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29 November, 2013  ▪  Hanna Trehub

Seeking Justice

U.S. Federal Judge Bohdan A. Futey discusses the international legal precedents that could allow Ukraine to demand recognition of the Holodomor as genocide in an international court

The Ukrainian Week spoke with U.S. Federal Judge Bohdan A. Futey about genocides in the Balkans, Rwanda, and Sudan, and legal responsibility of governments for them. He also discussed Ukraine’s path to achieving international recognition of the Holodomor.

U.W.:  In your opinion, how objective and unprejudiced was the investigation by the Security Service of Ukraine (SBU) into the 1932-33 genocide in Ukraine? Today, its opponents claim that the Kyiv Court of Appeals’ ruling was guided by political motives.

I believe that even 20 years ago, Ukraine did not have enough documents to study the facts of the 1932‑33 Holodomor. There were no open archives. At one point, KGB archives were made accessible thanks to then-SBU chief Valentyn Nalyvaichenko. The declassified documents provided a good foundation for proving that genocide—as defined by UN convention—was indeed perpetrated in Ukraine in 1932-33. The UN Convention for the Prevention and Punishment of the Crime of Genocide was adopted in 1948 as a consequence of the Nuremberg Trials. In 1954, it was ratified by the Supreme Soviet of the Soviet republics of Russia and Ukraine. Although it was the Kyiv Court of Appeals that would ultimately determine whether the Holodomor constituted genocide, other people and institutions were involved. For example, there was a declaration by the National Commission to Strengthen Democracy and Establish the Rule of Law composed of academics, scientists, attorneys, lawyers and judges.

There are also works by Western experts studying the problem of the Holodomor. Raphael Lemkin, who was an advisor to U.S. Supreme Court Justice and Nuremberg Trial chief counsel Robert H. Jackson, said that the Holodomor was a three-pronged attack targeting the intelligentsia, the Ukrainian Orthodox Church, and the peasantry. The Genocide Convention states that “acts committed with intent to destroy, in whole or in part, a national … group” qualify as genocide. Another point needs to be mentioned: even those who speak about the statute of limitations — because the Holodomor occurred before the Genocide Convention was adopted — forget that there is the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

U.W.:  Did Ukraine take sufficient diplomatic and other efforts to have the Holodomor internationally recognized as genocide? Were these efforts systematic?

The diaspora held events to commemorate this tragedy. Émigrés began the process of Holodomor recognition as such. In January 1988, Dr. James Mace, executive director of the U.S. Commission on the Ukraine Famine, reported to the U.S. Congress. The commission was made up of congressmen, American scholars, and representatives of the Ukrainian community. Following the report, Congress passed a resolution to recognize the Holodomor as genocide. This kind of decision confirms that the U.S. recognizes that such and such event indeed took place. The resolution can be cancelled or amended through another resolution based on additional documents or evidence regarding the case. But if it is adopted by the Congress, it has binding power.

In 2003, just before the 70th anniversary of the Holodomor, the Ukrainian World Congress launched the slogan “Ukraine Remembers, the World Recognizes” which was very important because 16 states had officially recognized the Holodomor as genocide at the time. Moreover, Pope Francis, who was then a bishop in Buenos Aires, installed a plaque memorializing the Holodomor genocide in the city’s main Roman Catholic cathedral.

At one point, many experts, including myself, were working to achieve similar recognition in the UN. However, nothing came of it because Russia was a member of the Security Council with which we had to negotiate. For political reasons, the Russians filed a protest, so the issue was not even debated. Despite all hurdles, the Ukrainian government must, I believe, continue working to have the UN recognize the Holodomor as genocide. There’s a law, Cabinet of Ministers regulations and a court ruling that are urging Ukrainian government officials to do so.

U.W.:  In your opinion, what should be done to achieve wider international recognition and condemnation of this crime?

Many facts regarding the Holodomor have already been revealed and studied, but I believe that the situation with recognition of those events is more political now.

If Russia or, more precisely, the communist regime that engineered the Holodomor in Ukraine is accused, this state that holds a key position in the UN Security Council will clearly block the process in every possible way. I have been saying for a long time now that Ukraine should try a different approach. Ukraine can appeal to the UN International Court of Justice in The Hague. However, there is one problem: under international law, both parties must agree to the verdict of this court and its jurisdiction.

Ukraine must, on its own, file a lawsuit against the Russian Federation, which has inherited 95 per cent of Soviet property. From this viewpoint, Russia inherited most of the responsibility for the acts and crimes committed in Soviet times. The case of Bosnia and Herzegovina vs. Serbia in 2007 established a court precedent to the effect that a state can be responsible for acts of genocide, even though the 1948 convention does not specifically provide for the responsibility of states. A victim may even claim damages from such a state. In the case of the 1932-33 Holodomor, there are not so many living eyewitnesses left (including those who experienced this tragedy as a child), but there are their descendants. They can sue and claim damages because their relatives suffered from the Holodomor.

Ukraine needs to be proactive in several ways: trying to make the UN recognize the Holodomor and also negotiating with individual countries.

READ ALSO: Contextualizing the Holodomor

U.W.:  What progress has been made in international courts and tribunals in the past 15 years to recognize genocidal acts committed in the Balkans (Srebrenica, 1995),  Rwanda in 1994 and Sudan (Darfur, 2003-2009)? What innovations regarding the prosecution of genocide did they introduce in international legislation?

On 27 February 2007, the International Court of Justice in The Hague passed a judgement in the case of Bosnia and Herzegovina vs. Serbia that is very important to our case. The court recognized that the government of a country must avoid and prevent the emergence of genocide under Article 1 of the Genocide Convention. The convention states that all of its parties, including the Soviet Union, are accountable if they fail to comply. Thus, the court explained in the Srebrenica case that the state was responsible not so much because genocide took place in its territory but because of its demonstrative refusal to take every action in its power to prevent this crime.

The court used evidence provided by International Criminal Tribunal for the former Yugoslavia. What happened in Srebrenica was qualified precisely as genocide. In a vote, 14 out of 15 judges found that Serbia had violated its international obligations regarding the prevention of genocide. At the same time, they ruled that there was no direct evidence implicating Serbia in causing the genocide. Therefore, it was hard to get a hold of the accused, including Radovan Karadžić (president of the Republika Srpska in Bosnia in 1992-96. — Ed.) whom the authorities refused to hand over to the tribunal in The Hague. Finally, Serbia found the will to extradite him. If he is found guilty and it is established that he acted in favour of Serbia and was linked to the Serbian government in Belgrade at the time, the state of Serbia may face charges of complicity in genocide and be held accountable, in particular through the payment of damages.

The trial of Jean-Paul Akayesu in the case of the 1994 Rwanda crimes was the first time when an international tribunal gave an interpretation of the definition of genocide included in the 1948 convention. Article 2 of the convention defines it as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. It was important to condemn the very intent to commit that. To Ukrainians, the experience of the Rwanda tribunal is important to Holodomor recognition in that it provides a definition of the national group: a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties. Whether the group involves only and exclusively Ukrainians is of no importance, because it applies to the entire national group, for example, one that works together. In other words, it applies to the group of peasants who were destroyed by the Holodomor. Moreover, the tribunal interpreted an ethnic group as a group whose members share a common language or culture.

The International Court of Justice, active since 2002, charged Omar Al-Bashir, the President of Sudan, with genocide and crimes against humanity and issued a warrant for his arrest. The charges were brought over the atrocities committed by him and representatives of his government in Darfur. This step points to a new trend: less tolerance for acts of genocide and increasing efforts to bring the perpetrators to justice.

READ ALSO: Christian Vanneste: “When the Door Is Open, the Spirit of Freedom Always Enters”

Biographical note

Bohdan A. Futey is a senior federal judge of the United States Court of Federal Claims, where he has served since 1987. He is the only Ukrainian among U.S. federal judges. Futey holds a J.D. degree and has lectured as a visiting professor at universities in Germany and Ukraine.

1972-74: Chief Assistant to Cleveland Police Prosecutor

1974-75: Executive Assistant to the Mayor of Cleveland

1984-1987: Chairman of the Foreign Claims Settlement Commission of the United States

Futey is a member of the American Bar Association and the Ukrainian American Bar Association, Ukrainian Assistance Coordination Committee. He has participated in judge exchange programmes and was an advisor to the Verkhovna Rada working group to draft the Constitution of Ukraine.


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