A Crime without Punishment. A Punishment without Crime

A crime without punishment: do we now need a legal acknowledgement of the crimes of Soviet communism? Punishment without a crime: political repressions in the Soviet Ukraine. A commentary by Yevhen Zakharov.

Yevhen Zakharov is the head of the Kharkiv Human Rights Group. Our talk is based on the discussion “Crime Without Punishment and Punishment Without Crime” that took place in Kyiv on the occasion of the outstanding exhibition To Live or to Write: The Narrator Varlam Shalamov. This conversation is important in the context of previous “Encounters” podcasts that were dedicated to cooperation among the prisoners themselves and the memory of crimes against humanity. We discussed this with Vasyl Ovsienko, Josef Zissels, and Shimon Redlich. You can read more about the Kharkiv Human Rights Group here. The publications that Yevhen Zakharov discusses can be freely accessed online in the “Library of human rights.”

Iryna Slavinska: Our talk today is based on discussions that took place in Kyiv and were dedicated to the political repressions, the memory about these events, and also the recognition of the crimes of communist regime as crimes. Roughly speaking, crime and punishment, crime without punishment, and punishment without crime...

Yevhen Zakharov: Yes, crime without punishment. This is about crimes that were committed during the Soviet period that did not receive judicial recognition or punishment. Unlike Latvia and Estonia, in other countries of USSR, and in Ukraine in particular, there have been no court decisions on these actions to categorize them as crimes. This is a very serious obstacle to decommunization processes that are now being announced. These processes for the most part are not legitimate. One court decision would outweigh the many books with stories about these issues. Of course, a full trial now is not possible to conduct because all those who would be accused are dead already. Nevertheless we can unpack all this and provide the legal basis of charges for those crimes that are well documented. For those crimes where it is known how they happened, who gave these orders, and the number of victims. It is imperative to do this on the basis of historical sources that exist. It requires joint work by the historian and the lawyer. On the basis of well-analyzed historical events, we should understand what types of crimes are seen here. This would be either genocide or crimes against humanity.

Iryna Slavinska: I will ask you right away. What does this mean as a process to provide a legal qualification for the crimes? Should there be some order that states that these events should be interpreted as genocide?

Yevgen Zakharov: No. It is necessary to formulate the list of charges. Why did it happen? Who was its object and subject, meaning who was committing it and against whom was it directed? The intent should also be clarified. For genocide, it is important to prove a direct intent, that is to prove that what was done was done on purpose, and those people who did it had a plan for mass murder and they fulfilled it. It is necessary to prove this. If there was no intention, but there was everything else—massacres, mass death—it would be a crime against humanity. The proof that there was intent has to be very convincing. It surely has to have the highest standard of proof. I conducted research on the Holodomor, and I proved that in the artificial famine which took place from November 1932 to July 1933 and killed nearly four million people (and this figure can be considered proven), there was a direct intent by Stalin and his surrounding circle to destroy so many Ukrainians with an artificially induced famine, and that this is a crime called genocide.

Iryna Slavinska: Let’s talk more about the topic that was mentioned before—the issue of decommunization. In general, what do you think about the current decommunization process? About the laws on it, the movement with renaming things, removing memorials, etc.? How does this relate to what we are talking about now: memory, the big issues, the crimes against humanity in Ukraine committed by the communist regime?

Yevgen Zakharov: I think these laws are insufficient. These laws are only related to the actual renaming of streets and, if we are talking about something broader, about the mythologizing of communism. This is correct and this should be done, but I think these are not the most important activities that must be done. First of all, we have to remember that communism abolished private property. Therefore, you need to restore a sense of ownership, because without property people will not be citizens.

Iryna Slavinska: Do you mean restitution?

Yevhen Zakharov: This is a complicated question, and I do not want to get into it now. By the way, there was restitution in the Baltic States. Seriously speaking, it should happen. I can imagine how hard it will be to implement, and that is why I do not want to discuss it now, but I am talking about something else. People should feel themselves as the owners, and the state should guarantee the protection of private property. Today this protection is not sufficient on all levels. This should facilitate the growth of a strong middle class. The second issue is that communism destroyed individuality as such. It promoted collectivism. We must restore the value of the autonomous individual. It is absolutely necessary to revive individualism, and this is also an element of decommunization. Instead of private property, communism proposed a state distribution of benefits that had to be fair, and so on. We all know that this does not happen and on the contrary it is necessary to oppose this by getting rid of paternalism. People still expect the state will provide them with jobs, housing, and so on. We must rely primarily on ourselves, our family and friends, and we should not rely on the state. We have to get rid of this paternalism, and this is also decommunization. Communism is internationalism, the idea of nations merging together, and we absolutely cannot agree with this. We have to revive the feeling of national dignity, culture, language, etc. There are many fundamental issues, and we cannot enact decommunization without taking them into consideration. Communism destroyed all fundamental freedoms and democracy. They should be restored; they have still not been restored to the required level. Besides, there are pragmatic issues, I would say. For example, the Soviet way of thinking that many people still have. They think that complicated questions can be easily resolved by using force. This is a big mistake, and it should not happen like this. Politicians, as well as civic movements, make this mistake. This is a big problem and it leads many issues into a dead end. Besides, this means that people are driven in their actions only by political expediency, and not by the law. Legal principles are neglected, including the principle of the rule of law. History shows us that such regimes inevitably fail. This is also a typical vestige of communism. We have to get rid of this. I want to remind you that even at this level there are dozens, perhaps even hundreds, of people who have not received their salaries earned in state companies that went bankrupt. There is a well-known moratorium that the bankrupt must first pay the state, and then it pays salaries to its employees. Therefore, the problem occurred and the judges’ decision to return unpaid wages was not implemented to a large extent. This is a big problem for the state. It was Stalin’s golden rule that collective farms had to first settle with the state, had to fulfil the plan, and then provide bread to their employees.

Iryna Slavinska: We actually see how these unlearnt lessons of history come back to haunt contemporary Ukraine. Yevhen Zakharov is the head of the Kharkiv Human Rights Group. I would like to continue this program, and the section about repressions in Ukraine during the communist period. This discussion on the “Encounters” program is especially important in the sense that it allows us to look with a slightly wider angle at what we have already talked about in our programs. I am referring to the interaction of various dissident communities and the emergence of what has been jokingly called the non-stop seminar on the formation of civil society, which occurred frequently in the camps, especially in dissident circles repressed by the communist regime.

Yevhen Zakharov: This is very complicated question, because the situation is very complicated. The Ukrainian problem is that different regions of Ukraine have different heroes and different understandings of good and evil. We have many examples here. In Rivne there is a memorial to Klym Savura who is one of the leaders of the Ukrainian Insurgent Army. The Polish people think he was a murderer who killed about forty thousand peaceful people during the massacres of Poles in Volhynia and Eastern Galicia. They will never accept that this person is a hero and not a murderer. This situation can be seen with many other people, and this is one thing that we have to keep in mind. We have the conflict of memory. There is a big problem here with what I already mentioned before. I don’t think you can impose on regular people these models of memory that conflict with their internal feelings.

Iryna Slavinska: Can pluralistic views of memory be reconciled to bring accord or somehow organized? Is this a strength or weakness?

Yevhen Zakharov: I think this is a weakness because a unified political nation is only possible when different regions of this nation will have approximately the same memory, when the same people will be heroes for them, and other people will be bastards for all of them. We have to strive for this. We are talking about regular people, but this does not have to apply to those who think of themselves as intellectuals. These people have to be brave enough to be intellectually honest and, judging from the facts that they know, have to be able to alter their positions and let go of the old ones.

Iryna Slavinska: So we are talking about some consensus on memory when it comes to heroes and executioners…

Yevhen Zakharov: Yes, we are talking about the professionals here, about those who have to understand all of this and lead it to some general consensus. This conflict on memory has to be solved, and there are many problems here. Besides, this is a very delicate question where I think an overly aggressive intervention from the state is not good. Today we have such a process with the renaming of the streets and the Ukrainian Institute of National Remembrance is implementing active political moves there. From one side, we can welcome this because it is based on historical facts and archival documents to which they have access. They explain who some personalities were, and remind us about some facts that people do not know. In some cities there is a street named after Pyotr Voykov. From Soviet history we know that Pyotr Voykov is a famous Soviet diplomat who was killed, but nobody remembers that he took part in the shooting of the tsarist family and he personally dismembered corpses and personally took an expensive ring from the hand of the murdered empress. In my home city of Kharkiv the Security Service of Ukraine addressed the Commission of Toponymics with a request to name streets after two leaders of the KGB Kharkiv region: General Feschenko and General Hibadulov. I immediately remember that General Feschenko issued an order in 1965 to fill some pits with liquid that would dissolve everything. This was about the boys who found traces of the shootings of Polish officers in the woods. This was done, a KGB guesthouse was built on those bones, and the area was fenced off so that no one can enter. Speaking about Hibadulov, whom I personally knew, he was not a bad person, and this is true, but from archival materials I know very well that he ordered surveillance of the new [human rights—Ed.] movements such as “Memorial.” He wrote memoranda to the oblast party committee that described the moods there. Such political surveillance continued until 1991, and Hibadulov, as head of the KGB, was surely managing it. He may be a good man, but I don’t think streets should be named after them. So this clear distinction between “friend or foe” which comes from the Institute of National Remembrance is a very difficult issue. If you take the formal side of the law on decommunization, we would have to remove all the street names named after Mykola Khvylovy, who was known as a passionate communist and defended communist values in his discussions and books.

Iryna Slavinska: I remember the programs with the representatives of the Institute of  National Remembrance, and they were saying that “not pure” communists were not subject to decommunization, but first of all people who had leading positions in the Communist Party, the NKVD, and the KGB. Streets named after Mykola Khvylovy or, for example, Vladimir Mayakovsky, would not fall under decommunization.

Yevhen Zakharov: I gave this example because it illustrates the problem. There is now a discussion about Mykola Skrypnyk. First they wanted to remove him. Then they decided that he is “ours,” as he was a national-communist; he was in favor of an independent Ukraine, he committed suicide. But he was the head of the Cheka. He personally shot people. He was a candidate for the presidium of the Communist Party of the Soviet Union. These double standards are not very good. I believe that changing names is not an easy issue. We must also remember at that time there were many sincere communists who sincerely believed that they were building a new life and it would be good and only a very few could understand just what it would be. To predict the future is not so simple. So now throwing everyone into the trashcan of history...this is all very dubious...nothing has to be thrown away, I think. We should have created a museum of totalitarianism and brought these monuments there and exhibit these examples of totalitarian culture as a lesson of how it should not be. Yesterday we had a woman from Paris—a former Russian citizen from “Memorial” in St. Petersburg, who had recently come to Kyiv. She provided an example from Paris, about the French colonial heritage. There was a great debate about what to do, because there were major issues of discrimination. There was a sculpture and some people said it had to be removed. Others said that this was not necessary, because this is our history. As a result, a museum of the colonies was established, which now explains how this empire had developed and how it fell apart. This approach illustrates a careful attitude to memory. I think this is better than just removing and forgetting everything.

This program is created with the support of the Canadian philanthropic fund Ukrainian Jewish Encounter.

Originally appeared in Ukrainian (podcast) here.