Сергій Кабуд ( Кий ) (xyu) wrote,
Сергій Кабуд ( Кий )

Famine in UKRAINE 1932-1933. Up to 10 milion died. Legal case against KREMLIN.Part4

The Consequences of Holodomor 1932-1933

The consequences of Holodomor 1932-1933 were terrible. They concern “the dead, the living and those unborn” {Taras Shevchenko). Besides millions who died of starvation or who were not born, which in itself had considerable impact on the genofund and development of the Ukrainian people, Holodomor had a devastating effect on those who survived it. It adversely affected their level of social and political activeness and instilled fear of the authorities. The historical memory and the psychology of those who survived 1932-1933 were ravaged by memories of cannibalism, denunciations of neighbours etc. The tragic events are to this day reflected in the psychological makeup of their descendants.

Holodomor and the destruction of the Ukrainian intelligentsia, the elite, which were taboo subjects right up to the end of the1980s, disrupted the intellectual and cultural development of the Ukrainian nation, led to a loss of identity and common values. The tragedy of Holodomor also resulted in an unrecognized inferiority complex for a large number of Ukrainians.

Ukraine’s post-genocide society badly needs conscience at rest, liberation from psychological complexes, freedom from fear. This is impossible without public recognition that Holodomor was a crime, and this should be at a legal level. This is the moral duty of the nation before those who perished. It is vital for the restoration of historical justice, and for the strengthening of the Ukrainian people’s immune system against political repression, violence and unwarranted State coercion.

We would note also that the European community insists upon the investigation and condemnation of the crimes of totalitarian regimes. The Resolution of the Parliamentary Assembly of the Council of Europe 1481 (2006) “The need for international condemnation of Holodomor in Ukraine in 1932-1933” states:

«The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).

Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.

The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.

Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.»

The options for legal classification of Holodomor 1932-1933 as genocide

We have endeavoured to demonstrate that the famine in Ukraine of 1932-1933 has all the necessary elements of a crime against humanity in accordance with the Rome Statute of the International Criminal Court of 1998 and of genocide according to the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The object, subject, event and makeup of the crime of genocide have been established, as well as its motive and the direct intent to commit this crime. Can one however apply the provisions of these international agreements with regard to events in Ukraine 1932-1933, and in keeping with them classify Holodomor 1932-1933 as a crime against humanity and act of genocide? Do these international agreements have retroactive force in the given case? The following questions arise: 1) whether there are punishable acts which were not at the formal juridical level previously recognized as offences or crimes; 2) whether there is no time limit for criminal prosecution over crimes committed in 1932-1933. Pursuant to Article 7 § 1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (1950), «No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed». This fundamental principle is enshrined in the first paragraph of Article 15 of the International Covenant on Civil and Political Rights. The second paragraphs of these same articles of both the Convention and the Covenant states that offences shall be punishable if at the time they were committed, they were considered crimes “according to the general principles of law”. For example, Article 7 § 2 of the 1950 Convention reads that: “«This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.» On the basis of this provision, some researchers have concluded that the Convention on Genocide can have retroactive force. Certainly mass extermination of people, later called genocide, like other crimes against humanity, was classified as a crime by civilized nations earlier as well. Moreover, according to the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, no statutory limitations apply to the crime of genocide. This means that any statutory limitation set down in law, does not apply to judicial prosecution and punishment for war crimes and crimes against humanity
Other lawyers reject the possibility of applying the Convention on Genocide with respect to events which took place before it came into effect. They consider that the commitments taken on through the UN Convention of 1968 to not apply statutory limitations in the case of crimes against humanity, including genocide, do not indicate retroactive force at the time of the 1948 Convention, and that application of Article 7 § 2 of the European Convention and Article 15 § 2 of the Covenant on Civil and Political Rights is not possible since the international community had still not recognized such acts as a crime at that time. Furthermore, according to Article 58 of Ukraine’s Constitution “No one shall bear responsibility for acts that, at the time they were committed, were not deemed by law to be an offence”. The Criminal Code of the Ukrainian SSR of 1927 did not include genocide among criminally liable acts. The word “genocide” did not then exist, it being suggested for use by the author of the Convention on Genocide Raphael Lemkin in 1944..
These lawyers also point out that pursuant to Article 3 § 3 of the Ukrainian Criminal Code of 2001, “the criminality of actions, as well as whether they are subject to punishment and other criminal-legal consequences, are determined by this Code”. According to Article 4 § 2 of the Criminal Code which regulates issues regarding the force of the law on criminal liability in time, the criminality and liability of an action are determined by the law on criminal liability which was in force at the time the act was committed.

The principle prohibiting retroactive force of a law which establishes criminal liability is one of the fundamental principles of law. This principle is enshrined in Article 28 of the UN Conference on the Law of Treaties (Vienna 1969), according to which “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party”.
The Convention on Genocide of 1948 does not contain provisions regarding its own retroactive force, which does not make it possible to apply it for recognizing as genocide actions committed before it came into effect. The 1948 Convention can thus not be applied for classification of Holodomor 1932-1933 as genocide.
One can conclude that the issue around whether there can be retrospective application of the Convention on Genocide of 1948 remains in dispute. However the Convention can always be used to provide a historical assessment of certain events. Such an assessment was given by the Verkhovna Rada which “recognizing Holodomor 1932-1933 in Ukraine in accordance with the UN Convention from 9 December 1948 on the Prevention and Punishment of the Crime of Genocide as a deliberate act of mass destruction of people; passed the Law “On Holodomor 1932-1933 in Ukraine “. Article 1 of this Law recognizes Holodomor to have been genocide of the Ukrainian people.
Holodomor 1932-1933 was condemned by 64 member-states of the UN in a joint declaration from 7 November 2003, by member –states of OSCE in a joint declaration from 3 November 2007 and by UNESCO on 1 November 2007 in its Resolution “On Remembrance of victims of Holodomor 1932-1933 in Ukraine”.
Holodomor 1932-1933 has been recognized as an act of genocide by the parliaments of Australia, Canada, the Czech Republic, Columbia, Ecuador, Estonia, Hungary,
On 3 July 2008 the OSCE Parliamentary Assembly passed a Resolution “Holodomor 1932-1933 in Ukraine” which states that “Recalling that the rule of the totalitarian Stalinist regime in the former USSR had led to tremendous human rights violations depriving millions of people of their right to live, … The OSCE Parliamentary Assembly: pays tribute to the innocent lives of millions of Ukrainians who perished during the Holodomor of 1932 and 1933 as a result of the mass starvation brought about by the cruel deliberate actions and policies of the totalitarian Stalinist regime … Strongly encourages all parliaments to adopt acts regarding recognition of the Holodomor”. .
On 21 November 2007 the President of the European Parliament Hans-Gert Poettering made a statement about Holodomor 1932-1933 in Ukraine. He called for remembrance of Holodomor and stated that the famine, which had taken the lives of 4-6 million Ukrainians during the winter of 1932-1933 had been cynically and cruelly planned by Stalin’ s regime in order to force through collectivization against the will of rural people in Ukraine. “Today we know that the famine, known as Holodomor, was in reality a terrible crime against humanity,” Mr Poettering said.
The Parliamentary Assembly of the Council of Europe has included on its agenda consideration of a report on the issue of condemning Holodomor as a crime of the totalitarian regime in Ukraine and in other regions of the former USSR. The PACE Political Committee on 26 June 2008 appointed a rapporteur on this issue – PACE Vice President Alexander Biberaj (Albania). Two years have been set aside for preparation of the report, however Alexander Biberaj expects to complete it much earlier.
The above-mentioned facts demonstrate the attention of the world community to Holodomor 1932-1933 and the understanding of the need for a legal qualification of Holodomor as a crime against humanity and the crime of genocide. For this it would be possible to amend the Convention on Genocide of 1948, by adding a provision about the retrospective force of the Convention with respect of events which took place from the beginning of the twentieth century. Crimes of the totalitarian regimes in the twentieth century, in the first instance of the communist regime in the USSR, require legal assessment, condemnation and punishment. There are also other reasons for introducing amendments to the Convention. Its scope is too narrow to respond adequately to the tempestuous events of the second half of the twentieth century. We would point out that the signing of the Convention in its present form was a compromise between Western governments and the USSR whose representative insisted on removing victims of “political groups” from the list of victims. It was criticized by scholars for this almost immediately after its signing, as well as for its concentration of the purely physical side of violence.
The domestic legislation of some countries has gone further in defining genocide. For example, the 1991 French Criminal Code adds to the groups listed in the Convention “a group defined on the basis of any other normative criterion”.[23]. With respect to this it is worth recalling the comments from the author of the Convention Raphael Lemkin, who a short time before its adoption, noted that "Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves."[24].
Another approach to achieving a legal classification of Holodomor 1932-1933 would be in the founding of a special International Tribunal for the legal classification of the famine of 1931-1933 as a crime of the totalitarian regime of the USSR (analogous to the International Nuremberg Tribunal set up in 1945, the International Criminal Tribunal for the Former Yugoslavia, established in 1993 and the International Criminal Tribunal for Rwanda from 1994). This approach seems more realistic than making amendments to the 1948 Convention. The creation of an International Tribunal for the legal classification of the famine of 1931-1933 as a crime of the communist regime of the USSR could be approved by inter-state organizations – the UN, the Council of Europe, OSCE.
An international tribunal, if created, should use the results of the US Congress Commission on the Ukrainian Famine 1932-1933 led by James Mace, the International Commission on the Crimes of the Famine 1932-1933 in Ukraine, headed by Jacob Sandberg, archival documents and testimony of victims and witnesses of Holodomor gathered since Ukraine gained independence.
It should be especially stressed that although the Russian Federation is the successor to the USSR, the modern Russian State is not responsible for the crimes of the totalitarian regime of the USSR. The Russian people were victims of these crimes together with the Ukrainian, Kazakh and other peoples, as well as social and political groups.
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