The legal rules relating to armed struggle against Stalinism derive:
Primarily from the international treaties that regulate the legal system in occupied territories.
The legal system for occupied territories was established mainly by the Hague Convention of 1907 and the Geneva Convention of August 12, 1949, on defense of civilians in wartime.
The 1907 Hague convention concretized the norms and customs of international law concerning protection of civilians. Civilians as well as combatants are under the protection of international law. The lives and property of inhabitants have to be respected.
The Geneva convention on protection of civilians establishes that a nation occupying a territory is obliged to respect the residents and the inviolability of their property•
• Any destruction of property that is not absolutely necessary for the sake of military operations is forbidden. (Paragraph 53).
• The occupying country cannot force the inhabitants of an occupied territory to serve in its own armed or auxiliary forces in wartime. Any compulsion or propaganda to enlist is forbidden. (Paragraph 51.)
• No rules established by the occupying nation concerning non-criminal activity can have retroactive force. (Paragraph 65.)
• An occupying nation cannot prose-
USSR cute, arrest or condemn inhabitants of an occupied country for activity that took place before the occupation or for the expression of opinion. (Paragraph 70.)
• Citizens of an occupied country can be found guilty and punished only by a competent court of the occupying contry. Moreover, guarantees internationally recognized by civilized people must be observed - searches and court rulings have to follow established procedure. In the courts, the accused have the right to present evidence in their own defense; they can call witnesses and have a right to qualified lawyers of their choice. (Paragraphs 66, 71 and 72).
On August 12, 1949, it was recognized that the Geneva Convention applied to prisoners of war taken in partisan warfare. According to this convention, members of organized resistance movements in occupied territories are recognized as prisoners of war and enjoy the corresponding legal rights. The Geneva Convention was ratified on April 17, 1954, by the Presidium of the Supreme Soviet of the USSR.
On June 10, 1977, a protocol was appended to the Geneva convention, which recognized the applicability of the elementary human rights guaranteed by the UN charter to people engaged in armed struggle against foreign occupation. And Nuremburg and Tokyo
The war crimes tribunals' statutes included instructions in defense of the inhabitants of occupied territories. Killing, torturing and deporting inhabitants of occupied territories were recognized as crimes.
The statutes of the Nuremburg and Tokyo war crimes tribunals were ratified by a UN General Assembly resolution of November 11, 1946. Consequently, they are now internationally recognized norms.?
According to the constitution of the Estonian SSR, provisions of international pacts and declarations ratified by the USSR are an inalienable part of the legal system of the Estonian SSR. Therefore, the legal evaluation of the anti-Stalinist armed struggle should derive from these acts of international law.
In its first two stages and especially in its final stage, the anti-Stalinist armed struggle was a partisan struggle in accordance with international law. In the conditions of occupation it has to be considered a struggle for national self-determination. These conceptions are also based on international law, which clearly applied to the partisan struggle in the German occupied parts of the USSR, also applied to occupied Estonia. On trials
In an occupied area, only competent judicial bodies of the occupying power can pronounce judgment, and there is a right of defense in these courts. Summary trials of participants in the anti-Stalinist armed struggle and bringing them before kangaroo courts was illegal. These persons could not be legally condemned because their guilt for violating the rules and conventions of the law of war was not established according to judicial procedure. This was not observed in the practice of the Estonian SSR. Thus, on December 7, 1988, the Estonian SSR declared illegal " the extrajudicial mass repression in Soviet Estonia in the 1940s and 1950s," regardless of whether persons sentenced by special judgment were guilty or not.
If special tribunals or other exceptional bodies are given the role of courts, then the punishment commissions and other kangaroo courts put together in the time of the German occupation have to be considered courts.
The fact that the anti-Stalinist armed struggle waged in Estonia was a freedom struggle against an occupation regime was not taken into account in the law, "Additional measures for the rehabilitation of victims of repression in the 1930s, 1940s and early 1950s," adopted by the Supreme Soviet of the USSR on January 16, 1989. This law annulled the verdicts of threejudge and other special tribunals in the 1930s, 1940s and 1950s, that had not been previously quashed. All persons sentenced by these bodies can be considered rehabilitated.
But in fact not all. This law does not apply to traitors to the fatherland and punishment battalions formed during the Great Fatherland War, to Nazi criminals, members of nationalist bands, their satellites and so on.
Punishment of such persons, who were not guilty of violating internationally recognized norms and customs of warfare, is contrary to international law. It follows therefore that there is no right to apply to these persons the January 16 law of the Presidium of the Supreme Soviet stating that traitors to the fatherland and members of nationalist bands and their satellites are not rehabilitated. Such persons must also be considered rehabilitated.
That does not mean justification of murder and other crimes. Naturally, summary executions and exactions accompanying the anti-Stalinist armed struggle have to be condemned, including participation in the mass murders committed in Estonia during the German occupation and the mass repression outside the borders of the Estonian Republic. Such actions are specifically defined as crimes against humanity according to international law. Criminals cannot be considered freedom fighters. * 4. E. Laasi, "Kuritegu inimsuse vastu" "Crimes Against Humanity," Kodumaa, November 16, 1988. 5. E. Lassi, "Monede lünkade täiteks" ["Many gaps are filled in"], Sirp ja Vasar, November 27, 1987. 6. M. Laar, "Eesti soduritest II Maailmansojas." 7. A. Ustal Rahusheline oises (htemational 21 7. A. Uustal. Rahvusheline Law"), Eesti Raamat, 1984, pps. 344, 349.