rights
     B. U.S. Alien Tort Statute
     C. Alternatives to the Alien Tort Statute
VII. OTHER REMEDIES AND APPROACHES
     A. Non-Governmental Organizations
     B. Academic Community

I. INTRODUCTION

The Katyn massacre of 1940 involved murders at the Katyn forest and in other locations throughout the Soviet Union of about 22,000 Polish officers, prisoners of war, and members of the Polish leading elite, combined with mass deportations of the victims' families and hundreds of thousands of Polish citizens to the remote provinces of the Soviet Union. (1) For fifty years, the massacres in the Katyn forest and other locations were subject to massive cover-up and obfuscation operations. (2) Initially the Soviet Union blamed the Nazis for the murders, saying that the killings took place in 1941 when the territory was in German hands. It was not until 1990 that the Russian government admitted that the executions actually took place in 1940 and were carried out by the Soviet secret police. (3) In 1990, Russian prosecutors launched a criminal investigation into the murder of 22,000 Polish officers and prisoners, but the case was classified as an ordinary crime of "exceeding official authority" and was terminated in 2004 on the ground of the application of the ten-year statute of limitations. (4) Records and findings were classified as top secret, (5) and it appeared that the tragedy would once again be subject to "historical amnesia."

On February 4-5, 2011, in commemoration of the 70th anniversary of the Katyn massacre, the Frederick K. Cox International Law Center and the Libra Institute, Inc. hosted a Symposium and Experts Meeting at Case Western Reserve University School of Law. This provided an opportunity to bring together leading international experts in jurisprudence, international criminal law, and the Katyn crime, as well as representatives from Poland and Russia in order to debate the law and policy related to Katyn in a neutral setting. During four panel-style discussions on the first day, a diverse group of highly qualified scholars presented and discussed Polish, Russian, and third-party views on the Katyn murders. The second day of the meeting consisted of a round-table discussion with all the expert participants.

The Cleveland Symposium and Experts' Meeting was chaired by Michael P. Scharf, Director of the Cox Center and the John Deaver Drinko--Baker & Hostetler Professor of Law at Case Western Reserve University School of Law. …