Can History repeat itself?

Mid-December 2023 marked the 80th anniversary of the Kharkiv Hearings when, in December 1943, four men were found guilty of torturing and killing numerous civilians and POWs in the Kharkiv Region during its occupation by the Germans.

They were tried by the Military Tribunal of the 4th Ukrainian Front and promptly executed. Three were German citizens: Wilhelm Langheld, Hans Ritz, and Reinhard Retzlaff. The fourth, Mikhail Bulanov, was a citizen of the USSR.

The Kharkiv Hearings occupy an important place in the series of trials, organised during and after World War Two by the Soviet regime, to punish those who committed atrocities against Soviet citizens, on occupied territory or beyond the limits of of the USSR. The December 1943 Hearings in Kharkiv, moreover, were the first occasion anywhere in the world when representatives of the Nazi regime were tried and punished.

Similarities and Differences

In March 2022, Oleksiy Reznikov, Ukraine’s former Minister of Defence, suggested that Russian citizens guilty of committing war crimes in Ukraine should be put on trial in Kharkiv as a tribute to the 1943 hearings of the Military Tribunal.

It would hardly be appropriate to draw such a symbolic parallel between modern war-crimes trials and the December 1943 Hearings in Kharkiv. But let’s take a closer look at what happened in Ukraine’s second city towards the end of the war.

The legal qualities of the 1943 Kharkiv Hearings are doubtful by modern standards. It was not an entirely arbitrary event, of course, and it was open to all: foreign journalists observed the proceedings. The accused were also able to hire defence attorneys. On the other hand, it displayed certain features that render the hearings unacceptable by modern standards:

• The legal basis for the prosecution was a decree never officially published in the Soviet Union. “Measures of punishment: for German-fascist malefactors, guilty of murdering and torturing Soviet civilians and Red Army POWs; for spies; and for traitors to the Motherland” was passed by the Presidium of the USSR Supreme Soviet on 19 April 1943.
• The hearings themselves lasted three days, from 15 to 18 December 1943. The trial was over very quickly, in other words, and on 19 December the sentence had already been carried out. In accordance with the 1943 decree, those convicted had no right of appeal.

The Hearings and the 1950 European Convention

For Ukraine, as for any other signatory of the 1950 European Convention on Human Rights, such behaviour is unacceptable. It clearly contravenes the principles laid down by the Convention, in particular Article 6 (“The right to a fair trial”) and Article 7 (“No punishment without law”).

It would also be hard to classify the 1943 Kharkiv Hearings as a trial about «war crimes» in our modern understanding of the term.

The unpublished 19 April 1943 decree stated that citizens of Germany, Italy, Rumania, Hungary and Finland — as well as collaborators from the ranks of Soviet citizens — were all liable to be tried for the torture and murder of Soviet civilians. In terms of modern International Humanitarian Law (IHL) this means that the decree envisaged punishment for crimes committed only

• within the context of a single specific armed conflict between the USSR, on the one hand, and Germany, Italy, Rumania, Hungary and Finland, on the other;
• against persons who were on the side of the armed conflict that adopted the decree, viz. the USSR; and
• by persons belonging to the opposing side in the armed conflict, i.e., Germany, Italy, Rumania, Hungary and Finland.

Yet contemporary International Humanitarian Law (IHL) is based on the principle of equality between the sides in any armed conflict.

It is envisaged that IHL rules are applied in a similar fashion to all participants in an armed conflict. As a consequence, war crimes (see Article 8:2 of the Rome Statute) are classified independently of the particular conflict during which they were committed, and IHL rules are applied irrespective of the allegiance of the perpetrator or the victim to any one side in a conflict.

Furthermore, war crimes are today understood, first and foremost, as violations of international law. The 19 April 1943 decree stresses the allegiance of the victims to only one side in a specific armed conflict while the perpetrators belong to the opposing side. In other words, the crimes mentioned in the decree were treated as an internal rather than an international matter.

Judicial or Political?

Eighty years on, the 1943 Kharkiv Hearings appear not so much a judicial act as a way for the Soviet leadership to exert pressure on its allies.

On 30 October 1943, six weeks before the Kharkiv Hearings began, Great Britain, the United States and the USSR signed and publicised the so-called Moscow Declaration on Atrocities. Their joint statement defined the legal responsibility of the citizens of Germany and its allied States for the atrocities they committed during the Second World War (1939-1945). The responsibility of the major criminals, said the Declaration, would be resolved at a later date: the subsequent creation in 1945 of the first Nuremberg Tribunal provided the means to resolve that issue.

As concerns criminals of a lower rank the signatories of the Moscow Declaration resolved that:

• such persons should appear before the courts of the States where they had committed atrocities; and
• such judicial hearings should take place after the war had ended.

By launching the Kharkiv Hearings before the conclusion of millitary hostilities, the Soviet authorities were blatantly acting outside the framework of the terms agreed in the Moscow Declaration. This step worried Great Britain and, especially, the USA. Both feared that the Nazis might take similar steps with regard to the British and American citizens whom they were holding as prisoners of war (POWs).

In practice, the Nazi regime did not recognise that Soviet POWs had any rights: they tortured and killed them in their hundreds and thousands. German treatment of British and American POWs was better, on the whole, even if it did not always correspond to the IHL norms of the day. Criminal prosecution by the Soviet side, therefore, could substantlally worsen the way in which British and American POWs were treated.

The dilemma facing the allies

This placed the governments of Great Britain and the USA in a difficult position.

If they openly criticised the Kharkiv Hearings it could undermine the unity of the alliance. And, on the contrary, it might damage the interests of the imprisoned citizens of those States if they disregarded the unilaterial actions of the USSR. The Soviet leadership responded to private pressure from the allies: the next trials of German soldiers and officers, and their allies, did not take place until December 1945. This was not so much a demonstration of goodwill as a concession granted in an artificially created and problematic situation; it was a decision taken in order to establish a stronger negotiating position on other issues.

From a historical point of vew, It is well worth studying the Kharkiv Hearings. They hardly form a suitable foundation on which a modern war-crimes trial might be modelled.