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
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
General conclusions…………………………………………………………………… 11
i
Preamble
As an European state,
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
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
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
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
"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
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
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
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
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,
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
Thus, the Holodomor of 1932-1933 was
the response of the
Soviet regime to Ukrainian cultural and political development within
the
These facts permitted the US
Congressional Commission on the
Investigation of the Famine of 1932-1933 in
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
Thus, there is every reason to
characterize the events that
took place on the
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
At the same time, when the
international community learned
of the famine in
Joseph Stalin's motives with regard
to
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
11) On 23 February 1933, Western
correspondents were
forbidden to visit
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
Subsequently, in the matter of
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
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
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
-- 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
-- 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
-- arrests and deportations of peasants who had left their places of residence;
-- the isolation of
the
-- the prohibition of
correspondence and the dissemination of information about the true
state of
affairs in
(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
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
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 (
[2]
Application of the Convention on the Prevention and Punishment of the
Crime of
Genocide (
[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
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
[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 Center 13 (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.
[11] See Id.
[12] Lippman, supra note 4, at 455.
[13] Id. at 456.
[14] Id.
[15] Id. at 424.
[16] Id. at 458.
[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.
[25] Id.
[26] Summary of
the Judgment of 26
February 2007, supra note 9, at 12.
[27] Id.
[28] International Court of Justice, Press Release 2007/8, supra note 24.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Peter Finn,
Bosnian Serb Captured; Sought for War Crimes,
Washington Post,
July 22, 2008 at A1.
[36] Id.
[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.
[40] Id. at ¶¶ 512-13.
[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.
[50] Id.
[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[.]”)
[55] Id.
[56] Id.
[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.
[60] Id.
[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.
[63] Id.
[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.