Between 1932 and 1933, millions of people were starved to death during one of the most horrific man-made tragedies inflicted upon the Ukrainian people and nation. Today, I want to draw attention to the legal grounds that recognize this tragedy as genocide in accordance with international law, conventions, and the standards established for accountability for war crimes and crimes against humanity.
The charge of committing the crime of genocide has become quite common in both international and national judicial tribunals over the last 75 years. The International Military Tribunal at Nuremberg (the Nuremberg Tribunal) laid the foundation for modern international humanitarian law and international judicial tribunals. The Second World War “marked the transition of international law from a system dedicated to state sovereignty to one also dedicated to protecting human dignity.” [2] The Nuremberg Tribunal, established in 1945, was the first international tribunal to hold defendants criminally responsible for violations of international humanitarian law, or the laws and customs of war. [3] Importantly, the Charter of the Nuremberg Tribunal also contained 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.” [4]
The term “genocide” was not used in the Nuremberg Tribunal’s judgment. What was presented in the indictment as genocide (i.e., the extermination of racial and national groups) was “conceptualized… as a particular and aggravated form of murder,” but not as a crime separate from war crimes or crimes against humanity. The success of the Nuremberg Tribunal paved the way for the 1948 Genocide Convention, the importance of which was emphasized in the Nuremberg Judgment.
The Convention on the Prevention and Punishment of the Crime of Genocide [5] (the “Genocide Convention”) was unanimously adopted by the UN General Assembly on December 9, 1948, in Paris. Its development was aimed at preventing, criminalizing, and punishing acts of genocide. [6] The Convention on the Prevention and Punishment of the Crime of Genocide entered into force on January 12, 1951. The Convention was ratified by the Presidium of the Supreme Soviet of the USSR on March 18, 1954; the Ukrainian SSR ratified the convention on November 15, 1954; and the Russian SSR on March 3, 1954. Article I of the Convention states the responsibility of the state, in which all parties agreed that they have a duty to prevent genocide and punish this crime, whether in peacetime or in wartime. Article II of the Convention contains a specific definition of genocide. In this Convention, genocide is understood as 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.
Thus, in international law, the crime of genocide consists of both an act and intent.
The key element required to establish the crime of genocide under the Genocide Convention is evidence that the prohibited act was committed with a specific intent (dolus specialis), namely, to destroy members of a protected group solely because of their connection to that group. Intent, as an element of the crime, does not require any evidence of motive on the part of the criminal party, nor the existence of premeditation. At the same time, the party alleging the existence of genocide must prove intent with “fully conclusive” evidence. [7] The inclusion in Article II of the Convention of a detailed list of acts covered by the crime of genocide is restrictive, not illustrative. This somewhat contradicts the broad concept of genocide proposed by Raphael Lemkin (a legal advisor to the Chief Prosecutor at the Nuremberg Tribunal and one of the earliest advocates for a separate convention prohibiting genocide). Dr. Lemkin insisted that the protection should be even greater and extend to racial, national, and religious groups whose cultural, political, social, or physical existence was threatened. [8] The Convention provides for broad categories of punishable acts, and in particular, it establishes that punishable are “genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; [and] complicity in genocide.” [9] Dr. Lemkin is also credited with coining the term “genocide,” which comes from the Greek prefix genos, meaning race, and the Latin suffix cide, meaning to kill.
Another important document in the prosecution of those who have committed genocide is the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, approved by the UN on November 26, 1968. [10] The Convention on Statutory Limitations emphasizes the importance and expands the possibility of prosecuting the crime of genocide, as provided for in the Genocide Convention, by eliminating the possibility of circumventing any national legislative limitations on prosecution. The Ukrainian SSR ratified the Convention on June 19, 1969, and the Russian SSR on April 22, 1969. The European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes was adopted by the Council of Europe in 1974. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity emphasizes and expands the scope of criminal prosecution for the crime of genocide, as stipulated by the Genocide Convention, by removing any obstacles to such prosecution that might be contained in national legislation. The Convention on Statutory Limitations, analyzed in conjunction with the norms of jus cogens (peremptory norms of international law) that prohibit genocide, makes it possible to completely negate the argument that acts of genocide committed before the adoption of the Genocide Convention are not subject to criminal prosecution. The prohibition of genocide today is universal by virtue of the norms of jus cogens (a peremptory norm of a binding nature), and the obligation to punish genocide is an obligation erga omnes (towards everyone). [11] Persons accused of committing genocide cannot “credibly argue that their prosecution for violating a primary and pre-existing norm of international law constitutes retroactive punishment.” [12] Thus, the Convention on Statutory Limitations removes any possible domestic legislative restrictions on the prosecution of persons accused of committing acts of genocide.
The Genocide Convention was analyzed by the International Court of Justice in The Hague in the case of Bosnia and Herzegovina v. Serbia and Montenegro concerning violations of the Genocide Convention. [13] The International Court of Justice delivered its judgment on February 26, 2007. [14] This judgment is important because it recognizes the state’s obligation to prevent the crime of genocide and that the responsibility of the state is linked to the duty to prevent it in accordance with Article I of the Genocide Convention. The Court explained that “responsibility is not incurred simply because the genocide has occurred, 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.” [15] The ICJ, by a vote of 14 to 1, found that Serbia had violated its obligations to prevent genocide, but despite this, the ICJ did not find Serbia responsible for the actions of those who directly committed acts of genocide in Srebrenica due to a lack of evidence that these actions could be considered acts of the state of Serbia. [16]
In light of the evolution of the definition of “genocide” under the Genocide Convention and the criminal prosecution for acts of genocide before various international and national judicial tribunals, the Holodomor of 1932–1933 in Ukraine was an act of genocide and must be recognized as such. [17]
The Holodomor of 1932–1933 was first recognized as genocide of the Ukrainian people at the state level on May 14, 2003, by a Resolution of the Verkhovna Rada of Ukraine to commemorate the victims of the Holodomor of 1932–1933. On November 28, 2006, the Law of Ukraine “On the Holodomor of 1932–1933 in Ukraine” recognized the Holodomor of 1932–1933 as genocide by the Verkhovna Rada in accordance with the Convention of December 9, 1948, on the Prevention and Punishment of the Crime of Genocide. This law was signed by the President of Ukraine.
The executive branch reached the same conclusion when, on May 16, 2008, the National Commission for Strengthening Democracy and the Rule of Law, established by the President of Ukraine, approved the Conclusion on the legal definition of the Holodomor in relation to the definition formulated in the Convention on the Prevention of the Crime of Genocide. The Chairman of the Commission and Minister of Justice, Mykola Onishchuk, signed the Conclusion on September 4, 2008.
The judicial branch has similarly applied the definition of genocide under the UN Convention to the Holodomor. On January 13, 2010, the Kyiv City Court of Appeal considered and ruled on a criminal case initiated by the Security Service of Ukraine (SBU) under Article 1(1) of the Criminal Procedure Code of Ukraine regarding the commission of genocide in Ukraine in 1932–1933, on the grounds of a crime against Stalin, Molotov, Kaganovich, Postyshev, Kosior, Chubar, and Khatayevich. [18] Thanks to the opening of the SBU archives, many previously unavailable documents now make it possible to establish the subjective element of the crime in accordance with the requirements of the Genocide Convention. The court found that the mass extermination of millions of Ukrainians by starvation, organized by the Soviet totalitarian regime, was indeed genocide in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. However, the case was closed in relation to the persons found guilty of the crime of genocide due to their deaths, in accordance with paragraph 8, part 1, article 6 of the Criminal Procedure Code of Ukraine. According to the documents provided to the appellate court, the latter estimated Ukraine’s approximate losses from the planned Holodomor of 1932–1933 to be 10,063,000 million Ukrainians (approximately 4 million deaths and 6 million unborn).
In a 1953 report in New York on the 20th anniversary of the Holodomor, Lemkin drew attention to four blows by the Soviet-Communist regime against the Ukrainian people at that time. The first blow was aimed at the intelligentsia, the brain of the nation. The second was against the Ukrainian churches, priests, and clergy. The third blow was against the peasantry, through a terrible famine. It was important for Stalin to get rid of Ukrainian nationalism. The fourth blow was the resettlement of the Ukrainian people to other parts of the Union, and of Russians to Ukraine.
As Lemkin explains, “this is not simply a case of mass murder. It is a case of genocide, of the destruction, not only of individuals, but of a culture and a nation. Even if these actions did not cause suffering, we would still have to condemn them, because the community of mentality, the unity of ideas, language, and traditions that constitute what we call a nation, represent one of the most important dimensions of civilization and progress.”
In 1988, Dr. James Mace, director of the Commission on the Ukraine Famine, reported to the U.S. Congress: “Joseph Stalin and his entourage committed genocide against the Ukrainian people in 1932–33.” [19] On January 25, 2006, the Parliamentary Assembly of the Council of Europe adopted Resolution 1481, which condemns the actions of the Soviet authorities and the crimes of the totalitarian communist regime as a “massive violation of human rights.” On October 23, 2008, the European Parliament also adopted a Resolution commemorating the Holodomor, recognizing it as a crime against humanity. [20]
Furthermore, during the commemorations of the 75th anniversary of the Holodomor of 1932–33, the governments of sixteen states adopted resolutions recognizing the Holodomor as genocide. The Government of Ukraine appealed to the UN to adopt a resolution recognizing the famine-Holodomor as genocide. The UN, unfortunately, due to various circumstances, possibly due to objections from the Security Council, did not schedule hearings on this issue. During the commemoration of the 85th anniversary of the Holodomor, Petro Poroshenko, the current President of Ukraine, speaking at the UN, called for the recognition of the Holodomor as genocide. Recently, on October 3, 2018, the U.S. Senate unanimously passed a Resolution calling the Holodomor genocide. Similar resolutions calling the Holodomor genocide have been adopted to date by 21 U.S. states. Great credit for this goes to the Ukrainian community, which follows the guidance of Dr. Lemkin. The crimes against humanity committed by the Soviet communist regime must be condemned. It is also necessary to adhere to international conventions and honor the memory of the millions of Ukrainians who were killed.
The appeal is very fitting:
Ukraine remembers—the world acknowledges!
[1] Bohdan A. Futey is a Senior Judge of the United States Court of Federal Claims and was appointed to the position by President Ronald Reagan in May 1987. He graduated from Cleveland-Marshall College of Law where he received his Juris Doctor degree in 1968. Since 1991, Judge Futey has been an active participant in various rule of law and democratization programs in Ukraine. He was an advisor to the Working Group on the Constitution of Ukraine, adopted on June 28, 1996. Judge Futey is a professor at the Ukrainian Free University in Munich, Germany, and a visiting professor at the Faculty of Law, National University of “Kyiv-Mohyla Academy.” Since 2015, he has been a consultant to the Constitutional Commission of Ukraine.
[2] David J. Bederman, Christopher J. Borgen, David A. Martin. International Law: A Handbook for Judges, p. 87 // American Society of International Law, Foundation Press (2001).
[3] International Law and Litigation for U.S. Judges: A Federal Judicial Center Publication, p. 13 // American Society of International Law.
[4] See: Matthew Lippman. The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later // Arizona Journal of International and Comparative Law, Vol. 15, pp. 415, 425 (1998).
[5] Approved by UN General Assembly Resolution No. A/810, adopted at the Third Session, 1948.
[6] Lippman, supra note 4, at 452.
[7] 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, p. 11 // www.icj-cij.org; see also: Lippman, *supra* note 4, at 454–455.
[8] Lippman, *supra* note 4, at 424.
[9] *Id.* at 458.
[10] UN General Assembly Resolution No. A/7281, adopted at the Twenty-third Session, 1968.
[11] See: Orna Ben-Naftali, Miri Sharon. What the ICJ Left Unsaid about the Duty to Punish Genocide // Journal of International Criminal Justice, Vol. 5, pp. 859, 869 (2007).
[12] Lippman, *supra* note 4, at 471–472.
[13] 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, p. 11 // www.icj-cij.org.
[14] International Court of Justice. Press Release No. 2007/8 of 26 February 2007 // www.icj-cij.org.
[15] *Id.*
[16] *Id.*
[17] “International Legal Responsibility for Genocide: Justice in the Courts,” Bohdan Futey, materials from the Conference dedicated to the Holodomor, September 25–26, 2008, Kyiv, Ukraine.
[18] “SBU v. Stalin et al.,” Kyiv City Court of Appeal (January 13, 2010).
[19] Commission on the Ukraine Famine, Report to Congress, p. vii (1988) (Dr. James E. Mace, Staff Director).
[20] Resolution on the Commemoration of the Holodomor, the Ukrainian artificial famine of 1932–1933, European Parliament P6_TA(2008)0523.