Classification of crimes of the communist regime: genocide and crimes against humanity
A lot of people nowadays say that there’s no need to stir up the past, that it’s time to stop talking about the crimes of the Soviet totalitarian regime; that we need to think about the future. At the same time a gradual change is taking place in public thinking. The vast majority of young people know nothing about the mass crimes, while Ukrainian communists insist that Stalin was great and want to put up a monument to him in all regional centres of Ukraine. On 5 May 2010 in Zaporizhya communists erected a monument to Stalin on the territory adjacent to the Zaporizhya Regional Committee [obkom] of the Communist Party. Over the last four years for 9 May in many cities there have been billboards posted with images of Stalin – in Sevastopol, Luhansk; there were also such plans with regard to Dnipropetrovsk and Odessa. As the First Secretary of the Odessa obkom of the Communist Party Yevhen Tsarkov said: “Victory and the name of Stalin are inextricably linked. “If not for people like Stalin there would have been no Victory”.
In my view, it is simply blasphemous to speak of any positive role played by Stalin in the Second World War. It was due to his dictatorial butcher-like policy that the country faced huge human losses, far more than those of the Allies and Germany. “We simply didn’t know how to fight. We inundated the enemy with our blood, our dead bodies”, the eminent writer and War veteran Viktor Astavyev wrote with bitterness. In fact we were victorious in the Second World War not thanks to Stalin, but in spite of him.
Erecting a monument to Stalin is about the same as if neo-Nazis wanted to erect a monument to the other terrible murderer and tyrant of the XX century Hitler in Germany or Austria.
A monument to Stalin is an outrage and affront to the tens of millions of his victims and their relatives. Ukrainians understand that. It is no accident that a public opinion survey has shown that a majority of Ukrainians – 56.7% - are against this initiative.
At the same time I can see no legal grounds for prohibiting the monument. The court ruling issued by the Kyiv Court of Appeal on 13 January which found Stalin, Molotov and others guilty of the crime of genocide in relation to Holodomor 1932-1933 was only a preliminary court hearing into a criminal case and does not therefore give grounds for a legally significant classification of the crimes of Stalin and the other six accused. There has been no other court ruling about the criminal nature of Stalin’s actions and those of the communist regime. International agreements to which Ukraine is a party contain no overt bans.
The consequences of the crimes of the communist regime in the USSR and in particular in Ukraine are terrible, and concern “both the dead, and the living, and those unborn” (Taras Shevchenko). As well as millions who died of starvation and political repression, and those unborn which in itself had significant impact on the genetic makeup and development of the Ukrainian nation, these crimes had a bad effect on those who survived.
Holodomor and the destruction of the Ukrainian intellectual elite which it was prohibited to know until the end of the 1980s led to a break in the intellectual development of the Ukrainian people, a loss of identity and common values. The tragedy of Holodomor also resulted in a subconscious inferiority complex among a large number of Ukrainians.
Nonetheless the attitude in Europe to Stalin and communism is somewhat different from that towards Hitler and Nazism which can easily be seen in numerous resolutions of the European Parliament, the Parliamentary Assembly of the Council of Europe [PACE], the Committee of Ministers of PACE, OSCE. Of particular relevance to Ukraine are Items 5 and 6 of the PACE Resolution No. 1481 (2006):
“5. 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).
6. 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.
Post-genocidal Ukrainian society badly needs a clear conscience, liberation from psychological complexes, freedom from fear. This is impossible without public acknowledgement that the actions of the communist regime were a crime which must take place at the level of law. This is the moral duty of the nation before those who died, it is necessary for historical justice, the development of an immune system for the Ukrainian people against political repression, violence, unwarranted state coercion.
In Europe the attitude to Stalin and communism differs little from the attitude to Hitler and Nazism which can easily be seen in numerous resolutions of the European Parliament, the Parliamentary Assembly of the Council of Europe [PACE], the Committee of Ministers of PACE, OSCE. Of particular relevance to Ukraine are Items 5 and 6 of the PACE Resolution No. 1481 (2006) “The need for international condemnation of the crimes of totalitarian, communist regimes”
““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”.
In the judgment of the Constitutional Court of the Russian Federation, passed on 30 November 1992, it is clearly stated: “In the country over a long period there was a regime of unlimited power, based on violence, on a narrow circle of communist functionaries united in the Politburo of the Central Committee of the Communist Party headed by the General Secretary of the Central Committee”.
The list of crimes of the Soviet regime beginning from 1917 is extremely large with it including a huge number of events and occupying many papers. The following is therefore only a list of the most serious and significant crimes of the communist regime, confirmed in documentation (compiled by the Memorial Society)
The Red Terror which, in accordance with a Soviet Government Resolution from 5 September 1918 introduced the taking of hostages, extra-judicial executions and concentration camps for the “socially alien” layers of society and political opponents.
Mass repression against the peasants, dekulakization, deportation, arrests and executions at the ruling of OGPU Secret Police] “troika” [threesomes].
The mass-scale requisition of grain for state storage and sale abroad, organized by Stalin and the Politburo. This resulted in a manmade famine from which between 7 and 12 million people died in the USSR, including 3.5 to 4.5 million of the population of Ukraine in 1932-1933.
Mass arrests and executions in the so-called “kulak” operation of the NKVD. These were executions according to prior quotas from July 1937 to November 1938 (767397 were arrested, and 386798 executed).
Mass arrests and executions on ethnic grounds as part of so-called “national operations” of the NKVD (German, Polish, Kharbin, Latvian and others) July 1937 – November 1938 (around 350 thousand people were arrested, of whom around 250 thousand were executed).
Mass arrests and executions of citizens of Mongolia carried out by the NKVD in 1937-1938 1938 (around 25 thousand people were arrested, of whom around 20 thousand were executed)
Repression against members of the families of those convicted of “treason”. In 1937-1938 as “members of the families of traitors against the motherland” more than 18 thousand women were arrested and 25 thousand children placed in NKVD children’s homes.
Executions and convictions according to “execution lists” where the punishment was not determined by court bodies, but by Stalin and his close henchmen from the Politburo – Molotov, Voroshilov, Kaganovich, Zhdanov, Mikoyan and others. From February 1937 to October 1938 sanction was given for the conviction according to 383 lists, containing 44 thousand names, of whom 39 thousand were for execution.
Sanction from Stalin for the use by the NKVD during investigation of “measures of physical influence”, i.e. torture. The telegram signed by Stalin on 10 February 1939 confirmed the “lawfulness” of this practice adopted in 1937. In later years Stalin continued to give sanctions for the use of torture, for which in the case of the doctors in 1952-1953.
The non-aggression pact with Germany and secret protocols on spheres of influence of the USSR and Third Reich. In accordance with these, the USSR began seizing neighbouring territory, taking part in the destruction of Poland, beginning a war with Finland and occupying the Baltic States and Bessarabia. The Soviet Union was accused of aggressive expansionist policy and expelled from the League of Nations. August 1939-Summer 1940.
The sanctioning by Stalin and the Politburo of mass deportation of the civilian population on the grounds of “class” or ethnic origin. - deportation of Poles from Western Ukraine and Western Byelorussia in 1939-1940;
- deportation of citizens of the Baltic Republics and Moldova in May – June 1941;
- deportation of Germans, Kalmyks, Chechens and Ingushis, Karachayevtsi, Crimean Tatars and others between 1941 and 1945;
- deportation of “kulaks” from the Baltic Republics and Moldova in 1949’
- deportation of Ukrainians during the second half of the 1940s for “abetting the UPA” [Ukrainian Resistance Army].
The mass execution of Polish prisoners of war and civilians at the decision of the Politburo on 5 March 1940 during April and May 1940 by the NKVD at Katyń, Mednoye and Kharkiv. 21, 857 Polish nationals were murdered.
Extra-judicial executions ordered by Stalin of prisoners in Autumn 1941, in the Orlov and Moscow prisons and in Kuybyshev.
Acts of individual terror sanctioned by Stalin personally – secret political killings carried out by the Security Service abroad and in the USSR.
Show trials organized at Stalin’s instruction by advisers from the Soviet Security Service in Hungary, Bulgaria and Czechoslovakia in 1949-1952.
Ukrainian society and the authorities face an urgent task of establishing a legal classification for the crimes concerning Ukraine listed above and many others, for example, the repression against Ukrainian churches. And the truth told about our history and the crimes of the communist regime. The better this task is carried out, the smaller the legacy left our children and grandchildren. I
We will give one example regarding the third item in the above list and consider the issue of retroactive force of the law.
All conditions have been created in Ukraine for holding a full court trial for a legal classification of the artificial famine of 1932-1933 on the basis of the material of the investigation carried out by the SBU in 2009. The government should support such a trial. In fact there is no doubt that Stalin and his henchmen are guilty of the mass murder, and the communist totalitarian regime for which mass terror was the style of state governance in the USSR was in itself criminal. However it is necessary to establish these facts in a legal framework.
In our study we demonstrated that the famine in Ukraine of 1932-1933 had all the hallmarks of a crime against humanity in accordance with the Rome Charter of the International Criminal Court 1998 and the crime of genocide in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide
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. The object of the crime is defined as a part of the Ukrainian nation – the victims of Holodomor and political repression in Ukraine from November 1932 to August 1933 regardless of ethnic, religious or other grounds; the subject – the party-state machine of the Communist Party headed by Joseph Stalin and the punitive repressive bodies of the OGPU and GPU of the Ukrainian SSR, as well as the USSR as a whole.
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?
An affirmative answer to this question is argued in the following way. According to Article 1 § 1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms from 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.
However Article 7 § 2 of the Convention and Article 15 of the Covenant have not been implemented in Ukrainian legislation. Their direct force is denied by Article 58 of the Constitution which strictly, without any exceptions, establishes the principle that there can be no retroactive force of a law: “Nobody can be held accountable for actions which at the time they were committed had not been designated as crimes in law”. We have an obvious clash between the norm of Ukraine’s Constitution and the norms of Article 7 § 2 of the Convention and Article 15 of the Covenant. Where there is a discrepancy between the norms of Ukraine’s Constitution and the norms of an international agreement in Ukraine, the Constitution has force. Thus at the present time we cannot reach settlement and define Holodomor 1932-1933 as genocide. For that the Constitution needs to be changed, including in Article 58 the above-cited wording of Article 7 § 1 of the Convention.