Crimes Against the People – a Sui Generis Socialist International Crime?

Journal of the History of International Law 21 (2019) 299–329 JHIL brill.com/jhil

Crimes against the People – a Sui Generis Socialist International Crime?

Tamás Hoffmann Centre for Social Sciences Institute for Legal Studies, Magyar Tudomanyos Akademia, Budapest [email protected]

Received: 16 March 2018; Revised: 20 July 2018; Accepted: 28 September 2018; published online: 01 July 2019

Abstract

Crimes against humanity is one of the core crimes in international criminal law, whose existence is treated as a natural reaction to mass atrocities. This idea of linear progress is challenged by this article, which demonstrates that in post-Second World War Hungary an alternative approach was developed to prosecute human rights violation committed against civilian populations. Even though this concept was eventually used as a political weapon by the Communist Party, it had long-lasting effects on the prosecution of international crimes in Hungary.

Keywords international criminal law – crimes against humanity – international crimes – Hungary

1 Introduction – Enforcement of Humanity as a Cosmopolitan Value

The history of international law is often presented as a linear story of progress where international catastrophes inevitably lead to eventual breakthroughs in

© Tamás Hoffmann, 2019 | doi:10.1163/15718050-12340113 This is an open access article distributed under the terms of the CC BY-NC-NDDownloaded 4.0 License. from Brill.com09/24/2021 10:13:16AM via free access 300 Hoffmann legal regulation.1 In this vein, the creation of the category of crimes against humanity is repeatedly portrayed as a natural result of the effort to criminalize crimes committed against civilian populations during World War II. Humanity as the normative idea of the moral unity of mankind has a long pedigree, whose origins can be traced back to the Stoic philosophy of Cicero, and later endorsed by Christian philosophers, such as St. Augustine and Thomas Aquinas. The concept later played a pivotal role in the natural law philosophies of Vitoria, Suarez and Wolff2 and gained prominence in the eighteenth century as a normative-legal idea endorsed by the Enlightenment philosophers.3 By the nineteenth century, the concept of humanity surfaced in international documents usually intertwined with the notion of civilization.4 In 1815, the Congress of Vienna Final Act on the Prohibition of Slave Trade condemned the slave trade as ‘repugnant to the principles of humanity and universal morality’ and declared that ‘the public voice in all civilized countries calls aloud for its prompt suppression’.5 The concept of humanity later became an integral component of the dis- course of the laws of war. The adoption of the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land entrenched the notion in jus in bello. The preamble of the Convention that was designed ‘to serve … the interests of humanity and the ever increasing requirements of civilization’

1 Simpson, Gerry. ‘Linear Law: The History of International Criminal Law’, in Critical Approaches to International Criminal Law: An Introduction, ed. Christine Schwöbel (Oxon: Routledge, 2014), 159–179. 2 See Simma, Bruno. ‘The Contribution of Alfred Verdross to the Theory of International Law’. European Journal of International Law 6 (1995), 33–54, 38–43. 3 Denis Diderot even referred to humanity as ‘the only truly inalienable right’. See Zagor, Matthew. ‘Elementary Considerations of Humanity’, in The ICJ and the Evolution of International Law: The Enduring Impact of the “Corfu Channel” Case, eds. Karine Bannelier, Theodore Christakis and Sarah Heathcote (Oxon: Routledge, 2011), 269. 4 On the ‘civilizing mission’ of international law and its ties to the European imperial project see Koskenniemi, Martti. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001). As late as 1950, Graven still emphasized the necessity of a state of civilization for the recognition of laws of humanity. See Graven, Jean. ‘Les crimes contre l’humanité’. Receuil des Cours 76 (1950), 433–607, 463. 5 Final Act of the Congress of Vienna of 8 February 1815, Resolution No. 15, Déclaration du Congrès de Vienne en date du 8 fevrier 1815 au sujet de l’abolition de la traité des nègres d’Afrique ou du commerce des esclaves. http://www.le-prince-de-talleyrand.fr/traitenoirs.html. Zagor, however, points out that the universalistic language actually conceals parochial motives since ‘The world society whose normative voice can be heard in the 1815 Declaration was essentially that of Britain, the emerging hegemon after the Napoleonic wars, where an organized and politicized public had demanded international action’. Zagor, ‘Elementary Considerations’ 2011 (n. 3), 270.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 301 introduced the so-called Martens clause (named after the head of the Russian delegation),6 which pronounced that:

the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.

The repeated inclusion of this clause with essentially the same wording in international conventions has anchored the idea that the laws of war have moralistic foundations,7 but these conventions failed to establish individual criminal responsibility for breaches of the laws of humanity. In 1915, the British, French and Russian governments issued a joint declaration, publicly denouncing the massive and widespread deportation and extermination of hundreds of thousands of Armenians by the Ottoman government as ‘crimes against humanity and civilisation’.8 The Allied Powers endeavoured to give effect to the declaration through the Sèvres Peace Treaty concluded between Turkey and the Allied Powers but it was eventually not ratified, and the final Lausanne Peace Treaty omitted any reference to criminal prosecution.9 In similar vein, the 1919 Final Report of the Commission on the Responsibil ity of the Authors of the War and on Enforcement of Penalties asserted that Germany and its Allies had committed numerous acts in violation of

6 On the Martens Clause see Giladi, Rotem. ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’. European Journal of International Law 25 (2014), 847–869. 7 Inter alia, it was included in the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907; 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 8 ‘In view of these new crimes of Turkey against humanity and civilisation, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsi- ble [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.’ Quoted in United Nations War Crimes Commission. History of the United Nations War Crimes Commission and the Development of the Laws of War (London: His Majesty’s Stationery Office, 1948) 35. 9 Nevertheless, an Ottoman State Special Military Tribunal did initiate criminal proceedings against some of the perpetrators. See Balint, Jennifer. ‘The Ottoman State Special Military Tribunal for the Genocide of the Armenians: “Doing Government Business”’, in The Hidden Histories of War Crimes Trials, eds. Kevin Jon Heller and Gerry Simpson (Oxford: Oxford University Press, 2013), 77–100.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 302 Hoffmann established laws and customs of war and ‘the elementary laws of humanity’10 – raising the prospect of potential prosecution of crimes committed against the Central Power’s own citizens.11 However, both the United States and Japan held the view that ‘laws of humanity’ are not part of positive international law but natural law therefore any attempted prosecution based on that jus- tification would be tantamount to ex post facto law-making.12 Consequently, the Versailles Treaty failed to include any reference to criminal proceedings for crimes committed against a country’s own civilian population. The unprecedented atrocities of the Second World War resurrected the notion of legal accountability for crimes committed against the civilian population. On 20 October 1943, seventeen Allied nations established the United Nations War Crimes Commission (UNWCC), an organization specially tasked with the mandate of establishing the legal framework of prosecuting war criminals.13 From the beginning, most of the representatives of the UNWCC have supported the extension of punishment beyond war crimes.14 The Czechoslovakian delegate, Bohuslav Ečer, argued that the concept of war crimes should encompass crimes committed on the grounds of race, nationality, religion, or political beliefs invoking the Martens clause15 and was supported by the influential secretary of the UNWCC, Egon Schwelb.16 Criminalization of crimes committed against the civilian population was also endorsed by the American representative, Herbert C. Pell, who repeatedly referred to these atrocities as ‘crimes against humanity’17 even though the idea was very controversial within

10 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties. ‘Report Presented to the Preliminary Peace Conference’. American Journal of International Law 14 (1920), 95–154, 121–125. 11 See Boot, Machteld. Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2002), 458. 12 Bassiouni, Cherif M. Crimes against Humanity – Historical Evolution and Contemporary Application (Cambridge: Cambridge University Press, 2011), 89. 13 Schwelb, Egon. ‘The Work of the War Crimes Commission’. British Year Book of Inter national Law 23 (1946), 363–364. 14 Ibid., 183–185. 15 Ečer, Bohuslav. Norimberský soud (Praha: Orbis, 1946) 17. 16 See more in detail Lingen, Kerstin von. ‘Defining Crimes against Humanity: The Contribution of the United Nations War Crimes Commission to International Criminal Law, 1944–1947’, in The Historical Origins of International Criminal Justice: Volume 1, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2014), 475–494, 485–492. 17 Baker, Leonard. Brahmin in Revolt: A Biography of Herbert C. Pell (New York: Doubleday, 1972), 292.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 303 the American government.18 The British Foreign Office also strongly opposed the idea of investigations of ‘atrocities committed on racial, political or religious grounds’ until May 1945.19 However, by the spring of 1945 the idea of the prosecution of crimes committed against the civilian population became generally accepted, yet the actual content and designation of the crime remained undetermined until the adoption of the Charter of the International Military Tribunal (IMT).20 Even though the term ‘crimes against humanity’ was used during the UNWCC meetings, the drafters of the Charter seemed to be unaware of it. During the pre- paratory phase of the drafting, the designation ‘crimes against mankind’ was suggested21 and until 31 July 1945 the term ‘atrocities committed against the civilian population’ was used when it was suddenly substituted with ‘crimes against humanity’.22 Robert H. Jackson, the US representative to the London Conference claimed that ‘the term was suggested to me by an eminent scholar of international law’.23 While Jackson never revealed the name of this scholar, there is general agreement in the literature that the idea came from Hersch Lauterpacht.24 Crimes against humanity became irrevocably embedded in the lexicon of international law by the adoption of the IMT Charter, Article 6(c) of which reads as follows:

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian

18 Secretary of State Hull for instance bluntly stated that such an approach ‘would constitute an assumption of jurisdiction probably unwarranted under international law’. Kochevi, Arieh J. ‘Discord within the Roosevelt Administration over a Policy toward War Criminals’. Diplomatic History 19 (1995) 617–639, 625. 19 Ibid., 628. 20 Clark, Roger S. ‘Crimes against Humanity at Nuremberg’, in The Nuremberg Trial and International Law, eds. George Ginsburgs and Vladimir N. Kudriavtsev (Dordrecht: Martinus Nijhoff, 1990), 189–90. 21 United Nations War Crimes Commission. History 1948 (n. 8), 101. 22 Jackson, Robert H. Report of Robert H. Jackson United States Representative to the International Conference on Military Trials (London, 1945), 395. This modification was so abrupt that Art. III(5) of the Potsdam Agreement, adopted two days later, still only referred to ‘atrocities’. 23 Ibid., 416. 24 Lingen, Kerstin von. ‘Defining Crimes against Humanity: The Contribution of the United Nations War Crimes Commission to International Criminal Law, 1944–1947’, in The Historical Origins of International Criminal Justice: Volume 1, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2014), 475–494, 476; Koskenniemi. The Gentle Civilizer 2001 (n. 4), 388–389; Lauterpacht, Elihu. The Life of Hersch Lauterpacht (Cambridge: Cambridge University Press, 2010), 272.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 304 Hoffmann

population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

This new crime aimed to fill a lacuna in the international legal regulation – to ensure that inhumane acts committed against the civilian population are punished – and at the same time express the condemnation of the newly formed international community for offences that ‘shock the conscience of mankind’,25 i.e. target the very idea of humanity.26 By invoking the inherently ambivalent concept of humanity,27 the drafters of the Nuremberg Charter created a category that encompasses both natural law traditions expressing the ‘meta-national concern’ of the international community28 and realpolitik. The jurisdictional constraints of the Charter provided a safe environment for the Great Powers to publicly affirm their moral superiority29 as Article 6 limited the prosecution of international crimes to those committed in the interests of the European Axis countries and the definition of crimes against humanity linked it to the existence of war, effectively preventing the concept to be used in the future against the Allies.30

25 Hartley Shawcross, the Chief Prosecutor for the UK at Nuremberg, claimed that the individual ‘is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind’. Quoted in Bassiouni, Crimes against Humanity 2011 (n. 12), 141. 26 See Simpson, Gerry. Law, War and Crime: War Crime Trials and the Reinvention of International Law (Cambridge: Polity Press, 2007), 45–46. 27 Macleod identified no less than seven different potential senses in which a conduct can be considered to be against humanity. See Macleod, Christopher. ‘Towards a Philosophical Account of Crimes against Humanity’. European Journal of International Law 21 (2010), 281–302. Uruena, however, points out that these different meanings constantly interact and ‘ultimately create a complex palimpsest that we end up calling “humanity”’. Uruena, René. ‘Deciding What Is Humane: Towards a Critical Reading of Humanity as a Normative Standard in International Law’, in Humanity across International Law and Biolaw, eds. Britta van Beers, Luigi Corrias and Wouter Werner (Cambridge: Cambridge University Press, 2014), 178–196, 180. 28 Cassese, Antonio et al. Cassese’s International Criminal Law (Oxford: Oxford University Press, 2013), 87. 29 On the concept of safe and unsafe tribunals see Cryer, Robert. Prosecuting International Crimes – Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005). 30 Tellingly, Robert H. Jackson remarked in a private correspondence that ‘my own view is that departures from democratic systems as may exist in some countries and discrimina- tion, even quite aggravated such as may exist against negroes in certain countries, should not even, in these enlightened times, constitute crimes at international law.’ See Heller,

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 305

However, this article aims to demonstrate that this development was not set in stone and an alternative concept of ‘crimes against the people’ was created in Hungary, in response to the same atrocities. Even though this concept only had a limited influence in the Socialist Bloc, it revealed a differing approach, which had a lasting effect on Hungarian domestic law and significantly influenced the prosecution, after 1989, of crimes committed during the socialist regime. The article aims at introducing this largely unknown category of crimes to the international audience. Tracing its origins back to the Soviet term ‘enemy of the people’, it will address in detail its constitutive elements and show its enduring influence on the prosecution of international crimes in post-socialist Hungary.

2 Crimes against the People

2.1 Prosecution of International Crimes in Hungary – People’s Tribunals and the Concept of Crimes against the People The adoption of an alternative conception of ‘crimes against the people’ rather than ‘crimes against humanity’ in post-war Hungary can be traced back to the political violence that erupted after the First World War. The ruling right-wing government, led by Governor Miklós Horthy, came into power in 1919, following the collapse of the short-lived Hungarian Soviet Republic, which had attempted to introduce communism through widespread terror. The atrocities of the red terror were immediately countered by widespread violence between 1919 and 1921, committed against suspected communist sympathizers – often Jews, who were widely associated with the communist leadership – and killing approximately 3,000 people.31 Yet, perpetrators of white terror were granted general amnesty by Governor Horthy, who judged that these acts of murder, torture and similar violence were committed out of ‘patriotic fervour’.32 While crimes committed during the consolidation of the Horthy regime were pardoned, new legislation was adopted to prosecute crimes committed during the Hungarian Soviet Republic. Premier’s Decree No. 4039/1919. of 19 August 1919 on the provisional regulation of adjudication was applicable to the Hungarian Soviet Republic’s organs, officials, commissioners and soldiers

Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford: Oxford University Press, 2011), 235. 31 See more in detail Bodó, Béla. ‘The White Terror in Hungary, 1919–1921: The Social Worlds of Paramilitary Groups’. Austrian History Yearbook 42 (2011), 133–163. 32 See Rév, István. Retroactive Justice: Prehistory of Post-Communism (Stanford: Stanford University Press, 2005), 203.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 306 Hoffmann who committed crimes for ‘the establishment, preservation or restoration of the Hungarian Soviet Republic’.33 These so-called communist crimes were not clearly defined and could be applied retrospectively. Prosecutors investigating such cases often expressed their dismay over the vagueness of the terms of the legislation, which they found irreconcilable with scholarly opinions and established case-law.34 Still, between August 1919 and July 1920 criminal proceedings were initiated against 53,304 people, 74 of whom were eventually executed.35 The Horthy regime blamed the Hungarian Soviet Republic for the harsh terms of the Trianon Peace Treaty that forced Hungary to cede roughly two- thirds of its territory to neighbouring countries where about three million ethnic Hungarians became minorities. This bolstered the anti-communist domestic and revisionist foreign policy which resulted in the Hungarian support for the German war effort in return for territorial gains. Hungarian Jews were subjected to discriminatory racial legislation, closely mimicking the German model but their lives were not directly threatened.36 This changed, however, when on 19 March 1944, following a botched attempt by Horthy to withdraw from the war, the German Army occupied Hungary. The deportation of the Hungarian Jewish population to extermination camps immediately began with the enthusiastic support of Prime Minister Sztójay’s government and thus with the co-operation of the Hungarian public administration, deporting more than 400,000 people to extermination camps in a matter of a few months.37 The prosecution of Hungarian war criminals ultimately became a major issue by summer 1944. A US proposal in July suggested that these criminals could be tried by some kind of special committee or other organ and by September while the Hungarian communists in exile in Moscow explicitly called for the establishment of special courts for the prosecution of war

33 Hungary, Art. 1 of Premier’s Decree No. 4039/1919 of 19 August 1919. The Decree specified its applicability ‘irrespective of whether these acts were committed before or after the entry into the force of the present decree’. 34 Nánási, László. ‘A magyarországi népbíráskodás joganyaga 1945–1950’, in Pártatlan igazságszolgáltatás vagy megtorlás Népbíróság-történeti tanulmányok, ed. Gyenesei József (Kecskemét: Bács-Kiskun Megyei Önkormányzat Levéltára, 2011), 6–55, 7. 35 Ibid. 36 Between 1938 and 1941 three ‘Jewish Bills’ were adopted that defined ‘Jews’ in racial terms, forbade intermarriage between Jews and non-Jews, and excluded Jews from full participation in various professions. The laws also barred employment of Jews in the civil service and restricted their opportunities in economic life. See more in detail Pelle, János. Sowing the Seeds of Hatred: Anti-Jewish Laws and Hungarian Public Opinion, 1938–1944 (New York; Boulder, C.O., 2014). 37 See more in detail Braham, Randolph L. The Politics of Genocide: The Holocaust in Hungary (Detroit: Wayne State University Press, 2000), 133–154.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 307 criminals.38 This followed the official Soviet line which endorsed the public prosecution of war criminals in the newly occupied Central Eastern European countries.39 Communist leaders regarded public trials of war criminals an important exercise in didactic legality, i.e. to educate the Hungarian people about the crimes committed by the former regime,40 and enable the formation of a moral community.41 On 22 December 1944, a Provisional National Government (PNG) led by Miklós Béla Dálnoki was established with Soviet support and immediately issued a declaration emphasizing the need to prosecute or extradite those who had committed war crimes or crimes against the people.42 On 20 January 1945, the PNG signed the Moscow Armistice Agreement including Article 14 stipu- lating that ‘Hungary will cooperate in arresting the persons charged with hav- ing committed war crimes. It will either extradite them to the governments concerned or will pass judgment on them’.43 Thus the agreement prescribed an international legal obligation to establish the material conditions for the prosecution of international crimes.44 The government decided to comply with this obligation by the establishment of a two-tiered extraordinary court system, the people’s tribunals, that operated parallel to the ordinary court system and staffed with judges dele- gated by the democratic parties.45 On 25 January 1945 Prime Minister Miklós Béla Dálnoki issued the Premier’s Decree No. 81/1945 on People’s Judiciary,

38 Zinner, Tibor. ‘Adalékok az antifasiszta számonkéréshez és a népi demokrácia védel- méhez különös tekintettel a budapesti népbíróságra’, in Budapest Főváros Levéltára Közleményei ’84, ed. Szekeres József (Budapest: Budapest Főváros Levéltára, 1985), 137–169, 138. 39 See e.g. Bilková, Veronika. ‘Post-Second World War Trials in Central and Eastern Europe’, in Historical Origins of International Criminal Law: Volume 2, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2015), 697–734. 40 On the concept of didactic legality see Lawrence Douglas. The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale: Yale University Press, 2005). 41 On the role of international criminal trials constituting a moral community see Koskenniemi, Martti. ‘Between Impunity and Show Trials’, Max Planck Yearbook of United Nations Law 6 (2002), 1–32. 42 Papp, Attila. ‘Néptörvényszék, Népbíróság és Népbírósági Jog Magyarországon’. E-Tudomány 4 (2011), 1–141, 10. 43 The Armistice Agreement was implemented in Hungarian law by Act V of 1945 on 13 September 1945 with retroactive effect to the date of the signature of the Agreement. 44 As recognized by the Hungarian Constitutional Court. See Hungary, Constitutional Court of the Republic of Hungary, Decision No. 2/1994, Section II. B, 14 January 1994. 45 On the history and institutional framework of the people’s courts see Hoffmann, Tamás. ‘Post-World War II. Hungarian Criminal Justice and International Law – The Legacy of the People’s Tribunals’, in Historical Origins of International Criminal Law: Volume 2, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2015), 735–763.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 308 Hoffmann with the stated goal that ‘all those, who caused the historic catastrophe of the Hungarian people or participated in it should be punished as soon as possible’.46 This Decree and other subsequent laws created a system of People’s Tribunals, defined their organizational structure and scope of jurisdiction and enabled them to prosecute war crimes and crimes against the people.47 This measure was thus the result of both Hungary’s international obligations and the need to effectively deal with the legacy of fascism at the national level under the supervision of the Allied Control Commission (ACC).48

2.2 Drafting the Legal Regulation of Crimes against the People The invention of the concept of crimes against the people was an idiosyncratic solution to the problem of addressing crimes committed against parts of the civilian population and also holding accountable the political elite of the Horthy regime. In the new government, the Social Democratic Party con- trolled the Ministry of Justice and the Communist Party oversaw the Ministry of Interior and they sought to devise a notion that could serve ‘people’s justice’, defined by Justice Minister István Ries as ‘a trial against the corruptors of the nation … actually a single trial that is divided into several criminal processes for technical reasons.’49 The category of crimes against the people was thus conceived to express the moral outrage of the society for the crimes committed against its members, educate the society about past events, rede- fine the membership of the Hungarian community by embracing those who were formerly excluded by discriminatory legislation and administrative prac- tices and punishing those who cooperated with the repressive regime. Anti-

46 Hungary, Preamble, Premier’s Decree No. 81/1945. 47 Three further Premier’s Decrees – No. 1440/1945 (27 April 1945), No. 5900/1945 (1 August 1945) and No. 6750/1945 (16 August 1945) amended the original Decree. Finally, Act VII of 1945 (16 September 1945) subsumed these Decrees into a consolidated text. The legal regulation was further amended by Act XXXIV of 1947 (31 December 1947). 48 The issue of the prosecution of Hungarian war criminals was only raised fifteen times over two-and-a-half years in the ACC. See Cseh, Bendegúz Gergő, ed. Documents on the Meetings of the Allied Control Commission for Hungary 1945–1947 (Budapest: MTA Jelenkor- kutató Bizottság, 2000). However, members of the Commission closely observed the judicial proceedings of the people’s tribunals. Judge Ákos Major, the President of the Budapest Metropolitan People’s Tribunal, recalled in his memoir numerous instances when representatives of the Allied Control Commission’s representatives attended the trials and even mentions one incident when he was called to the British headquarter of the ACC and was reprimanded by a colonel for using the expression ‘shut up’ against the defendant. See Major, Ákos. Népbíráskodás: Forradalmi Törvényesség – Egy Népbíró Visszaemlékezései (Budapest: Minerva, 1988), 223. 49 Quoted in Zinner, Tibor. XX. századi politikai perek. A magyarországi eljárások vázlata 1944/1945–1992 (Budapest: Rejtjel, 1999), 31.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 309 communist legislation and prosecutions also fell under the purview of crimes against the people. The drafting of Premier’s Decree No. 81/1945 on People’s Judiciary was un- dertaken by a small team of three people,50 who could not rely on foreign prec- edents. They did not have access to the UNWCC’s documents and the concept of crimes against humanity had not crystallized yet. One of the drafters, Kálmán Kovács, recounted that only the illegal Allied radio broadcast gave them any guidance concerning the prosecution of war criminals, especially the declara- tions adopted at the 1942 London and the 1943 Moscow conferences.51 Even though it would have been convenient to adopt the Soviet legal approaches, Soviet war crimes prosecutions were conducted based on a secret law that did not clearly specify the legal foundations of the criminal proceedings and were not based on international law.52 The governing law of these prosecutions was a Decree of April 1943, which however was classified, so its provisions remained unknown even to the accused and their defence counsel and were not even quoted in the indictment, nor in the sentence, even though it was used to condemn more than 40,000 persons from 1943 to 1952.53 Still, the Soviet Union did inspire the Hungarian drafters as the name ‘crimes against the people’ was derived from the Soviet concept of враг народa (vrag naroda) – ‘enemy of the people’.54 This infamous term was introduced into the Soviet political parlance by Vladimir Ilyich Lenin himself. In a 1917 Pravda article, the architect of the Soviet revolution recalled the concept of ‘ennemi du

50 The team was composed of László Réczei, Head of Department at the Ministry of Justice, Judge Győző Balogh, and Kálmán Kovács, Secretary of State at the Ministry of Justice, a delegate of the Hungarian Party of Communists. See Lukács, Tibor. A magyar népbírósági jog és a népbíróságok 1945–1950 (Budapest: KJK-Zrínyi, 1979), 95–96. 51 Kovács, Kálmán. ‘A Magyarországi Népbíróságok Történetének Egyes Kérdései’, in Jogtörténeti Tanulmányok I., ed. Andor Csizmadia (Budapest: KJK, 1966), 149–174, 152. 52 Sorokina, Marina. ‘People and Procedures – Toward a History of the Investigation of Nazi Crimes in the USSR’. Kritika: Explorations in Russian and Eurasian History 6 (2005), 1–35; Kudryashov, Sergey and Vanessa Voisin. ‘The early stages of “legal purges” in Soviet Russia (1941–1945)’. Cahiers du Monde Russe 49 (2008), 263–296. 53 ‘On Measures of Punishment for German-Fascist Criminals Who Are Guilty of the Murder and Torture of Soviet Citizens and Red Army Prisoners of War and for Soviet Citizens Who Are Spies and Traitors to the Motherland and for Their Accomplices’. Decree of the Presidium of the Supreme Soviet of the USSR of 19 April 1943. See more in detail Polunina, Valentyna. ‘Soviet War Crimes Policy in the Far East: The Bacteriological Warfare Trial at Khabarovsk, 1949’, in Historical Origins of International Criminal Law: Volume 2, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2015), 539–562. 54 Zinner, Tibor and Péter Róna. Szálasiék bilincsben, I. A Hűség Házától az Andrássy út 60-ig (Budapest: Lapkiadó Vállalat, 1986), 55.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 310 Hoffmann peuple’ used by the Jacobins during the French Revolution and emphasized its usefulness in the struggle against ‘the class of the exploiters’.55 By the 1930s, the term – even though never formally codified as a legal notion – became widely used to label all ‘class enemies’. The concept was extremely convenient in its malleability as it could be applied ‘as easily to descendants of the exploitative classes of the pre-revolutionary era – nobles, bourgeoisie, clerics, right-wing intellectuals – as it was after 1928 to industrial “wreckers” (vrediteli), kulaks (“wealthy peasants”) and their podkulachnik accomplices, Trotskyites (“Left- Wing Deviationists”) and Bukharinites (“Right-Wing Revisionists”). Vragi naroda became the catch-all to include all forms of anti-Soviet (anti-Stalinist) thought, predilection, or action’.56 The inherently fluid nature of the concept made it an ideal foundation to forge a legal category capable of addressing both atrocities and deprivation of rights committed against the civilian population even before World War II and also prevent the return of the old guard to power. Moreover, in the different political environment of Hungary, where between 1945 and 1949 free elections were still held with multi-party coalition governments at the helm, it could also be wielded as an instrument of impartial justice. This new system of justice with the concept of crimes against the people as one of its cornerstones aimed at redefining the boundaries of the membership of the Hungarian people. Ultimately, the drafters attempted to create a new definition of the Hungarian political community that includes the previously excluded groups like the Jews but also excludes those deemed incompatible with the new political establishment, like proponents of the former regime and the German ethnic minority.57

2.3 Legal Regulation of Crimes against the People – Offences The creation of the category of crimes against the people was based on the same rationale as the drafting of crimes against humanity – to criminalize certain acts committed against the civilian population. However, as opposed to crimes against humanity, which was still just an emerging concept on 5 February 1945, at the time of the adoption of Premier’s Decree 81/1945, crimes against the people applied to a much broader scope of conducts. Article 15

55 Lenin, Vladimir Ilyich. ‘Enemies of the People’. Pravda (20 June 1917). Available at https:// www.marxists.org/archive/lenin/works/1917/jun/20b.htm. 56 Burds, Jeffrey. ‘The Soviet War against “Fifth Columnists”: The Case of Chechnya, 1942–4’. Journal of Contemporary History 42 (2007), 267–314, 267. On Stalinist purges before World War II see Getty, John Arch and Oleg V. Naumov. The Road to Terror: Stalin and the Self- Destruction of the Bolsheviks, 1932–1939 (New Haven: Yale University Press, 1999). 57 Zombory, Máté. ‘Democracy and Violence: Political Violence in Post-War Hungary’. The London Journal of Critical Thought 1 (2016), 154–165.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 311 of the Decree criminalized the conduct of public officials participating in the creation and execution of laws that threatened or infringed the interests of the people or whose activities harmed the people, and threatened democratic governance or the rebuilding of the country. It also prosecuted people who committed sexual assault or crimes against property or personal freedom, en- gaged in racist or antidemocratic propaganda or became members of antidemocratic parties or movements. Moreover, Act XXXIV of 1947 created the new offence of obstruction of the work of a factory significant for rebuilding the country or paying war indemnity or delaying, or executing work defectively.58 This crime was often applied together with acts ‘threatening the democratic system of state’ criminalized by Act VII of 1946.59 Crimes against the people were originally designed as primarily leadership crimes focusing on politicians and public officials who had major influence in adopting and implementing legislation and administrative measures seriously breaching the rights of certain groups of the population thus betraying the entire nation. However, changing the legal qualification of membership in antidemocratic organizations and ‘anti-people’ propaganda from misdemean- our to actual crime and introducing the crime of obstruction of work, crimes against the people could be used as a tool against anybody viewed as potentially hostile to the new political order. The definitions of crimes were deliberately imprecise in order to encompass every act potentially harmful to ‘the people’ and gave wide discretion to the people’s tribunals to decide whether an accused’s acts fell within the scope of the Decree. Justice Minister István Ries emphasized that this was inevitable since ‘the crimes committed against the country were so diverse that it was impossible to squeeze them into general definitions … the decree had to create slightly loosely defined laws that describe the acts based on their most distinc- tive features’.60 Moreover, crimes against the people were not simply created to address war- related atrocities but also to criminalize the prosecution of certain groups even before World War II and to protect the new political system. Consequently, Article 9 of the Premier’s Decree abolished the prescription of political

58 Hungary, Act XXXIV Concerning Certain Regulations of People’s Judging, 31 December 1947. 59 Hungary, Act VII on the Criminal Law Defence of the Democratic State Order and Republic, 23 March 1946. Based on these loosely defined offences 12,276 persons were prosecuted. See Vincze, Gábor. ‘Igazságszolgáltatás vagy bosszúállás? Hódmezővásárhelyiek a népbíróság előtt (1945–1950)’. Belvedere Meridionale 22 (2010), 4–12, 7. 60 Ries, István. A népbíráskodásról szóló 81/1945. M.E. számú és az ezt kiegészítő 1440/1945. M.E. számú rendelet szövege és magyarázata (Budapest: Politzer Zsigmond és fia, 1945), 8.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 312 Hoffmann murders of perceived communist sympathizers committed in 1919 and after- wards, whose prosecution was prevented by the ruling political power and re- sumed it on 21 December 1944.

2.4 The Notion of ‘the People’ in the Category of Crimes against the People A distinguishing feature of ‘crimes against the people’ in contrast to ‘crimes against humanity’ was the focus on the entirety of the Hungarian people as victim. The clearly stated intention of the Decree’s adoption was to reconstitute the Hungarian political community by punishing the perpetrators of crimes committed against specific groups, which were hitherto excluded from the membership of the Hungarian people. Therefore, the unificatory vision demanded that no particular victim groups could be specifically addressed in the law. Given the vague and imprecise terminology of the category of crimes against the people, however, the Decree could have been interpreted to criminalize only acts committed against the entire Hungarian nation as a whole. During the trial of Nagy András Tasnádi, former president of the House of Representatives, the defence tried to take advantage of this ambiguity. Tasnádi introduced the Second Jewish Law (Act IV of 1939.) to the Parliament that was modelled after German laws and significantly restricted the permissible percentage of Jewish Hungarian citizens in certain professions and declared that Jewish people are ‘alien elements’ in the Hungarian nation.61 The defence admitted that the adopted legislation adversely affected the interests of the Jewish population, however, he argued that it could not possibly seriously infringe the interests of ‘the people’, as it was merely directed against one particular group. The National Council of People’s Tribunal firmly rebuked this argument and asserted that ‘there has never been a single Hungarian law that would have affected the entire people’s interests – including that of the lawmakers …’ The legislator used the expression ‘seriously infringing the interests of the people’ exactly in consideration of laws limiting the legal equality of Jews, communists, organized labourers, and other left-wing people. These violations resulted in ‘irreversible grievances of the entire Hungarian people’, destroyed the good reputation of the entire country.62 In a later judgment the Tribunal went even further and underlined that ‘the victim is the Hungarian people itself, even if the aggression was directed against a certain group or certain

61 Hungary, Act IV of 1939, Law to Restrict Jewish Participation in Public and Economic Life. 62 Hungary, National Council of People’s Tribunal, Judgment of 12 August 1947, No. NOT.I.7764/1946/19.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 313 individuals. Consequently the crime is committed even if it was not directed against an individual persecuted on ethnic, racial or political grounds … but against any Hungarian citizen’.63 Still, judicial practice assumed the existence of actual persecuted groups, such as Jews or communist activists. Mistreatment of mere soldiers64 or youth squad members65 by their commanders therefore did not amount to crimes against the people since the subordinates did not belong to a persecuted group.

2.5 Inhumane Nature of the Act as a Constitutive Element of Crimes against the People Similarly to crimes against humanity, the regulation of crimes against the people was based on the notion that the underlying offences constituted a fundamental violation of human rights. Legislators, courts and legal practitio- ners repeatedly explained that the prosecution of crimes against the people was a reaction to inhumanity that must be addressed by supra-legal means if necessary.66 Contemporary case-law and literature between 1945 and 1949 is replete with invocations of laws of humanity, natural law, humanism and similar notions as explanations of the prosecution of crimes committed against the civilian population. Already during the legislative debate on the Premier’s Decree, on 15 January 1945, Sándor Juhász Nagy, vice-president of the Provisional National Assembly highlighted that the establishment of the people’s tribunals have to ensure that ‘laws of humanity will prevail …’67 In one of the first high-profile cases of former politicians, László Bárdossy, former Foreign Minister and later Prime Minister was found guilty inter alia for the deportation of about 20,000 Jewish persons in the summer of 1941 to Kamenets-Podolski where they were subsequently executed by German troops. The National Council of People’s Tribunals pronounced that ‘the

63 National Council of People’s Tribunal. I. 2859/1946/9, Judgment of 29 May 1946. The Justice Minister’s commentary of the Premier’s Decree supports this approach. Ries emphasized that crimes against the people are ‘acts that were not connected to the war, did not serve Hungary’s involvement, and more intense participation in the war, or the prevention of the armistice agreement, but were realised against some groups of the Hungarian people, namely either the Jews or the democratic elements.’ Ries, Népbíráskodásról szóló 1945 (n. 60), 33. 64 Hungary, National Council of People’s Tribunal. No. 764/1947. 65 Hungary, National Council of People’s Tribunal. No. VII 7177/1946. 66 This bears a striking similarity to Gustave Radbruch’s thesis in 1946 that a fundamentally unjust law loses its legal validity. See Radbruch, Gustav. ‘Statutory Lawlessness and Supra- Statutory Law (1946)’. Oxford Journal of Legal Studies 26 (2006), 1–11. 67 Zinner, Tibor. ‘Szembenézés – a népbíróságokról feketén-fehéren’. MTA Law Working Papers 3 (2016), 1–51, 19, fn 66.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 314 Hoffmann expulsion of innocent people to certain and horrible destruction was the first procedure that created a precedent for future procedures that resulted in the killing of hundreds of thousands of Hungarians in gas chambers and other torture chambers. The accused had the obligation to prevent this procedure that debased all European culture and human feelings.’68 Correspondingly, in the judgment of István Antal, who was Minister of Justice and Secretary of State in numerous Hungarian governments, participating in the adoption of legal regulations seriously restricting the fundamental rights of Jewish Hungarian citizens, the National Council of People’s Tribunals emphasized the moral core of crimes against the people. The Council claimed that ‘the legislature cannot pass a law that infringes our fundamental laws, the basic human rights’ and reaffirmed that ‘the responsibility of the accused can be determined based on both divine and human laws.’69 In the same vein, György Berend, former people’s tribunal judge justified the retroactive effect of crimes against the people by pointing out that all the crimes listed in the Decree ‘would have been prosecutable based on the Criminal Code or on other legal norms including fundamental human rights and the law of nature even if they were not explicitly spelt out …’.70 As a result, the commission of crimes against the people did not necessarily require any actual harmful consequence against the targeted group but creating a general atmosphere condoning violence. Earl Miklós Serényi, a Member of Parliament, for instance, was convicted of crimes against the people for his speeches in the Parliament in which he proposed the summary execution of Jewish people to deter aerial bombardments and further restrictions of the medical work of Jewish doctors even though his rants never resulted in any action and did not serve as a direct incitement to violence.71 Still, even the people’s tribunals did not expect active resistance against inhumane acts. Ákos Major, former president of the Budapest Metropolitan People’s Tribunal invoked the example of an unnamed member of the parliament who was exonerated even though ‘under the given circumstances it would have been the patriotic and moral duty of every legislator to fight for the

68 Reproduced in Pritz, Pál, ed. Bárdossy László a népbíróság előtt (Budapest: Macenas, 1991), 369. 69 Hungary, National Council of People’s Tribunal. I. 3678/1946/11, Judgment of 31 August 1946. 70 Berend, György. A népbíráskodás (Szeged: Ladányi-nyomda, 1948), 244. Tibor Lukács, the author of the only comprehensive treatise on the topic of people’s tribunals also asserted that ‘conducts seriously violating humaneness were codified in our law under the name of crimes against the people’. Lukács, A magyar népbírósági jog 1979 (n. 51), 257. 71 Hungary, Budapest Metropolitan Court-People’s Tribunal. No. VII 488/1946/6.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 315 principle of liberty and humanity with manly demeanour and heroic resolve but such valiant behaviour in civic life is just a moral duty and one cannot be criminally convicted for not choosing captivity instead of freedom and death instead of life …’.72 However, given the inconsistent nature of the jurisprudence of the people’s tribunals, it might be presumed that in certain cases even passivity could have been interpreted as an implicit support of inhumane acts.

2.6 Membership in Antidemocratic Parties, Organizations or Movements and Antidemocratic Propaganda Even though one of the primary goals of the creation of crimes against the people was to purge the former political elite, the specific offences of active involvement in ‘fascist or anti-democratic parties, organisations or movements’ and spreading antidemocratic propaganda could potentially affect a much wider group. In these cases, actions could be deemed as a crime against the people even without any causal link between the accused’s conduct and any violent or discriminatory action. In both situations, judicial practice was widely inconsistent. The Budapest Metropolitan People’s Tribunal, for instance, often held that even paying membership fees to such antidemocratic organizations could qualify as active participation. However, a consistent application of this doctrine would have resulted in the prosecution of hundreds of thousands of ordinary party members so unsurprisingly it was followed haphazardly. Most often these cases were not tried by the people’s tribunals but by administrative bodies involved in lustration and typically used administrative sanctions, such as internment.73 Besides paying membership fees, contributing to antidemocratic organizations’ goals was often not evaluated in the actual context of the acts. One accused joined the Arrow Cross party in 1939 and later became the leader of the party’s district cultural propaganda office, attended and sold tickets to literature events. Even though he never expressed any fascists views, committed inhumane acts and even actively assisted numerous Jewish persons, he was found guilty for being in a leadership role in a fascist party and sentenced to eight months internment and stripped of his political rights for three years.74 In another case the defendant was charged for distributing clothes taken from Jews and ‘thus, by her activity, which was not of a leading character, aided the Arrow Cross movement in gaining and remaining in power.’75 Membership

72 Major, Népbíráskodás 1988 (n. 48), 180. 73 Zinner, ‘Adalékok’ 1985 (n. 38), 167. 74 Hungary, Budapest Metropolitan Court-People’s Tribunal, No. IV 8/1945. 75 Hungary, Budapest Metropolitan Court-People’s Tribunal, No. 2.450/1945.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 316 Hoffmann in such groups was generally regarded as a crime against the people even if the accused’s activities were restricted to genuine law enforcement, such as patrolling the streets and maintaining law and order.76 Nevertheless, the jurisprudence of the National Council of People’s Tribunals was far from settled on this point as in other cases non-active membership was a ground for acquittal.77 Ultimately, the prosecution of similar cases was very inconsistent and the defendants were often convicted on the basis of flimsy evidence.78 Correspondingly, the offence of spreading antidemocratic propaganda was also applied inconsistently and without proper context. Apart from convict- ing the era’s most infamous anti-Semitic propagandists, such as Nagy Lajos Dövényi,79 this crime was repeatedly invoked against journalists, ignoring that the censorship authorities repeatedly obliged journalists and editors to use specific terms and expressions and sometimes even prescribed writing and publishing certain articles.80 Moreover, expressing certain scholarly views,81 publicly insulting ‘the people’s democracy’, political parties or criticizing political measures, such as the land reform could also fall within this category.82 In other words, this crime could be utilized as a retaliation against any form of criticism of the new political establishment. Needless to say, this new political establishment included the Soviet Red Army as well. In a particularly interesting case, the accused was convicted for spreading the rumour during March 1945 that Soviet soldiers stole from his apartment valuable jewels entrusted to him by a friend. In reality, he concoct- ed the story to steal the jewels. According to the Budapest Metropolitan Court with this act the suspect ‘without any compulsion assisted in propaganda contrary to the people or democracy’ and emphasized that ‘by slandering the lib- erating army the accused harmed the country’s interests’.83 Predictably, even

76 Hungary, National Council of People’s Tribunal. No. III 384/1945. 77 Hungary, National Council of People’s Tribunal, No. IV 330/11/1945. 78 Vincze, Gábor. ‘Egy koncepciós jellegű per a szegedi népbíróság előtt (a Kehl Dániel-ügy)’, in A történész igazsága és magányossága ed. Nagy Miklós Mihály (Budapest: Kárpátia, 2013), 235–254. 79 Hungary, Budapest Metropolitan Court-People’s Tribunal, No. IV 3039/1945. 80 Vincze, Gábor. ‘Igazságszolgáltatás vagy bosszúállás? Hódmezővásárhelyiek a népbíróság előtt (1945–1950)’. Belvedere Meridionale 22 (2010), 4–12, 9. 81 Ágost Miskolczy, former crown vice-prosecutor, was convicted because ‘without any compulsion assisted in propaganda contrary to the people or democracy’, which included publishing articles in law journals in the 1930s. Hungary, Budapest Metropolitan Court- People’s Tribunal, No. XXV.1/a. 3465/1945. 82 Ibid. 83 Hungary, Budapest Metropolitan Court-People’s Tribunal, No. 98/1945.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 317 legitimate grievances against the Red Army were only exceptionally voiced, in part as a result of such judicial pronouncements. Unlike other offences constituting crimes against the people, the crimes of membership in antidemocratic parties, organizations or movements and antidemocratic propaganda were not necessarily based on the underlying inhumane nature of the acts of the defendants but could be used as a political weapon against potential dissenters. Thus their application was in general haphazard and often even conspicuously abusive.

2.7 The Relationship of Crimes against the People and War Crimes and Aggression Just like crimes against humanity, crimes against the people also constituted an ancillary category to the crime of aggression and war crimes. Thus, the accused were charged with crimes against the people if they committed offences that fundamentally contravened the interests of the people without directly contributing to the war effort or infringing the laws of war.84 While this did not generally affect the prosecution of most defendants, it became problematic during the trials of political and military leaders. The Ferenc Szombathelyi trial usefully illustrates this approach. The defendant was the Chief of Staff of the Hungarian Army and initiated the creation of a special military court that summarily tried cases of treason under Decree M.E. 7650/1941. The Budapest Metropolitan Court found that the establishment of the military court itself was legitimate in terms of prosecuting typical acts of treason such as espionage, fight against corruption or far-right political movements. However, it still deemed its operation amounting to crimes against the people as it was mainly used against left-wing political movements and the suppression of anti-war demonstrations. The Court stated that the special military court’s activities could not fall under Art. 11 (5), i.e. result in ‘ever more significant involvement in war’ since that would have required the utilization of armies and fighting soldiers.85 On appeal the National Council of People’s Tribunal rejected this argument. It pronounced that the special military court not only had a ‘terroristic nature’ and ‘trampled on human rights and individual liberties, brutally squash- ing anti-war demonstrations’ but its aim was ‘to maintain and strengthen the atmosphere of war, eradicating irritating elements, that is pacifist efforts. This is also an important way of ever more significant involvement in war, since the free movement and incitement of propagandists in the later phase of the war

84 Lukács, A magyar népbírósági jog 1979 (n. 50), 258. 85 Hungary, Budapest Metropolitan Court – People’s Tribunal, No. XX. 653/1946.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 318 Hoffmann can keep awake abating support for war if any impression of endorsement of peace is crushed. This is after a while an indispensable precondition for the prolongation of war’.86 Consequently, the offences constituting crimes against the people were subsumed into the category of war crime. In the case of Bálint Hóman, former Minister of Culture and Education, the National Council of People’s Tribunal also found that initiating anti-Semitic legislative and administrative measures were not simply ‘consistently contrary to the interests of the people’ but ‘eventually served the war aim’. The National Council explained that the defendant’s political activities were ‘ determined by the political trend that envisaged Hungary’s development, internal political, economic, and cultural progress and consequently its foreign policy not by supporting the popular forces, dismantling political, economic, and spiritual oppression and securing human rights through cooperation with the democratic powers but tried to conserve outdated privileges and a social structure long left behind by progress and for this reason tied the fate of the country to the imperialist Axis Powers that had been publicly planning to slay the peoples of the world.87 The jurisprudence of the people’s tribunals eventually decided that in such cases, where acts committed by the accused could qualify both as war crimes and as crimes against humanity the court should evaluate all the circumstances to find ‘the most typical acts of the defendant in terms of his overall conduct that predominantly affected the outcome’.88 In practice, however, crimes against the people were ineluctably subsumed into war crimes.

2.8 The International Nature of Crimes against the People During the drafting process of Premier’s Decree 81/1945, the concept of crimes against humanity had yet to be elaborated and before mid-1945 the Hungarian legislators, judges and other lawyers had absolutely no opportunity to receive any information concerning this new international crime especially because the actual interpretation of the concept of crimes against humanity was only clarified in the judicial practice of international military tribunals. This, however, prompts the question to what extent could crimes against the people should be regarded as an international crime? Crimes against the people to a large degree was functionally equivalent to crimes against humanity. It was created to address the same underlying problem, i.e. breaches of fundamental human rights of the civilian population, often committed with state authority. It covered mostly the same scope of

86 Hungary, National Council of People’s Tribunal, No. I.3162/1946/11. 87 Hungary, National Council of People’s Tribunal, No. 4816/1646/4. 88 Hungary, National Council of People’s Tribunal. No. I.2859/1946/9.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 319 offences, especially murder and persecution and also served as an ancillary to the crime of aggression. Indeed, contemporary and subsequent commen- tators usually assimilated the two categories. Imre Szabó, probably the most influential contemporary Hungarian communist lawyer, one of the codifiers of the 1949 Hungarian Constitution,89 identified crimes against the people as essentially the same category as ‘crime against mankind and humanity [sic] set out in the Nuremberg Charter’.90 Marczali also submitted that ‘the enacted law, covering war crimes and crimes against the people, followed the precedent of ICL, which was conceived at the Nuremberg Trials’.91 However, in spite of the undeniable similarities between the two categories, it would be mistaken to regard crimes against the people as essentially identical to crimes against humanity. The category of crimes against the people was never intended to serve as an international crime, addressing violations of international law, but as an instrument to punish the injustices suffered by the Hungarian people due to the former right-wing political regime and provide an ideological compass. This explains the shift in its application from the initial focus on war-time injustice and atrocities to conducts deemed contrary to the new political order.92 Still, the existence of crimes against the people offered a potential blue- print for other socialist countries to create similar legal instruments capable of prosecuting perpetrators of international crimes and purging the society of elements threatening the new political establishment at the same time. Certain socialist countries, like Poland93 and Romania,94 used a mixture of

89 See Mezey, Barna, ed. Magyar alkotmánytörténet (Budapest: Osiris, 1996), 388. Szabó had a special interest in international criminal law and published a short book on the Nuremberg proceedings already in 1946. See Szabó, Imre. A nürnbergi per és a nemzetközi büntetőjog (Budapest: Officina Kiadó, 1946). 90 Szabó, Imre. ‘A nürnbergi per jelentősége’. Társadalmi Szemle 1 (1946), 723–728. 91 Marczali, Tibor Arthur. ‘Criminal Law in Communist Hungary’. Slavic Review 23 (1964), 92–102, 95. See also Szűcs, János. ‘Politikai bűntett’. Ítél a Nép! (4 May 1945), 1. 92 Even László Rajk, former communist Minister of the Interior between 1946 and 1948, was charged with crimes against the people during his show trial in 1949. See Zinner, Tibor, ed. Rajk László és Társai a Népbíróság Előtt – 40 Év Távolából (Budapest: Magyar Eszperantó Szövetség, 1989). 93 Drumbl explains that criminal prosecution of war criminals was based on ‘a hodgepodge of special decrees, pre-existing Polish municipal law, newly created enactments and the London Agreement’. Drumbl, Mark A. ‘The Supreme National Tribunal of Poland and the History of International Criminal Law’, in Historical Origins of International Criminal Law: Volume 2, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2015), 567–568. 94 In Romania the legal framework of the prosecution of war criminals was created by Law No. 312 of 21 April 1945 that defined war crimes in a broad sense, including crimes committed against groups of the civilian population. See Bogdan, Chiriac. The Trial of the

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 320 Hoffmann

international and national law to prosecute war criminals. Czechoslovakia and Yugoslavia, however, chose a very similar approach to Hungary. In Czechoslovakia the prosecution of international crimes was also under- taken creating extraordinary people’s tribunals. Decree No. 16/1945 of 19 June 1945 on the Punishment of Nazi Criminals, Traitors and their Accomplices, and on Extraordinary People’s Tribunals introduced three categories of war-related crimes – crimes against the state, crimes against the people and informing.95 Correspondingly, the Yugoslav Socialist Federal Republic adopted the Crimes Against the People and State Act of 25 August 1945, which sanctioned the prosecution of alleged perpetrators of atrocities and activities threatening the state order at people’s courts.96 While there is no unequivocal evidence to link the Hungarian concept of crimes against the people to its Czechoslovak and Yugoslav counterparts, given the fact that the Hungarian notion, which bore the same name and covered essentially the same scope of crimes, was adopted months earlier, it is a strong possibility that it indeed influenced the Czechoslovak and Yugoslav approach. This way, it effectively fulfilled the function of a socialist international crime substituting crimes against humanity.

3 The Long Shadow of the Past – Historical Justice Trials in Post-Socialist Hungary

Like other socialist countries, Hungary has ratified all the major international criminal law conventions. Act IV of 1978 on the Criminal Code dedi- cated Chapter XI to international crimes under the heading ‘Crimes against Humanity/Mankind’. It was divided into two sections: Section I dealt with war propaganda (Art. 153), illegal recruitment to foreign armed organizations (Art. 154), genocide (Art. 155), crime against national, ethnic, racial or religious groups (Art. 156) and the crime of apartheid (Art. 157) under the name ‘Crimes

Antonescu Group (May 6–17, 1946) and the Communist Takeover in Romania. A Historical Interpretation – PhD Dissertation (Budapest: Central European University, 2017), 132–134. 95 Bilková, Veronika. ‘Post-Second World War Trials in Central and Eastern Europe’, in Historical Origins of International Criminal Law: Volume 2, eds. Morten Bergsmo, Cheah Wui Ling and Yi Ping (Brussels: Torkel Opsahl Academic EPublisher, 2015), 697–734, 701–702. 96 Ravančić, Martina Grahek. ‘The Functioning of the Tribunals for the Protection of the National Honour of the Croats and Serbs in Croatia in 1945’. Review of Croatian History 12 (2016), 129–154, 131. However, the 1951 Yugoslav Criminal Code codified crimes against humanity. See Donnelly, Richard C. ‘The New Yugoslav Criminal Code’. The Yale Law Journal 61 (1952), 510–539, 525–526.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 321 against Peace’, while Section II entitled ‘War Crimes’ solely focused on violations of international humanitarian law. Ultimately, notwithstanding the de- ceptive title of Chapter XI, the category of crimes against humanity did not exist in Hungarian criminal legislation, presumably because the existence of the category of crimes against the people rendered the adoption of this international crime superfluous Following the first free elections, a right-wing coalition party formed the government in 1990, and similarly to other post-communist nations the prosecution of communist-era crimes was high on its agenda.97 Initially, it attempted to achieve this goal by abolishing the statute of limitations for treason, voluntary manslaughter and infliction of bodily harm resulting in death committed between December 1944 and May 1990, ‘provided that the state’s failure to prosecute said offences were due to political reasons’.98 This approach essentially attempted to resurrect the Horthy-era category of communist crimes. However, the Hungarian Constitutional Court declared that the modification or reactivation of an already lapsed statute of limitations would violate the constitutional principle of legality.99 A further attempt at criminalizing communist-era crimes focused on offences committed during and in conjunction with the 1956 Hungarian Revolution.100 Yet again, the Hungarian Constitutional Court found the draft act unconstitutional, however, this time it emphasized that under Article 7(1) of the Hungarian Constitution ‘generally recognized principles of international law’, i.e. jus cogens, customary international law, and general principles of law automatically form part of the Hungarian domestic legal system. Consequently, war crimes and crimes against humanity can be prosecuted since they are not subject to the statute of limitations.101 This judicial interpretation opened the possibility of the prosecution of war crimes and crimes against humanity committed in connection with the 1956 Hungarian Revolution. However, given the considerable passage of time and the general reluctance of the prosecutors to pursue such a politically charged

97 For an overview of criminal prosecutions in Central-Eastern Europe see Faix, Martin and Ondrej Svacek. ‘Dealing with the Past: Prosecution and Punishment of Communist Crimes in Central and Eastern European Countries’. Espaco Jurídico Journal of Law 16 (2015), 31–50. 98 Hungary, Draft Act on the Prosecution of Grave Crimes Committed between 21 December 1944 and 2 May 1990 that were Not Prosecuted Due to Political Reasons, 4 November 1991. 99 Constitutional Court of the Republic of Hungary, Decision No. 11/1992, 5 March 1992. 100 Hungary, Draft Act on the Procedure to Follow in Case of Certain Crimes Committed During the 1956 War of Independence and Revolution, 16 February 1993. 101 Constitutional Court of the Republic of Hungary, Decision No. 53/1993, 13 October 1993.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 322 Hoffmann issue, charges were raised in only nine cases. In these cases, the Hungarian criminal courts had to cope with the problem of direct application of international criminal law – a branch of law completely unfamiliar to them, given that Hungarian legal education did not pay any attention to ICL. Since the Criminal Code did not contain war crimes committed in non-international armed conflicts and crimes against humanity, Hungarian criminal courts initially passed contradictory judgments, often acquitting the accused until the Hungarian Supreme Court finally clarified the applicable law by asserting that violations of Common Article 3 of the 1949 Geneva Conventions automatically constitute crimes against humanity.102 This interpretation, however, clearly conflated two separate categories of international crimes as later recognized by the European Court of Human Rights (ECtHR) in 2008 in the Korbély v. Hungary case. János Korbély was found guilty by Hungarian courts for crimes against humanity for violating Common Article 3 of the 1949 Geneva Conventions during the 1956 Hungarian Revolution, i.e. for committing war crimes in a non-international armed conflict. The Court found that by failing to prove that the accused was guilty of the constitutive elements of crimes against humanity, Hungary had violated Article 7 of the European Convention on Human Rights prohibiting retroactive application of criminal law.103 Given the non-existence of crimes against humanity in codified Hungarian law and the unfamiliarity of the Hungarian judges with the rules of international law, especially the unwritten norms of international customary law, it is unsurprising that the Hungarian courts simply interpreted the category of crimes against humanity as identical to the crimes defined in Chapter XI of the Hungarian Criminal Code entitled ‘Crimes against Humanity/Mankind’.104 Ultimately, the absence of crimes against humanity in the Hungarian legal system that was engendered at least in part by the creation of crimes against the people in 1945 led to a result that went well beyond an idiosyncratic interpretation of international norms. However, neither the Hungarian legislation, nor

102 Hungarian Supreme Court, Judgment No. X. 713/1999/3, 28 June 1999. However, Common Article 3 of the 1949 Geneva Conventions did not actually make any reference to crimes against humanity but prescribed basic principles concerning humane treatment of individuals applicable in non-international armed conflicts. 103 See Korbély v. Hungary, European Court of Human Rights, Grand Chamber, Application No. 9174/02, 19 September 2008, para. 95. 104 On the background and legal issues of the criminal prosecutions see more in detail Hoffmann, Tamás. ‘Trying Communism Through International Criminal Law? – The Experiences of the Hungarian Historical Justice Trials’, in Hidden Histories of War Crimes Trials, eds. Kevin Jon Heller and Gerry Simpson (Oxford: Oxford University Press, 2013), 229–247.

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 323 the jurisprudence of the courts significantly changed until a new government fundamentally changed the legal environment.105 In 2010, the FIDESZ-led right-wing coalition won the elections by a land- slide, gaining a two-thirds parliamentary majority. The new government initiated a complete overhaul of the Hungarian legal system, even adopting a new Constitution in 2011. The Fundamental Law of Hungary – in effect from 1 January 2012 – in its preamble, the so-called ‘National Credo’ raised the prospect of reopening the prosecution of communist crimes by denying legal con- tinuity with the previous regime. The Fundamental Law pronounces that:

We deny any statute of limitations for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and the communist dictatorship.

This statement was operationalized by the adoption of Act CCX of 2011, which sought to solve the confusion surrounding the application of crimes against humanity and also punish common crimes committed during the communist era.106 In Articles 2 and 3 the Act reaffirms the non-applicability of statute of limitations to international crimes and translates the definition of crimes against humanity enshrined in Article 6 of the IMT Charter into Hungarian to give official guidance to the Hungarian judges. However, that attempt merely amounted to a half-measure as, stripped from the background of the international jurisprudence of the past decades, it could not adequately assist the judges in interpreting the contextual elements and individual acts developed in the case-law of international criminal fora. Besides, the Charter linked crimes against humanity to the existence of a war, i.e. international armed conflict, which would have prevented its application in non-international armed conflicts and peacetime.107

105 After the ECtHR decision the Hungarian Supreme Court conducted a review procedure, which resulted in finding János Korbély yet again guilty of crimes against humanity without proving the requisite contextual elements of the crime, i.e. that it was committed in the context of a widespread or systematic attack against the civilian population. Hungarian Supreme Court, Case No. X. 1.055/2008/5, 9 February 2009. 106 Hungary, Act CCX of 2011 on the Criminalization of Crimes against Humanity and Exclusion of Statute of Limitations, along with the Prosecution of Certain Crimes Committed During the Communist Dictatorship. 107 This problem, however, has largely been solved by the adoption of Act C of 2012, the new Hungarian Criminal Code, which in Art. 143 defines crimes against humanity by essentially translating Art. 7 of the Rome Statute of the International Criminal Court. See Hoffmann, Tamás. ‘Az emberiesség elleni bűncselekmények nemzetközi és magyar jogi szabályozása’. Állam- és Jogtudomány 58 (2017), 29–55.

Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 324 Hoffmann

Moreover, Article 3 introduced the concept of ‘communist crimes’, equating them with international crimes and prescribing their application with retroactive effect abolishing the applicable statute of limitations. According to the Act, communist crimes consist of voluntary manslaughter, aggravated bodily assault, torture, illegal confinement, and treason committed for, in the interest, or in agreement with the party state, which were not prosecuted during the communist dictatorship due to political reasons. With the adoption of the category of communist crimes the Hungarian legal regulation of atrocity crimes came full circle – crimes against the people was created partially as a reaction to communist crimes invented by the Horthy regime, which however prevented the codification of crimes against humanity in the Hungarian criminal legal system. To remedy that the right-wing government recreated the category of communist crimes effectively rendering crimes against humanity superfluous in the prosecution of historical justice cases as it potentially gave the judges a much more comprehensible, albeit politically charged instrument.

4 Conclusion

Crimes against humanity and crimes against the people represented two dis- tinct but overlapping answers to the dilemma of how to reconstitute a political community following horrible atrocities committed by the state against its own citizens. Crimes against humanity embodied a cosmopolitan ideal of an international community of shared moral values, whose international nature, however, was severely curtailed by the victors’ desire to avoid accidentally creating a crime that could be used against themselves. Crimes against the people, on the other hand, envisaged the parochial paradigm of an ideal, in- clusive Hungarian political community but was also utilized as a political tool to purge from society those deemed incompatible with the desired new order. Ultimately, crimes against humanity could transcend its limitations and evolve into a truly universal application, while crimes against the people became a historic oddity, an ancient legal relic confined to the post-war era. Still, it can serve as a useful reminder to the contingencies of the evolution of ICL and the long-term effects that stemmed from the doctrines adopted in the post- war era.

Acknowledgements

The writing of this article was supported by the ÚNKP-17-4-III-BCE-11 New National Excellence Program of the Ministry of Human Capacities. I would like

Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 325 to thank the editors of this special issue, Raluca Grosescu and Ned Richardson- Little, for their guidance and endless patience.

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