8 December 2020
For what actions and on what principles will people be judged at the ‘Russian Nuremberg’? Leonid Nikitinsky interviews Stanislav Dmitrievsky, the co-author of the report on transitional justice.
Source: Moscow Helsinki Group [original source: Novaya gazeta]
One most not scream about the “bloody regime” – first of all, it’s in bad taste. And what else…? So that we don’t get a bloody regime in the literal sense, people like Novaya gazeta’s longstanding friend, Nizhny Novgorod historian and human rights activist Stanislav Dmitrievsky [pictured left] don’t assess things too hastily. The multi-page report ‘Between revenge and oblivion: the concept of transitional justice for Russia,’ written by Dmitrievsky and lawyer Nikolai Bobrinsky was presented on 1 December at the Sakharov Centre. Here is the introduction to the report: ‘Impunity for crimes has become commonplace in Russia … In those cases where the government does not want to end or investigate crimes or purposefully conceals them, a state of (systemic) impunity authorised by the authorities arises …’
Stas, my questions are primarily to you in your capacity as a historian. After all, you are raising the question of the court of history, albeit one that is administered by contemporaries, publicly and according to a previously agreed legal procedure. And what in history indicates the possibility of seeing this with your own eyes?
History provides few examples of either fair governance or exemplary litigation.
Justice must be achieved; justice is a task presented to society.
The rule of law alongside constant changes of government is a very recent invention. And authoritarian regimes tend to drag on for a long time, and a lot of lawlessness and injustice accumulates inside them. The fall of such regimes – and none of them are everlasting – has usually been accompanied in history by paroxysms of revenge: yesterday’s victims take up the torturers’ tools – the rope, the guillotine, shootings… Or, in the event of a coup at the top, survivors have had to restart life from scratch. But both revenge and amnesia are destructive to society.
And suddenly, in the second half of the 20th century, something strange began to happen. This probably started with the Nuremberg Trials, then proceeded via an intermittent line through the 20th Congress of the Communist Party of the Soviet Union.
- In this first instance this was a court of winners, but still a court, not arbitrary will.
- In the second, an attempt to restore justice very quickly morphed into a return to the practice of amnesia, and those convicted (and even then only “politically”) turned out to mostly be the dead.
But the end of the last century and the beginning of this century were marked by much more articulate attempts to deal with the past by means of legal procedure. The International Tribunal for the Former Yugoslavia was not a court of victors – there were war criminals from all sides (and there were three of them) in the dock. The Pinochet case, the decommunisation of Eastern Europe and the Baltic states, the South African Truth Commission, the astounding story of victims’ struggle for justice in Argentina, which was crowned with their total victory…
Do you believe that history is about more than technical progress?
I believe in God who gave humanity freedom. Progress is not an object of faith and not a ‘law of history,’ but the result of people’s creativity. It is not fixed and certainly not linear. Yet humanity has learned to absorb lessons, pick itself up and move on, creating mechanisms to prevent bloody catastrophes. The success of the rule of law is contagious. Of course, God did not create heaven on earth, but he helps us to avoid hell.
The doctrine of human rights, after emerging as a timid idealistic theory, has gradually acquired the strength of an almost new religion and actually influences domestic and international politics.
How did the idea for this report come about?
It’s an attempt to systematize something that everyone sees, and to impose it on legal patterns. For me, this became a continuation of our book The International Tribunal for Chechnya, which systematically describes a huge number of crimes committed by both the Russian and Chechen sides. Moreover, the overwhelming majority have remained unpunished. And lawyer Nikolai Bobrinsky has been dealing with issues of transitional justice for a long time and even thought about a dissertation on this topic, but was inspired by a practical, not academic means.
This is also rather attractive for a doctoral dissertation…
We met at the site of the Moscow Parnas somewhere in 2015. At first there was a large group; we studied the practices of different countries, argued – there were a lot of disputes. But in 2016, during Kasyanov’s election campaign, tons of dirt of all kinds were poured onto us, and many people no longer wanted to actively participate. Ultimately, Nikolai and I made it to the finish line with the support of the Institute of Law and Public Policy, and a number of colleagues who helped us with ideas, advice and even preparation of whole chunks—we express our gratitude to many of them in the report, but there are others who prefer to hide their light under a bushel for now.
You talk about the “regime’s crimes” and “sanctioned impunity,” but these are quite different things. On the one hand, there are isolated incidents like with the Kursk submarine; on the other, the tremendous amount of election fraud, for example. Here both the subjects and the degrees of accountability are different, so what is the report about?
It’s about both, although different optics have to be applied to the different offences (they are not all crimes, probably). There’s “participation in a crime through feasance,” “mandamus,” “complicity and incitement,” “collaboration in a common purpose,” and even through inaction. The accountability varies, too. For example, for “everyday” crimes like falsification of voting results by rank-and-file election commission members (though this is still a crime even under the current Criminal Code), we have come up with a form of conditional amnesty whereby the condition is admission of guilt and providing testimony about the mechanisms and organizers of this act.
But if we take the same story higher, to the level of territorial election commissions and the Central Election Commission, then this may mean another corpus delicti, the goal of which is the illegal retention of power, whereas rank-and-file falsifiers may not even understand this goal.
Yet another sensitive issue arises here for lawyers: the restoration of the statute of limitations, which for the 2011-2012 elections, for example, expired long ago. But can we really consider the statutes current when the entire State machine has been thrown into defending the suspects? And there are crimes where there is no question of a statute of limitations: war crimes, crimes against humanity, and especially grave crimes under Russian law.
The slaughter at Novye Aldy, the systematic torture in prison colonies, the poisoning of Navalny . . . Bearing in mind the nature of these crimes, a special national-international court could be created, as happened in Cambodia or Sierra Leone. . . .
Wait a minute, that’s looking very far ahead. Your project is more like a form allowing for putting what we see daily and are disheartened by into some kind of understandable scheme. What interests me in this is all the “sanctioned impunity,” which covers, by the way, the actions of “titushki” [thugs for hire, named after Vadym Titushko], by the way–which are countless. In this respect, your project is a classification system, and there are still empty cells there?
Yes, it’s a framework. Sets of facts can always be imposed, and they’re going to vary. The Committee against Torture has its own, the Natasha Estemirova Centre has another, and the Centre for International Protection has a third, Golos a fourth. Unlike our report on Chechnya, where there are so many facts that you can get an overall picture, the examples here are so far just illustrations. The cells will (or will not) be filled bearing in mind the victims’ interests, and some may remain empty for that reason. A classification system is needed because for each type of offence we will have to select our mechanisms for restoring victims’ rights, establishing the facts, and either prosecuting the guilty or absolving them from guilt on certain conditions. There is also the task of personnel reform, so that we don’t allow individuals who have stained themselves with human rights violations to join the new State apparatus—or in common speech, “vetting.” We’re merely readying an array of instruments.
Is your project practical?
It’s idealistic. When we started discussing it, there were also proposals to create a “road map.” But we don’t know when conditions will be right for “transitional justice” or what those conditions will be like. Who is going to end up in power, what is the correlation of political forces going to be, what will the various actors’ personalities be like, what is each of them going to be interested in? Therefore the proposal won out for creating an “idealistic project” that will be easy to sequester under specific conditions.
We are working from an ideal scheme: a new authority not tied to the old one by any obligations and having the political will for democratic reforms and a legal processing of the past, as well as the necessary resources.
You were just talking about “actors,” as I understand it, in a kind of political bargaining. These are the so-called elites, and we don’t know how they will behave or who, if any, will find it convenient to play the democratic card. But there will also be one other actor, the people, who seem to be absent during peaceful times but when trouble starts, there they are, and this is a terrible force. We have the Belarussian scenario for peaceful protest, and we have the Kyrgyz scenario, where there have been pogroms. It’s frightening to say, but the engine of all this is always not revenge so much as the redivision of property, and in my opinion your report did not pay sufficient attention to this.
We are talking about countries where transitional justice also examined issues of property and restitution. Under certain scenarios, they will arise for us, too, as, for example, in connection with mortgage auctions or the Yukos case, which other similar seizures followed in droves. But these are truly tectonic strata, which it may be better not to touch until society cools down.
First we have to decide the issues of accountability for purely politically motivated crimes: the seizure and retention of authority, war, the roll-up of freedoms, and repressions against dissidents.
And it’s better to think through the legal mechanisms ahead of time, otherwise at the necessary moment we’ll be left without a subject for negotiations, as happened at the turn of the 1990s, when no one understood how to deal with the difficult past and what needed to be agreed upon.
I think that the USSR under Gorbachev actually operated intuitively under the same logic, even though no one really had the tools for it. So when you were working on the project, you returned to the CPSU case in the Constitutional Court?
The Constitutional Court was investigating what was more of a technical matter, concerning the constitutionality of Boris Yeltsin’s decrees banning the CPSU and nationalizing its property. The Court made a very weak ruling that was based, among other things, on the fact that the CPSU disintegrated anyway. Meanwhile, the people who were involved in the Stalinist repressions were alive, not to mention those involved in the persecution of dissidents, the massacre of workers in Novocherkassk, the Afghan affair… What can we say about criminal liability? There wasn’t even partial disclosure of the intelligence agencies’ archives, not even the mildest lustration…
One of the tasks of our project is to make this topic public and to rid it of myths. The public’s perception of transitional justice must grow and develop before our ideas can prove useful. Otherwise we could be overwhelmed again by a sense of “revolutionary justice,” where enemies are hanged from the lampposts…
Do you believe that these ideas could prove useful in our lifetimes?
Who would have thought at the beginning of 1991 that Soviet rule wouldn’t live to see the autumn? Who back at the start of last summer would have expected these protests in Belarus? Changes almost always come about suddenly, and you need to always be prepared.
At the end of ’91, some members of Alpha Group approached me with a proposal to write a piece about how they didn’t take the White House that August. They said that if they had received a command for a military assault right at the start, they would have followed through without hesitation. But they were given time for reconnaissance. So they started circling the area, and they realized there would be a lot of blood. They thought, “Do we really need that..?” The deputy commander who told me about this went to the Alpha commander and asked for a written order. The Alpha commander swore at him, but he went to the chairman of the KGB, Kriuchkov and said: “Give me a written order.” But Kriuchkov didn’t. That’s because there used to be a culture of paper documents, whereas now no one’s foolish enough to give a written order to, say, poison Litvinenko. Those who commit the acts will say that they were carrying out orders, and those in charge will say there was a misunderstanding. It’s all this hybrid of “We weren’t there” — but where’s the proof?
I’m not going to rehash the theoretical treatment of who is responsible for the fulfilling of illegal commands, but the command doesn’t have to be written — sometimes a nod of the head is enough. The International Criminal Tribunal for the Former Yugoslavia outlined this theory. And the matter of “substantial authority” as it relates to abetment was decided by the International Tribunal, which addressed the case of the genocide in Rwanda in which as many as one million members of the Tutsi ethnic group were massacred over the course of several months in 1994.
It was established that the elders and heads of the Hutu communities were guilty. These people did not give orders (they didn’t have the power to); they simply said, at gatherings, “How much longer can we tolerate living with these cockroaches?!”
When you speak of victims, they can also turn out to be “criminals.” A teacher who is forced to falsify ballots, what is she? She is also doing it for the sake of children, and not only for her own. And the person who gave the order for the suppression of peaceful protests in Moscow in the summer of last year, and the people who hatched the “New Greatness” case, they will also have something to say: it was а grim necessity to prevent the “break-up of the country” or spontaneous revolution, which you and I both don’t support.
But there will be court proceedings! If it is not simply an excuse, the court will have to weigh the motives for the decisions, and to what extent the threat of the country breaking up was a real one, and to what degree fabricating a criminal case against teenagers or beating a girl on the street could prevent this “break-up,” and whether it is lawful at all to achieve noble goals by criminal methods.
It’s more complicated, it’s more the competition between positive values, as it was phrased during a discussion at the Sakharov Centre, I think by Bobrinsky. The cohesion of the country versus freedom of speech, for example. Different people have the same set of values, but different priorities among them. If you are the head of state thinking primarily about the country (or think that you are thinking about the country and not about holding on to your personal power), then you have a very agonizing choice.
Not one law says that, for the sake of keeping a country from breaking up, it is permissible to murder children and the elderly in Novyе Aldy! Of course, there are trickier problems—for example, being forced to commit a crime under the threat of violence. This was the case for Drazhen Erdemovich, whose dilemma in Srebrenica was either to kill innocent people or himself be killed. I do not know the answer. I will know it if I am ever a member of a court, a juror, and I am actually faced with making that agonizing choice. It doesn’t have to be a court, it could be a truth commission—it’s not important.
What is important is that a legal procedure is needed, and an agreement on its general contours. We can’t foresee and solve in advance all the details and moral dilemmas.
I am happy that you are not calling for anyone to be shot and are even constructing legal obstacles to it, but your lecture is called “Between revenge and forgetting.” Isn’t that how the question is posed? But the Christian way would be to forgive—God is their judge, they know not what they do. Right?
No. That is a dilettantish understanding of Christianity. The royal right to forgive is only possessed by the victim. But we cannot ask the majority of victims of serious crimes—they are dead.
So it’s as if they stole my neighbor’s cow, but I’m the one doing the forgiving.
Christ called for the forgiveness of offenсes against oneself, but neither he nor his disciples ever called for courts to be dissolved and allow robbing and plundering with impunity. In different countries they have sought a balance between restitution and forgiveness, each time in a different fashion: from the monstrous shooting of the Ceausescu couple in Romania in 1980 to the reconciliation commission in South Africa, where preference was given to reconciliation in exchange for the truth. But there they used traditional institutions and mechanisms for reconciliation that we do not have in our society.
An amnesty frees one only from punishment, not responsibility. For legal responsibility the important point is guilt, but in any event political guilt, as Hannah Arendt wrote, is borne by all of us who did not oppose continuous injustice. Here Irina Slavina no longer bears any guilt—she has settled her accounts. [1]
Did you know her well?
We weren’t close friends, but I always knew that I could go to her for advice and support. Her suicide was not the act of a weak person, it was an act of major significance. She sacrificed herself in order to make it clear that everyone shares responsibility. She threw her death in the face not only of the police, prosecutors and investigators, but of all of us – members of a silent society. Of course, as a living person, I cannot approve of her act and accept it. But if her ashes do not knock on our hearts, we are much more dead than her charred body.
Now I don’t know whether or not to nominate you as a candidate for judge; it’s scary, even if you are essentially right.
Three people with candles came to the last demonstration in her memory.
That’s not important. One day, all of Nizhny Novgorod will come.
I believe that too. If I did not believe it, there would not be this report.
It seems that Nikolai Epple [a historian, writer and journalist – RiR] in a discussion in the ‘Sugar Bowl’ said it is easier to agree on the recent past (it is the current present) than on the old one. There, everything has already been cast in the bronze of myths, and people are least ready to sacrifice myths. But here everything is still in front of our eyes, and everyone, in fact, perfectly understands where is arbitrariness, where is the court, where is truth and where are lies.
In my opinion, Epple says the opposite, but I agree more with you.
So now for the traditional question from the audience: Why on earth do you need all of this? Wasn’t it enough for you to serve a criminal sentence for thirty days (or how long did you serve there)?
Thirty days. It was merely for the protection of the district of wooden housing where you and I drank tea, and which you admired. By the way, we saved a significant number of these houses. In 2017, the new governor was unexpectedly impressed, and the houses were placed under state protection. In one of them, as you will remember, we rented an office. Navalny happened to be planning to visit Nizhniy, but he was detained in Moscow, and I was blocked in by Centre “E” [anti-extremism police- RiR]. But they hadn’t examined closely enough the wooden monuments, and I had secret access by means of stairs inside the wall, and could get through the lavatory to the window, and from there across the fence and onto the next-door construction site. I was sitting on the fence but then I realised that I couldn’t jump over it – I am fifty years old, after all. I shouted to the proprietress: “Get me a ladder!” … Back in 1989, during a raid, she hid me at night with a tricolour flag, but now she has become like, well… she grumbled, but even so she dragged a ladder over to me. I already want to just sit quietly and write books, but life does not allow me to do that.
Thank you, Stas. You know, I have come to the conclusion that a journalist is, first of all, an historian. I even wrote a whole book about this. Your report restores meaning to our profession, and at the same time to the work of lawyers and human rights defenders. One gets fed up with banging one’s head against a wall, and everything seems pointless, but here you provide some kind of perspective showing that all this can still be useful…
Stanislav Dmitrievsky and Leonid Nikitinsky are winners of the Moscow Helsinki Group Prize.
[1] Irina Slavina was a Russian journalist from Nizhny Novgorod. On 2 October 2020 she killed herself by setting herself on fire beneath the walls of the regional Interior Ministry headquarters. She wrote on Facebook: “I ask you to blame the Russian Federation for my death.” https://en.wikipedia.org/wiki/Irina_Slavina_(journalist) – RiR.
Translated by Anna Bowles, Marian Schwartz, Nina dePalma, and Elizabeth Teague
