Õiguse vastu ei saa ükski - Summary
The book No One Can Withstand the Law: Estonia’s Efforts and International Law begins with the explanation that Estonia’s constitution demands the consolidation and development of the statehood established in 1918, and the preservation of the Estonian nation and its culture through the ages. In the interest of these most important goals, the constitution demands the state to be founded on freedom, law and justice, democracy, the separation and balance of powers, and on the generally-recognized principles and norms of international law, which must form an inseparable part of the Estonian legal system.
The essence of international law is described in chapter 2. The principles of international law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations, as well as the requirement to protect human rights, are explained and emphasized in detail. In accordance with these demands, with all of the ratified international conventions and covenants, and with international customary law, a policy should be adopted to fulfill the objectives set forth in the constitution of Estonia.
The lengthy chapter 3 demonstrates that the June 17, 1940 aggression and occupation of Estonia by the Soviet Union was a crime under international law. Several multilateral international and bilateral Estonian-USSR pacts and treaties which were violated by the aggressor are described. Chapter 3 also explains how the democratic Western world unanimously refused to acknowledge Estonia’s incorporation into the Soviet Union and continued this policy of non-recognition for half a century. As a result, the Estonian state continued its juridical existence and, in spite of the occupation, it also continued functioning through its embassies abroad, through its government in exile and through a large amount of its nationals who escaped to democratic foreign countries. The occupation did not end until 1991.
The Soviet concept of aggression is not founded on prohibition of violence, but rather on prohibition to violate peoples’ right to self-determination. Although the principle of self-determination of peoples was recognized worldwide as late as in 1941 and 1945, in the case of Estonia this principle was anticipated in our 1920 peace treaty with Soviet Russia. Based on this fact, the Soviet myth that the Estonian people had carried out a “socialist revolution” and joined the Soviet Union voluntarily is refuted. In reality, this was a shameful violation of a people’s right to self-determination (so the European Council has stated) and an election farce and arbitrary fabrication (so the Kersten committee in the US has stated). Estonia had lost its independence already on June 18–19, 1940 when the occupiers formed a collaborative government subordinate to the Soviet Embassy in Estonia (later known as the government of the Estonian SSR). The June 21 demonstration organized by the occupiers and named a “coup d’état” was in reality a legally meaningless setup. The attempt to unite Estonia to the Soviet Union by creating a special “people’s assembly” failed: in spite of the Soviet terror the Estonian democratic parties gathered the courage to present rival nominees for the elections who were arbitrarily forbidden. Thus the “elected” body turned out to be only a political organ of a society subordinate to the Moscow Comintern (i.e. of the illegal Estonian Communist Party with less than 150 members). At the same time, this was an occupational body. Therefore, the Soviet Union actually incorporated Estonia by means of a treaty which it concluded with itself.
The chapter goes on to describe the structure of the occupation that lasted for fifty years. Absolute power was in the hands of the Communist Party’s central committee in Moscow which governed Estonia through its local branch. The party carried out its sole power directly and simultaneously through three subsystems: the KGB, the army and the military-industrial complex. The leading (so-called nomenclature) job positions were all filled by the party and with party members. Their activities were directed by the “sub-organizations” of the party. The party’s paid “apparatus” controlled and corrected everything using its “telephone privileges”.
The chapter concludes with two theoretical parts. The first describes the people’s right to self-determination fixed in international law and the Soviet Union’s contradictory attitude toward this, the US Stimson doctrine and the USA’s judicial practice based on the Estonian state’s continuity. The chapter also describes how the Baltic states as long-term subjects of international law differ from the new CIS nations, how the continuity of Estonia’s citizenry follows from the continuity of the state, and from the principle that Estonian citizenship can only be inherited from one’s parents. This creates the cornerstone of independent statehood for Estonia, because the people’s right to self-determination, for the first time fixed in the Tartu Peace Treaty, remains immortal under all circumstances, no matter what has happened to the state. The last part of the chapter includes discussions of two presidents in exile on matters of the legal continuity of Estonia’s presidency and government.
Chapter 4 of the book describes the destruction and oppression of the Estonian population of one million in the course of a half century and by three occupations. The Soviet Union had set as its goal the annexation of the Baltics by Russia forever, and cleansing the territory of local peoples. For this reason the physical destruction of the peoples elities and middle classes, and their dispersion in the expanses of Siberia were foreseen. The remaining people would be finished off through methods of biological genocide (suppressing births) and Russification. The German occupying forces (1941-1944) acted according to the Hitler-Stalin pact: recognizing Estonia’s annexation and keeping the land, factories and other property “nationalized” by the Soviet Union as German spoils of war.
Estonia’s population losses during the three occupations were 17.5% of the pre-war population (the same amount as in Poland, the European country supposed to suffer the most). The Soviet authorities were responsible for 9/10 of these population losses. Approximately 40% of the direct population losses occurred in 1940-1955 through violent genocide and ethnic cleansing. 9% of the population fled from the Soviet terror to other countries. Estonians never born, approximately more than 16% of the pre-war population, must be added to the direct population losses. The Soviet occupation powers had intentionally created conditions to destroy families and prevent births: 7% of the Estonian indigenous population were murdered or died while imprisoned, the same amount of surviving prisoners were held separately from their families for an average of ten years. A large organized Russian immigration and systematic national segregation forced local residents together into very tight living quarters, which slowed down population growth even more. By 1989, the indigenous population of Estonians in Estonia dropped to the level of the year 1890, and instead of the earlier 93%, only 61.5% of Estonians lived on the reduced territory of today.
In addition to genocide, ethnic cleansing and various forms of segregation, chapter 4 describes several additional methods of national discrimination that the Communist powers in Estonia applied to harass the native citizens: forced formation of collective farms, abolishing the freedom of movement, resettling residents from frontier districts or for the purpose of building military objects and sites, demolishing Estonian civil society, denying and limiting many basic human rights, destroying book collections, attempting to erase the people’s historical memory, devastating the environment, unprecedented political surveillance, installing a spying system, and various methods of Russifying the Estonians.
Terror created a struggle against the occupation. Massive resistance to foreign authorities by the Estonian people, particularly by the national guerillas (“forest brothers”) and school students, and later sending public letters to international organizations form an unbroken chain of attempts at self-determination from the occupation of Estonia until the collapse of the Soviet Union. In its 1983 resolution regarding the situation in the Baltic states, the European Parliament remarked that it highly respects the struggle for freedom and the long-lasting armed resistance of those peoples.
Chapter 5 looks at the possibilities of compensating human rights violations. It explains how individuals can demand compensation from the Russian powers by going to court, and, should compensation be denied, then filing a grievance with the United Nations Human Rights Committee. Soon, after Russia has ratified the European Human Rights Convention, it will also be possible to file a grievance with the Strasbourg Commission and Court. The chapter pays special attention to the convention on the elimination of all forms of racial discrimination which was ratified in Estonia in 1991 and forgotten right away. However, this is the only international law instrument which enables a nation who has suffered from discrimination to improve the situation, and to create temporary privileges for restoring itself and guaranteeing its further development. The concept of racial discrimination in the convention comprises discrimination on the grounds of nationality, ethnic origin and descent, including social class status.
Chapter 6 describes international conventions that punish crimes against humanity and war crimes. Estonia (like Russia) differs from many European nations in basing punishment on the principle of non-applicability of statutory limitations to war crimes and crimes against humanity. This originates from the Nuremberg International Tribunal decision, and attributes retroactivity to the international criminal law. Estonia has ratified nine conventions in this area, but fulfilling them leaves much to be desired. The most brutal genocide is taken solely into consideration, and only criminals from Stalin’s era are sought after. This, of course, is easier than dealing with live culprits. The Geneva conventions on war crimes have not been translated into Estonian, and thus have not been issued yet. The people have not been informed that the definitions of war crimes involve occupations, and that the occupants and collaborators committed many war crimes in Estonia until our independence was restored. The book presents the proof that the convention against apartheid offers the possibility to look at the policy of the occupation powers in Estonia as a Soviet version of apartheid. Russian propaganda tends to blame Estonia for many of the remains of Soviet apartheid.
Chapter 7 analyzes and criticizes the four paragraphs added in 1994 to the Estonian criminal code which try to combine the above-mentioned nine conventions, or, rather, parts of them. The supremacy of international law and the rule of law fixed in the constitution prescribe a complete investigation of crimes against humanity and war crimes in Estonia. Interpreting the paragraphs more broadly, it would be possible even without amending the criminal code. The most noteworthy international crimes which the occupants and collaborators committed in Estonia until our reindependence include the following: biological methods of genocide, arbitrary arrests of native citizens, deporting and imprisoning people illegally, forcing the citizens of an occupied nation to serve in the occupying army, mass recruitment of individuals among the civilian population of the occupying power to settle in an occupied country, instituting in Estonia an apartheid as well as a segregation system in order to achieve supremacy of the Soviet (“Russian-speaking”) people and suppress and destroy the local people, and extensive violations of human rights. The criminal code of Estonia offers many possibilities for taking into consideration alleviating circumstances which exclude a “witch hunt” against communists, especially those who have participated in the restoration of national independence.
In chapter 8 the “singing revolution” in Estonia and the activities to restore the state are described as an initiative of the Estonian people to use their right to self-determination. The most important events and documents are characterized from a juridical point of view. Arguments over the goals for the fight for independence are analyzed at length. The international customary law on recognizing states and their continuity are discussed to convince the reader that the Estonian state really has done all that is necessary in insuring its continuity, and that this has been recognized by the entire international community. The second part of the chapter looks at the relationship between Estonia and Russia. It is shown that the Tartu Peace Treaty, a matter of dispute between the two countries, has already received indirect recognition from President Yeltsin twice and that the international law does not give any opportunities to argue the validity of the Treaty. The chapter also takes a longer look at how the Tartu Peace Treaty was recognized in various other agreements on Estonian-Russian relations, and how Russia has violated these agreements. The chapter goes on to assert that our policy of Russia’s “positive embracing” has no perspective of success, and it advises that international bodies should protect the rights of Estonia as a sovereign state.
The lengthy chapter 9 discusses the central importance of the problem of “Russian-speaking” foreigners in Estonian-Russian relations and how it relates to international law. First, emphasizing several violations of the UN Charter principles, the Russian neoimperialism and the hidden objectives of Russian demands are characterized. Thereupon, a longer overview of contemporary international law on treating foreigners and national minorities and on problems of naturalizing them is given. It is shown that Estonia’s domestic law coincides with the principles of international law, and is relatively lenient compared to law practices in old European countries. The description of the actual situation of the “Russian-speaking” foreigners provides the opportunity to argue Russia’s propaganda lies and how, as a result, the world has some wrongful ideas. The final part of the chapter criticizes the attitudes of some Western representatives to the policy on foreigners in Estonia and shows that these one-sided views could endanger the rule of law in Estonia as well as its democracy-building activities. Also, a special situation recommended for the Russian language would mean discrimination of foreigners of other nationalities. The surprisingly good results that Estonia’s citizenship policy has achieved up to now should not be endangered.
Chapter 10 contains conclusions and summaries. International pacts and conventions ratified in Estonia are looked at as an inseparable part of Estonia’s legal system in bilateral relations with Estonia’s constitution, especially with the constitution’s demands to safeguard and develop the continuity of the state and guarantee the preservation of the Estonian nation and culture through the ages. The chapter also shows what we have done wrong or left undone.
The first part of the chapter discusses the need to completely restore the rule of law and the democracy as a precondition to the continuity of the Estonian state. It asserts that the current policy of leaving war crimes unpunished and concentrating solely on the crimes against humanity committed during Stalin’s era is a violation of international law. It suspects that such behavior represents an example of all-round defense of the former collaborators who have stayed close to power. In analyzing the domestic policy situation, the chapter describes some phenomena which refer to the effort to back away from the separation and balance of powers principle by leaning toward centralization and dominance of the administrative power, toward willfulness and irresponsibilities of officials and toward corruption. This is explained as preservation of Soviet-like practices by some state officials and politicians. The positive role of the independent press in resolving government crises is emphasized. In spite of everything, this has purified and strengthened us.
The second part of the chapter analyzes the Soviet intellectual heritage as a main cause of our political ills. This is a result of the destruction of Estonia’s entire national elite and most of the middle class by the Soviet occupation and Communist Party. The heritage of Sovietism is described as four kinds of intellectual damage to a part of the population, especially to the minds of former communists. The chapter emphasizes that becoming free of the handicaps presumes avoiding the disparagement of state institutions. Only specific individuals should be criticized, otherwise democracy would be endangered. Two evil tendencies are described: concealing the guilt of the Communist Party, and ascribing the guilt to a limited group of people, first and foremost to the KGB who was always led by the Party.
The third part of the chapter discusses the former occupiers of Estonia, i.e. those foreigners who fulfilled the functions of power. Besides the party apparatus, we have to take into consideration the KGB, leaders of the army and of the military-industrial complex. We have very many occupiers left behind in Estonia. This is a continuous latent menace to the citizens of Estonia and to loyal foreigners, as well as to neighbouring countries. Taking into consideration the extreme similarities between Nazi German and Soviet totalitarianism, it is recommended to give the definition of an occupier by analogy, departing from the Nuremberg sentence where “the corps of political leaders” of the Nazi party, the gestapo and the SS were declared criminal. Today this does not mean punishment anymore, but only a possible basis to investigate those individuals who have belonged to such groups and, in individual cases, to banish them according to Estonia’s law on foreigners. Such a solution would be in accordance with the Euroconvention.
The fourth part of the chapter looks at the former collaborators. They could be defined in the same way as occupiers. It would be wrong to name all of the Estonian communists collaborators because only a small portion of them were given power functions. At least 9/10 of Estonian communists left the Party before the restoration of Estonia’s independence, and many of them participated in the “singing revolution”. This complicates taking an attitude towards Estonian communists: earlier they were Soviet careerists and many of them today still indentify themselves with collaborators and occupiers, generating an all-round defense together with them, concealing their past and denying the crimes of the Communist Party. The chapter proposes to compile and publish a list of individuals who have worked as collaborators so that the people can decide whom they will elect to use power in a democratic state. The overwhelming majority of the former communists should get the benefit of reconciliation with the Estonian people.
The fifth part of the chapter returns to the crimes against humanity and war crimes that were committed during the occupation. Estonia has now begun to nullify the Communist Party’s burden of guilt. Some do not dare to anger Russia with the burden of guilt of the occupiers. This means the undermining of the people’s sense of truth and justice and abandoning the rule of law. The chapter proposes to organize the prosecution of the criminals at the initiative of the people using all legal means. Thanks to the existing amendments to the criminal code, the international conventions on punishment of war criminals have become self-executing in Estonia.
The lengthy final part of the chapter discusses how to ensure the preservation of the Estonian people. The decrease in Estonia’s population has continued after reindependence. The area where Estonians have settled has been split to parts as a result of national segregation during the Soviet era. Often in history such a tendency has resulted in the extinction of the nation. International law especially explains that the development of a people, including its right to self-restoration, is an important component to people’s right to self-determination to which all of the UN countries are required to provide assistance. Estonia has neglected this. Many important instruments of international law allow the use of special measures to revive a nation who has suffered losses. This cannot be regarded as discrimination of other groups. Segregation must be eradicated without any conditions. This is a responsibility of the state after ratifying the convention, and is the most direct road to peace and security in this part of Europe. The chapter proposes an international project to normalize the ethnographic situation in Estonia, in order to restore the number of ethnic Estonians to one million and to liquidate national segregation. Another proposed project is to document all of the hundreds of thousands of victims of genocide, apartheid and war crimes in Estonia. The bodies of the United Nations do not appear to have this information. Until now this work has been done by volunteers and using self-raised funds without necessary state financing. As a result, the work is not progressing. The chapter recommends to consolidate the research with the establishment of an international museum of communism in Estonia.
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