Was Katyn Genocide? By Maria Szonert-Binienda. 2012. Case Western Reserve Journal of International Law 44(3)633-717.

Reviewer: Mr. Jan Peczkis

Katyn Was Genocide According to International Law: It Was An Intentionally Nation-Crippling Act That Targeted a Legally Protected Group (Poles by Nationality)

My review consists primarily of direct quotes from Dr. Szonert’s scholarly article. The review-subtitles [IN CAPS], and the content in brackets, is my own. Szonert-Binienda shows that Poles were targeted by nationality (a protected group), and that this targeting occurred on a scale that was sufficient to harm the Polish people as a whole. Hence Katyn was genocide.

THE LEGAL DEFINITION OF GENOCIDE

„The definition of genocide formulated in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide that was adopted without changes as Article 6 in the Statute of Rome provides that:

“[G]enocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group” (p. 667).

PROTECTED GROUPS AND THE CURRENT LEGAL DEFINITION OF GENOCIDE

„This distinction between intent and motive is of great importance in the Katyn case because this issue often emerges in connection with the confusion between a political group, which is not a protected group under the definition of genocide, and a political motive, which does not preclude the finding of genocide. The following scenario illustrates this problem: Consider a national group which is a protected group under the definition of genocide and a political group which is not a protected group under the definition of genocide. The destruction of any national group constitutes genocide whether there is a political motive or not, as long as the genocidal intent is established. On the other hand, the destruction of a political group does not constitute genocide, no matter what the motive is.” (p. 690).

POLES WERE TARGETED AS A NATIONALITY (PROTECTED GROUP), NOT AS A POLITICAL GROUP

„The March 5th Execution Order explicitly states that 14,736 POWs are ‚more than 97 percent Polish by nationality’ and sentences 14,700 of them to death.” (p. 670).

„The explicit references to the Polish national group in the March 5th Execution Order represent direct evidence that the perpetrators of the Katyn murders perceived the victims of the March 5th Execution Order as belonging to the Polish national group… The list of categories of people demonstrates that the condemned men were people of stature, wealth and patriotism on whom the future of independent Poland depended. In light of the above circumstances, the victims of the March 5^th Execution Order belonged to the Polish national group, which is the protected group under the Genocide Convention and the Statute of Rome.THE ‘PROTECTED GROUP’ TEST IS THEREFORE MET.” (Emphasis added)(p. 672).

FURTHER EVIDENCE THAT POLES WERE TARGETED AS A NATIONALITY, NOT AS A POLITICAL GROUP

„According to the March 5th Execution Order, among the Polish POWs sentenced to death were over 6,000 lieutenants, 2nd lieutenants and ensigns, over 5,000 rank-and-file police gendarmes, prison guards, and intelligence agents; over 1,000 police officers, junior officers, border guards and gendarmerie; and 144 officials, farmers, priests and military settlers. Clearly, the selection criterion for these groups was based primarily on the function of these men within the administrative and military structures of the Polish State and not on their social class or wealth. All these factors explicitly and unequivocally point out to the national motive.” (p. 698).

„The national motive can be further confirmed by other genocidal acts directed at the Polish national group at the same time by the same people. For example, the data collected by the Polish Red Cross from nearly 120,000 Polish refugees soon after their 1942 arrival in Persia revealed that over 50% of these deportees from Eastern Poland were workers, tradesmen, farmers and member of the forestry service. Thus, half of the deportees belonged to the poorest classes, which the Soviet communist regime was supposed to liberate from capitalist oppression and protect. This data directly contradicts the political class motive.” (p. 699).

AN INTENTIONALLY NATION-CRIPPLING MURDEROUS ACT IS GENOCIDE, EVEN IF IT IS NOT TOTAL

„The first question that needs to be addressed is whether the Soviet leadership intended to destroy the Polish national group ‘as a whole.’ The case law on genocide considers the ‘selective killing’ of certain segments of a group as evidence of intent to destroy the group as a whole, assuming it is predicated on a calculation that destruction of the significant members of the group will irrevocably compromise the existence of what remains. Accordingly, selective killings of patriotic segments of the Polish society, including higher ranking members of the Polish Armed Forces, officials of national and local administration and judiciary, members of the law enforcement system, including policemen, gendarmes, prison guards and border guards, intellectual elite, and community and civic leaders serve as proof of the intent to destroy the Polish national group as a whole. The Soviet leadership believed that the destruction of a significant part of the Polish national group irrevocably compromised the ability of the remaining part of the Polish national group to survive on the Polish territory incorporated [in]to the Soviet Union.” (emphasis added)(pp. 679-680). [Szonert also points out that the Soviet actions fell short only because they were prematurely stopped by Nazi Germany turning against her erstwhile Soviet ally in June 1941].

THE INTENTIONAL TARGETING OF THE CREAM OF SOCIETY IS ITSELF A NATION-CRIPPLING ACT, AND THEREFORE GENOCIDE

„The third approach to evaluate destruction ‚in part’ focuses on the qualitative, as opposed to quantitative, aspect of the destruction by putting emphasis on the word “significant” as opposed to ‚substantial.’ It focuses on the viability of a group not in a numerical sense, but rather on ‚irreparable impact upon a group’s chances of survival when a stratum of its population, generally political, social, or economic, is liquidated.’ The U.N. Commission of Experts stated in its Final Report on the investigation of violations of humanitarian law in the former Yugoslavia that ‚intent to destroy a specific part of a group such as its political, administrative, and intellectual or business leaders may be a strong indication of genocide regardless of the actual numbers killed.’” (p. 685).

AN INTENTIONAL NATION-CRIPPLING MURDEROUS ACT IS GENOCIDE, EVEN IF IT IS CONSTRAINED GEOGRAPHICALLY

„Furthermore, the International Court of Justice held ‚that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area.’” (p. 687).

AN INTENTIONALLY NATION-CRIPPLING MURDEROUS ACT IS GENOCIDE, EVEN IF THE TARGETED NATION EVENTUALLY RECOVERS

„One could argue that the reemergence of Poland after the war stands as proof that the Soviet Union did not intend to destroy Poland. This argument is contrary, however, to the intention of the drafters of the Genocide Convention who never regarded the complete destruction of a group as a prerequisite to finding genocide.” (p. 680).

„As U.N. Secretary Kofi Anan pointed out, ‘genocide begins with the killing of one man—not for what he has done, but because of who he is.’ Thus, the term ‘in whole or in part’ does not establish some quantitative threshold where mass murder turns into

genocide but rather focuses on the intent of the perpetrator. As the Trial Chamber in the Krstic case declared, this term refers to the intent as opposed to the actual destruction. The question is whether the intent existed and not whether such intent was in fact realized.” (pp. 672-673).

THE GENOCIDE OF SOVIET POLES, DURING THE RED TERROR (1937-1938), SET A PRECEDENT FOR KATYN

„Stalin in particular spoke of his intent to kill people of Polish descent at several different occasions. He clearly expressed his intent to kill people of Polish ethnicity in connection with a mass extermination action known as the Polish Operation, conducted in the Soviet Union between 937 and 1938. In replying to Yezow [Yezov], who led the extermination of ethnic Poles in Ukraine, Stalin wrote: ‚Very well! Keep on digging up and cleaning out this Polish filth. Eliminate it in the interest of the Soviet Union.’” (p. 688).

„In August 1937 the NKVD Central Committee issued Order Number 00485 on total liquidation of the Polish diversionist and espionage groups. This order became the basis for an action of mass extermination of ethnic Poles living in the Soviet Union, known as the ‚Polish Operation.’ Unlike previous NKVD orders which targeted familiar categories of enemies at least theoretically defined by class, Order 00485 targeted a national group as an enemy of the state.” (p. 707).

[Since Szonert wrote her paper, a new scholarly book has come out that reinforces the fact that Soviet Poles were targeted as Poles, and that this was an intentional nation-crippling act. See:  http://www.polishclub.org/2019/02/04/the-anti-polish-operation-of-the-nkvd-1937-1938/].

KATYN AS GENOCIDE: SOVIET COMMUNIST RHETORIC NOTWITHSTANDING

„Hatred directed at the Polish people was the foundation on which both Stalin and Hitler built their genocidal policies towards the Polish nation. While on the German side of the Ribbentrop-Molotov line the Poles were hunted down and murdered for being ‚under-humans,’ [subhumans, that is untermenschen] on the Soviet side the Poles were hunted down and murdered for being ‚abovehumans’ [landlords, counterrrevolutionaries, etc.]” (p.703).

 

CONCLUSION: KATYN WAS GENOCIDE

„The primary focus of this analysis has been on the question of whether the Katyn crime, as redefined in light of the latest evidence, meets the legal definition of genocide under the Genocide Convention of 1948. This article deals mainly with one type of genocidal activities, that of “killing members of the group” as spelled out in the March 5th Execution Order. The remaining four types of genocidal acts, such as: (i) causing serious bodily or mental harm to the members of the group; (ii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (iii) imposing measures intended to prevent births within the group; and (iv) forcibly transferring children of the group to another group, were discussed or mentioned but not analyzed separately due to space limitations. Nevertheless, the facts as presented herein demonstrate beyond a reasonable doubt that the Soviet Union committed all five types of genocidal acts on the Polish population on the conquered Polish territory between 1939 and 1941. By focusing just on one type of the genocidal act—that of killing— it has been proven beyond all reasonable doubt that the leadership of the Soviet Union, while acting in collaboration with Nazi Germany between September 1939 and June 1941, had engaged in carefully planned genocidal killings directed at the Polish POWs of officer rank and members of the Polish state apparatus such as the judiciary, law enforcement and security forces, Polish intelligentsia and civic leaders. These selective killings must be viewed in conjunction with other genocidal operations. Based on the analysis presented herein, it has been proven beyond a reasonable doubt that the action of mass killing was augmented by large-scale arrests and massive actions of forced removal from the conquered Polish territory of the civilian population consisting of the entire families perceived as Polish nationals and/or supporters the Polish State, and by forced conscription of the Polish citizens into the Soviet Army. These policies of destruction and dispersal of Polish nationals throughout the Soviet Union directly impacted the ability of the Polish national group, as such, to survive on the Polish territory incorporated to the Soviet Union. Accordingly, it has been proven beyond a reasonable doubt that during the twenty-one month period of Nazi-Soviet collaboration, the officials of the Soviet Union acted with specific intent to destroy the Polish national group, as such, on the Polish territory conquered, incorporated, and controlled by the Soviet Union, and therefore committed the crime of genocide as defined by the Genocide Convention of 1948.” (p. 715).

Jan Peczkis

Published with the author’s permission.

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