May 31, 2019

Law thesis supports international recognition of Holodomor as genocide

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Kateryna Bondar

Raphael Lemkin, the distinguished lawyer who coined the term “genocide” and is considered the father of the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations on December 9, 1948 (the U.N. Convention on Genocide), regarded the Holodomor as a part of the Soviet genocide against the Ukrainian people. (Rafael Lemkin, “Soviet Genocide in Ukraine,” New York, 1953, https://web.archive.org/web/20120302234607/, http://www.uccla.ca/SOVIET_GENOCIDE_IN_THE_UKRAINE.pdf). Yet recognition of the Holodomor as genocide on the international level still is not universal.

Kateryna Bondar

Kateryna Bondar, as a student in the Master of Laws (LL.M.) program at Harvard Law School, wrote her thesis on “The Ukrainian Famine of 1932-1933 as Genocide under International Law,” under the supervision of Prof. Grainne de Burca in May 2011. (Those interested in obtaining a copy of Ms. Bondar’s thesis may contact [email protected].)

Below, Ms. Bondar, an international lawyer and scholar, discusses her approach to the Holodomor. She argues in her work that “The Ukrainian famine (Holodomor), being one of the major tragedies in Ukraine’s and world history, constitutes genocide under international law, and it has to be classified and recognized as genocide on the international level.”

Below is an edited and abridged text of the discussion between Ms. Bondar and this writer.

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You decisively conclude that the Holodomor is a genocide. How did you come to this conclusion?

Indeed, there are several different positions observed in scholarly works on the understanding of the Holodomor. One of them is that the Famine was unexpected, an unwanted result of Stalin’s collectivization, grain procurement policies and ineffective administrative management, and was a tragedy common to all peoples/nations of the USSR. Mostly Russian scholars hold to this position. A significant number of the scholars believe that the Famine was artificial and Stalin created it in order to force collectivization, that is, the Famine was class (peasant) genocide. According to the third position, the Famine had a national dimension and it was a genocide of Ukrainians.

The main question is whether the Famine was part of a wider phenomenon in the USSR resulting from the policy of Stalin’s collectivization, or was it specifically directed against the Ukrainians. The question is: Was it aimed primarily at the peasants or at Ukrainians?

The purpose of my master’s thesis was to investigate the legal aspects of the Holodomor of 1932-1933, namely, the legal requirements to qualify as genocide, since the crime of genocide has special characteristics among other crimes against humanity. In my study, I applied the definition of genocide from the U.N. Convention on Prevention and Punishment of the Crime of Genocide. I analyzed the Holodomor according to the elements of the crime of genocide: actions, intent to destroy, the group as the object of a crime and the intention to commit genocide (that is, the intention to destroy a particular group or part of a group as such). The study іs based on a large number of sources, including the practice of international tribunals, which help to explain how all the elements of the crime of genocide are present in the Holodomor.

How did you become interested in this topic? Did you have grandparents or great-grandparents who lived at the time of the Holodomor?

My mother, a native of the Lviv region, where there was no Holodomor, recalls that in her family they knew about it and recounted the horrors of the Holodomor that took place in Soviet Ukraine, that Stalin and his totalitarian regime artificially created the famine.

On my father’s side (my father is originally from the Kyiv region), very little was said about the Holodomor and most probably because the topic was kept а secret for many years, and it was forbidden to recall it.

How did your interest in international law and the Holodomor evolve?

In high school, my favorite subjects were Ukrainian and foreign languages, Ukrainian history and Ukrainian literature. I chose a law class, and I was interested in human rights issues.

Later, I was attracted by the reputation of the Faculty of Law Studies at [the National University of] Kyiv Mohyla Academy, as well as its national consciousness. My studies at Kyiv-Mohyla Academy opened many opportunities, including participation in international programs and perspectives for further study. For example, during one semester I studied at the University of Warsaw at the Faculty of Law and Administration, as part of a special program for foreign students, where I studied international law, European Union law and comparative law. I participated in several summer study schools in Austria and Sweden on the topic of European studies.

I was particularly interested in international law, and I participated in student moot court competitions on public international law and international investment arbitration. I interned at the Ukrainian Helsinki Human Rights Union and in the Office of the Government Representative at the European Court of Human Rights. In the fifth year of study, I wrote a term paper on international mechanisms of protection of women’s rights.

Then, at Harvard, in the Master of Laws program, I studied international law, international human rights, international arbitration, international trade law, as well as some U.S. law courses, and after the program, I prepared for and passed the New York bar exam.

With regard to your master’s thesis, how did you choose your topic?

I chose the topic “The Ukrainian Holodomor of 1932-1933 as a Genocide under International Law,” because this topic concerns Ukraine and, at the same time, public international law. The legal assessment of the Holodomor interested me from the perspective of historical justice. The Holodomor of 1932-1933 took the lives of millions. It was not researched, it was kept a secret. And, thanks to the Ukrainian diaspora, a number of Ukrainian and foreign publications (eyewitness accounts, documents and scientific publications) and the opening of archival documents, the Holodomor today is a historical fact.

Yet the world community and the general public are not sufficiently aware of the fact, circumstances, nature and legal characterization of the Holodomor. The issue is politicized, and people with different political views come to different conclusions and interpretations, despite the evidence of the elements of this crime.

On November 28, 2006, Ukraine passed a law recognizing the Holodomor as a genocide of the Ukrainian people in accordance with the U.N. Convention on Genocide. Established by the president of Ukraine in 2008, the National Commission for the Strengthening of Democracy and the Rule of Law had concluded that the recognition of the Holodomor as genocide meets the criteria of the U.N. Convention on Genocide. In 2009, the Security Service of Ukraine (SBU) initiated a criminal case in connection with the Holodomor. In 2010, the Kyiv Court of Appeal decided that Article 442 of the Criminal Code of Ukraine can be applied to the organization and implementation of the 1932-1933 genocide.

When I was choosing the subject for my master’s thesis, the subject of the Holodomor was particularly relevant for me because of this Kyiv Court of Appeal decision.

I believe that today the Holodomor has a solid documentary background, and it is important that more scholars examine it from the point of view of international law. Although some states and institutions have recognized the Holodomor as an act of genocide, the recognition of the Holodomor of 1932-1933 as a genocide is still problematic and politicized at the global international level.

The Ukrainian Holodomor is one of history’s exceptional crimes in terms of both scale and cruelty, and it deserves recognition and proper legal qualification on the international level.

I was fortunate enough to work on my master’s thesis under the direction of Prof. Gráinne de Búrca, who at that time taught at Harvard, and today is a law professor and director of the Jean Monnet Center for International and Regional Economic Law and Justice at New York University. The Harvard Library has a large section of publications on Ukraine, including the Holodomor, which was useful to me when writing a paper.

What conclusions did you reach in your thesis on the Holodomor?

I should emphasize that in my master’s thesis I considered the Holodomor of 1932-1933 separately from the other crimes of the Communist regime against the Ukrainian people in the 20th century. It is true that the Holodomor can be considered part of the broader planned genocide of the Communist regime against the Ukrainian nation. In this regard, the position of Raphael Lemkin, who coined the term “genocide,” is relevant, as he considered the destruction of the Ukrainian nation a classic example of Soviet genocide and pointed to the genocidal intent against the Ukrainian nation and ethnic group, in particular against the peasantry, intelligentsia, political corps and church clergy.

Lemkin considered that genocide could also be committed by means of a coordinated plan for different actions aimed at the destruction of the essential foundations for the existence of a national group. He considered the Holodomor as one of the four prongs of Soviet genocide in Ukraine that he defined as a “gradual destruction of the Ukrainian nation.” He argued that Stalin gradually targeted “select and determining parts” of the Ukrainian nation. The other prongs included, in particular, imprisonment and deportation of the intelligentsia, the destruction of the Ukrainian Church and “fragmentation of the Ukrainian people through forced migration.”

The purpose of my master’s thesis was to prove with the help of international law that the Holodomor of 1932-1933 may and should be classified as genocide, not only under the broad definition of genocide, but also under the more narrow definition enshrined in the U.N. Convention on Genocide. The U.N. Convention on Genocide was the first international treaty to recognize genocide as a crime under international law and to define the crime of genocide, although the definition of genocide in the U.N. Convention on Genocide is narrower than Lemkin’s understanding of genocide. In particular, due to the position of the Soviet and some other delegations during the discussion of the U.N. Convention on Genocide, the convention does not include social and political groups in the list of groups that may be the objects of the crime of genocide.

The U.N. Convention on Genocide defines genocide as follows: “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.”

Having analyzed the Holodomor of 1933-1933 step by step under the definition of genocide in that convention, I concluded that the Holodomor corresponds to genocide as defined in the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. The Holodomor must be classified and recognized as genocide on the international level. The Holodomor as genocide must be condemned by the international community in order to restore historical justice and to prevent the repetition of such crimes anywhere in the world.

What would you say are the most significant findings in your thesis?

Of great significance in my study is the definition of the group as an object of the crime of genocide – namely the Ukrainian national group (in the sense of a civic and political nation based on the Ukrainian ethnos) – and the specific factors indicating the intent to destroy the Ukrainian national group as such. Among the factors is the period during which the Holodomor took place, the territory it covered, and the nature and types of measures that caused it and accompanied it.

The distinctive features of the Ukrainian Holodomor include particularly cruel measures (confiscation of all foodstuffs, isolation of villages, closure of borders and rejection of foreign relief). According to historical data, from November 1932 to the summer of 1933, the regions experiencing famine were mainly Ukrainian inhabited regions of the Soviet Union. The other specific genocide indicators were the scale of the tragedy; the historical context, namely the termination of the policy of Ukrainization and repressions against the intelligentsia; the presence of the evidence of genocidal intent in the legal documents, resolutions and directives of the Communist Party and Soviet authorities, and statements by party leaders of that time.

The Holodomor took place during the attack on the Ukrainian political, cultural and religious elites, the cessation of the policy of Ukrainization, and it covered two specific geographic areas mainly populated by ethnic Ukrainians (Ukraine and the Kuban region). Deliberate actions, measures and acts that caused the Holodomor were planned to create a situation incompatible with life for a significant portion of the Ukrainian peasantry, to physically destroy them. The peasants were the foundation of the Ukrainian nation (at that time the peasants constituted 80 percent of the population of Soviet Ukraine).

The Holodomor was committed to destroy a large part of the Ukrainian nation that was considered hostile to the Soviet regime and as a nation that in the long run could exercise its right under the Soviet Constitution for self-determination and for the formation of an independent state. Hence, in my paper, the Holodomor is considered, among other things, an effective preventive action aimed at undermining the nation’s potential, depriving Ukrainians of spiritual and national values, destroying their aspirations for independence and as the final solution to the Ukrainian question.

In my master’s thesis, I also address the issue of recognition of this Ukrainian genocide. The ultimate goal should be a U.N. resolution declaring the Holodomor a genocide or the creation of an international truth commission or a special international tribunal, such as the Nuremberg Tribunal or the International Criminal Tribunal for the Former Yugoslavia and Rwanda.

Ukraine should consistently seek recognition of the Holodomor as genocide on the international level; legal recognition of genocide requires strong political will and action on both the national and the international levels. Today, raising awareness, scholarly publications and diplomacy are extremely important. And, it would be desirable for the Holodomor to be mentioned not only on its anniversary.

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