Whether is possible criminal liability for the former head of the Soviet Union for the events of 13 January 1991?
Keywords:Soviet Union, January 13th, commander-in-chief of the Armed Forces, criminal liability, negligent performance of the duties of the Commander, crimes against humanity, practice of international courts
On 27 March, 2019 Vilnius Regional Court handed down the verdict in the January 13 case. Sixty seven people have been found guilty for the crimes against humanity and war crimes on 11-13 January, 1991. High-ranking civilians and military state officials of Soviet Union and soldiers of the USSR armed forces were convicted. However, the question of responsibility of Head of Soviet Union, as a commander-in-chief of the armed forces, remained out of this case. After the verdict, this matter was actively escalated in the public space, but nobody submitted clear and reasoned response regarding the responsibility of Head of USSR. For this reason, this thesis analyzes if Lithuania can apply criminal liability to former Head of Soviet Union for Crimes against humanity committed by USSR armed forces on 13 January, 1991.
The first chapter provides possibilities of application of criminal liability to Head of state for a crime of humanity committed by inaction. The international case-law, which was first to form a doctrine of head of state liability, is analysed in this chapter. The main universally recognized international conventions that established this doctrine as the legal regulation are also investigated. It was found that The Protocol of the Geneva Convention relative to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 directly provides a criminal liability for negligent misconduct of head of state if it presupposes a violation of international law by subordinates (including acts classified as crimes against humanity). Three main features of qualification can be identified if analyzed systematically:
- A relevant violation by an accountable subordinate must be recorded (element of effective control / subordination);
- The following alternative conditions have been identified:
- the commander knew, understood or could have known or understood about the possible criminal actions of the subordinate, but did not take action;
- the commander had information about intentions of a subordinate to commit the crime.
- The following alternative acts have been identified:
- commander did not take all possible measures to prevent the commission of crime;
- commander did not initiate criminal proceedings against the offenders after the commission of criminal offense.
The second chapter assesses whether behavior (inactivity) of Gorbachev on 11-13 January 1991 can be classified as negligent performance of the commander‘s duties according to Articles 86-87 of Protocol I to the Geneva Convention 1977. After analysis of factual circumstances, which are publicly known today, it was concluded that all features of qualification of mentioned criminal offense identifiable in actions of 11-13 January, 1991 by M. Gorbachev. It was established that the President of the USSR, as the Commander-in-Chief of the Armed Forces, had negligently performed the duties of the Commander. He did not take all possible measures to prevent the subordinates from committing the violations; he did not stop the ongoing aggression during the crime; he did not initiate criminal proceedings against the offenders after the commission of the act.
The last chapter deals with possibilities of Lithuanian national law to apply above - mentioned criminal norms of international law for the criminal inaction of head of USSR in on 11-13 January, 1991. In this chapter it is assessed whether the application of provisions of Protocol I to the Geneva Convention 1977 is without principles of validity of legislation in time and to the limitation periods for convictions. After Analysis, it was concluded that the application of criminal liability on M. Gorbachev, basis of Article 86 of Protocol I to the Geneva Convention 1977, does not violate the principle of nullum crimen nulla poena sine lege, neither in relation to international, nor USSR national or Lithuanian domestic laws. This offense falls within the exception of principle of nullum crimen nulla poena sine lege. It has also been established that the time-barred is not granted to this international crime committed by Gorbachev - failure to perform commander‘s duties.
The analysis concluded that criminal liability can be granted to former head of Soviet Union for Military actions carried out by the USSR Armed Forces against the state of Lithuania in 11-13 January, 1991. Based on the various sources analyzed in this work, there is enough basis to state that M. Gorbachev negligently performed his duties as the Commander-in-Chief of the Armed Forces, and therefore can be subject to criminal liability according to both the International law and Lithuanian national law.
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