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International Legal Responsibility for Genocide:
Justice in the Courts
By
Bohdan A. Futey*
Conference on Famine-Holodomor, September 25-26, 2008
Kyiv, Ukraine
The crime of genocide has become a familiar charge in both international and domestic tribunals over the last half century. The first instance in which any party was held accountable for genocide was before the International Military Tribunal at Nuremberg, immediately following World War II. The Nuremberg Tribunal was the important first step in recognizing and punishing genocide; it paved the way for the creation of the Genocide Convention and the body of law interpreting its provisions. Sixty years later, the crime of genocide is universally regarded as jus cogens.[1] International and domestic tribunals have recognized various instances of genocide, and many individuals have been prosecuted for and adjudged guilty of committing genocidal acts. Moreover, the International Court of Justice has identified the circumstances in which a State can be held accountable for genocide, victims have begun pursuing retribution from third parties, and the International Criminal Court has gone so far as to charge a sitting head of State with genocide and crimes against humanity. All of these developments bode well for Ukraine, which seeks international recognition that the Famine-Holodomor of 1932-33 was genocide, as well as for further development of international humanitarian law and prevention of genocide in the future.
1. The International Military Tribunal at Nuremberg
The International Military Tribunal at Nuremberg (“Nuremberg Tribunal”) provided the framework for much of today’s international humanitarian law and international tribunals. World War II “marked the transition of international law from a system dedicated to state sovereignty to one also devoted to the protection of human dignity.”[2] The Nuremberg Tribunal, which was created in 1945, was the first international tribunal before which individuals were found criminally liable for violations of international humanitarian law or the law of war.[3] Significantly, the Charter of the Nuremberg Tribunal also provided the first formal definition of crimes against humanity: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian 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.” Article 6(c).[4]
Twenty-one top Nazi military and civic leaders were tried before the Nuremberg Tribunal, which was composed of four judges, one each from the United States, United Kingdom, France, and the Soviet Union.[5] The extensive indictment charged the defendants with participating in the Common Plan or Conspiracy, Crimes Against Peace, War Crimes, and Crimes Against Humanity. The Nuremberg Defendants were indicted for genocide under both the war crimes and the crimes against humanity counts.[6] Count Three specifically charged that defendants “[c]onducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, Gypsies, and others.” (emphasis added). Count Four charged defendants with crimes against humanity, and also relied upon the facts pled under Count Three.
The Judgment of the Nuremberg Tribunal, however, did not use the term “genocide.” What the indictment framed as genocide – the extermination of racial and national groups - the judgment “conceptualized . . . as a distinct and aggravated form of murder,” but not as an offense separate from war crimes or crimes against humanity. The success of the Nuremberg Tribunal nonetheless paved the way for the Genocide Convention of 1948, the necessity of which was emphasized by the Nuremberg Judgment.
2. The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
The Convention on the Prevention and Punishment of the Crime of Genocide[7] (“Genocide Convention”) was unanimously adopted by the U.N. General Assembly on December 9, 1948 in Paris, France. As mentioned earlier, the Genocide Convention was “profoundly influenced by the Holocaust and the Cold War,” and was drafted with the purpose of preventing, criminalizing and punishing acts of genocide.[8] The Genocide Convention entered into force on January 12, 1951. Article 1 of the Convention addresses States responsibility:
Article 1
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.
Article 2 of the Convention specifically defines genocide:
Article 2
In the present Convention, Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The crucial element to establish genocide under the Genocide Convention is evidence that a prohibited act is done with the specific intent, or dolus specialis, to destroy members of a protected group solely because of their affiliation with that group. The intent element does not require any evidence of motive by the criminal party, nor does it require premeditation; intent must, however, be proven by the party asserting genocide through evidence that is “fully conclusive.”[9] It is noteworthy that the “stringent evidentiary standard” for specific intent has proven to be somewhat controversial.[10] Some have argued that the debate on whether certain atrocities are “genocide” is purely one of semantics, and that we should instead classify these instances as genocide, and then distinguish between them on the basis of intent.[11]
The “essence of the intent” is to destroy a protected group – that is, a national, ethnical, racial or religious group. Political and linguistic groups were included in the Secretariat’s first draft of the Genocide Convention but were subsequently omitted because political groups, for example, were “considered a matter of individual choice.”[12] Under the Genocide Convention, “national” group infers affiliation with an established nation state, whereas “ethnical” group “refers to cultural, linguistic or other distinct minorities within or outside a State.”[13]
The enumeration of acts constituting genocide under Article 2 of the Convention was intended to be restrictive rather than illustrative.[14] This stands somewhat in contrast to Raphael Lemkin’s broad conception of genocide; Lemkin, a U.S. diplomat and the earliest advocate of a convention prohibiting genocide, proposed that the Genocide Convention provide protection for racial, national, and religious groups whose cultural, political, social, or physical existence was imperiled.[15] The Genocide Convention does, however, provide for broad categories of criminal liability under Article III, which imposes “liability for genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide, and complicity in genocide.”[16] Article IV of the Genocide Convention does away with any notion of sovereign immunity of any individual from criminal prosecution, but Article V nonetheless fails to specifically provide for State responsibility.[17] The International Court of Justice (“ICJ”), however, recognized in the case of Bosnia & Herzegovina v. Serbia & Montenegro, that State responsibility is a corollary to a State’s obligation to prevent genocide under Article I.
3. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968)
The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity[18] (“Convention on Statutory Limitations”), emphasizes and expands the scope of prosecutions for genocide under the Genocide Convention by eliminating any domestic barriers to such prosecutions. The Council of Europe similarly introduced the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes in 1974 at Strasbourg.[19] The Genocide Convention allows for prosecution of those persons charged with genocide in either tribunals of the State in which the alleged genocide occurred, or in international penal tribunals which hold jurisdiction over both parties.[20] The Convention on Statutory Limitations circumvents any domestic limitations to prosecution by providing that, “irrespective of the date of their commission,” “[n]o statutory limitation shall apply to the . . . crime of genocide as defined in the [Genocide Convention], even if such acts do not constitute a violation of the domestic law in the country in which they were committed.”[21] Furthermore, Article 4 requires that State parties to the Convention adopt any measures “necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of [genocide] and that, where they exist, such limitations shall be abolished.” The Convention on Statutory Limitations therefore provides for universal enforcement of the Genocide Convention by State parties.
Moreover, the Convention on Statutory Limitations, taken together with the jus cogens status of the prohibition of genocide, eliminates the argument that acts of genocide committed prior to the Genocide Convention are not subject to prosecution. The prohibition of genocide is now universally regarded as jus cogens, and the duty to punish genocide as an obligation erga omnes.[22] Persons charged with genocide cannot “credibly contend that their prosecution for the contravention of a primary and pre-existing norm of international law constitute[s] retroactive punishment.”[23] Thus, the Convention on Statutory Limitations eliminates any potential domestic restrictions on the prosecution of persons for acts of genocide.
4. Bosnia & Herzegovina v. Serbia & Montenegro: Application of the Genocide Convention by the International Court of Justice, 2007
The Genocide Convention was first examined by the ICJ at the Hague when Bosnia and Herzegovina brought suit against Serbia and Montenegro alleging violations of the Genocide Convention. The ICJ issued its opinion on February 26, 2007, relating its finding that genocide had occurred at Srebrenica, Serbia had violated its obligation to prevent genocide, but the acts of those who committed the genocide at Srebrenica could not be attributed to Serbia.
The ICJ’s finding of genocide at Srebrenica was based on a determination that the “Main Staff of the VRS (the army of the Republika Srpska) had the necessary specific intent to destroy in part the group of Bosnian Muslims,” specifically, the Bosnian Muslims of Srebrenica.[24] The ICJ requires that allegations of genocide or related acts “be proved by evidence that is fully conclusive.”[25] In finding genocide at Srebrenica, the Court considered – and found to be convincing – many of the allegations which had already been the subject of processes and decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”).[26] By way of example, these included direct and cross-examinations of persons directly involved, and reports that had been accepted as valid by the ICTY.[27]
Additionally, the ICJ found that Serbia had violated its obligation to prevent genocide under Article I of the Genocide Convention. The Court articulated that “responsibility is not incurred simply because genocide occurs, but rather if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”[28] With regard to the standard of proof for such an allegation, the ICJ requires “proof at a high level of certainty appropriate to the seriousness of the allegation.”[29] The ICJ finds it “sufficient that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.”[30] Here, because the Federal Republic of Yugoslavia (“FRY”) “was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica . . . they could hardly have been unaware of the serious risk of [genocide].”[31] Nonetheless, FRY did nothing to prevent the genocide, and the Respondents therefore violated Article I of the Genocide Convention.
Despite a finding of liability under Article I, the ICJ did not find Serbia responsible for the acts of those who committed genocide at Srebrenica. The ICJ did, however, find that States can be held responsible for acts of genocide, notwithstanding the Genocide Convention’s failure to provide for State responsibility.[32] Specifically, the Court found that “the obligation on States to prevent genocide under Article I of the Convention necessarily implies a prohibition against States themselves committing genocide, and that, if an organ of the State, or a person or group whose acts are attributable to the State, commits an act of genocide or a related act enumerated in Article III of the Convention, the international responsibility of the State is incurred.”[33] Nevertheless, in the case against Serbia and Montenegro, the ICJ was not able to establish on the basis of the evidence presented that the massacres at Srebrenica “were committed on the instructions, or under the direction of the Respondent[,] nor that the Respondent exercised effective control over the operations in the course of which the massacres were committed.”[34] Significantly, the ICJ found that “the acts of genocide [could not] be attributed to the Respondent as having been committed by persons or entities ranking as organs of the Respondent.”
On July 21, 2008, Radovan Karadzic, a former leader of Bosnian Serbs who was indicted by the ICTY on charges of genocide and crimes against humanity, was captured and arrested after eleven years of hiding. Karadzic was president of the ethnic Serbs in Bosnia (Republika Srpska), and “is accused of organizing the 1995 massacre of about 8,000 Muslims in Srebrenica.”[35] Richard Holbrooke, the former U.S. assistant secretary of state, described Karadzic as “a real, true architect of mass murder.”[36] Karadzic is currently awaiting trial before the ICTY in the Hague. If he is found guilty of genocide before the ICTY, his conviction may provide the evidence necessary to establish that the acts of genocide in Srebrenica were committed by persons ranking as organs of Serbia and Montenegro. This possibility was also presented with the trial of Slobodan Milosevic for genocide before the ICTY; however the ICTY never rendered a decision in that case due to Milosevic’s death.
5. The International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda (“ICTR”), similarly to the ICTY, was created by the Security Council of the UN in order to prosecute “persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda” during 1994.[37] The Akayesu case was the first in which any international tribunal interpreted the definition of genocide in the Genocide Convention.[38] The decision is particularly significant for its discussion of protected groups under the Genocide Convention. The decision noted that the common thread between the four protected groups “is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.”[39] The chamber went on to further define a “national group” as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties;” and an “ethnic group” as “a group whose members share a common language or culture.”[40]
6. Prosecution of Sudanese President before the International Criminal Court
Of course, inherent in the pursuit of justice is not only recompense for the victims, but also judgments against those individuals responsible for acts of genocide. Recently, several individuals have been arrested and face prosecution for acts of genocide. In addition to Karadzic, who has been charged by the ICTY as discussed above, President Omar Hassan al-Bashir of Sudan has been charged with genocide and crimes against humanity by the International Criminal Court (ICC) for atrocities committed by al-Bashir and his government in Darfur.[41] The ICC has jurisdiction to prosecute individuals only for genocide, crimes against humanity, and war crimes that have taken place since July 1, 2002.[42] These charges are particularly significant because it is the first time that the ICC has charged a sitting head of state with such crimes.[43] It certainly demonstrates the international trend towards even less tolerance for genocidal acts in the pursuit of justice for such crimes.
7. The Issue of Compensation: the South African Case
A recent lawsuit brought in United States federal court under the Alien Tort Claims Act may have a significant impact on cases for compensation to victims of crimes against humanity or genocide, as well as new implications for companies transacting within States where these horrible acts could have taken place. The suit is a class action, brought in the Southern District of New York on behalf of all victims of who suffered under Apartheid in South Africa since its start in 1948.[44] Plaintiffs allege that defendants, which include about 50 companies, among them ExxonMobil, Ford, General Motors, J.P. Morgan Chase, Deutsche Bank, Coca Cola, and Citigroup, “willingly collaborated with the government of South Africa” in maintaining the Apartheid system of government.[45] Plaintiffs seek damages in excess of $400 billion.[46] Originally dismissed in 2004 by the District Court, the case was resurrected on appeal by the Second Circuit, a decision which was subsequently affirmed on procedural grounds by the United States Supreme Court due to its inability to form a quorum and hear the case.[47] The case is currently proceeding before the District Court.
Apartheid was the “brutal racial law that governed South Africa from 1948 through the early 1990’s. It condemned the majority nonwhite population of the country to discrimination and repression under the law of the state, limiting the rights of residency, travel, education, marriage and employment.”[48] Whether the acts of the Apartheid regime rise to the level of crimes against humanity or genocide, however, is not a question that has been considered by the courts.
This case is particularly important in the area of compensation, because it considers the complicity of third parties in State acts and suggests the possibility of forms of retribution not available to victims from individual or State defendants. The issue is not entirely new: it arose during the Nuremberg trials in the case of a defendant who was an officer of the Dresdner Bank.[49] In the Apartheid case, one of the dissenting judges of the Second Circuit noted that “the Nuremberg Tribunals held that while making loans or selling goods to human rights abusers ‘may well be condemned from a moral standpoint and reflect no credit on the part of the lender or seller . . . the transaction can hardly be said to be a crime.’”[50] Nonetheless, the Genocide Convention, which was drafted in the aftermath of the Nuremberg trials, specifically prohibits “[c]omplicity in genocide.”[51]
The Genocide Convention provides for liability of “constitutionally responsible rulers, public officials, or private individuals,” which leaves the door open to prosecution of private corporations.[52] What precisely falls under “complicity in genocide,” however, has yet to be determined. Where a corporation has willingly collaborated with a government in maintaining that government’s oppressive regime, as is alleged in the Apartheid case, and where the corporation has benefitted financially from such involvement, it is difficult to imagine that such actions would not constitute complicity. For these reasons, similar lawsuits in domestic or international tribunals may provide the next vehicle for allocating legal responsibility for genocide. Moreover, if such suits are successful, they will provide a means of financial compensation to victims that suits against defendant States or individuals cannot.
8. Holodomor
In light of the evolution of both the definition of “genocide” under the Genocide Convention and prosecutions for acts of genocide before various international and domestic tribunals, the Famine-Holodomor of 1932-33 in Ukraine was an act of genocide and should be recognized as such. Dr. James Mace, director of the Commission on the Ukraine Famine reported to the United States Congress in 1988 that “Joseph Stalin and those around him committed genocide against Ukrainians in 1932-33.”[53]
The majority of the International Commission of Inquiry into the 1932-33 Famine in Ukraine, initiated by the World Congress of Free Ukrainians (“WCFU”), did not find that the famine was genocide, but “deem[ed] it plausible that the constituent elements of genocide were in existence at the time of the famine.”[54] The Commission mistakenly refused to recognize the famine as genocide because the famine occurred prior to the creation of the Genocide Convention and, therefore, the Commission reasoned, prior the illegality of genocide.[55]
Three significant factors affected the Commission’s inquiry: first, the Commission did not have access to many Soviet documents; second, no witnesses from Ukraine proper testified before the Commission; and finally, the Commission was not aware of the Convention on Statutory Limitations, and consequently mis-interpreted the retro-active application of the Genocide Convention to the Ukrainian famine.[56] Today, thanks to the opening of the archives of the Secret Services of Ukraine (“SBU”), there are many documents showing intent in accordance with the requirements of the Genocide Convention. This additional evidence, together with recognition of the fact that the Genocide Convention does apply retroactively, points to a finding that the Famine was, in fact, genocide.
There is now sufficient evidence to demonstrate Soviet intent under the Genocide Convention; that intent was to destroy a protected group in Ukraine. Raphael Lemkin describes the Soviet attack on Ukraine as “systematic,” detailing a three-front attack on the Ukrainian intelligentsia, the Ukrainian Orthodox Church, and the Ukrainian peasants.[57] He notes that “Soviet writer Kosior declared in Izvestia on December 2, 1933, ‘Ukrainian nationalism is our chief danger,’ and it was to eliminate that nationalism, to establish the horrifying uniformity of the Soviet state that the Ukrainian peasantry was sacrificed.”[58]
Similarly, Professor Serbyn has advanced the argument that the group targeted in Ukraine was a “civic nation,” which he describes as “formed by all the citizens of a given state, regardless of their ethnic, racial, or other differentiation, as distinct from ‘ethnic nation’.”[59] In so defining the Ukrainian nation, Professor Serbyn relies on a statement made by a Commission of Experts applying the Genocide Convention to Yugoslavia in 1992: “‘a given group can be defined on the basis of its regional existence . . . all the Bosnians in Serajevo, irrespective of ethnicity or religion, could constitute a protected group.’”[60] David Marcus has furthered Lemkin and Professor Serbyn’s arguments, asserting that the Holodomor had two goals: “the destruction of nascent strains of Ukrainian nationalism and the elimination of the Kulaks as a class.”[61]
There is no question that the actions of the Soviets creating and prolonging the famine constitute acts of genocide under the Genocide Convention. The numbers practically speak for themselves: at the time of the famine, “Ukraine lost over three million of the existing population, plus another three million minimum lost natural population growth” - almost 10% of its population.[62] “At the same time, and living under the same conditions, Ukraine’s neighbours were able to increase their populations: Russians +28% and Byelorussions +11.2%.”[63] There is still not an exact calculation of the number of victims who perished in the famine; nevertheless, seven to ten million is the number that corresponds with the latest information.[64] Furthermore, Professor Serbyn has noted that each of the five acts specified by the Convention “can be documented in the Ukrainian experience.”[65] Marcus has asserted more specifically, that famine crimes fit into the category of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”[66] Significant for purposes of analysis under this category, Ukrainians were prohibited from traveling outside of Ukraine to obtain food, and from importing food into Ukraine during the time of the famine. Lemkin has also pointed to Soviet fragmentation of the Ukrainian people “by the addition to the Ukraine of foreign peoples and by the dispersion of the Ukrainians throughout Eastern Europe,” all with the goal of destroying ethnic unity.[67] Furthermore, in accordance with the conclusion reached by the National Commission for Strengthening Democracy and the Rule of Law, the events of 1932-33 in Ukraine fall under the UN Convention on the Prevention and Punishment of the Crime of Genocide.[68]
Finally, as articulated by Lemkin, “[t]his is not simply a case of mass murder. It is a case of genocide, of the destruction, not of individuals only, but of a culture and a nation. Were it possible to do this even without suffering, we would still be driven to condemn it, for the family of minds, the unity of ideas, of language and of customs that forms what we call a nation constitutes one of the most important of all our means of civilization and of progress.”[69]
**********
*Bohdan A. Futey is a Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Ronald Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. He served as an advisor to the Working Group on Ukraine’s Constitution, adopted June 28, 1996. Judge Futey is a professor at the Ukrainian Free University in Munich, Germany, and a lecturer at Kyiv-Mohyla University School of Law.
**Kathryn Yingling, Law Clerk to Judge Futey, contributed in the research for this paper.
[1] See Orna Ben-Naftali & Miri Sharon, What the ICJ Did Not Say About the Duty to Punish Genocide, 5 J. Int’l Crim. Just. 859, 869 (2007).
[2] David J. Bederman & Christopher J. Borgen & David A. Martin, International Law: A Handbook for Judges 87 (The American Society of International Law, Foundation Press 2001).
[3] International Law and Litigation for U.S. Judges: Federal Judicial Center13 (The American Society of International Law).
[4] See Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later, 15 Ariz. J. Int’l & Comp. L. 415, 425 (1998).
[5] International Law and Litigation for U.S. Judges, supra note 2.
[6] Lippman, supra note 4, at 426.
[7] U.N. GAOR, 3rd Sess., Part I, at 174, U.N. Doc. A/810 (1948).
[8] Lippman, supra note 4, at 452.
[9] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro); Summary of the Judgment of 26 February 2007, No. 2007/2, at 11, available at www.icj-cij.org. See also Lippman, supra note 4, at 454-55.
[10] David A. Mittle, Jr., Distinctions Among Genocides, Providence Journal, November 1, 2007.
[12] Lippman, supra note 4, at 455.
[17] See Id. But see infra text accompanying note 31.
[18] U.N. GAOR, 23rd Sess., Supp. No. 18, at 40, U.N. Doc. A/7218 (1968).
[19] European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, Jan. 25, 1974, Eur. T.S. No. 82.
[20] Supra note 7, Art. 6.
[21] Supra note 18, Art. 1(b).
[22] See Ben-Naftali, supra note 1, at 869.
[23] Lippman, supra note 4, at 471-72.
[24] International Court of Justice, Press Release 2007/8, Feb. 26, 2007, available at www.icj-cij.org.
[26] Summary of the Judgment of 26 February 2007, supra note 9, at 12.
[28] International Court of Justice, Press Release 2007/8, supra note 24.
[35] Peter Finn, Bosnian Serb Captured; Sought for War Crimes, Washington Post, July 22, 2008 at A1.
[37] International Criminal Tribunal for Rwanda: General Information, available at http://69.94.11.53/default.htm.
[38] International Criminal Tribunal for Rwanda: The Tribunal at a Glance: Status of Cases, available at http://69.94.11.53/default.htm.
[39] The Prosecutor v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, Chamber 1, Case No. 96-4-T, September 2, 1998 at ¶ 511.
[41] Colum Lynch & Nora Boustany, Sudan Leader to be Charged with Genocide, The Washington Post, July 11, 2008 at A-1.
[42] Rome Statute of the International Criminal Court, Jul. 17, 1998, A/CONF.183/9, Article 5.
[43] International Court Charges Sudan President with Genocide, Asociated Press, Jul. 14, 2008, available at: www.foxnews.com/printer_friendly_story/0,3566,381561,00.html.
[44] See In re S. African Apartheid Litigation, 346 F. Supp.2d 538 (S.D.N.Y 2004).
[45] Id.; Charles S. Doskow, May I be Recused?, The Daily Journal, May 21, 2008, at 7.
[46] In re S. African Apartheid Litig., 346 F. Supp. 2d 538.
[47] Id.; Khulumani v. Barclay Nat’l Bank, Ltd., 509 F.3d 148 (2nd Cir. 2007); Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008).
[48] Doskow, supra note 42, at 7.
[49] Michael Skapinker, Apartheid is too much for American Justice, Fin. Times, May 19, 2008.
[51] Supra note 7, Article III(e).
[52] Id. at Article IV. (emphasis added).
[53] Commission on the Ukraine Famine, Report to Congress, at vii (U.S. Gov’t Prtg. Office, 1988) (Dr. James E. Mace, Staff Director).
[54] International Commission of Inquiry into the 1932-33 Famine in Ukraine, of the WCFU, Introductory Chapter, pp. 3, 9 (The Commission’s finding was based upon (1) “[d]iplomatic reports, documentary publications and some 40 Soviet decrees from the time of the famine showing how the famine was technically administered;” (2) “a number of experts on Soviet affairs under Stalin, testifying before the Commission;” and (3) the accounts of 12 surviving witnesses[.]”)
[57] Raphael Lemkin papers. Manuscripts and Archives Division. The New York Public Library. Astor, Lenox and Tilden Foundations.
[58] Id. Kosior was a party and government official of the Ukrainian SSR.
[59] Roman Serbyn, The Ukrainian Famine of 1932-33 and the UN Convention on Genocide, p. 5.
[61] David Marcus, Famine Crimes in International Law, 97 Am. J. Int’l L. 245, 265 (2003).
[62] International Commission of Inquiry into the 1932-33 Famine in Ukraine, supra note 54, at 3.
[64] Holodomor: Ukrainian Genocide in the Early 1930s 3 (The Ukrainian Institute of National Memory) (citing a joint statement by 65 UN member states, adopted by the 58th UN General Assembly on 7 November 2003); see also Winston S. Churchill, The Second World War 271-72 (Vol I) (Time Incorporated, NY 1959) (referring to a conversation between Winston Churchill and Marshal Stalin in August 1942 about the stresses of the war as compared with carrying through the policy of the collective farms. In the course of the conversation, according to Churchill, Stalin talks about the collectivization effort and holds up two hands with the words “Ten millions, it was fearful.”).
[65] Serbyn, supra note 59, at 6.
[66] Marcus, supra note 61, at 262.
[67] Raphael Lemkin papers, supra note 57; Professor Stanislav Kulchytsky has also come to the conclusion that the terror famine “aimed at creating the conditions of life incompatible with physical existence . . . is well documented,” and that the facts “prove[] clearly that the Ukrainian Holodomor ought to be qualified, in accordance with the UN Convention, as genocide on the ethnic basis.” Stanislav Kulchytsky, The Ukrainian Famine of 1932-33: Case of Genocide.
[68] National Commission for Strengthening Democracy and the Rule of Law, Conclusion, adopted at the 14th plenary session of the Commission, Kyiv, 16 May 2008; signed 4 September 2008.
[69] Raphael Lemkin papers, supra note 57.
International Legal Responsibility for Genocide:
Justice in the Courts
By
Bohdan A. Futey*
Conference on Famine-Holodomor, September 25-26, 2008
Kyiv, Ukraine
The crime of genocide has become a familiar charge in both international and domestic tribunals over the last half century. The first instance in which any party was held accountable for genocide was before the International Military Tribunal at Nuremberg, immediately following World War II. The Nuremberg Tribunal was the important first step in recognizing and punishing genocide; it paved the way for the creation of the Genocide Convention and the body of law interpreting its provisions. Sixty years later, the crime of genocide is universally regarded as jus cogens.[1] International and domestic tribunals have recognized various instances of genocide, and many individuals have been prosecuted for and adjudged guilty of committing genocidal acts. Moreover, the International Court of Justice has identified the circumstances in which a State can be held accountable for genocide, victims have begun pursuing retribution from third parties, and the International Criminal Court has gone so far as to charge a sitting head of State with genocide and crimes against humanity. All of these developments bode well for Ukraine, which seeks international recognition that the Famine-Holodomor of 1932-33 was genocide, as well as for further development of international humanitarian law and prevention of genocide in the future.
1. The International Military Tribunal at Nuremberg
The International Military Tribunal at Nuremberg (“Nuremberg Tribunal”) provided the framework for much of today’s international humanitarian law and international tribunals. World War II “marked the transition of international law from a system dedicated to state sovereignty to one also devoted to the protection of human dignity.”[2] The Nuremberg Tribunal, which was created in 1945, was the first international tribunal before which individuals were found criminally liable for violations of international humanitarian law or the law of war.[3] Significantly, the Charter of the Nuremberg Tribunal also provided the first formal definition of crimes against humanity: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian 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.” Article 6(c).[4]
Twenty-one top Nazi military and civic leaders were tried before the Nuremberg Tribunal, which was composed of four judges, one each from the United States, United Kingdom, France, and the Soviet Union.[5] The extensive indictment charged the defendants with participating in the Common Plan or Conspiracy, Crimes Against Peace, War Crimes, and Crimes Against Humanity. The Nuremberg Defendants were indicted for genocide under both the war crimes and the crimes against humanity counts.[6] Count Three specifically charged that defendants “[c]onducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, Gypsies, and others.” (emphasis added). Count Four charged defendants with crimes against humanity, and also relied upon the facts pled under Count Three.
The Judgment of the Nuremberg Tribunal, however, did not use the term “genocide.” What the indictment framed as genocide – the extermination of racial and national groups - the judgment “conceptualized . . . as a distinct and aggravated form of murder,” but not as an offense separate from war crimes or crimes against humanity. The success of the Nuremberg Tribunal nonetheless paved the way for the Genocide Convention of 1948, the necessity of which was emphasized by the Nuremberg Judgment.
2. The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
The Convention on the Prevention and Punishment of the Crime of Genocide[7] (“Genocide Convention”) was unanimously adopted by the U.N. General Assembly on December 9, 1948 in Paris, France. As mentioned earlier, the Genocide Convention was “profoundly influenced by the Holocaust and the Cold War,” and was drafted with the purpose of preventing, criminalizing and punishing acts of genocide.[8] The Genocide Convention entered into force on January 12, 1951. Article 1 of the Convention addresses States responsibility:
Article 1
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.
Article 2 of the Convention specifically defines genocide:
Article 2
In the present Convention, Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The crucial element to establish genocide under the Genocide Convention is evidence that a prohibited act is done with the specific intent, or dolus specialis, to destroy members of a protected group solely because of their affiliation with that group. The intent element does not require any evidence of motive by the criminal party, nor does it require premeditation; intent must, however, be proven by the party asserting genocide through evidence that is “fully conclusive.”[9] It is noteworthy that the “stringent evidentiary standard” for specific intent has proven to be somewhat controversial.[10] Some have argued that the debate on whether certain atrocities are “genocide” is purely one of semantics, and that we should instead classify these instances as genocide, and then distinguish between them on the basis of intent.[11]
The “essence of the intent” is to destroy a protected group – that is, a national, ethnical, racial or religious group. Political and linguistic groups were included in the Secretariat’s first draft of the Genocide Convention but were subsequently omitted because political groups, for example, were “considered a matter of individual choice.”[12] Under the Genocide Convention, “national” group infers affiliation with an established nation state, whereas “ethnical” group “refers to cultural, linguistic or other distinct minorities within or outside a State.”[13]
The enumeration of acts constituting genocide under Article 2 of the Convention was intended to be restrictive rather than illustrative.[14] This stands somewhat in contrast to Raphael Lemkin’s broad conception of genocide; Lemkin, a U.S. diplomat and the earliest advocate of a convention prohibiting genocide, proposed that the Genocide Convention provide protection for racial, national, and religious groups whose cultural, political, social, or physical existence was imperiled.[15] The Genocide Convention does, however, provide for broad categories of criminal liability under Article III, which imposes “liability for genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide, and complicity in genocide.”[16] Article IV of the Genocide Convention does away with any notion of sovereign immunity of any individual from criminal prosecution, but Article V nonetheless fails to specifically provide for State responsibility.[17] The International Court of Justice (“ICJ”), however, recognized in the case of Bosnia & Herzegovina v. Serbia & Montenegro, that State responsibility is a corollary to a State’s obligation to prevent genocide under Article I.
3. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968)
The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity[18] (“Convention on Statutory Limitations”), emphasizes and expands the scope of prosecutions for genocide under the Genocide Convention by eliminating any domestic barriers to such prosecutions. The Council of Europe similarly introduced the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes in 1974 at Strasbourg.[19] The Genocide Convention allows for prosecution of those persons charged with genocide in either tribunals of the State in which the alleged genocide occurred, or in international penal tribunals which hold jurisdiction over both parties.[20] The Convention on Statutory Limitations circumvents any domestic limitations to prosecution by providing that, “irrespective of the date of their commission,” “[n]o statutory limitation shall apply to the . . . crime of genocide as defined in the [Genocide Convention], even if such acts do not constitute a violation of the domestic law in the country in which they were committed.”[21] Furthermore, Article 4 requires that State parties to the Convention adopt any measures “necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of [genocide] and that, where they exist, such limitations shall be abolished.” The Convention on Statutory Limitations therefore provides for universal enforcement of the Genocide Convention by State parties.
Moreover, the Convention on Statutory Limitations, taken together with the jus cogens status of the prohibition of genocide, eliminates the argument that acts of genocide committed prior to the Genocide Convention are not subject to prosecution. The prohibition of genocide is now universally regarded as jus cogens, and the duty to punish genocide as an obligation erga omnes.[22] Persons charged with genocide cannot “credibly contend that their prosecution for the contravention of a primary and pre-existing norm of international law constitute[s] retroactive punishment.”[23] Thus, the Convention on Statutory Limitations eliminates any potential domestic restrictions on the prosecution of persons for acts of genocide.
4. Bosnia & Herzegovina v. Serbia & Montenegro: Application of the Genocide Convention by the International Court of Justice, 2007
The Genocide Convention was first examined by the ICJ at the Hague when Bosnia and Herzegovina brought suit against Serbia and Montenegro alleging violations of the Genocide Convention. The ICJ issued its opinion on February 26, 2007, relating its finding that genocide had occurred at Srebrenica, Serbia had violated its obligation to prevent genocide, but the acts of those who committed the genocide at Srebrenica could not be attributed to Serbia.
The ICJ’s finding of genocide at Srebrenica was based on a determination that the “Main Staff of the VRS (the army of the Republika Srpska) had the necessary specific intent to destroy in part the group of Bosnian Muslims,” specifically, the Bosnian Muslims of Srebrenica.[24] The ICJ requires that allegations of genocide or related acts “be proved by evidence that is fully conclusive.”[25] In finding genocide at Srebrenica, the Court considered – and found to be convincing – many of the allegations which had already been the subject of processes and decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”).[26] By way of example, these included direct and cross-examinations of persons directly involved, and reports that had been accepted as valid by the ICTY.[27]
Additionally, the ICJ found that Serbia had violated its obligation to prevent genocide under Article I of the Genocide Convention. The Court articulated that “responsibility is not incurred simply because genocide occurs, but rather if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”[28] With regard to the standard of proof for such an allegation, the ICJ requires “proof at a high level of certainty appropriate to the seriousness of the allegation.”[29] The ICJ finds it “sufficient that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.”[30] Here, because the Federal Republic of Yugoslavia (“FRY”) “was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica . . . they could hardly have been unaware of the serious risk of [genocide].”[31] Nonetheless, FRY did nothing to prevent the genocide, and the Respondents therefore violated Article I of the Genocide Convention.
Despite a finding of liability under Article I, the ICJ did not find Serbia responsible for the acts of those who committed genocide at Srebrenica. The ICJ did, however, find that States can be held responsible for acts of genocide, notwithstanding the Genocide Convention’s failure to provide for State responsibility.[32] Specifically, the Court found that “the obligation on States to prevent genocide under Article I of the Convention necessarily implies a prohibition against States themselves committing genocide, and that, if an organ of the State, or a person or group whose acts are attributable to the State, commits an act of genocide or a related act enumerated in Article III of the Convention, the international responsibility of the State is incurred.”[33] Nevertheless, in the case against Serbia and Montenegro, the ICJ was not able to establish on the basis of the evidence presented that the massacres at Srebrenica “were committed on the instructions, or under the direction of the Respondent[,] nor that the Respondent exercised effective control over the operations in the course of which the massacres were committed.”[34] Significantly, the ICJ found that “the acts of genocide [could not] be attributed to the Respondent as having been committed by persons or entities ranking as organs of the Respondent.”
On July 21, 2008, Radovan Karadzic, a former leader of Bosnian Serbs who was indicted by the ICTY on charges of genocide and crimes against humanity, was captured and arrested after eleven years of hiding. Karadzic was president of the ethnic Serbs in Bosnia (Republika Srpska), and “is accused of organizing the 1995 massacre of about 8,000 Muslims in Srebrenica.”[35] Richard Holbrooke, the former U.S. assistant secretary of state, described Karadzic as “a real, true architect of mass murder.”[36] Karadzic is currently awaiting trial before the ICTY in the Hague. If he is found guilty of genocide before the ICTY, his conviction may provide the evidence necessary to establish that the acts of genocide in Srebrenica were committed by persons ranking as organs of Serbia and Montenegro. This possibility was also presented with the trial of Slobodan Milosevic for genocide before the ICTY; however the ICTY never rendered a decision in that case due to Milosevic’s death.
5. The International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda (“ICTR”), similarly to the ICTY, was created by the Security Council of the UN in order to prosecute “persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda” during 1994.[37] The Akayesu case was the first in which any international tribunal interpreted the definition of genocide in the Genocide Convention.[38] The decision is particularly significant for its discussion of protected groups under the Genocide Convention. The decision noted that the common thread between the four protected groups “is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.”[39] The chamber went on to further define a “national group” as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties;” and an “ethnic group” as “a group whose members share a common language or culture.”[40]
6. Prosecution of Sudanese President before the International Criminal Court
Of course, inherent in the pursuit of justice is not only recompense for the victims, but also judgments against those individuals responsible for acts of genocide. Recently, several individuals have been arrested and face prosecution for acts of genocide. In addition to Karadzic, who has been charged by the ICTY as discussed above, President Omar Hassan al-Bashir of Sudan has been charged with genocide and crimes against humanity by the International Criminal Court (ICC) for atrocities committed by al-Bashir and his government in Darfur.[41] The ICC has jurisdiction to prosecute individuals only for genocide, crimes against humanity, and war crimes that have taken place since July 1, 2002.[42] These charges are particularly significant because it is the first time that the ICC has charged a sitting head of state with such crimes.[43] It certainly demonstrates the international trend towards even less tolerance for genocidal acts in the pursuit of justice for such crimes.
7. The Issue of Compensation: the South African Case
A recent lawsuit brought in United States federal court under the Alien Tort Claims Act may have a significant impact on cases for compensation to victims of crimes against humanity or genocide, as well as new implications for companies transacting within States where these horrible acts could have taken place. The suit is a class action, brought in the Southern District of New York on behalf of all victims of who suffered under Apartheid in South Africa since its start in 1948.[44] Plaintiffs allege that defendants, which include about 50 companies, among them ExxonMobil, Ford, General Motors, J.P. Morgan Chase, Deutsche Bank, Coca Cola, and Citigroup, “willingly collaborated with the government of South Africa” in maintaining the Apartheid system of government.[45] Plaintiffs seek damages in excess of $400 billion.[46] Originally dismissed in 2004 by the District Court, the case was resurrected on appeal by the Second Circuit, a decision which was subsequently affirmed on procedural grounds by the United States Supreme Court due to its inability to form a quorum and hear the case.[47] The case is currently proceeding before the District Court.
Apartheid was the “brutal racial law that governed South Africa from 1948 through the early 1990’s. It condemned the majority nonwhite population of the country to discrimination and repression under the law of the state, limiting the rights of residency, travel, education, marriage and employment.”[48] Whether the acts of the Apartheid regime rise to the level of crimes against humanity or genocide, however, is not a question that has been considered by the courts.
This case is particularly important in the area of compensation, because it considers the complicity of third parties in State acts and suggests the possibility of forms of retribution not available to victims from individual or State defendants. The issue is not entirely new: it arose during the Nuremberg trials in the case of a defendant who was an officer of the Dresdner Bank.[49] In the Apartheid case, one of the dissenting judges of the Second Circuit noted that “the Nuremberg Tribunals held that while making loans or selling goods to human rights abusers ‘may well be condemned from a moral standpoint and reflect no credit on the part of the lender or seller . . . the transaction can hardly be said to be a crime.’”[50] Nonetheless, the Genocide Convention, which was drafted in the aftermath of the Nuremberg trials, specifically prohibits “[c]omplicity in genocide.”[51]
The Genocide Convention provides for liability of “constitutionally responsible rulers, public officials, or private individuals,” which leaves the door open to prosecution of private corporations.[52] What precisely falls under “complicity in genocide,” however, has yet to be determined. Where a corporation has willingly collaborated with a government in maintaining that government’s oppressive regime, as is alleged in the Apartheid case, and where the corporation has benefitted financially from such involvement, it is difficult to imagine that such actions would not constitute complicity. For these reasons, similar lawsuits in domestic or international tribunals may provide the next vehicle for allocating legal responsibility for genocide. Moreover, if such suits are successful, they will provide a means of financial compensation to victims that suits against defendant States or individuals cannot.
8. Holodomor
In light of the evolution of both the definition of “genocide” under the Genocide Convention and prosecutions for acts of genocide before various international and domestic tribunals, the Famine-Holodomor of 1932-33 in Ukraine was an act of genocide and should be recognized as such. Dr. James Mace, director of the Commission on the Ukraine Famine reported to the United States Congress in 1988 that “Joseph Stalin and those around him committed genocide against Ukrainians in 1932-33.”[53]
The majority of the International Commission of Inquiry into the 1932-33 Famine in Ukraine, initiated by the World Congress of Free Ukrainians (“WCFU”), did not find that the famine was genocide, but “deem[ed] it plausible that the constituent elements of genocide were in existence at the time of the famine.”[54] The Commission mistakenly refused to recognize the famine as genocide because the famine occurred prior to the creation of the Genocide Convention and, therefore, the Commission reasoned, prior the illegality of genocide.[55]
Three significant factors affected the Commission’s inquiry: first, the Commission did not have access to many Soviet documents; second, no witnesses from Ukraine proper testified before the Commission; and finally, the Commission was not aware of the Convention on Statutory Limitations, and consequently mis-interpreted the retro-active application of the Genocide Convention to the Ukrainian famine.[56] Today, thanks to the opening of the archives of the Secret Services of Ukraine (“SBU”), there are many documents showing intent in accordance with the requirements of the Genocide Convention. This additional evidence, together with recognition of the fact that the Genocide Convention does apply retroactively, points to a finding that the Famine was, in fact, genocide.
There is now sufficient evidence to demonstrate Soviet intent under the Genocide Convention; that intent was to destroy a protected group in Ukraine. Raphael Lemkin describes the Soviet attack on Ukraine as “systematic,” detailing a three-front attack on the Ukrainian intelligentsia, the Ukrainian Orthodox Church, and the Ukrainian peasants.[57] He notes that “Soviet writer Kosior declared in Izvestia on December 2, 1933, ‘Ukrainian nationalism is our chief danger,’ and it was to eliminate that nationalism, to establish the horrifying uniformity of the Soviet state that the Ukrainian peasantry was sacrificed.”[58]
Similarly, Professor Serbyn has advanced the argument that the group targeted in Ukraine was a “civic nation,” which he describes as “formed by all the citizens of a given state, regardless of their ethnic, racial, or other differentiation, as distinct from ‘ethnic nation’.”[59] In so defining the Ukrainian nation, Professor Serbyn relies on a statement made by a Commission of Experts applying the Genocide Convention to Yugoslavia in 1992: “‘a given group can be defined on the basis of its regional existence . . . all the Bosnians in Serajevo, irrespective of ethnicity or religion, could constitute a protected group.’”[60] David Marcus has furthered Lemkin and Professor Serbyn’s arguments, asserting that the Holodomor had two goals: “the destruction of nascent strains of Ukrainian nationalism and the elimination of the Kulaks as a class.”[61]
There is no question that the actions of the Soviets creating and prolonging the famine constitute acts of genocide under the Genocide Convention. The numbers practically speak for themselves: at the time of the famine, “Ukraine lost over three million of the existing population, plus another three million minimum lost natural population growth” - almost 10% of its population.[62] “At the same time, and living under the same conditions, Ukraine’s neighbours were able to increase their populations: Russians +28% and Byelorussions +11.2%.”[63] There is still not an exact calculation of the number of victims who perished in the famine; nevertheless, seven to ten million is the number that corresponds with the latest information.[64] Furthermore, Professor Serbyn has noted that each of the five acts specified by the Convention “can be documented in the Ukrainian experience.”[65] Marcus has asserted more specifically, that famine crimes fit into the category of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”[66] Significant for purposes of analysis under this category, Ukrainians were prohibited from traveling outside of Ukraine to obtain food, and from importing food into Ukraine during the time of the famine. Lemkin has also pointed to Soviet fragmentation of the Ukrainian people “by the addition to the Ukraine of foreign peoples and by the dispersion of the Ukrainians throughout Eastern Europe,” all with the goal of destroying ethnic unity.[67] Furthermore, in accordance with the conclusion reached by the National Commission for Strengthening Democracy and the Rule of Law, the events of 1932-33 in Ukraine fall under the UN Convention on the Prevention and Punishment of the Crime of Genocide.[68]
Finally, as articulated by Lemkin, “[t]his is not simply a case of mass murder. It is a case of genocide, of the destruction, not of individuals only, but of a culture and a nation. Were it possible to do this even without suffering, we would still be driven to condemn it, for the family of minds, the unity of ideas, of language and of customs that forms what we call a nation constitutes one of the most important of all our means of civilization and of progress.”[69]
**********
*Bohdan A. Futey is a Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Ronald Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. He served as an advisor to the Working Group on Ukraine’s Constitution, adopted June 28, 1996. Judge Futey is a professor at the Ukrainian Free University in Munich, Germany, and a lecturer at Kyiv-Mohyla University School of Law.
**Kathryn Yingling, Law Clerk to Judge Futey, contributed in the research for this paper.
[1] See Orna Ben-Naftali & Miri Sharon, What the ICJ Did Not Say About the Duty to Punish Genocide, 5 J. Int’l Crim. Just. 859, 869 (2007).
[2] David J. Bederman & Christopher J. Borgen & David A. Martin, International Law: A Handbook for Judges 87 (The American Society of International Law, Foundation Press 2001).
[3] International Law and Litigation for U.S. Judges: Federal Judicial Center13 (The American Society of International Law).
[4] See Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later, 15 Ariz. J. Int’l & Comp. L. 415, 425 (1998).
[5] International Law and Litigation for U.S. Judges, supra note 2.
[6] Lippman , supra note 4, at 426.
[7] U.N. GAOR, 3 rd Sess., Part I, at 174, U.N. Doc. A/810 (1948).
[8] Lippman, supra note 4, at 452.
[9] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro); Summary of the Judgment of 26 February 2007, No. 2007/2, at 11, available at www.icj-cij.org. See also Lippman, supra note 4, at 454-55.
[10] David A. Mittle, Jr., Distinctions Among Genocides, Providence Journal, November 1, 2007.
[12] Lippman, supra note 4, at 455.
[17] See Id. But see infra text accompanying note 31.
[18] U.N. GAOR, 23rd Sess., Supp. No. 18, at 40, U.N. Doc. A/7218 (1968).
[19] European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, Jan. 25, 1974, Eur. T.S. No. 82.
[20] Supra note 7, Art. 6.
[21] Supra note 18, Art. 1(b).
[22] See Ben-Naftali, supra note 1, at 869.
[23] Lippman, supra note 4, at 471-72.
[24] International Court of Justice, Press Release 2007/8, Feb. 26, 2007, available at www.icj-cij.org .
[26] Summary of the Judgment of 26 February 2007, supra note 9, at 12.
[28] International Court of Justice, Press Release 2007/8, supra note 24.
[35] Peter Finn, Bosnian Serb Captured; Sought for War Crimes, Washington Post, July 22, 2008 at A1.
[37] International Criminal Tribunal for Rwanda: General Information, available at http://69.94.11.53/default.htm.
[38] International Criminal Tribunal for Rwanda: The Tribunal at a Glance: Status of Cases, available at http://69.94.11.53/default.htm.
[39] The Prosecutor v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, Chamber 1, Case No. 96-4-T, September 2, 1998 at ¶ 511.
[41] Colum Lynch & Nora Boustany, Sudan Leader to be Charged with Genocide, The Washington Post, July 11, 2008 at A-1.
[42] Rome Statute of the International Criminal Court, Jul. 17, 1998, A/CONF.183/9, Article 5.
[43] International Court Charges Sudan President with Genocide, Asociated Press, Jul. 14, 2008, available at: www.foxnews.com/printer_friendly_story/0,3566,381561,00.html.
[44] See In re S. African Apartheid Litigation, 346 F. Supp.2d 538 (S.D.N.Y 2004).
[45] Id.; Charles S. Doskow, May I be Recused?, The Daily Journal, May 21, 2008, at 7.
[46] In re S. African Apartheid Litig., 346 F. Supp. 2d 538.
[47] Id.; Khulumani v. Barclay Nat’l Bank, Ltd., 509 F.3d 148 (2nd Cir. 2007); Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008).
[48] Doskow, supra note 42, at 7.
[49] Michael Skapinker, Apartheid is too much for American Justice, Fin. Times, May 19, 2008.
[51] Supra note 7, Article III(e).
[52] Id. at Article IV. (emphasis added).
[53] Commission on the Ukraine Famine, Report to Congress, at vii (U.S. Gov’t Prtg. Office, 1988) (Dr. James E. Mace, Staff Director).
[54] International Commission of Inquiry into the 1932-33 Famine in Ukraine, of the WCFU, Introductory Chapter, pp. 3, 9 (The Commission’s finding was based upon (1) “[d]iplomatic reports, documentary publications and some 40 Soviet decrees from the time of the famine showing how the famine was technically administered;” (2) “a number of experts on Soviet affairs under Stalin, testifying before the Commission;” and (3) the accounts of 12 surviving witnesses[.]”)
[57] Raphael Lemkin papers. Manuscripts and Archives Division. The New York Public Library. Astor, Lenox and Tilden Foundations.
[58] Id. Kosior was a party and government official of the Ukrainian SSR.
[59] Roman Serbyn, The Ukrainian Famine of 1932-33 and the UN Convention on Genocide, p. 5.
[61] David Marcus, Famine Crimes in International Law, 97 Am. J. Int’l L. 245, 265 (2003).
[62] International Commission of Inquiry into the 1932-33 Famine in Ukraine, supra note 54, at 3.
[64] Holodomor: Ukrainian Genocide in the Early 1930s 3 (The Ukrainian Institute of National Memory) (citing a joint statement by 65 UN member states, adopted by the 58th UN General Assembly on 7 November 2003); see also Winston S. Churchill, The Second World War 271-72 (Vol I) (Time Incorporated, NY 1959) (referring to a conversation between Winston Churchill and Marshal Stalin in August 1942 about the stresses of the war as compared with carrying through the policy of the collective farms. In the course of the conversation, according to Churchill, Stalin talks about the collectivization effort and holds up two hands with the words “Ten millions, it was fearful.”).
[65] Serbyn, supra note 59, at 6.
[66] Marcus, supra note 61, at 262.
[67] Raphael Lemkin papers, supra note 57; Professor Stanislav Kulchytsky has also come to the conclusion that the terror famine “aimed at creating the conditions of life incompatible with physical existence . . . is well documented,” and that the facts “prove[] clearly that the Ukrainian Holodomor ought to be qualified, in accordance with the UN Convention, as genocide on the ethnic basis.” Stanislav Kulchytsky, The Ukrainian Famine of 1932-33: Case of Genocide.
[68] National Commission for Strengthening Democracy and the Rule of Law, Conclusion, adopted at the 14th plenary session of the Commission, Kyiv, 16 May 2008; signed 4 September 2008.
[69] Raphael Lemkin papers, supra note 57.
NATIONAL COMMISSION FOR STRENGTHENING DEMOCRACY
AND THE RULE OF LAW
_______________________________________________________________
CONCLUSION
Regarding the juridical characterization of the Holodomor of 1932-1933 in Ukraine as the genocide of the Ukrainian people in relation to the definition formulated in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.
Adopted at the fourteenth plenary session of the Commission (Kyiv, 16 May 2008)
CONTENTS
Preamble…………………………………………………………………………………..1
1. Legal and historical bases for the characterization of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people…………………………………………...1
2. The correspondence of the Holodomor of 1932-1933 to the object of genocide in accordance with the Convention…………………………………………………………..2
3. The correspondence of the acts which led to the Holodomor of 1932-1933 to the aim of acts that constitute the crime of genocide according to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide………………………6
4. The application of the terms of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide to the events of 1932-1933 in Ukraine………8
General conclusions…………………………………………………………………… 11
i
Preamble
As an European state, Ukraine has genuine national cultural, spiritual, and legal traditions and state-building experience. Important landmarks in this process were Kyivan Rus', with its political and cultural-religious center at Kyiv (IX-XII centuries); the Galician-Volhynian and other princely states of the medieval period (XII-XIII centuries); and the Kozak-Hetman state (XVII-XVIII centuries), which culminated in Pylyp Orlyk's Constitution of 1709.
Over the centuries, the Ukrainian people yearned for independence; as a result, in 1917-1921 there was created an independent Ukrainian state, which was recognized by various European countries. On 22 (9) January 1918 the Central Rada (Council) of the Ukrainian People's Republic (UNR) issued the Fourth Universal, proclaiming the autonomy and independence of the UNR as a free and sovereign state of the Ukrainian people. However, the sovereignty and territorial integrity of Ukraine fell victim to the aggressive actions of the Bolshevik regime. The Ukrainian people did not consent to such a state of affairs and struggled constantly for its independence. During the period from 1921 to 1933, around three thousand peasant uprisings took place in Ukraine.
Beginning in 1928, the Bolshevik government commenced a large-scale assault against Ukrainian national consciousness by means of repression. In Ukraine at the end of the 1920s, Moscow's leaders undertook a massive campaign of discreditation, persecution, and eventually physical destruction of the national elite – Ukrainian scholarly and cultural activists, the clergy of the Ukrainian Autocephalous Orthodox Church, and industrial managers, which culminated in a series of trials fabricated by the State Political Administration (GPU)(the Shakhty affair, the Prompartia trial, the People's Revolutionary Socialist Party trial, the Ukrainian National Center trial, the Association for the Liberation of Ukraine trial, etc.).
In 1932-1933 the regime deliberately committed acts directed toward the destruction of the Ukrainian peasantry as the foundation of the Ukrainian nation – totally depriving it of grain and all food products, and also blockading regions and individual settlements with special military forces, thus causing famine. In this manner, the criminal regime committed genocide, as a result of which between seven and ten million people perished.
1. Legal and historical bases for the characterization of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people
The Holodomor of 1932-1933 was first recognized on the state level as a genocide of the Ukrainian people by the Resolution of the Supreme Council of Ukraine "On the Appeal to the Ukrainian People by the Participants of the Special Session of the Supreme Council of Ukraine of 14 May 2003 on the Commemoration of the Victims of the Holodomor of 1932-1933" of 15 May 2003 No. 789-IV.
On 28 November 2006, by the Law of Ukraine "On the Holodomor of 1932-1933 in Ukraine," the Holodomor of 1932-1933 in Ukraine was recognized by the Supreme Council of Ukraine as a genocide in accord with the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide (hereinafter "the Convention") and as an act directed towards the mass annihilation of people.
The above-cited Convention was ratified by the Presidium of the Supreme Council of the USSR on 18 March 1954.
According to Article I of the Convention, the Parties recognize that genocide, regardless of whether it is committed in time of peace or war, is a crime that violates the norms of international law and against which they obligate themselves to take preventive measures and to punish its commission.
Article II of the Convention defines genocide as "actions committed with the intent to destroy, in whole or in part, any national, ethnic, racial, or religious group as such:
a) killing members of such a group;
b) the commission of serious bodily injury or mental harm to members of such a group;
c) the deliberate creation for any group of conditions of life calculated to bring about its total or partial physical destruction;
d) measures calculated to prevent births among the members of such a group;
e) the forcible transfer of children from one group to another."
According to Article III of the Convention, the following actions are punished:
a) genocide;
b) conspiracy to commit genocide;
c) the direct or public incitement to commit genocide;
d) attempted genocide;
e) participation in genocide.
2. The correspondence of the Holodomor of 1932-1933 to the object of genocide in accordance with the Convention
The actions committed with intent to destroy, in whole or in part, any national, ethnic, racial or religious group as such are set out in accord with the first paragraph of Article II of the Convention.
As defined by the International Criminal Tribunal for Rwanda, a "national group" is understood as "an association of people who have a permanent legal connection such as a single citizenship and, accordingly, certain rights and obligations." [1]
"Ethnic group," on the other hand, represents "a cultural, linguistic, or other openly expressed difference characteristic of a minority, whether within a state or beyond its borders." [2]
This clarification of the terms "national" and "ethnic" with relation to the term "group," which is used in UN documents, allows us to affirm that the policy of the Holodomor was directed against the Ukrainians as a national and ethnic group.
In this regard, the Convention's definition of genocide does not require the intent to destroy the entire group of persons. The existence of an intent to destroy a part of the indicated category of persons suffices. The Convention assumes that only certain victims may be selected from such a group.
As the practice of international tribunals demonstrates, for an act to qualify as genocide it is sufficient that the perpetrator of the crime have the intent to destroy an essential part of the protected group. In determining which part of the group is essential, it is necessary to apply both quantitative and qualitative indicators. Thus, in deciding the matter of Jelisic (1999), [3] the judicial panel of the International Tribunal for the Former Yugoslavia stressed:
"82. …. The part of the group chosen as a target can be determined to be essential either by the intent to cause harm to a majority of the group in question, or to the most prominent members of such a group…. Thus, genocidal intent can appear in two forms. It can consist of the desire to destroy a very large number of members of the group, and in that case it will constitute the intent to destroy the group en masse. However, it can consist of the desire to destroy a lesser number of selected persons in view of the consequences of their disappearance for the survival of this group as such."
The following facts testify to the fact that the Holodomor was aimed at the Ukrainians as a national and ethnic group.
According to historical data, the Kharkiv and Kyiv regions of that time (today these are the Poltava, Sumy, Kharkiv, Kyiv, Cherkasy, and Zhytomyr regions) suffered the most from famine. They account for 52.8% of the deaths. [4] In other words, these were the regions territorially closest to Russia and in which the most nationally conscious population resided. Generally, the famine encompassed the entire center, South, North, and East of today's Ukraine.
According to the census data furnished by the International Commission of Inquiry initiated by the World Congress of Free Ukrainians (WCFU) into the Famine of 1932-1933 in Ukraine, the number of Ukrainians in the USSR declined from 31,195,000 in 1926 to 28,111,000 in 1939 [5] (in the same period, the number of Russians in the USSR increased from 77,791,000 to 99,591,000, while the number of Belarusians increased from 4,739,000 to 5,275,000). [6] In other words, during the time that the number of Russians increased by 28%, and the number of Belarusians by 11.2%, the number of Ukrainians decreased by 9.9%. Overall, the population of the USSR increased by 16%. Given this average increase, in 1939 the number of Ukrainians in the USSR should have been around 36,186,000. Thus, the decrease in the number of Ukrainians between 1926 and 1939 was about eight million people.
In addition, after the famine years of 1932-1933 the reproductive capacity of the Ukrainian population declined sharply, and this meant another several million unborn children. Besides, this does not take into account the proven facts about the organized intensive resettlement of thousands of families from Russia and Belarus onto the famine-devastated territory of Ukrainian villages.
The reason for the Holodomor was the policy of the totalitarian Stalin regime, whose chief idea was the unification of all nations and nationalities of the USSR into a single "Soviet people" with a unified consciousness and the realization of an "industrial leap" by way of mobilization of internal resources.
The Ukrainian nation, which was second in population in the USSR, had a great cultural-historical heritage, its own traditions of state-building, and the experience of a national liberation struggle; therefore, it constituted a serious threat to the imperial designs of the USSR leadership.
Awakened by the liberation struggle of the Ukrainian people in 1917-1921, and having significant human and economic resources, Ukraine experienced a rapid rebirth. The policy of Ukrainization at the end of the 1920s far exceeded the boundaries set by the Bolsheviks: the spheres of Ukrainian language use in the country's state life expanded, the Ukrainian language was compulsory in state business, and Party documentation was also in Ukrainian. Close to 95% of all Ukrainian children were taught in their native language. By that time, Ukrainian national consciousness had attained threatening proportions; Ukraine sought to conduct an independent policy, including international relations. Inasmuch as Ukraine was an agrarian country, it was the peasantry, which in 1926 constituted 80.8% of the population of Ukraine, that provided the social support for these tendencies.
It was for these reasons that the main emphasis was on the physical destruction of the Ukrainian nation, the exhaustion of its material and spiritual resources, that is, the annihilation of the peasantry (given that the totalitarian regime did not have the intention of destroying all of the Ukrainian peasantry) as the nation's social base, demoralizing the intelligentsia and turning the peasants who survived the famine into meek collective farmers – a labor force for the development of a single Soviet state.
The following statement by Joseph Stalin testifies to the foregoing: "The national problem is essentially a peasant problem." [7]
The Holodomor in the Ukrainian SSR became a model for the combined destruction of a nation. From one angle, it became a method of the total collectivization of the Ukrainian peasantry; from another, a method of political domination of the Ukrainians. It is no coincidence that the Holodomor took place at the same time as the halt of Ukrainization of Ukrainian-populated regions beyond the Ukrainian SSR, and as the mass annihilation of the national intelligentsia within the Ukrainian SSR. In 1932-1933, 199,000 persons were arrested by the state security organs in Ukraine, as compared with 119,000 for the previous three years, and 71,000 in the following three years. Approximately 285,000 "de-kulakized" families were forcibly deported from Ukraine, numbering close to a million people.
Thus, the Holodomor of 1932-1933 was the response of the Soviet regime to Ukrainian cultural and political development within the USSR.
These facts permitted the US Congressional Commission on the Investigation of the Famine of 1932-1933 in Ukraine to designate the famine of 1932-1933 in Ukraine a genocide. However, this characterization was based on the subjective opinions of Holodomor witnesses, inasmuch as the Commission unfortunately did not have access to the archives. Moreover, the Commission had been convoked to establish the facts, not to provide a legal evaluation.
The jurists who worked in the International Commission of Inquiry into the Famine of 1932-1933 in Ukraine of the WCFU perceived the national element in the destruction by famine and characterized the Holodomor in Ukraine as a genocide. [8]
That the Holodomor was directed against the Ukrainians precisely as a nation is also shown by the fact that it took place not only within the territory of the Ukrainian SSR, but also in the Volga region and North Caucasus, where at that time a majority of the population consisted of ethnic Ukrainians. Thus, according to the data of the 1926 census, 3,106,000 Ukrainians resided in the North Caucasus, of whom 62% of the population in the Kuban called themselves Ukrainians, while in some of its districts this indicator exceeded 80% and even 90%. [9]
Thus, there is every reason to characterize the events that took place on the territory of Ukraine in 1932-1933 as a genocide directed towards the destruction of a national group.
3. The correspondence of the acts which led to the Holodomor of 1932-1933 to the aim of acts that constitute the crime of genocide according to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide
According to Article II of the Convention, acts that it recognizes as genocide are committed with the intent to destroy, in whole or in part, any national, ethnic, racial, or religious group as such.
By the Resolution of the Supreme Council of Ukraine "On the Appeal to the Ukrainian People by the Participants of the Special Session of the Supreme Council of Ukraine of 14 May 2003 on the Commemoration of the Victims of the Holodomor of 1932-1933" of 15 May 2003 No. 789-IV, the Holodomor was recognized as the result of intentional actions of the repressive Stalinist totalitarian regime directed towards the mass destruction of the Ukrainian people.
The following historical facts testify to the intentionality of the acts of the totalitarian regime.
The USSR had sufficient food supplies to feed the country's entire population. This is shown by the size of its exports (for example, in 1930 the USSR exported 5.8 million tons of grain, in 1931 it exported 4.8 million tons, in 1932 1.6 million tons, in 1933 2.1 million tons). [10] Bread was seized and sold to other countries for hard currency, which was used for the purchase of industrial equipment for industrialization. As a consequence of the seizure of bread, already in the first half of 1932 hunger appeared in some districts of Ukraine. The data of the United State Political Administration (OGPU) on the migration of the village population bear witness to this: as of mid-July 1932, 116,000 peasants had migrated out of 21 districts. From this point, the Central Committee of the Communist Party (Bolsheviks) of Ukraine (CB(b)U) began to receive information on instances of cannibalism and necrophagy. [11]
At the same time, when the international community learned of the famine in Ukraine, the regime refused all offers of aid from other countries as well as from the International Red Cross.
Joseph Stalin's motives with regard to Ukraine are revealed in his letter of 11 August 1932 to Lazar Kaganovich: "Right now the main thing is Ukraine.... If we do not immediately undertake the correction of the situation in Ukraine, we may lose Ukraine." [12] The danger was the possibility that the famine-stricken peasants might join together with the members of the CP(b)U, who opposed the bread requisitions as unrealistic. Stalin did not permit this: he maintained the loyalty of the cadres of the CP(b)U by terror (the struggle with "Skrypnykism," the purge of CB(b)U cadres), and physically destroyed the potential army of the national movement by famine. [13]
The following measures testify to the intentional nature of the policy of the totalitarian regime's destruction of the Ukrainian people:
1) On 7 August 1932 the Decree "On the Protection of Property of State Enterprises, Collective Farms and Cooperatives and the Strengthening of Socialist Ownership" (the "Law of Five Ears of Wheat") was issued, by which the "theft" of grain from the fields was punished by death by firing-squad or ten years in the labor camps. At the same time the prohibition of trade was introduced, which practically made it impossible for the peasants to obtain bread;
2) On 23 September 1932 the "Law on Meat Procurement" was adopted, by which the peasants were obligated to supply meat to the state;
3) On 20 November 1932 penalties in kind, consisting of meat and potatoes, were introduced for hiding grain from confiscation;
4) On 6 December 1932 a Resolution of the Council of People's Commissars of the Ukrainian SSR and the Central Committee of the CP(b)U was adopted "On the Blacklisting of Villages Which Maliciously Sabotage Grain Procurement." For such villages, the delivery of goods was stopped, local cooperative and state trade was prohibited, all goods were forcibly removed from cooperative and state shops, collective farm trade and credit were totally discontinued, and credits and other financial obligations were prematurely exacted. Six villages were blacklisted under the above-mentioned resolution. Additionally, local government organs blacklisted another 380 collective farms and 51 villages; [14]
5) On 14 December 1932 the Central Committee of the Communist Party and the USSR Council of People's Commissars issued a Resolution "On the Progress of Grain Procurement in Ukraine, Northern Caucasus, and in the Western Regions," which simultaneously with the problem of grain procurement severely criticized Ukrainization, established control over its implementation, and also contained a directive for the immediate cessation of Ukrainization in the Northern Caucasus;
6) On 15 December 1932 the delivery of industrial goods in 82 districts of the Ukrainian SSR was discontinued;
7) On 29 December 1932 an order was issued to give the collective farms a sowing fund;
8) At the beginning of 1933, there were established the only norms for procurement of grain, sunflowers and potatoes for each hectare of planned sowing for the entire year. The tardy fulfillment of the indicated norms was punished by monetary fines in proportion to the value of the arrears and by the confiscation of produce in the amount of the arrears. According to eyewitness testimony, in the course of the collection of produce all products without exception were confiscated;
9) By the decrees of 13 September 1932 and 17 March 1933, the peasants were tied to the land and were forbidden to leave the collective farms if they did not have a contract approved by the collective farm administration;
10) On 22 January 1933 a Directive of the Central Committee of the All-Union Communist Party (Bolsheviks) and the Council of People's Commissars of the USSR was issued, according to which all the borders between Ukraine and the Kuban and the rest of the regions of the USSR were closed to peasants. This Directive bears witness to the fact that at that time, famine existed only on the territories inhabited by a Ukrainian population (the Ukrainian SSR and the Northern Caucasus), since in the neighboring republics there was no such shortage;
11) On 23 February 1933, Western correspondents were forbidden to visit Ukraine.
In other words, the seizure of all food products meant the deliberate creation of conditions of life incompatible with physical existence.
The above-mentioned unprecedented measures indicate that the Holodomor of 1932-1933 was not the result of a drought (for it is obvious that a drought cannot bring about the total destruction of a harvest, cattle, and other food products) or of a mistake by the regime.
Furthermore, no criminal prosecution was initiated and not a single person was punished for the consequences of the commission of the above-cited systematic actions directed towards the extermination of Ukrainians.
Extermination by starvation, directed against the Ukrainian peasants, was combined with terror against the Ukrainian intelligentsia (the halting of Ukrainization and the beginning of Russification of the Ukrainian population, and repressions against members of the Communist Party of Ukraine), which testifies to the systematic nature of the actions against the Ukrainians.
4. The application of the terms of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide to the events of 1932-1933 in Ukraine
The general principle of law that laws do not have retroactive effect and no one may be punished for acts which were not regarded at the time as illegal or criminal, lies at the root of the question of whether agreements can be applied to events that occurred prior to their conclusion.
This principle is recognized in the legal systems of most nations. It was also reflected, for example, in article 15, section 1 of the International Covenant on Civil and Political Rights of 1966, in which it is stated that "no one may be found guilty of the commission of any criminal act as the result of any act or omission which, according to the municipal legislation or international law in effect at the moment of its commission, was not recognized as a crime."
At the same time, in section 2 of the same article it is stated that "nothing in the present article prevents the trial and punishment of any person for any act or omission that at the moment of its commission was a crime in accord with general principles of law recognized by the international community."
The subject of the Convention on the Prevention and Punishment of the Crime of Genocide is genocide – a crime against humanity, that is, a crime that was considered a crime in international law prior to the entry into force of the Convention. Otherwise, the presumption of the lawfulness of genocide, if only from the point of view of the Convention, would constitute an assault on the very fundamentals of humanity.
It is necessary to stress that the multifaceted norm-creating Convention was developed as a result of the codification of the customary norms of international law. The Convention was a response to events that had taken place previously and corresponded to the elements of this crime as it was fixed in the Convention. It is worth mentioning that in the Convention itself, and in the documents of the "preparatory work," certain events of the past were directly and unambiguously qualified as the crime of genocide.
As confirmation of the above one should cite the fact that prior to the entry into force of the Convention, in the Statute of the Nuremberg International Military Tribunal (article 6) and the Statute of the Tokyo International Military Tribunal (article 5), crimes against humanity were placed in a separate category: murders, extermination, enslavement, exile and other cruel actions committed against the civilian population; persecution for political, racial, or religious motives with the aim of committing, or in connection with, any crime, irrespective of whether or not these actions were violations of the national (municipal) law of the country in which they were committed.
The powers of the Nuremberg Tribunal with regard to crimes committed prior to the entry into force of the Convention on the Prevention and Punishment of the Crime of Genocide were based on the recognition of genocide as a crime against humanity on the basis of the customary norms of international law. Proceeding from the customary norms and principles of international law in effect prior to the adoption of the Convention, the prosecution was carried out and the degree of punishment for this international crime was established.
Article 28 of the Vienna Convention on the Law of Treaties provides that in the absence of a contrary intent implicit in the agreement or otherwise established, the terms of the agreement are not binding on a party to the agreement with regard to any action or fact that took place prior to the date of the agreement's entry into force for the party in question, or to any situation that ceased to exist before that date.
At the same time, the above-cited norm does not exclude the retroactive force of agreements, but only conditions this upon the existence of intent of the parties to the agreement. The Vienna Convention on the Law of Treaties entered into force on 27 January 1980, that is, after the entry into force of the Convention on the Prevention and Punishment of Genocide. However, the terms of the Vienna Convention are also applicable to the Genocide Convention.
As was noted in the consultative decision of the International Court of Justice of 28 May 1951, "Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide," the principles of the Convention are binding even upon states that have not acceded to it. In this regard it was pointed out that the history of the creation of the Convention demonstrates that the aim of the UN was to condemn genocide and to punish it as a "crime according to international law," connected with the deprivation of an entire group of people of the right to exist – a deprivation which the conscience of humanity cannot tolerate and which leads to enormous losses for humanity, contradicts the laws of morality, as well as the spirit and aims of the United Nations (General Assembly Resolution 96(1), 11 December 1946). The first consequence of this convention consists in this, that the principles that lie at the heart of the Convention are principles that are recognized by civilized peoples as obligatory for states, even in the absence of any obligations. The second consequence is based on the universal nature both of the condemnation of genocide and of the cooperation that is required "in order to rid humanity of this horrible misfortune" (preamble of the Convention).
The approach of the International Court of Justice, according to which genocide is a violation of both treaty and customary international law, is the point of departure for the formation of the conception of obligations erga omnes, introduced into international law by the decision in the matter of Barcelona Traction. In this matter, the International Court stated that "an essential distinction should be made between the obligations of states in relation to the international community as a whole, and obligations which arise in relation to another state within the bounds of diplomatic protection. By their very nature, the former obligations bind all nations. By virtue of the importance of the laws that proceed from them, all states can be regarded as having a juridical interest in protection; the obligations in question are obligations erga omnes. These obligations proceed from contemporary international law, for example, from the prohibition of acts of aggression, genocide…"
Subsequently, in the matter of Bosnia and Herzegovina v. (Serbia and Montenegro) the International Court of Justice again pointed out that the rights and obligations embodied in the Convention are rights and obligations erga omnes[15]and function as norms of international law regardless of participation in the Convention and, therefore, extend also to cases of genocide that took place in the past. The retroactive force of the norms fixed in the Convention is grounded also in the nature of the Convention as the result of the codification of the norms of international law in effect prior to its entry into force.
As the gravest international crime, genocide was placed in the jurisdiction of the Ad Hoc International Criminal Tribunals for the Former Yugoslavia (article 4) and Rwanda (article 2). In addition, in the practice of both tribunals concrete cases of alleged genocide were tried, which played an important role in the further development and understanding of the fundamental elements of this crime (especially the cases Prosecutor v. Jean-Paul Akayesu, Prosecutor v. Klement Kayishema and George Rutaganda, Prosecutor v. Goran Jelesic).
Furthermore, according to article 1 section (b) of the 1968 UN Convention on the non-applicability of statutes of limitations to war crimes and crimes against humanity, ratified by the Presidium of the Supreme Council of the Ukrainian SSR on 19 June 1969, statutes of limitations are not applied, in particular, to the crimes of genocide set out in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, even if these acts are not violations of the internal legislation of the country in which they were committed.
A similar rule is to be found in article 1 of the European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes of 1974, which was ratified by the Parliament of Ukraine on 6 March 2008. Thus, it is stated in this article that each State Party is obligated to employ all necessary means in order to ensure the non-application of statutes of limitations to criminal prosecutions or execution of sentences, especially in connection with crimes against humanity defined in the UN Convention on the Prevention and Punishment of the Crime of Genocide to the extent to which they are punishable under its internal law.
Moreover, article 2 of the 1974 European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes directly points out that its terms are applicable to violations of law committed prior to its entry into force in cases where at that time, the statute of limitations had not yet expired. According to international law, as was noted above, crimes against humanity, particularly genocide, have no statute of limitations.
In view of the aforementioned, the events of 1932-1933 in Ukraine fall under the UN Convention on the Prevention and Punishment of the Crime of Genocide.
General conclusions
1. The Holodomor of 1932-1933 is recognized as genocide in accord with the UN Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, especially article 2 section (c) (the deliberate creation for any group of conditions of life calculated to bring about its physical destruction in whole or in part).
2. The Holodomor was the result of deliberate and systematic acts of the totalitarian Soviet regime (which have received historical and documentary confirmation), which consisted essentially of the following:
(1) the brutal suppression of the Ukrainian nation's aspirations to independence;
(2) the mass starvation of the peasants as a means of destroying the socio-economic basis of the Ukrainian national idea, and as a demoralizing factor for the rest of the Ukrainian population, with the aim of implementing the totalitarian Stalinist regime's policy of destroying the Ukrainian nation as such, in order to create of a single state with a single Soviet people with a uniform consciousness;
(3) the destruction of the economic system and the introduction of a special regime of subsistence:
-- the massive de-kulakization of the peasants;
-- the forcible introduction of collectivization of peasant farms;
-- the carrying out of grain procurement plans at the expense of the Ukrainian villages;
-- the removal from the territory of Ukraine of all goods and means of subsistence to be found in storehouses and shops;
-- the requisition of all food supplies from the peasants;
-- the prohibition of any trade and of the importation of any means of subsistence whatsoever;
-- the prohibition of any credit, and the forcible repayment of all credits;
(4) the isolation of vast territories of Ukraine and of territory of the USSR with a compact Ukrainian population:
-- the deprivation of the peasants of the right to have passports;
-- the prohibition of peasants leaving their places of permanent residence for other parts of the USSR;
-- arrests and deportations of peasants who had left their places of residence;
-- the isolation of the territory of Ukraine, and also of the Kuban and Northern Caucasus, where ethnic Ukrainians resided, from the rest of the USSR;
-- the prohibition of correspondence and the dissemination of information about the true state of affairs in Ukraine;
(5) attempts to conceal the causes and dimensions of the tragedy:
-- the execution of persons responsible, in the course of taking the census of 1939, for revealing facts concerning discrimination against the Ukrainian population and its high mortality;
-- the barring of foreign journalists;
-- the classification of documentary material about the facts of the famine.
3. The rights and responsibilities enshrined in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide are rights and responsibilities erga omnes. In accord with the 1968 UN Convention on the non-applicability of statutes of limitations to war crimes and crimes against humanity and the 1974 European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes, no statutes of limitations apply to the crime of genocide. Therefore, the norms of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide are retroactive, and accordingly apply to the Holodomor in Ukraine of 1932-1933.
4. In its conclusions, the International Commission of Inquiry of the WCFU into the Famine of 1932-1933 in Ukraine established the facts of compulsory grain requisitions, collectivization, dekulakization, and denationalization, which were the causes of the famine, and recognized that a genocide against the Ukrainian people had taken place and violated the norms of international law in effect at that time. The conclusions of the Commission were based on the examination of material in the mass-communication media of that time, the correspondence of diplomatic missions then accredited to Moscow, statistical reference works of the USSR, and the testimony of eyewitnesses. Unfortunately, the Commission did not have access to data from the archives of the USSR KGB, which were made public later.
5. In accord with Resolution No. 1481 (2006) of the Parliamentary Assembly of the Council of Europe, the Holodomor of 1932-1933 in Ukraine was the result of intentional acts of the Soviet government and is subject to international condemnation as a crime of the totalitarian communist regime.
6. The recognition of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people corresponds to the purpose of the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the principal aim of which lies not in the juridical definition of the concept of genocide, but in assuring the irrevocability of punishment for its commission.
s/M. Onishchuk_________
M. Onishchuk
4 September, 2008
Chairman of the National Commission for Strengthening
Democracy and the Rule of Law
Minister of Justice
[1] William A. Schabas, Genocide in International Law. The Crime of Crimes (Cambridge: Cambridge University Press, 2000), “Chapter 3. Groups protected by the Convention” (quoted in Serbyn, The Ukrainian Famine of 1932-1933 and the UN Convention on Genocide, p. 5).
[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro); Summary of the Judgment of 26 February 2007, p. 9.
[3] Prosecutor v. Goran Jelisic, ICTY (Trial Chamber I), Case No. IT-95-10 “Breko,” Judgment of 14 December 1999.
[4] http://www.president.gov.ua/content/golodomor75_1.html
[5] According to the figures for 1937 – 28,388,000.
[6] http://www.president.gov.ua/content/golodomor75_1.html
[7] "Proletarskaia pravda," 22 January 1930. Cited in "Masovyi holod iak sotsial'nyi henotsyd," http://news.bbc.co.uk/hi/Russian/international/newsid_6161000/6161035.stm.
[8] S. Kul'chyts'kyi in "Den'," No. 192, 20 October 2005.
[9] http://ukrsvit.kiev.ua/us/gazeta/statii.html.vatra2
[10] http://www.president.gov.ua/content/golodomor75_1.html
[11] http://www.archives.gov.ua/Sections/Famine/Publicat/Fam-Pyrig.php
[12] Stalin to Kaganovich. Kaganovich, Correspondence, pp. 273-75.
[13] http:/www.archives.gov.ua/Sections/Famine/Serbyn-2006.php
[14] http:/www.loc.gov/exhibits/archives/k3grain.gif
[15] Application of the Convention on the Punishment of the Crime of Genocide and Herzegovina v. Serbia and Montenegro (http://www.icj-cij.org/docket/index.php?h1=3&case=91)
NATIONAL COMMISSION FOR STRENGTHENING DEMOCRACY
AND THE RULE OF LAW
_______________________________________________________________
CONCLUSION
Regarding the juridical characterization of the Holodomor of 1932-1933 in Ukraine as the genocide of the Ukrainian people in relation to the definition formulated in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.
Adopted at the fourteenth plenary session of the Commission (Kyiv, 16 May 2008)
CONTENTS
Preamble…………………………………………………………………………………..1
1. Legal and historical bases for the characterization of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people…………………………………………...1
2. The correspondence of the Holodomor of 1932-1933 to the object of genocide in accordance with the Convention…………………………………………………………..2
3. The correspondence of the acts which led to the Holodomor of 1932-1933 to the aim of acts that constitute the crime of genocide according to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide………………………6
4. The application of the terms of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide to the events of 1932-1933 in Ukraine………8
General conclusions…………………………………………………………………… 11
i
Preamble
As an European state, Ukraine has genuine national cultural, spiritual, and legal traditions and state-building experience. Important landmarks in this process were Kyivan Rus', with its political and cultural-religious center at Kyiv (IX-XII centuries); the Galician-Volhynian and other princely states of the medieval period (XII-XIII centuries); and the Kozak-Hetman state (XVII-XVIII centuries), which culminated in Pylyp Orlyk's Constitution of 1709.
Over the centuries, the Ukrainian people yearned for independence; as a result, in 1917-1921 there was created an independent Ukrainian state, which was recognized by various European countries. On 22 (9) January 1918 the Central Rada (Council) of the Ukrainian People's Republic (UNR) issued the Fourth Universal, proclaiming the autonomy and independence of the UNR as a free and sovereign state of the Ukrainian people. However, the sovereignty and territorial integrity of Ukraine fell victim to the aggressive actions of the Bolshevik regime. The Ukrainian people did not consent to such a state of affairs and struggled constantly for its independence. During the period from 1921 to 1933, around three thousand peasant uprisings took place in Ukraine.
Beginning in 1928, the Bolshevik government commenced a large-scale assault against Ukrainian national consciousness by means of repression. In Ukraine at the end of the 1920s, Moscow's leaders undertook a massive campaign of discreditation, persecution, and eventually physical destruction of the national elite – Ukrainian scholarly and cultural activists, the clergy of the Ukrainian Autocephalous Orthodox Church, and industrial managers, which culminated in a series of trials fabricated by the State Political Administration (GPU)(the Shakhty affair, the Prompartia trial, the People's Revolutionary Socialist Party trial, the Ukrainian National Center trial, the Association for the Liberation of Ukraine trial, etc.).
In 1932-1933 the regime deliberately committed acts directed toward the destruction of the Ukrainian peasantry as the foundation of the Ukrainian nation – totally depriving it of grain and all food products, and also blockading regions and individual settlements with special military forces, thus causing famine. In this manner, the criminal regime committed genocide, as a result of which between seven and ten million people perished.
1. Legal and historical bases for the characterization of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people
The Holodomor of 1932-1933 was first recognized on the state level as a genocide of the Ukrainian people by the Resolution of the Supreme Council of Ukraine "On the Appeal to the Ukrainian People by the Participants of the Special Session of the Supreme Council of Ukraine of 14 May 2003 on the Commemoration of the Victims of the Holodomor of 1932-1933" of 15 May 2003 No. 789-IV.
On 28 November 2006, by the Law of Ukraine "On the Holodomor of 1932-1933 in Ukraine," the Holodomor of 1932-1933 in Ukraine was recognized by the Supreme Council of Ukraine as a genocide in accord with the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide (hereinafter "the Convention") and as an act directed towards the mass annihilation of people.
The above-cited Convention was ratified by the Presidium of the Supreme Council of the USSR on 18 March 1954.
According to Article I of the Convention, the Parties recognize that genocide, regardless of whether it is committed in time of peace or war, is a crime that violates the norms of international law and against which they obligate themselves to take preventive measures and to punish its commission.
Article II of the Convention defines genocide as "actions committed with the intent to destroy, in whole or in part, any national, ethnic, racial, or religious group as such:
a) killing members of such a group;
b) the commission of serious bodily injury or mental harm to members of such a group;
c) the deliberate creation for any group of conditions of life calculated to bring about its total or partial physical destruction;
d) measures calculated to prevent births among the members of such a group;
e) the forcible transfer of children from one group to another."
According to Article III of the Convention, the following actions are punished:
a) genocide;
b) conspiracy to commit genocide;
c) the direct or public incitement to commit genocide;
d) attempted genocide;
e) participation in genocide.
2. The correspondence of the Holodomor of 1932-1933 to the object of genocide in accordance with the Convention
The actions committed with intent to destroy, in whole or in part, any national, ethnic, racial or religious group as such are set out in accord with the first paragraph of Article II of the Convention.
As defined by the International Criminal Tribunal for Rwanda, a "national group" is understood as "an association of people who have a permanent legal connection such as a single citizenship and, accordingly, certain rights and obligations."[1]
"Ethnic group," on the other hand, represents "a cultural, linguistic, or other openly expressed difference characteristic of a minority, whether within a state or beyond its borders."[2]
This clarification of the terms "national" and "ethnic" with relation to the term "group," which is used in UN documents, allows us to affirm that the policy of the Holodomor was directed against the Ukrainians as a national and ethnic group.
In this regard, the Convention's definition of genocide does not require the intent to destroy the entire group of persons. The existence of an intent to destroy a part of the indicated category of persons suffices. The Convention assumes that only certain victims may be selected from such a group.
As the practice of international tribunals demonstrates, for an act to qualify as genocide it is sufficient that the perpetrator of the crime have the intent to destroy an essential part of the protected group. In determining which part of the group is essential, it is necessary to apply both quantitative and qualitative indicators. Thus, in deciding the matter of Jelisic (1999),[3] the judicial panel of the International Tribunal for the Former Yugoslavia stressed:
"82. …. The part of the group chosen as a target can be determined to be essential either by the intent to cause harm to a majority of the group in question, or to the most prominent members of such a group…. Thus, genocidal intent can appear in two forms. It can consist of the desire to destroy a very large number of members of the group, and in that case it will constitute the intent to destroy the group en masse. However, it can consist of the desire to destroy a lesser number of selected persons in view of the consequences of their disappearance for the survival of this group as such."
The following facts testify to the fact that the Holodomor was aimed at the Ukrainians as a national and ethnic group.
According to historical data, the Kharkiv and Kyiv regions of that time (today these are the Poltava, Sumy, Kharkiv, Kyiv, Cherkasy, and Zhytomyr regions) suffered the most from famine. They account for 52.8% of the deaths.[4] In other words, these were the regions territorially closest to Russia and in which the most nationally conscious population resided. Generally, the famine encompassed the entire center, South, North, and East of today's Ukraine.
According to the census data furnished by the International Commission of Inquiry initiated by the World Congress of Free Ukrainians (WCFU) into the Famine of 1932-1933 in Ukraine, the number of Ukrainians in the USSR declined from 31,195,000 in 1926 to 28,111,000 in 1939[5] (in the same period, the number of Russians in the USSR increased from 77,791,000 to 99,591,000, while the number of Belarusians increased from 4,739,000 to 5,275,000).[6] In other words, during the time that the number of Russians increased by 28%, and the number of Belarusians by 11.2%, the number of Ukrainians decreased by 9.9%. Overall, the population of the USSR increased by 16%. Given this average increase, in 1939 the number of Ukrainians in the USSR should have been around 36,186,000. Thus, the decrease in the number of Ukrainians between 1926 and 1939 was about eight million people.
In addition, after the famine years of 1932-1933 the reproductive capacity of the Ukrainian population declined sharply, and this meant another several million unborn children. Besides, this does not take into account the proven facts about the organized intensive resettlement of thousands of families from Russia and Belarus onto the famine-devastated territory of Ukrainian villages.
The reason for the Holodomor was the policy of the totalitarian Stalin regime, whose chief idea was the unification of all nations and nationalities of the USSR into a single "Soviet people" with a unified consciousness and the realization of an "industrial leap" by way of mobilization of internal resources.
The Ukrainian nation, which was second in population in the USSR, had a great cultural-historical heritage, its own traditions of state-building, and the experience of a national liberation struggle; therefore, it constituted a serious threat to the imperial designs of the USSR leadership.
Awakened by the liberation struggle of the Ukrainian people in 1917-1921, and having significant human and economic resources, Ukraine experienced a rapid rebirth. The policy of Ukrainization at the end of the 1920s far exceeded the boundaries set by the Bolsheviks: the spheres of Ukrainian language use in the country's state life expanded, the Ukrainian language was compulsory in state business, and Party documentation was also in Ukrainian. Close to 95% of all Ukrainian children were taught in their native language. By that time, Ukrainian national consciousness had attained threatening proportions; Ukraine sought to conduct an independent policy, including international relations. Inasmuch as Ukraine was an agrarian country, it was the peasantry, which in 1926 constituted 80.8% of the population of Ukraine, that provided the social support for these tendencies.
It was for these reasons that the main emphasis was on the physical destruction of the Ukrainian nation, the exhaustion of its material and spiritual resources, that is, the annihilation of the peasantry (given that the totalitarian regime did not have the intention of destroying all of the Ukrainian peasantry) as the nation's social base, demoralizing the intelligentsia and turning the peasants who survived the famine into meek collective farmers – a labor force for the development of a single Soviet state.
The following statement by Joseph Stalin testifies to the foregoing: "The national problem is essentially a peasant problem."[7]
The Holodomor in the Ukrainian SSR became a model for the combined destruction of a nation. From one angle, it became a method of the total collectivization of the Ukrainian peasantry; from another, a method of political domination of the Ukrainians. It is no coincidence that the Holodomor took place at the same time as the halt of Ukrainization of Ukrainian-populated regions beyond the Ukrainian SSR, and as the mass annihilation of the national intelligentsia within the Ukrainian SSR. In 1932-1933, 199,000 persons were arrested by the state security organs in Ukraine, as compared with 119,000 for the previous three years, and 71,000 in the following three years. Approximately 285,000 "de-kulakized" families were forcibly deported from Ukraine, numbering close to a million people.
Thus, the Holodomor of 1932-1933 was the response of the Soviet regime to Ukrainian cultural and political development within the USSR.
These facts permitted the US Congressional Commission on the Investigation of the Famine of 1932-1933 in Ukraine to designate the famine of 1932-1933 in Ukraine a genocide. However, this characterization was based on the subjective opinions of Holodomor witnesses, inasmuch as the Commission unfortunately did not have access to the archives. Moreover, the Commission had been convoked to establish the facts, not to provide a legal evaluation.
The jurists who worked in the International Commission of Inquiry into the Famine of 1932-1933 in Ukraine of the WCFU perceived the national element in the destruction by famine and characterized the Holodomor in Ukraine as a genocide.[8]
That the Holodomor was directed against the Ukrainians precisely as a nation is also shown by the fact that it took place not only within the territory of the Ukrainian SSR, but also in the Volga region and North Caucasus, where at that time a majority of the population consisted of ethnic Ukrainians. Thus, according to the data of the 1926 census, 3,106,000 Ukrainians resided in the North Caucasus, of whom 62% of the population in the Kuban called themselves Ukrainians, while in some of its districts this indicator exceeded 80% and even 90%.[9]
Thus, there is every reason to characterize the events that took place on the territory of Ukraine in 1932-1933 as a genocide directed towards the destruction of a national group.
3. The correspondence of the acts which led to the Holodomor of 1932-1933 to the aim of acts that constitute the crime of genocide according to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide
According to Article II of the Convention, acts that it recognizes as genocide are committed with the intent to destroy, in whole or in part, any national, ethnic, racial, or religious group as such.
By the Resolution of the Supreme Council of Ukraine "On the Appeal to the Ukrainian People by the Participants of the Special Session of the Supreme Council of Ukraine of 14 May 2003 on the Commemoration of the Victims of the Holodomor of 1932-1933" of 15 May 2003 No. 789-IV, the Holodomor was recognized as the result of intentional actions of the repressive Stalinist totalitarian regime directed towards the mass destruction of the Ukrainian people.
The following historical facts testify to the intentionality of the acts of the totalitarian regime.
The USSR had sufficient food supplies to feed the country's entire population. This is shown by the size of its exports (for example, in 1930 the USSR exported 5.8 million tons of grain, in 1931 it exported 4.8 million tons, in 1932 1.6 million tons, in 1933 2.1 million tons).[10] Bread was seized and sold to other countries for hard currency, which was used for the purchase of industrial equipment for industrialization. As a consequence of the seizure of bread, already in the first half of 1932 hunger appeared in some districts of Ukraine. The data of the United State Political Administration (OGPU) on the migration of the village population bear witness to this: as of mid-July 1932, 116,000 peasants had migrated out of 21 districts. From this point, the Central Committee of the Communist Party (Bolsheviks) of Ukraine (CB(b)U) began to receive information on instances of cannibalism and necrophagy.[11]
At the same time, when the international community learned of the famine in Ukraine, the regime refused all offers of aid from other countries as well as from the International Red Cross.
Joseph Stalin's motives with regard to Ukraine are revealed in his letter of 11 August 1932 to Lazar Kaganovich: "Right now the main thing is Ukraine.... If we do not immediately undertake the correction of the situation in Ukraine, we may lose Ukraine."[12] The danger was the possibility that the famine-stricken peasants might join together with the members of the CP(b)U, who opposed the bread requisitions as unrealistic. Stalin did not permit this: he maintained the loyalty of the cadres of the CP(b)U by terror (the struggle with "Skrypnykism," the purge of CB(b)U cadres), and physically destroyed the potential army of the national movement by famine.[13]
The following measures testify to the intentional nature of the policy of the totalitarian regime's destruction of the Ukrainian people:
1) On 7 August 1932 the Decree "On the Protection of Property of State Enterprises, Collective Farms and Cooperatives and the Strengthening of Socialist Ownership" (the "Law of Five Ears of Wheat") was issued, by which the "theft" of grain from the fields was punished by death by firing-squad or ten years in the labor camps. At the same time the prohibition of trade was introduced, which practically made it impossible for the peasants to obtain bread;
2) On 23 September 1932 the "Law on Meat Procurement" was adopted, by which the peasants were obligated to supply meat to the state;
3) On 20 November 1932 penalties in kind, consisting of meat and potatoes, were introduced for hiding grain from confiscation;
4) On 6 December 1932 a Resolution of the Council of People's Commissars of the Ukrainian SSR and the Central Committee of the CP(b)U was adopted "On the Blacklisting of Villages Which Maliciously Sabotage Grain Procurement." For such villages, the delivery of goods was stopped, local cooperative and state trade was prohibited, all goods were forcibly removed from cooperative and state shops, collective farm trade and credit were totally discontinued, and credits and other financial obligations were prematurely exacted. Six villages were blacklisted under the above-mentioned resolution. Additionally, local government organs blacklisted another 380 collective farms and 51 villages;[14]
5) On 14 December 1932 the Central Committee of the Communist Party and the USSR Council of People's Commissars issued a Resolution "On the Progress of Grain Procurement in Ukraine, Northern Caucasus, and in the Western Regions," which simultaneously with the problem of grain procurement severely criticized Ukrainization, established control over its implementation, and also contained a directive for the immediate cessation of Ukrainization in the Northern Caucasus;
6) On 15 December 1932 the delivery of industrial goods in 82 districts of the Ukrainian SSR was discontinued;
7) On 29 December 1932 an order was issued to give the collective farms a sowing fund;
8) At the beginning of 1933, there were established the only norms for procurement of grain, sunflowers and potatoes for each hectare of planned sowing for the entire year. The tardy fulfillment of the indicated norms was punished by monetary fines in proportion to the value of the arrears and by the confiscation of produce in the amount of the arrears. According to eyewitness testimony, in the course of the collection of produce all products without exception were confiscated;
9) By the decrees of 13 September 1932 and 17 March 1933, the peasants were tied to the land and were forbidden to leave the collective farms if they did not have a contract approved by the collective farm administration;
10) On 22 January 1933 a Directive of the Central Committee of the All-Union Communist Party (Bolsheviks) and the Council of People's Commissars of the USSR was issued, according to which all the borders between Ukraine and the Kuban and the rest of the regions of the USSR were closed to peasants. This Directive bears witness to the fact that at that time, famine existed only on the territories inhabited by a Ukrainian population (the Ukrainian SSR and the Northern Caucasus), since in the neighboring republics there was no such shortage;
11) On 23 February 1933, Western correspondents were forbidden to visit Ukraine.
In other words, the seizure of all food products meant the deliberate creation of conditions of life incompatible with physical existence.
The above-mentioned unprecedented measures indicate that the Holodomor of 1932-1933 was not the result of a drought (for it is obvious that a drought cannot bring about the total destruction of a harvest, cattle, and other food products) or of a mistake by the regime.
Furthermore, no criminal prosecution was initiated and not a single person was punished for the consequences of the commission of the above-cited systematic actions directed towards the extermination of Ukrainians.
Extermination by starvation, directed against the Ukrainian peasants, was combined with terror against the Ukrainian intelligentsia (the halting of Ukrainization and the beginning of Russification of the Ukrainian population, and repressions against members of the Communist Party of Ukraine), which testifies to the systematic nature of the actions against the Ukrainians.
4. The application of the terms of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide to the events of 1932-1933 in Ukraine
The general principle of law that laws do not have retroactive effect and no one may be punished for acts which were not regarded at the time as illegal or criminal, lies at the root of the question of whether agreements can be applied to events that occurred prior to their conclusion.
This principle is recognized in the legal systems of most nations. It was also reflected, for example, in article 15, section 1 of the International Covenant on Civil and Political Rights of 1966, in which it is stated that "no one may be found guilty of the commission of any criminal act as the result of any act or omission which, according to the municipal legislation or international law in effect at the moment of its commission, was not recognized as a crime."
At the same time, in section 2 of the same article it is stated that "nothing in the present article prevents the trial and punishment of any person for any act or omission that at the moment of its commission was a crime in accord with general principles of law recognized by the international community."
The subject of the Convention on the Prevention and Punishment of the Crime of Genocide is genocide – a crime against humanity, that is, a crime that was considered a crime in international law prior to the entry into force of the Convention. Otherwise, the presumption of the lawfulness of genocide, if only from the point of view of the Convention, would constitute an assault on the very fundamentals of humanity.
It is necessary to stress that the multifaceted norm-creating Convention was developed as a result of the codification of the customary norms of international law. The Convention was a response to events that had taken place previously and corresponded to the elements of this crime as it was fixed in the Convention. It is worth mentioning that in the Convention itself, and in the documents of the "preparatory work," certain events of the past were directly and unambiguously qualified as the crime of genocide.
As confirmation of the above one should cite the fact that prior to the entry into force of the Convention, in the Statute of the Nuremberg International Military Tribunal (article 6) and the Statute of the Tokyo International Military Tribunal (article 5), crimes against humanity were placed in a separate category: murders, extermination, enslavement, exile and other cruel actions committed against the civilian population; persecution for political, racial, or religious motives with the aim of committing, or in connection with, any crime, irrespective of whether or not these actions were violations of the national (municipal) law of the country in which they were committed.
The powers of the Nuremberg Tribunal with regard to crimes committed prior to the entry into force of the Convention on the Prevention and Punishment of the Crime of Genocide were based on the recognition of genocide as a crime against humanity on the basis of the customary norms of international law. Proceeding from the customary norms and principles of international law in effect prior to the adoption of the Convention, the prosecution was carried out and the degree of punishment for this international crime was established.
Article 28 of the Vienna Convention on the Law of Treaties provides that in the absence of a contrary intent implicit in the agreement or otherwise established, the terms of the agreement are not binding on a party to the agreement with regard to any action or fact that took place prior to the date of the agreement's entry into force for the party in question, or to any situation that ceased to exist before that date.
At the same time, the above-cited norm does not exclude the retroactive force of agreements, but only conditions this upon the existence of intent of the parties to the agreement. The Vienna Convention on the Law of Treaties entered into force on 27 January 1980, that is, after the entry into force of the Convention on the Prevention and Punishment of Genocide. However, the terms of the Vienna Convention are also applicable to the Genocide Convention.
As was noted in the consultative decision of the International Court of Justice of 28 May 1951, "Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide," the principles of the Convention are binding even upon states that have not acceded to it. In this regard it was pointed out that the history of the creation of the Convention demonstrates that the aim of the UN was to condemn genocide and to punish it as a "crime according to international law," connected with the deprivation of an entire group of people of the right to exist – a deprivation which the conscience of humanity cannot tolerate and which leads to enormous losses for humanity, contradicts the laws of morality, as well as the spirit and aims of the United Nations (General Assembly Resolution 96(1), 11 December 1946). The first consequence of this convention consists in this, that the principles that lie at the heart of the Convention are principles that are recognized by civilized peoples as obligatory for states, even in the absence of any obligations. The second consequence is based on the universal nature both of the condemnation of genocide and of the cooperation that is required "in order to rid humanity of this horrible misfortune" (preamble of the Convention).
The approach of the International Court of Justice, according to which genocide is a violation of both treaty and customary international law, is the point of departure for the formation of the conception of obligations erga omnes, introduced into international law by the decision in the matter of Barcelona Traction. In this matter, the International Court stated that "an essential distinction should be made between the obligations of states in relation to the international community as a whole, and obligations which arise in relation to another state within the bounds of diplomatic protection. By their very nature, the former obligations bind all nations. By virtue of the importance of the laws that proceed from them, all states can be regarded as having a juridical interest in protection; the obligations in question are obligations erga omnes. These obligations proceed from contemporary international law, for example, from the prohibition of acts of aggression, genocide…"
Subsequently, in the matter of Bosnia and Herzegovina v. (Serbia and Montenegro) the International Court of Justice again pointed out that the rights and obligations embodied in the Convention are rights and obligations erga omnes[15]and function as norms of international law regardless of participation in the Convention and, therefore, extend also to cases of genocide that took place in the past. The retroactive force of the norms fixed in the Convention is grounded also in the nature of the Convention as the result of the codification of the norms of international law in effect prior to its entry into force.
As the gravest international crime, genocide was placed in the jurisdiction of the Ad Hoc International Criminal Tribunals for the Former Yugoslavia (article 4) and Rwanda (article 2). In addition, in the practice of both tribunals concrete cases of alleged genocide were tried, which played an important role in the further development and understanding of the fundamental elements of this crime (especially the cases Prosecutor v. Jean-Paul Akayesu, Prosecutor v. Klement Kayishema and George Rutaganda, Prosecutor v. Goran Jelesic).
Furthermore, according to article 1 section (b) of the 1968 UN Convention on the non-applicability of statutes of limitations to war crimes and crimes against humanity, ratified by the Presidium of the Supreme Council of the Ukrainian SSR on 19 June 1969, statutes of limitations are not applied, in particular, to the crimes of genocide set out in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, even if these acts are not violations of the internal legislation of the country in which they were committed.
A similar rule is to be found in article 1 of the European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes of 1974, which was ratified by the Parliament of Ukraine on 6 March 2008. Thus, it is stated in this article that each State Party is obligated to employ all necessary means in order to ensure the non-application of statutes of limitations to criminal prosecutions or execution of sentences, especially in connection with crimes against humanity defined in the UN Convention on the Prevention and Punishment of the Crime of Genocide to the extent to which they are punishable under its internal law.
Moreover, article 2 of the 1974 European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes directly points out that its terms are applicable to violations of law committed prior to its entry into force in cases where at that time, the statute of limitations had not yet expired. According to international law, as was noted above, crimes against humanity, particularly genocide, have no statute of limitations.
In view of the aforementioned, the events of 1932-1933 in Ukraine fall under the UN Convention on the Prevention and Punishment of the Crime of Genocide.
General conclusions
1. The Holodomor of 1932-1933 is recognized as genocide in accord with the UN Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, especially article 2 section (c) (the deliberate creation for any group of conditions of life calculated to bring about its physical destruction in whole or in part).
2. The Holodomor was the result of deliberate and systematic acts of the totalitarian Soviet regime (which have received historical and documentary confirmation), which consisted essentially of the following:
(1) the brutal suppression of the Ukrainian nation's aspirations to independence;
(2) the mass starvation of the peasants as a means of destroying the socio-economic basis of the Ukrainian national idea, and as a demoralizing factor for the rest of the Ukrainian population, with the aim of implementing the totalitarian Stalinist regime's policy of destroying the Ukrainian nation as such, in order to create of a single state with a single Soviet people with a uniform consciousness;
(3) the destruction of the economic system and the introduction of a special regime of subsistence:
-- the massive de-kulakization of the peasants;
-- the forcible introduction of collectivization of peasant farms;
-- the carrying out of grain procurement plans at the expense of the Ukrainian villages;
-- the removal from the territory of Ukraine of all goods and means of subsistence to be found in storehouses and shops;
-- the requisition of all food supplies from the peasants;
-- the prohibition of any trade and of the importation of any means of subsistence whatsoever;
-- the prohibition of any credit, and the forcible repayment of all credits;
(4) the isolation of vast territories of Ukraine and of territory of the USSR with a compact Ukrainian population:
-- the deprivation of the peasants of the right to have passports;
-- the prohibition of peasants leaving their places of permanent residence for other parts of the USSR;
-- arrests and deportations of peasants who had left their places of residence;
-- the isolation of the territory of Ukraine, and also of the Kuban and Northern Caucasus, where ethnic Ukrainians resided, from the rest of the USSR;
-- the prohibition of correspondence and the dissemination of information about the true state of affairs in Ukraine;
(5) attempts to conceal the causes and dimensions of the tragedy:
-- the execution of persons responsible, in the course of taking the census of 1939, for revealing facts concerning discrimination against the Ukrainian population and its high mortality;
-- the barring of foreign journalists;
-- the classification of documentary material about the facts of the famine.
3. The rights and responsibilities enshrined in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide are rights and responsibilities erga omnes. In accord with the 1968 UN Convention on the non-applicability of statutes of limitations to war crimes and crimes against humanity and the 1974 European Convention on the non-applicability of statutes of limitations to crimes against humanity and war crimes, no statutes of limitations apply to the crime of genocide. Therefore, the norms of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide are retroactive, and accordingly apply to the Holodomor in Ukraine of 1932-1933.
4. In its conclusions, the International Commission of Inquiry of the WCFU into the Famine of 1932-1933 in Ukraine established the facts of compulsory grain requisitions, collectivization, dekulakization, and denationalization, which were the causes of the famine, and recognized that a genocide against the Ukrainian people had taken place and violated the norms of international law in effect at that time. The conclusions of the Commission were based on the examination of material in the mass-communication media of that time, the correspondence of diplomatic missions then accredited to Moscow, statistical reference works of the USSR, and the testimony of eyewitnesses. Unfortunately, the Commission did not have access to data from the archives of the USSR KGB, which were made public later.
5. In accord with Resolution No. 1481 (2006) of the Parliamentary Assembly of the Council of Europe, the Holodomor of 1932-1933 in Ukraine was the result of intentional acts of the Soviet government and is subject to international condemnation as a crime of the totalitarian communist regime.
6. The recognition of the Holodomor of 1932-1933 in Ukraine as a genocide of the Ukrainian people corresponds to the purpose of the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the principal aim of which lies not in the juridical definition of the concept of genocide, but in assuring the irrevocability of punishment for its commission.
s/M. Onishchuk_________
M. Onishchuk
4 September, 2008
Chairman of the National Commission for Strengthening
Democracy and the Rule of Law
Minister of Justice
[1] William A. Schabas, Genocide in International Law. The Crime of Crimes (Cambridge: Cambridge University Press, 2000), “Chapter 3. Groups protected by the Convention” (quoted in Serbyn, The Ukrainian Famine of 1932-1933 and the UN Convention on Genocide, p. 5).
[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro); Summary of the Judgment of 26 February 2007, p. 9.
[3] Prosecutor v. Goran Jelisic, ICTY (Trial Chamber I), Case No. IT-95-10 “Breko,” Judgment of 14 December 1999.
[4] http://www.president.gov.ua/content/golodomor75_1.html
[5] According to the figures for 1937 – 28,388,000.
[6] http://www.president.gov.ua/content/golodomor75_1.html
[7] "Proletarskaia pravda," 22 January 1930. Cited in "Masovyi holod iak sotsial'nyi henotsyd," http://news.bbc.co.uk/hi/Russian/international/newsid_6161000/6161035.stm.
[8] S. Kul'chyts'kyi in "Den'," No. 192, 20 October 2005.
[9] http://ukrsvit.kiev.ua/us/gazeta/statii.html.vatra2
[10] http://www.president.gov.ua/content/golodomor75_1.html
[11] http://www.archives.gov.ua/Sections/Famine/Publicat/Fam-Pyrig.php
[12] Stalin to Kaganovich. Kaganovich, Correspondence, pp. 273-75.
[13] http:/www.archives.gov.ua/Sections/Famine/Serbyn-2006.php
[14] http:/www.loc.gov/exhibits/archives/k3grain.gif
[15] Application of the Convention on the Punishment of the Crime of Genocide and Herzegovina v. Serbia and Montenegro ( http://www.icj-cij.org/docket/index.php?h1=3&case=91)
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