Crimes Against Russia - Nicholas II + Family

[Forum Admin]

This question was placed in the Trial thread, and so I moved it over here. My apologies that I can't move over the whole thing, just the text.

"As the trial seems in recess, now seems a convenient time for a question from a member of the fourth estate:  

Does not a trial against an annointed emperor violate the doctrine of sovereign immunity?

Nadezhda Edvardova
International Politics & Law Editor
Georgia Telegraph"

Dear Nadezhda,
The answer of course, is that any "sovereign immunity" Nicholas II may have had was lost along with his throne.  The concept of sovereign immunity as defense to crimes against humanity only applies to reigning sovereigns or elected officials, or former sovereigns/officials who's governments were illegally terminated. Nicholas II abdicated his throne legally, therefore this argument fails.

Secondly, current legal theory on the subject is this -  Criminal acts that are so heinous as to be considered jus cogens (peremptory norms prohibited everywhere), such as genocide and crimes against humanity, are not typically considered to be “official acts” for sovereign immunity purposes, and the trend is clearly developing away from allowing political leaders off the hook for such conduct. For example, the British House of Lords found in the 1999 Pinochet extradition case that torture should not be considered an official act for immunity purposes. This line of argument was also attempted by defense counsel for the Nazi co-conspirators at Nuremberg and soundly rejected by the International Military Tribunal on the grounds that the defendants’ conduct amounted to such egregious violations of international law that knowledge of the illegality of those actions should be imputed to them and ex post facto application of the law of the Nuremberg Charter, which reflected international law and which likewise stripped away sovereign immunity, would not be unjust. (Sovereign Immunity for Sadam Not Likely Jurist http://jurist.law.pitt.edu/forumy/2005/10/sovereign-immunity-for-saddam-not.php

See also: "The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment."
Article 7 of the Charter of the International Military Tribunal at Nuremberg

Under long-settled rules of international law, any court may exercise universal jurisdiction over acts amounting to crimes against humanity, such as widespread or systematic murder, torture, forced disappearance, arbitrary detention, forcible transfer and persecution on political grounds, and heads of state and former heads of state do not enjoy immunity under international law - whether in international or national courts - for crimes under international law, including crimes against humanity and torture.
(Sir Robert Jennings, QC & Sir Arthur Watts, KCMG, QC, 1 Oppenheim's International Law (London and New York: Longman 9th ed. 1996

Lastly, The Statute of Rome explicitly states that the official position of the accused is irrelevant to a prosecution. (Rome Statute of the International Criminal Court adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, as corrected by the procès-verbaux of November 10, 1998, July 12, 1999, November 30, 1999 and May 8, 2000)

I hope this answers your question.

FA-Rob Moshein
Acting Judge

[Nadezhda_Edvardova]

I'm grateful for Acting Judge Moshiem's reply to my question.

If I'm understanding it all properly, the Nuremberg Trials are the first time in history in which a lawful officers of a nation's government were held accountable for crimes against humanity, and this establishes the principle under which the moot court trial of Nicholas II is instituted in the other thread.

While I ardently support the intellectual exercise, I wonder at it--after all, the actions for which Nicholas II might be tried were committed well before the Nuremburg principle was established. Well within international acceptance of the doctrine of sovereign immunity, is this not so?

Naturally, crowned heads have been convicted--and rolled--well before Nicholas II was ever born.  And the death sentence proclaimed by Parliament against Charles I establishes (at least in ENGLISH law) the concept that treason is committed against the *people*.

Pax, Nadezhda

[Forum Admin]

Nadezhdah,

Well, the point of the moot court exercise is this. People often bandy about the term "criminal" "despot" "bloody" etc to describe Nicholas II and his reign, and that as these "criminals" the murders of the Imperial Family were "justified" and "they deserved it". So, it was decided to analyze his reign using the modern laws of "crimes against humanity" to see if in fact these terms are legitmate in their application to Nicholas and the family. Of course, using the laws of 1917 Nicholas could never be tried for anything, most especially since there was no concept of an International Court nor the concept of "crimes against humanity" for that matter.

Thus, we decided to set aside the laws of the period (moreso since virtually no one participating here is nearly well versed enough to actually USE them, while many of us, myself included, are well acquainted with modern law and its usage.)

Rob

[Nadezhda_Edvardova]

Hi Rob--I suppose I should have said something like "supposing Nicholas II escaped, he still couldn't be prosecuted because the laws post date his actions, right?" But, genius that you are, you spied my question and answered it despite my butchering of the English language! Many thanks.  If only I could comprehend the legalese in the moot trial list now... Pax, N

[Forum Admin]

Nadezhdah, or anyone else for that matter, please do not HESITATE to ask any questions you may have if you don't understand the "legalese" of the trail thread. Either ask them in this thread or start a new one called "Questions about the Trial" or something like that. We want this to be a learing exercise for all.

Rob

[horace]

We have to take a historical perspective on the "crimes." It was a more brutal time. Now, people
are all excited if terrorists "rights" are trampled on. The revolution was just a shift in power with
the lowly peasant probably becoming worse off after the Lenin gang. I don't believe Nicholas was a
crimminal, certainly his family wasn't.

[Belochka]

We have to take a historical perspective on the "crimes." It was a more brutal time. Now, people
are all excited if terrorists "rights" are trampled on. The revolution was just a shift in power with
the lowly peasant probably becoming worse off after the Lenin gang. I don't believe Nicholas was a
crimminal, certainly his family wasn't.

Welcome to the Forum horace,

Nikolai II committed no crimes against Imperial Russia or his people.

It is repugnant for anyone today, particularily in this present global climate, to contemplate that he had to be held to account. That was one reason why I accepted this cybercourt challenge (an intellectual exercise only) to DEFEND his Imperial name in a modern context.

Margarita

[Richard_Cullen]

Well - esteemed Counsel for the Defence making statements around the defendants guilt outside the Court, whatever will happen next?

Rob are you going to send the jury out on Bloody Sunday indictment, after your summing up and their directions my esteemed adversary and I might be able to move on to some of the crimes Nicholas II initiated, such as the pogroms against the Jews.

A serial offender methinks.  Not that counsel for the Prosecution would ever stoop to influencing others outside of the court room debate.

Hope you are all well

Richard
Chief and only Prosecutor of Nicholas II - no one esle wanted the job even Trotsky!

[Belochka]

Well - esteemed Counsel for the Defence making statements around the defendants guilt outside the Court, whatever will happen next?

Hope you are all well

Richard
Chief and only Prosecutor of Nicholas II - no one esle wanted the job even Trotsky!

To my learned friend the Chief Prosecutor,

Door stop "interviews" immediately outside the Court is an acceptable practice. Are you worried that you missed out on such an opportunity?  

Since "Trotsky" declined to assist you then maybe he wisely realized that there is no case to answer after all?

All the best,

Margarita

Chief and only Defense Counsel for Nikolai II

[Richard_Cullen]

Margarita

Only you and I have seen this through, it is so disappointing.  Trotsky knew he was guilty but only had outdated Romanov laws to rely on which excluded the dynasty from culpability in any crime.  He also knew that the AP Discussion Board would come along and that I would be the most unpopular person in it for prosecuting Nicholas.

It is a pity a few more do not become involved in the process; a trial on the pogroms would be both challenging and very enlightening for members.

Richard

[Belochka]

Margarita

Only you and I have seen this through, it is so disappointing.  Trotsky knew he was guilty but only had outdated Romanov laws to rely on which excluded the dynasty from culpability in any crime.  He also knew that the AP Discussion Board would come along and that I would be the most unpopular person in it for prosecuting Nicholas.

It is a pity a few more do not become involved in the process; a trial on the pogroms would be both challenging and very enlightening for members.

Richard

Hi Richard and Rob,

I believe that many people feel extremely uncomfortable about this entire process. I have received mail to that effect.

This section has become perhaps too exclusive, and no doubt explains the deafening silence.

Perhaps it may be best to initiate a new thread in the Nikolai II section - where everyone else can participate? What do you think? The topic is broadly interesting and will permit all forum members to contribute something academic. You never know, it could lead to another appearance in this Court at a later date.

I congratulate Richard for being a worthy "opponent" [even if you were on the wrong side   of the floor] and for your keen participation during the entire proceedings. It was academically worth while.

I wish to thank Judge Rob for allowing us the opportunity to participate here with grace and decorum. It is an interesting concept which could be pursued at a latter date.

The Defense thanks the Court,

Margarita Nelipa  

[Richard_Cullen]

Margarita and Rob

I agree and it allows my extremely worthy Counsel for the defence a way out without the jury returning a guilty verdict - only joking.  Of course anyone could have participated in this thread but people declined to do so.  I do have to say that some people cannot understand the fact that this is not a 'real' trial but an interesting academic exercise.  I have learnt a good deal from particpiating in the process and it forced me into a huge amount of research that I would otherwise have not undertaken.  I think for most of the time this has been a lonely process for myself and Margarita.

A Russian friend of mine was disgusted that I had the affront to prosecute the last Tsar.  I was rather amazed with his reaction and in real terms why should Nicholas not have been prosecuted if legislation were available (and it wasn't) to mount such a case?  But at the end of the day it is what it is an interesting and I believe, stimulating exercise.

I have really enjoyed the challenge but less people than I thought have offered to be involved in the process or to ask questions about the evidence and the facts.

I am quite happy for it to go in the main thread as long as we stick to the facts and don't have page after page of speculative comment (nice phrase, but you know what I mean).

Regards as ever

Richard

[Nathalie]

Well, if you ask me, the system is gulty on the first place, what allows persons from a certain lineage to consider themselves "choosen"-to sum it up, I find the insitute of kingdom very ridicoulous. Just because you-and sorry for being vulgar-have the luck to be THAT sperm from THAT man, u get all the privileges, car, money, palaces and the title His Royal Highness?
No, thanks, it is out of my imagination of justice.
Mostof the royalities are not better than anybody and in this aspect I certainly agree with communists who say, have what you worked for. And as we look through history, many royals would have been luckier if they were born as a simple person. Nicholas as well. Through the figure of the last Tsar, I think it is clear, that such systems are miserables and just destroying people-both the one who rules and the ones who are ruled.
I can't imagine myself being so impressed by a person, just because his name is Romanov or Windsor or Hohenzollern or whatever. Why I should adress him HIGHness? What makes him high?...Most of these princs and princesses never did anything in their life. My mother is high who works 8 hours a day and then she gets home tired and do the chores (most of the time, i am abroad...) My husband is HIGH, because when I have no job, he works, he takes over and still he tries to smile and look relaxed and puts bread on the table.
You gotta earn this title and not only by wearing a name, what is fancied by some people.

So yes, I think Nicholas was-within a certain limit-guilty. I am not sure he deserved death, and as for his children, they definitely DID NOT, but Nicholas II. was not a good ruler. He seems like  a very good person to me, but not a good ruler. And as for Alexandra, she also seems like a great mother and wife but a disaster in politics. If I were a hungry, desperate Russian woman back in those times, well...I'd just burn fire the whole thing and get some bread.
Trust me, I know, what Im talking about, cz I have lived in one of the richest country in the world and I was literally starving. Seeing all those villas and catsles, knowing that the owners did a jack for it, just they were lucky, well, I certainly felt what those Russians could have felt.

[JamesAPrattIII]

I have some comments:
In reply 73 concerning torture from reading the books "Young Stalin" and "The Gulag Archipelago" torture WAS NOT used in Russia under Nicholas II. So we can clear him of that charge.
in the online book on this site "The Life and Tragedy of Alexandra Federonova" it mentions that if Nicholas II would stand trial he wanted Senator Anatoly Koni, one of the leading lawyers in Russia to defend him. Koni is best known for defending the female anarchist Vera Zassulich who shot and wounded the head of the St Petersburg Police and the jury found her inocent. No doubt this would be a very interesting trial!

[Maria_Pavlovna]

This is more of an opinion statement and touchy to some people, surly no one derives to be put to death WITHOUT an official trial, to many that's cold and cruel. 
I will post my opinion and secondly, do forgive me; I'm not a professional historian (its only part time lol)

As we all know, as today, people would say of Nicholas II’s regime as “poorly” and him as a kind person yet weak ruler.  But people forget, he was the Autocrat, ruler of all the Russias, however do the time and change of socialism- Kings across Europe were losing their crowns, as the Gilded Age of Kings and Riches were over.

What I find to be odd, his that Ivan the Terrible was consider a "Great Tsar" while Nicholas II was called "Nicholas the Bloody"  because of unrest of Workers (sadly, Nicholas should have made better living and working conditions for them!) and Bloody Sunday, quiet ironic.

I do believe Nicholas II and many aristocrats were killed without trial, as many Bolsheviks were indeed not religious. as for "Crimes against Russia." Government under Kerensky  even state that Nicholas II, as under arrest, was no traitor to Russia.

I strongly believe, the Bolsheviks only killed the Romanovs in cold blood and for revenge (Since the Romanovs were never officially trial, Nicholas II himself was not even allowed to testify for his own behalf). As even during the murder, each member of executors were give a person to shot, however when guns began to shot they all aim them at their former Tsar - clearly out of revenge and hatred.  Only Yakov Yurovsky the chief executioner took his job of the Romanovs seriously, but he too killed in cold blood as no offical trial.