The key issue for understanding both legal and scholarly interpretations of the Katyń Massacres is language. In English and French, the accepted noun for Katyń is “massacre.” In Polish and Russian, meanwhile, it is “crime.” Originally, the term “Katyń crime” was deployed by Stalin and Molotov during World War II.
The Soviet usage of the term “crime” had not only a moral-political valence but also a legal one: at the Nuremberg Trials in 1946, Soviet prosecutors charged Nazi defendants with committing “a crime against humanity” in having perpetrated the massacre in the Katyń Forest (Basak, 1993). A Soviet exhumation commission led by Nikolai Burdienko had reported on January 26, 1944 that the corpses dated from late 1941 – while the Germans occupied the territory. However, subsequent exhumations have suggested that Burdienko’s group contaminated its work by adding newspapers from 1941 (Sawicki, 2004: 19). Only the Burdienko findings – none from the German exhumation – were presented by the Soviet prosecutors, whose charges were dropped by the American presiding judge after only three days at trial on grounds of insufficient evidence (Sanford, 2005: 140-41).
Meanwhile, the Polish exile community in the United States and Great Britain lobbied for international legal claims against the Soviet Union (for documentation gathered as part of the earliest attempts, see Stahl, 1948). These lobbyists, especially Stanisław Mikołajczyk, former Prime Minister of the exile government, in his capacity as an officer of the multinational émigré Assembly of Captive European Nations, facilitated the application of Raphael Lemkin’s term “genocide” to Katyń. One of the results was a 1951-52 investigation by a Select Committee of the US Congress under Indiana representative Ray J. Madden. The committee heard numerous testimonies in both the United States and Europe, including those of 26 former prisoners of Kozelsk, Starobelsk, and Ostashkov, and it gave significant weight to the findings of the Red Cross investigation of 1943. On December 22, 1952, the committee circulated House Report No. 2505: “This committee unanimously agrees that evidence dealing with the first phase of its investigation proves conclusively and irrevocably the Soviet NKVD (People’s Commissariat of Internal Affairs) committed the massacre of Polish Army officers in the Katyń Forest near Smolensk, Russia, not later than the spring of 1940.” The committee attributed this action to a larger Soviet plotting of “criminal extermination of Poland’s intellectual leadership.”
The US Congress report did not lead to legal action, yet its findings induced academic and political elites in the West – many already inclined against the USSR by the preliminary findings of the 1943 Red Cross investigation at Katyń – to accept more or less universally that the Soviet Union had perpetrated the massacre. Although the legal dimension remained crucial to the Poles in exile – Mikołajczyk prepared a report in 1954 on “Genocide of Poles” that cited, in addition to Katyń, mass deportations, Warsaw Communist policies, and other measures aimed at the “liquidation of elements hostile to the regime” – the Cold War necessarily politicized the discussion. The Polish People’s Republic officially condemned the congressional inquiry, and Trybuna Ludu declared that “the Polish Nation with indignation receives the cynical provocations of the American imperialists, taking advantage of the tragic death of thousands of Polish citizens at Katyń” (March, 1952: 1). Once Katyń had on the level of international discourse become above all an issue of “American imperialists” and “Soviet communists,” Mikołajczyk’s legal case had been lost.
In the final years of the Cold War, the public silence in Poland was broken when, following the signing of an April 1987 agreement with Mikhail Gorbachev on Polish-Soviet academic and cultural cooperation, PUWP first secretary Wojciech Jaruzelski set up a joint Polish-Soviet commission to investigate the “blank spots” in contemporary Polish history, including Katyń. Soviet commission members maintained total silence on the massacres, and the commission failed to produce documents for public consumption, yet the commission made the word itself – “Katyń” – less taboo.
This development created a discursive space within which Polish State and society could react when, on April 13, 1990, the Soviet TASS news agency announced, “The whole of the released archival materials permits one to conclude the direct responsibility of Beria, Merkulov, and people responsible to them for the crime committed.” Curiously, the Soviet government resurrected the word crime from its wartime anti-German discourse. Furthermore, its successor Russian government appeared prepared for legal consequences when president Boris Yeltsin transmitted to Polish president Lech Wałęsa on October 14, 1992 a set of photocopies of Beria’s orders and the surviving NKVD documentation.
Indeed, Gorbachev had instructed the Military Prosecutor’s Office to form a committee of experts. The investigation ran from August 1990 to June 1994, and its August 1993 report – co-authored by the historian Natalia Lebedeva, whose subsequent publications remain the most intrepid Russian-language analysis of the massacres – reached a dramatic conclusion (Lebedeva, 1994; Iazhborovskaia, Iablokov, Parsadanova, 2001). The report assessed the massacres to have been an act of genocide, a war crime, and a crime against humanity per article 6 of the Nuremberg International Military Tribunal Charter. Its authors recognized that these were not crimes under Soviet or Russian law, so they demanded that the Russian Duma criminalize them retroactively.
Although the Duma did reform the Russian Criminal Code in 1997, the changes were not retroactive, and the Military Prosecutor rejected the report. “Criminal Case No. 159” sat on the Russian Prosecutor General’s desk for a decade before the investigation was closed, unofficially in September 2004, officially in March 2005, on grounds that the massacre victims had been condemned under Soviet criminal law of the time, so “the crime came under the statute of limitations” (Cienciala, 2006: 120). And when Poland’s Institute of National Remembrance opened its own Katyń investigation in November 2004, it found that Russian investigators had classified as secret all but 67 of the 183 volumes of their investigation, and Russia refused permission for verified copies to be made even of those 67.
In 1994, the Russian Federation, Ukraine, and Poland signed a series of international agreements establishing rights of exhumation, cemeteries, and memorials. Although these agreements have proven difficult to enforce, war cemeteries were dedicated at Kharkiv, Katyń, and Mednoye between June and September 2000 (Sanford, 2005: 226-33).
And yet the release of Wajda’s film has provoked renewed polemics in Russia. On September 19, 2007, Rossiiskaia Gazieta – a newspaper close to the Kremlin – raised questions about the authenticity of the Politburo and NKVD documents released by Yeltsin (“Kommentarii”, 2007). Copiously verified and annotated documentary studies published over the past decade or more – corroborated by photographs of the original documents in Soviet archives – suggest to the greatest degree possible that the documents are, in fact, authentic (Lebedeva, 1994; Materski et al, 1995-2006; Skrzyńska-Pławińska, 1995-97; Cienciala, Lebedeva, Materski, 2007). Russian voices like those in Rossiiskaia Gazieta – irrespective of whether their primary motivation is political or scholarly – suggest the persistence of a traumatic memory that binds Poland and Russia in an aggressor-victim relationship that eludes “closure.” (Iazhborovskaia, Iablokov, Parsadanova, 2001; Mikke, 1998; Sanford, 2005: 227).
Must the Polish and Russian positions persist in falling back on battle lines drawn around national memory? Despite the legal roadblocks to the Katyń case in Russia, the answer is an unequivocal no. The August 1993 Russian experts’ report and the persistent efforts of Natalia Lebedeva and others in the scholarly realm have been matched by the Russian NGO Memorial’s efforts dating back to 1987 to force Russian State and society to confront the Katyń Massacres (Mitzner, 1994: 5).
In November 2007, Aleksandr Gurianov of Memorial spearheaded an appeal of the Russian prosecutor general’s decision to the European Court of Human Rights in Strasbourg (“Skarga w Strasburgu o Katyń”, 2007). Memorial has campaigned for judicial verdicts that would enable the Polish families of the massacre victims to receive at least symbolic reparations. In February 2007, the District Court in Moscow rejected the claim, and in May the Municipal Court of Moscow seconded that verdict. The goal before the European Court of Human Rights is to force the adjudication of the matter according to presently existing evidence.
The road of legal interpretation may thus yet lead to recognition (though likely not restitution) for the victims’ families. Barring the discovery of new documents, the fate of the Katyń Massacres remains largely within the realm of the political: Memorial lobbies for recognition of the massacres as war crimes, while the Polish State insists that they be recognized as acts of genocide. Paradoxically, the Russians themselves during World War II initiated the discourse of Katyń qua “crime.” Andrzej Wajda’s film Katyń has sparked renewed academic, journalistic, and popular interest. Although legal adjudication of the massacres as “crimes against humanity” or “genocide” remains in doubt, their historical status as massacres committed against Polish patriots is recognized both internationally and within Polish collective memory.