Thursday, August 08, 2013
The Unconstitutionality of the Deportation of the Volga Germans and the Liquidation of the Volga German ASSR
There, however, can be no doubt that the Soviet deportation of the Volga Germans and the liquidation of the Volga German ASSR was illegal under Soviet constitutional law as established by the 1936 USSR, 1937 RSFSR, and 1937 Volga German ASSR constitutions regardless of the underdeveloped nature of international law at the time. Collective punishment was clearly illegal under article 102 of the 1936 constitution which assigned sole responsibility for determining the guilt of an individual to the Soviet courts rather than administrative decree. Thus Soviet constitutional law required individual charges and trials in order to make any finding of guilt regarding violations of Soviet law and the meting out of punishment. This prohibition on arbitrary administrative punishment was even more forcibly articulated in article 93 of the constitution of the Volga German ASSR which required that all punishments be sanctioned by the appropriate courts and procurators. There were no trials or individual charges brought by any procurator against the vast majority of the more than 370,000 men, women, and children forcibly expelled from the Volga German ASSR and dispersed across Siberia and Kazakhstan. Assigning collective guilt to whole nationalities as the 28 August 1941 decree by the Presidium of the Supreme Soviet (Ukaz 21-160) did also violated article 123 of the all union constitution which prohibited all forms of discrimination both direct and indirect on the basis of race or natsional'nost. The deportation itself with its massive confiscation of personal property clearly did not accord with article 10 of the USSR constitution which guaranteed the protection of "the right of personal ownership by citizens of the proceeds of their labor and savings, personal homes and auxiliary holdings, and objects and amenities of personal consumption." This right is reinforced in article 94 of the Volga German ASSR constitution. The special settlement restrictions contravened articles 21 and 123 of the 1936 Soviet constitution (articles 18 and 127 of the 1937 RSFSR constitution) establishing a single Soviet citizenship for all Soviet citizens in which all of them enjoyed the same civil rights regardless of geographic location or nationality. The liquidation of the Volga German ASSR on 7 September 1941 by decree from the Presidium of the Supreme Soviet in Moscow had no legal basis under Soviet constitutional law. Article 16 of the 1937 RSFSR constitution required that all territorial changes within it be first approved by its highest organs. Likewise article 15 of the Volga German ASSR constitution also required approval from its own organs before any changes could be made to its borders (Shadt, pp. 287-296 and Skuchaev, p. 94).
There has long been a school of thought that the systematic and blatant violations of the 1936 Soviet constitution were so great that discussion of the matter in legal terms was superfluous since the document was violated far more than it was observed. There is validity to this opinion. But, a number of scholars argue that Stalin's mass crimes against various citizens of the USSR had not yet been outlawed by international law and were therefore legal. This argument can not be allowed to stand. Crimes such as the deportation of the Volga Germans were illegal under existing Soviet law. The position of Stephen Wheatcroft that Stalinist repression unlike Nazi killings was "legal" completely falls apart upon even the most superficial reading of the 1936 Soviet, 1937 RSFSR, and 1937 Volga German ASSR constitutions (Wheatcroft, p. 1321, p. 1335, and p. 1348). It is clear that Stalinist repression including the deportation of the Volga Germans violated a great number of articles of the 1936 Soviet and 1937 RSFSR constitutions and can in no way be deemed to have been "legal" under the fundamental laws of the USSR. If it were not for people like Wheatcroft minimizing Stalin's crimes by claiming they were "legal" we could dispense with noting the legal protections provided on paper by the Soviet, RSFSR, and Volga German ASSR constitutions were explicitly and repeatedly violated by the Soviet government. After all the moral wrongness of mass deportations, theft, denial of national self-determination, racial discrimination, and genocide do not depend on what is written in any particular document.
Constitution (Fundamental Law) of the Union of Soviet Socialist Republics 1936 (Moscow: CO-Operative Publishing Society of Foreign Workers, 1936).
Francine Hirsch, "Race without the Practice of Racial Politics," Slavic Review, vol. 61, no.1 (spring 2002), pp. 30-43.
Konstitutsiia [Osnovnoi Zakon] Avtonomnoi Sovetskoi Sotsialicheskoi Respubliki Nemtsev Povolzh'ia 1937 reproduced in V. Auman and V. Chebatoreva, Istoriia rossiiskikh nemtsev v dokumentakh (1763-1992 gg.) (Moscow: MIGUP, 1993), pp. 141-156.
A. Shadt, "Pravoi status rossiiskikh nemtsev v SSSR (1940-1950-e), in A. German, Nemtsy v SSSR v gody Velikoi Otechestvennoi Voiny: Poslevoennoe desiatletie, 1941-1955 gg. (Moscow: Gotika, 2001), pp. 287-312.
O. Skuchaev, "K voprosu o prichinakh i pravovykh osnovaniiakh deportatsii nemtskogo naseleniia iz Povolzh'ia," in A. German (ed.), Grazhdanskaia identichnost' nemtsev v gody Velikoi Otchestvennoi Voiny i v istoricheskoi pamiati potomkov (Moscow: Gotika, 2001), pp. 88-97.
Stephen Wheatcroft, "The Scale and Nature of German and Soviet Repressions and Mass Killings, 1930-45," Europe-Asia Studies, vol. 48, no. 8, (Dec. 1996), 1319-1353.