Ultimate retribution

Genocide is a crime that does not and will never have a statute of limitations. The conscience of humankind and of each nation which humankind consists of will never resign itself to the idea that deliberate extermination of millions of people may remain unpunished in the moral, legal, political and historical aspects of the matter. Even though God claimed long ago the lives of those who organized the mass-scale massacre, those who are living on Earth have a sacred duty to exact well-deserved revenge on the criminals, for this will be a lesson for generations to come.

Stalin, Kaganovich, Molotov, Postyshev, Kosior, Chubar, and other Bolshevik figures who masterminded and employed genocidal terror by famine in Ukraine in 1932-1933 or contributed to it by obeying criminal instructions from Moscow, departed this life long ago. But it would be hy­po­crisy pure and simple to allege that this very fact cancels the problem of liability and punishment for the deliberately planned Great Famine of 1932-1933. This problem is just taking a somewhat different shape. In this article, Prof. Zinovii Partyko, Ph.D. (Ling­uist­ics), reflects on the likely ways of resolving this problem which is important always, all the more so in these sorrowful days of the 75th anniversary of the Ukraine Holodomor. We are inviting our readers to take part in the debate.

Ukraine is honoring the memory of Holodomor victims. Whenever a televised debate is held on this subject, viewers ask, “But who in fact masterminded this unheard-of crime?”

As there were no natural calamities, including a drought, in 1932-1933, the answer is definite: the government that ruled the country. And, to be more exact, the political party that ruled the USSR which Ukraine was part of. There was only one party in the USSR: the All — Union Com­munist Party of Bolsheviks — VKP(b), later renamed as Communist Party of the Soviet Union — CPSU.

WHO IS THE JUDGE? WHAT WAS THE CRIME?

Naturally, many would like to condemn the VKP(b)-CPSU’s ideological groundwork, i.e., the theory of Bolshevism. But no court will ever condemn this ideology, for it is the preserve of politicians and academics. A court can only convict the people who have committed crimes, irrespective of whether or not they adhered to this ideology.

Ukraine has already seen attempts to ban the Communist Party of Ukraine (KPU), the modern “clone” of the VKP(b)-CPSU. Let us recall those attempts.

Firstly, an attempt was made in the early 1990s not to register the KPU as a party which has violated basic universally recognized human rights, such as the right to life (the Holodomor is a sufficient and illustrative example of the violation of this right), the right to free movement (the institution of propiska (domicile registration) in the USSR, denial of internal passports to peasants in the Stalin era, the ban on free travel abroad), the right to a fair trial (out-of-court “troikas” that sentenced millions of people to death and deportation to GULAG prison camps; judges who used to convict dissidents in the 1960s-1980s), the right to free expression of opinion (clauses in the USSR Criminal Code on “anti-Soviet agitation”), the right to free conscience (tens of thousands of convicted priests of different religions, mass-scale destruction and confiscation of the places of worship), and a number of other rights. Yet there were no juridical grounds to deny the KPU registration in the early 1990s because, firstly, it was not a legal successor to the CPSU; secondly, this party’s statute says that it functions within the limits of the Ukrainian state and, therefore, pledges to obey its Constitution; and, thirdly, there has been no legally-bound ruling on its antihuman essence. There has never been a trial of the VKP(b)-CPSU, patterned on the 1946 Nuremberg Trial of the National Socialist Party of Germany.

The other attempts were of a local nature.

The second attempt: on February 8, 2000, the Lviv Oblast Council resolved that “the regional justice department suspend KPU activities on the oblast’s territory until these activities are brought into line with the constitutional norms of Ukraine.” Besides, the oblast council decided “to support the demands of the populace, political parties and civic organizations to conduct a trial of the CPSU-KPU for crimes against humanity.” But can a regional-level organization suspend a party registered at the highest, national, level? Of course not, for it is only in the powers of national-level governmental bodies (e.g., the Supreme Court of Ukraine). Even if a party has grossly violated the administrative or criminal law in a certain region or district, it is the leaders of this territorial cell, not the entire party, that will be held responsible — therefore, this provides no ample grounds for de-registering the party. Moreover, the KPU Lviv cell did not commit any administrative or criminal offenses. So the Lviv Oblast Council’s resolution was of a purely emotional nature, which is inadmissible in a rule-of-law state.

The third attempt. As is known, real life is far richer than the deadpan line of juridical codes. For this reason, March 9, 2000, saw a very special variety of a KPU trial. This occurred quite spontaneously and resembled the year 1991. Aware of the older generation’s helplessness, eleven young people of Ukraine penetrated into and barricaded the door of the former KPU Central Committee, demanding a trial of this party. This was a cry from the heart to those political parties and civic organizations which, instead of filing a lawsuit as soon as possible, were busy grabbing the hetman’s mace or doing the parliamentary tug-of-war. But was the local court, which handled the KP CC building seizure case, authorized to consider CPSU activities on the territory of Ukraine in 1917-1991? Obviously not.

This means that one unpunished crime bred new ones: failure to pass a judicial ruling over KPU activities in Ukraine brought about the unlawful resolution of a regional council and a violent offense by the young people. But can we morally condemn those who failed to organize a KPU trial in good time? Apparently not, at least morally.

Yet it does not follow from this conclusion that millions of Ukrainians were dying accidentally, without “assistance” of a totalitarian and misanthropic state, during the Civil War, the Holodomor, the Second World War, and in the times of “unbounded” socialist optimism. The crimes of the VKP(b)-CPSU, already recorded in tens and hundreds of books of memory, oblige us to restore historical justice. All the more so that the VKP(b)-CPSU itself let the cat out of the bag, when one of its leaders, Kliment Voroshylov, said at a party conference that “collectivization and industrialization cost the state ten million human lives” (quoted from the mass media).

Let us draw some historical parallels. It is common knowledge that Nazism is an ideology whose bearers were convicted at the Nuremberg international trial. But was there a trial of the VKP(b)-CPSU leaders who organized genocide and concentration camps similar to those in Nazi Germany? Not yet. Therefore, millions of Ukrainian citizens who accept the communist or procommunist ideology are drawing a subconscious conclusion from this (I am not saying whether it is correct by its essence): the Bolshevik Marxist-Leninist ideology, which the VKP(b)-CPSU adhered to, is not criminal and, hence, is quite acceptable.

It is a fact. In particular, this is why there still are so many people in Ukraine, who gather for public rallies under red flags (this may be one of the most important reasons why the populace supports communists). In­ci­dentally, propaganda of the ideas and symbols of Nazism is banned by law in present-day Germany.

So why not just ban the KPU in this country, as Germany did to the Nazi-oriented parties?

Banning the KPU now (even if we accept the possibility of a political, not juridical, decision to this effect because there are no juridical grounds) will be of no tangible effect. Rather, it will produce results opposite to those expected. Particularly, the ban will force the KPU to go underground (as was the case in tsarist Russia). It is difficult to fight underground organizations, and their member are bound to win a huge aureole of “martyrs.” So the ban is only testimony to the weakness of those who will impose it. This is why I am convinced that neither the Verkhovna Rada nor the President of Ukraine will ever agree to this in the present-day conditions.

NO STATUTE OF LIMITATIONS

Let us draw the following conclusion from the aforesaid: the KPU should not be banned or, moreover, de-registered. We need to take legal action against it. Only a court can say who is the criminal to be punished and who is the victim of the crime. So I will now express my opinion on the KPU trial.

The first thing to do in this matter is to find out the subject of the crime, i.e., who is to be tried: the former CPSU, the former KPU, or the present-day KPU? For these are three different organizations. Naturally, the present-day KPU, which is not the CPSU’s legal successor, bears no juridical responsibility for its crimes. As for the former KPU, it was just a component of the CPSU (not a self-sufficient organization), so it is not responsible either. Therefore, it is only the VKP(b)-CPSU that can and must be held responsible for the crimes it committed. What is more, the politburo of this party was the body that wielded actual power not only in this party but also in the state because leaders of the government were ex-officio members of this highest party body.

But the point is not only in finding out the crime’s subject. To file a lawsuit, one has to tackle some incomparably more complicated juridical problems. There are four of them. 1) This organization, VKP(b)-CPSU, ceased to exist as long ago as 1991. Figuratively speaking, it was made a “dead man” very quickly and adroitly in anticipation of the future: instead of standing trial, it “self-disbanded” in 1991. 2) The party leaders who committed most of the crimes (Stalin, Kaganovich, Postyshev, and their henchmen) are also dead. And, according to juridical norms, both Ukrainian and international, the dead cannot be brought to criminal justice. Otherwise, among those facing criminal liability would be the mummies of Egyptian pharaohs because pharaohs used forced slave labor to build the pyramids. But an embalmed mummy cannot appear as defendant in a court of law (nor can the mummy of Lenin, incidentally). 3) The governing bodies of the party that is supposed to be the defendant, VKP(b)-CPSU, is on the territory of Russia, a foreign state. 4) A part of Ukrainian convicts (those who were not executed and did not starve to death) also served their terms in the now foreign state - Russia.

It follows from the aforesaid that the VKP(b)-CPSU should not be tried in Ukraine, for it would be an intrastate trial. Naturally, we cannot fully rule out altogether an intrastate trial (for example, of those VKP(b)-CPSU members who committed overtly criminal actions), although it will be of an extremely little, if any, effect. For the Ukrainian communists - members of the former KPU - can always say: we only obeyed instructions from Moscow and behaved in line with the applicable Soviet law, so the blame should be put not on us but on those who made those decisions in Moscow, i.e., members of the VKP(b)-CPSU Politburo.

This provokes attempts to consider the possibility of lawsuits against Russia on whose territory the VKP(b)-CPSU functioned.

Option one. As the VKP(b)-CPSU and its former leaders no longer exist physically and juridically, there can only be legal cases about material compensation of the aggrieved party (the repressed) for the damage caused. Any aggrieved person or a group of them could be the plaintiff in such a case, with Russia being the defendant because it is the legal successor to the USSR and, as was noted above, the convicts served their terms on the territory of that state (Russia used to reap a handsome benefit from the slave labor of millions of prisoners). There could be a mechanism which resembles the ostarbeiteren compensation scheme now being effected in Germany. Such a case could be heard by the European Human Rights Court in Strasbourg. But... But, unfortunately, it is impossible because Russia ratified the European Covenant of Human Rights and Basic Freedoms as late as in 1996, so the court will not consider any of the events that had occurred on its territory before that, as the international law has no retroactive effect. All one can do is lodge the same suit, but with a different demand: to compensate only for the moral damage the aggrieved party has been suffering since 1996. The probability of winning such a case is all too negligible. In addition, a compulsory precondition for this option is a preliminary trial of the case in a Russian court, which will present considerable, not only legal, difficulties.

Option two. Naturally, the Ukrainian state may take legal action against Russia at the International UN Court in the Hague to demand compensating the repressed citizens of Ukraine for the moral damage caused. It would be, naturally, the ideal option. But this raises new problems. Firstly, in accordance with this court’s statute, Russia itself must agree to this process (whether or not Russia would agree to this is clear from the way it “allowed” the UK to interrogate the former security officer Lugovoi suspected of poisoning Colonel Litvinenko). Secondly, the difficulty also is that the repressed were tried by Ukrainian, not Russian, courts. Of course, the question may be put as follows: was it really a Ukrainian court or the court of a different state (Russia), which functioned on the territory of Ukraine? Answering this question, one should remember that Ukraine had certain signs of statehood (e.g., it was a UN member). So the repressed were tried by Ukrainian courts and, in all probability, claims against Russia would be groundless.

As we see, any attempts to file lawsuits against Russia, on whose territory the VKP(b)-CPSU functioned, will produce no tangible effect - all the more so nowadays, when the political situation in Russia is characterized with authoritarianism and a criminally condescending and all-forgiving attitude to the past.

But is the situation really a blind alley? For if there cannot be an intrastate or a interstate (between Ukraine and Russia) trial, it does not mean there can be no trial at all. So let us look more in detail and more thoroughly into the nature of VKP(b)-CPSU crimes.

IN THE LIGHT OF HISTORICAL TRUTH

First of all, let us take the question of the territory on which crimes were committed. The point is that those crime were committed on the territory of several, not one, states. Firstly, these are the republics that were once part of the USSR and are independent states now. Secondly, those states were Comecon members: Hungary, Czechoslovakia, Poland, and others (we are only singling out the countries which we think suffered the most from Soviet armed aggressions aimed at crushing the uprisings of 1956, 1968, and other years). Thirdly, those were European and other states, on the territory of which Soviet KGB agents committed a number of terrorist acts (for example, the assassinations of Lev Rebet and Stepan Bandera — to mention only Ukrainian figures).

The VKP(b)-CPSU crimes on the territory of the above-mentioned states had the following consequences: firstly, mass-scale repressions that affected millions of people and were based on the rulings of unjust courts (executions, prison camps, deportations); secondly, genocide of the Ukrainian peasantry; thirdly, violation of the Comecon countries’ sovereignty (stationing of the armed forces on their territory without their consent); and, fourthly, terrorist acts (assassinations) on the territory of other-than-Comecon states.

Those crimes adversely affected, to a larger or smaller extent, citizens of all the Comecon member states.

It unambiguously follows from the aforesaid that the VKP(b)-CPSU should be tried not by an intrastate court or a court of two states (Ukraine and Russia) but by an international court that involves a number of states. Let us consider the possible options for such an international trial.

Option one. It would be a good idea if Ukraine, as a UN member, turned to the Hague-based UN International Court. Such a petition can go not only from Ukraine but also simultaneously from other states that were part of either the USSR (e.g., the Baltic countries) or the Comecon. This courts exercises jurisdiction over all the UN members states (as is known, all the former Soviet republics and Comecon states are UN members). Although this court has no criminal jurisdiction and cannot try war criminals, it can still tackle suck problems as interference of one state into the affairs of another, the use of force, and human rights abuse. The UN International Court can make consultative conclusions in legal matters, which are not binding for the offending state (in this case Russia, on whose territory the criminal party functioned) but are secured by this court’s authority. It is also clear that this conclusion will be important for a number of other states, including some in Asia, which are still ruled by communist regimes.

To bring this judicial process into play, it is necessary, firstly, that the UN Security Council or General Assembly should turn to the In­ter­national Court for a consultative conclusion; secondly, that each interested state should apply in writing to the International Court for a consultative conclusion (if Russia fails to apply, the court can hear this case even without its participation on the basis of other states’ applications).

As for the International Criminal Court which was established by the UN in 1998 and began functioning in July 2002, Ukraine cannot turn to it for help because, although it signed the court’s statute, the Verkhovna Rada has not ratified it, following a negative ruling by the Constitutional Court of Ukraine. But even if this court’s statute is ratified, this will not change the crux of the matter because the International Criminal Court will only hear the cases of crimes committed after July 1, 2002.

Option two. The countries that suffered from VKP(b)-CPSU crimes can sign an agreement based on the Roman Statute, the cornerstone of the International Criminal Court, to the effect that an international tribunal for the VKP(b)-CPSU be established. This would be an ad hoc court, i.e., one supposed to hear this specific case only.

The states that suffered from VKP(b)-CPSU crimes would then have to ratify this tribunal’s statute which would determine the court’s jurisdiction, time and space parameters, staff requirements, and the legal mechanisms of court ruling implementation. Sitting in the dock could be concrete individuals guilty of committing the crimes listed in the statute (if member states agree to surrender their citizens to this court).

This trial would see, as respondents, all the still living former communist leaders of what was known as socialist camp. The only point is whether these leaders will come to attend a session of this international tribunal (yet, as is known, a court may be in session even in the absence of the defendant). Among the defendants should also be Mikhail Gorbachev, the last surviving CPSU leader. If we assume that he is present, it is most likely that Gorbachev and members of the last CPSU Politburo will be acquitted because they obviously did not commit any crimes.

It is this court, the International Tribunal for the VKP(b)-CPSU, that can make a clear legal assessment of the past events and of the individuals who masterminded them.

Option three. It is possible to organize an international civic court. Proceedings in this case could be instituted by civic organizations or even political parties of all the former socialist states: from the Baltics, the Caucasus, Central Asia, and Central Europe.

It would be fair to invite the world’s top-skilled lawyers to plead in this court, including those of the European International Human Rights Court in Strasbourg, the Hague-based International Court, and the UN International Criminal Court. To ensure maximum impartiality, it would be good to invite also jurists from the countries where communist regimes did not rule.

This kind of court would rely on both the applicable international legal standards and the authority of the international law experts who participate in it. Naturally, rulings of this court can have no juridical consequences whatsoever. Yet, if we opt for a civic court, we should take into account that moral condemnation is no less important than juridical one.

These are, in our opinion, the likely options for a judicial inquiry into the activities that VKP(b)-CPSU pursued, particularly, on the territory of Uk­raine, especially during the genocidal Holodomor.

IT IS FOR THOSE WHO WILL COME AFTER US

The analysis of the three aforesaid options for a judicial hearing can lead to only one conclusion: it is very difficult but not impossible to hold a trial of the VKP(b)-CPSU at the existing international courts and in the legal system accepted by the world community. This will require major financial expenditures and involvement of all the branches - executive, legislative, and judicial - of power. Obviously, it is the Ministry of Justice, preferably in conjunction with the Ministry of Foreign Affairs of Ukraine, that should play first fiddle to launch a judicial inquiry into this case. Incidentally, the recent resolution of the Council of Europe on recognizing the fact of a manmade famine in Ukraine is a very important achievement of our diplomats.

As Ukraine is short of the required funds, I think we could begin collecting donations for filing an international lawsuit (it is up to experts to choose an option). By donating even one hryvnia, every citizen of Ukraine will in fact vote for the opening of this case. I hope that all the repressed citizens of Ukraine and their relatives will give a hryvnia for this long-overdue case. The Institute of National Memory could be a civic initiator of this judicial hearing.

Unfortunately, over all the 16 years of Ukraine’s independence, none of the nationally-conscious parties has tried to put the judicial inquiry into VKP(b)-CPSU activities on a practical footing (I do not take into account frequent rag-chewing in the mass media).

We need not only and not so much a Ukrainian trial of the present-day KPU as an international trial of the former VKP(b)-CPSU leaders who abode by the Bolshevik ideology that claimed millions of human lives, particularly, during the Civil War, the 1930s genocidal Holodomor, and the 1930s-1950s repressions, as well as produced prisoners of conscience in the 1960s-1980s. I think that only after such an international trial is it possible and advisable to raise the question of banning the current KPU at the governmental level.

The VKP(b)-CPSU trial should no longer be adjourned if Ukraine and other states are to avoid new and very dangerous procommunist relapses.

Maybe, international law experts should also express their professional opinion in this matter? Shall we switch from words to deeds?

Prof. Zinovii Partyko, Ph.D. (Linguistics), heads the Department of Publishing and Editing at the Institute of Journalism and Mass Communications of the Classical Private University