Justice delayed not denied. Stalin and history on trial in Kyiv

"The Memory Candle" monument to the victims of Holodomor, Kyiv. Photo: Jarosław Góralczyk (CC) commons.wikimedia.org

How was it even possible to hold a trial against those who are no longer alive? Needless to say one of the basic conditions for not pursuing (or discontinuing if they were previously initiated) criminal proceedings is when the accused is deceased. The Holodomor case was opened by the Security Services of Ukraine in May 2009, which indicted more than 130 deceased individuals (including the abovementioned Soviet leaders) on the legal basis of the 1948 UN Convention’s definition of genocide and Article 442 of the Criminal Code of Ukraine. Under international law genocide is not subjected to the passage of time.

Overcoming the past evil

Bearing in mind that all of the accused were dead, the court in Kyiv initially closed the case. However in the appeal court’s ruling in 2010, the judges ascertained that the living conditions which resulted in mass starvation and extermination of 3,941,000 victims (a figure that is much less than the seven to ten million that some scholars estimate) was masterminded by the Soviet leaders. Therefore, in the eyes of the court, the legal prerequisite of a special direct intent to commit genocide against Ukrainians was fulfilled and satisfied. As it seems, the symbolic trial in Kyiv may be characterised as the final step on the path of the official recognition of the Great Famine as an act of genocide – one of the elements of the politics of memory conducted by then Ukrainian President Viktor Yushchenko. During his term (2005-2010), the Verkhovna Rada, Ukraine’s parliament, passed a special law in 2006 that officially characterised Holodomor as an act of genocide. These domestic activities were followed on the diplomatic front, resulting in more than 20 countries also recognising it as genocide or crimes against humanity.

Yushchenko also convinced the government to establish a Ukrainian Institute of National Remembrance (UINR) in May 2006. The detailed research of the UINR strongly contributed to building awareness of the scale and cruelty of the Great Famine among common Ukrainians. Today, the commemoration of the victims of the 1932-33 events is the most widely accepted element of Ukrainian politics of memory, regardless of the political sympathies.

The 2010 trial in Kyiv should be understood in the wider context of delivering historical justice and overcoming past evils. It is important to highlight that this complicated, very often politically motivated process, is also rooted in international law, especially under its human rights framework. Each and every victim of repressive practices by non-democratic regimes that result in a gross violation of human rights has three fundamental, intercepting rights: justice, truth and reparation.

The first states that a victim possesses a legal expectation that the perpetrator shall be held accountable before relevant international or domestic courts. The second creates a juridical framework for disclosing the truth about the violations, while the final one provides the possibility of material or symbolic compensation for the harm suffered. What is significant is the direct existence of these rights in different global and regional human rights treaties, as was confirmed in many instances by the Inter-American Court of Human Rights, the European Court of Human Rights in Strasburg and the UN Committee in Geneva. The human rights paradigm affects state obligations in the negative (not to commit certain crimes and violations by state officials) and positive sense (a duty to investigate and punish perpetrators of atrocities). In other words, it shapes a strong legal protection for the victims who expect accountability and the uncovering of the truth.

Right to truth

However, it is much more problematic to exercise rights in historical cases like Holodomor. This event occurred before almost all of the international law instruments were introduced. In particular, the right to justice in its narrow sense – aimed at prosecuting the direct offender – seems to be impossible to achieve. Yet according to numerous legal experts and case law of different human rights bodies, the right to truth and reparations are not just individual rights, they also have a collective dimension. This means that it is not only individuals who have an interest in knowing facts about crimes but also entire groups of people.

Thomas Antkowiak, a renowned American professor of international law, has emphasised that revealing the truth is also one of the factors of repairing the harm suffered. It formulates a crucial element of the legal definition of the right to reparation. Last but not least, it is worth noting that since a court of law is not always the very best place for uncovering the historical truth, many different post-violence societies establish a truth and reconciliation commission. The most well-known is the one established in post-Apartheid South Africa in the mid-1990s which was set up to satisfy the desire of knowing the truth about past crimes.

Nonetheless, the right to truth in its collective dimension was developed mostly in Latin America in the 1980s and 90s, during the time of transition from military regimes to (more) democratic ones, and conceptualised later on in the jurisprudence of the Inter-American Court of Human Rights. Most countries of the region witnessed a specific political trade off – former autocrats, like Augusto Pinochet in Chile or the representatives of the military junta in Argentina, agreed to disclose facts about their repressive politics only after a guarantee of amnesty. In essence, this closed the door of delivering justice, at least in its retributive character. Since 1983 and the establishment of the truth commission in Argentina with its famous report titled Nunca más (Never again), many other similar truth-seeking and truth-telling bodies were created throughout the region in order to satisfy the claim of brutal injustices by the ancien régimes in countries like Chile, Bolivia, Paraguay or Ecuador.

Truth trials as an official recognition of harm suffered

In Latin America, truth commissions were presented as a “second-best option”, since the existence of the amnesty prevented criminal proceedings against the perpetrators. Even though a national agreement was granted initially in most of the Latin American countries, for many of the close relatives of the victims of mass atrocities this method of rejecting the authoritarian past soon became unacceptable. Public pressure raised by numerous groups – symbolised by the Mothers of the Plaza de Mayo movement – supported by human rights activists resulted in the establishment of “truth trials” in the post-Dirty War Argentina in the late 1990s. Campaigners persuaded the justice system in Argentina to adopt a doctrine on the right to truth, grounded in case law of the Inter-American Court of Human Rights. They carried out symbolic trials in the courtrooms with the use of criminal proceedings with just one “small” exception – the impossibility of convicting the person responsible.

First and foremost, this enabled the relatives of victims to learn the final destiny of their loved ones. Secondly, the right of a society to know the truth about the patterns of state terrorism was also satisfied, at least partially. The Argentinian truth trials were not completely without controversy (with the crucial question of the legal status of the former members of the military regime while testifying), however they strongly contributed to the nation’s desire of discovering the truth and serving as an element of justice delivered to the victims of the atrocities. What is interesting is that these victim-centred symbolic trials were continued even after the blanket amnesties were finally cancelled and normal criminal proceedings became a legal option.

Therefore, the trial in Kyiv which found Joseph Stalin and the others responsible could also be construed as one of the ways of exercising the right to truth for all Ukrainians. The official recognition of accountability may heal the wounds of the nation, even though it is not possible to punish the direct perpetrators.     

Justice and truth go hand in hand

Since the early 1990s and the parallel research conducted by American scholars, Neil Kritz and Ruti Teitel – who invented the term of “transitional justice” in order to describe the rapid socio-political changes in Central and Eastern Europe after 1989 and the legal dilemmas of the post-authoritarian states – the majority of experts and practitioners working on the matter agree that such values as accountability, truth and reparation shall be understood as complementary to each other. Therefore, the definition of transitional justice, later crafted by the UN Secretary General Kofi Annan in a 2004 report, emphasises the need for an implementation of different judicial (e.g. criminal trials) and non-judicial mechanisms to satisfy the needs of post-violence societies in a comprehensive manner. What is more, at present transitional justice addresses dilemmas not only of post-authoritarian societies, but also post-conflict ones, since the level of mass atrocities committed in the course of warfare of internal character that affects the strong polarisation of society (mostly visible in the context of perpetrator–victim relationships) is comparable to the long-lasting trauma experienced in non-democratic environments.

Historical justice is seen as one of the pillars of transitional justice. It may be pursued just after a transition takes place to reckon injustices of the former regime or implemented in the post-transitional justice context, when the historical justice toolbox is adopted years after past violations occurred. In Ukraine, as a part of the post-Maidan policies of the current government, the de-communisation efforts to finally remove the Soviet legacy can be seen as one of the recent examples of such practices. Undoubtedly, they could be seen as controversial, especially in the political sense, but – just as a symbolic trial of Stalin and other leaders of the USSR for planning and organising the Great Famine – they also express a clear desire to deliver justice and uncover historical truth.   

In a recent issue of New Eastern Europe, Gerhard Kemp and Igor Lyubashenko discussed the possibility and sequence of justice efforts that may and shall be implemented in the still ongoing armed conflict in Donbas. Obviously the main aim of the Ukrainian authorities is to stop the violence, however while adopting a legal framework of reintegration of the eastern provinces (and their population) into Ukraine in the near future and, as the authors argue, the historical justice pillar needs to be taken seriously by officials in Kyiv. It is clear that all perpetrators of crimes against humanity and war crimes committed during the war in Donbas shall be brought to justice in the criminal dimension. However with no truth-seeking or truth-telling instruments, the full restoration of the Ukrainian nation will not be possible to achieve.

The symbolic post-transitional justice trials, such as the Holodomor case before the court in Kyiv, can serve as a significant commitment to facilitate the processes of shaping collective memory within a society. However, such an approach should always be undertaken as an extraordinary mechanism. All in all, they should ultimately help a society overcome the trauma of past repressions and never allow such events to be repeated again.

Tomasz Lachowski is a lawyer and journalist. He has a PhD in international law from the University of Łódź and is the editor in chief of the Polish online magazine Obserwator Międzynarodowy (International Observer). His academic research examines transitional justice and the legal dimension of dilemmas witnessed by post-authoritarian and post-conflict societies.