When there are no graves, we light candles. In a church, a forest, in our window – important only that the memory burns on. .

When that memory is of the victims of an inhuman regime, we want people to know and to stop turning away. However it is no less vital that the memory of victims is not used for political purposes.

On 12 January 2010 the Kyiv Court of Appeal began its preliminary hearing into the case over genocide in Ukraine. The very next day, according to information from the press centre of the SBU [Ukrainian Security Service] the court found Stalin and six other leaders of the Bolshevik totalitarian regime guilty of Holodomor-Genocide in Ukraine in 1932-1933. It then terminated the proceedings since all those found guilty are dead.

  We learned, yet again from the SBU, that the Kyiv Court of Appeal’s 13 January Ruling had not been appealed and therefore came into force on 21 January. It is, admittedly, difficult to understand how there could have been appeals against a ruling which was only made public (posted on the Kharkiv Human Rights website) at the beginning of February.

  The authorities clearly saw the fact that the public had not seen the ruling as trivial, and as early as 14 January both the Head of the SBU and the President of Ukraine named it a milestone ruling. President Yushchenko, for example, stated that the “Ukrainian court ruling moves any discussion on Holodomor from a political to a juridical-legal level.” Maybe it does, however it wouldn’t hurt to first read it.  Particularly since this unpublished ruling represents, in the President’s view, “an additional argument for Ukraine’s parliament to introduce criminal liability for denying crimes against humanity”.

  Some other plans by State bodies in connection with this ruling surely make the fact that it came into force without being available for perusal even more startling. In the SBU report from 14 January we read:

  “The Security Service, together with the Ministry of Foreign Affairs, plan to establish where abroad and to whom grain confiscated during those years in Ukraine was sent. “The purpose of this work is to identify the companies, corporations and governments which received ‘commercial profit’ from the criminal acts of the communist leadership as a result of the confiscation of property of the Ukrainian population”, Mr Nalyvaichenko [Head of the SBU] stated. He added that such action was universally recognized world practice regarding compensation for victims of crimes against humanity.”

  It would be worth finding out how universally accepted it is to claim compensation for actions the companies, corporations and governments may not have known were criminal. In any case it is to be hoped that the court will spend somewhat longer examining such claims.

  The Head of the SBU asserts that “Ukraine is the only country in the world which through domestic investigation, Prosecutor and court has proven that genocide was committed on its territory”. Whether this is something to boast of could be questioned given that the court dealt suspiciously quickly with a massive amount of historical detail and in one day was ready to entirely agree with the criminal investigators. Obviously the need for some elements of a normal court trial is obviated by the lack of living defendants however I would doubt that the Nuremberg Tribunal or the International Court in the Hague in the case of Bosnia and Herzegovina v. Serbia and Montenegro deliberated so long merely because they needed to interrogate the accused.

  In order to establish an act of genocide according to the UN Convention from 9 December 1948 on the Prevention and Punishment of the Crime of Genocide [the Convention], convincing evidence must be provided that the act was “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”.  Among the many cases of mass murder during the first half of the twentieth century, only the Holocaust has been generally recognized as genocide. The Court in the Hague only found one act of genocide to have been proven in Bosnia. Yet the court in Kyiv felt competent after one day to find that there had been a deliberate intention by the accused “to destroy in part specifically the Ukrainian ethnic group (and not any other)”.

From the verdicts at the Nuremberg Trial it is clear that both specific actions, and intent and level of knowledge were taken into consideration. Not all those convicted were executed, and a few were acquitted.  The court in Kyiv found all seven accused guilty of exactly the same crime. If one simply needs a court ruling on Holodomor-Genocide, then there is no problem. From the point of view of historical truth it would have seemed justified to mention the letter one of the men, Chubar, wrote on 10 June 1932 in which he tried to make Stalin and Molotov aware that the requisition plan was unrealistic and that food aid needed to be increased to the starving peasants. There is also no mention of quite different possibilities – without serious risk to themselves – of realistically influencing the situation (it is no accident that four men later became victims of repression, while Stalin, Molotov and Kaganovich died of natural causes). This exonerates no one, yet the lack of any attention to such differences seems at least odd.

It is also doubtful whether this State-organized trio succeeded in proving that genocide was perpetrated which is frustrating, especially for those including myself who actually consider Holodomor to have been genocide.

  The court did not find that there had been an act of genocide against the Ukrainian people, i.e. the deliberate destruction in part of the people living in Ukraine. For some reason it was decided to assert that the crime was one of genocide of the Ukrainian ethnic group in part, and that’s where the rot sets in. 

Value judgments and assumptions regarding who was to blame in the testimony of witnesses are given as factual proof of the guilt of the “defendants”. Such testimony is undoubtedly valuable, however one needs to clearly define what can be termed proof and what cannot. One woman quoted perhaps genuinely believes that only ethnic Ukrainians in her area suffered, while Jews did not. I would seriously doubt whether this opinion of hers, without being backed up by hard evidence, should have been added to the case. Unfortunately there are considerably more xenophobic points in the ruling and we are unlikely to be dealing only with an inept choice of testimony.

Perhaps the stress on the Ukrainian ethnic group is linked with the fact that deliberate destruction of part of the group of peasants as such does not fall under the Convention. Back in 1948, under pressure from the Soviet delegation, the clause regarding social groups was removed. However one should not forget other, more nationalist, considerations. We hear, for example, from the Head of the SBU Central Archive that Holodomor should unite Ukrainians. How can such a decision unite Ukrainians when it effectively calls Holodomor genocide of only one ethnic group of the population? They have furthermore totally ignored Kuban which suffered no less than Ukraine. Kuban, despite its two thirds Ukrainian population, clearly didn’t fit the political plan called “Holodomor-Genocide in Ukraine in 1932-1933”. Yet what kind of plan is that when a million people died in Kuban and they’ve decided not to mention them at all?

For decades the figure of 10 million victims of Holodomor was given, quoting the number which Stalin supposedly named to Churchill (admittedly as the cost of industrialization). A good many Ukrainians felt virtually indignant, refusing to believe historians who put forward substantiated suggestions that Holodomor in fact claimed the lives of approximately 4 million people. Yet now the SBU has miraculously managed to resolve this conflict and reinstate the old – Stalin-based! – figure. We hear from Mr Nalyvaichenko that “the final number of human losses suffered by Ukraine as the result of Holodomor 1932-1933 comes to 10 million and 63 thousand”. Of this number, he explains, 3 million 941 thousand died of starvation, while 6 million and 122 thousand people who should have been born, were not.

One can subject the Appeal Court’s ruling to lengthy and exhaustive criticism, however the problem does not lie only in procedural flaws.

It is undoubtedly cheering that the Ukrainian Security Service has moved far from the pernicious legacy of the KGB. However when today they carry out one political task, where is the guarantee that tomorrow, next month or in a year, they won’t undertake an entirely different role? All those involved, including the judge, were well aware what was expected of them and that undermines any trust. In my view everything linked with our memory should be entrusted to a fully independent structure, like the Polish Institute of Natural Remembrance.

I am not suggesting that politics has not played a role in other cases of crimes against humanity or genocide. Often, unfortunately, “inconvenient” trials (such as that of Milosevic) were dragged out inordinately, while other criminals have scarcely been hunted down vigorously. However the actual court trials were carried out properly which cannot be said of the pitiful imitation of a judicial examination in Kyiv on 12-13 January.

Whether it was necessary to insist on recognition of Holodomor specifically as genocide is hard to say. The Soviet authorities forcibly took the grain away from the peasants, dooming them to starvation.  They prevented them from leaving the villages in search of food while Ukraine was at the same time exporting grain. This was without any doubt a crime against humanity which the world once preferred not to know about and some western intellectuals shamelessly denied. There must be no more silence and the world has to know. In the name of the victims, and so that next time, wherever that may be, people do not look away, pretending they see nothing.

Instead of educational, awareness-raising measures, the authorities decided that they absolutely had to prove that genocide in the understanding of the UN Convention from 1948 had been perpetrated and they issued the relevant instructions. Everybody knew that there would be opposition from Russia, though in fact it is not necessarily obvious why. However we mustn’t forget that there are serious historians who do not believe that Holodomor falls under the Convention. Whether or not we agree with them is another matter, only in no way, is it a political one. When the issue becomes politicized, we end up with political tasks and the temptation to find the facts to fit our conclusions.  And we end up with court rulings like that of the Kyiv Court of Appeal.

It is frustrating that there remain no graves, yet even memory is politicized and exploited. It betrays the memory of victims of a monstrous crime.