Plan to destroy the UOC: Text of Amsterdam's letter to Zelensky

On August 6, 2024, UOC's lawyer, American attorney Robert Amsterdam, wrote a letter to President of Ukraine Volodymyr Zelensky, detailing documents in his possession that confirm the existence of a plan to destroy the UOC.

Our site’s editorial team presents the full text of the letter.

"EMERGENCY COMMUNICATION CONCERNING THE CAMPAIGN AGAINST THE UKRAINIAN ORTHODOX CHURCH

Dear Mr. President

I am putting you on notice that your government is at serious risk of committing crimes against humanity under Article 7 of the Rome Statute of the International Criminal Court by virtue of your systematic attack on the Ukrainian Orthodox Church (UOC) and its priests and parishioners. I write this letter to implore you, as President of Ukraine, to fulfil your duty to protect your own people from crimes against humanity that will have serious consequences for Ukraine both domestically and internationally and may entail personal liability for you under the international legal doctrine of command responsibility.

My firm has come into possession of internal documents, which detail plans to establish a new exarchate (diocese) in Ukraine to subsume the UOC under the administration of the Ecumenical Patriarchate of Constantinople (EP). These documents suggest this is a first step towards an eventual forced unification of the UOC and Orthodox Church of Ukraine (OCU). I have reason to believe that the plans, as laid out in these documents and described in detail in Annex One of this letter, have been developed by members of your administration. I am making them public to show how the attack on the UOC is being manufactured as part of a narrow and pernicious nationalist agenda against the wishes of large swathes of Ukrainians, who remain committed to the UOC.

These documents also provide crucial evidence that there is a risk that crimes against humanity are or will soon be committed in Ukraine that would fall within the jurisdiction of the International Criminal Court. While there has long been evidence of “attacks directed against … a civilian population,” these documents appear to confirm that these attacks are “pursuant to or in furtherance of a state or organizational policy to commit such an attack,” as required under the Rome Statute. The evidence we set out in this letter forms a sound basis for an investigation by the Prosecutor of the International Criminal Court of the possible commission of crimes against humanity as part of a systematic attack on the UOC and its adherents.

The plans laid out in these documents provide context for and build on the ongoing harassment and intimidation of the UOC, its priests and parishioners. These actions are being carried out by and in complicity with the Security Service of Ukraine (SBU), the State Service of Ukraine for Ethnopolitics and Freedom of Conscience (DESS), nationalist deputies of the Verkhovna Rada led by Ukraine’s former president, Petro Poroshenko, and the OCU. The SBU is arresting priests and Orthodox journalists on false charges, detaining them without a fair trial. We have witness statements confirming that the SBU is committing war crimes by offering some detained priests as barter in exchange for prisoners of war held by the Russian Federation. Parishioners of the UOC are being harassed and attacked; their churches illegally appropriated and transferred to the OCU. The Verkhovna Rada stands prepared to pass legislation developed by your government that will ban the UOC (Draft Law 8371), in violation of the international legal rules guaranteeing freedom of religion and belief as set out in Annex Two of this letter.

Each of the elements to the attack on the UOC is designed to prepare the way for the destruction of the UOC as an independent Church. This amounts to a collective punishment of innocent citizens on religious grounds. As President of Ukraine, you bear personal criminal responsibility for the actions of your subordinates that are intentionally causing great suffering and serious injury to a civilian population.

Furthermore, it has come to my attention that the Office of the Prosecutor General of Ukraine is preparing criminal proceedings against me for my defence of the UOC. Such a criminal charge would violate the UOC’s right to legal representation and constitute legal harassment of human rights defenders protected by international law.

Your government’s interference in the religious affairs of the UOC is predicated on the false claim that the Church remains subordinate to the Russian Orthodox Church (ROC). Officials in your administration, including Viktor Yelenskyi, whom you appointed head of the DESS in December 2022, deliberately ignore the steps taken by the UOC to separate from the ROC. This is a stark shift from the policy of Yelenskyi’s predecessor, who was renowned for her balanced and judicious handling of religious affairs in Ukraine and who recognised the independence of the UOC. Since Russia’s full-scale invasion of Ukraine, the UOC has built on the self-administration and broad autonomy it achieved in 1990. The UOC has taken concrete actions to demonstrate its independence from the ROC. It has amended its statute, established parishes abroad to serve the needs of Ukrainian refugees, and changed the liturgical practice of its priests and bishops, who now only offer prayers to local Ukrainian bishops and Metropolitan Onufriy. In addition, the UOC has provided significant financial and moral support to the Ukrainian state and people during the war.

My conclusions about the ongoing threat to religious freedom in Ukraine are shared by a range of international organisations. For example, Volker Turk, the United Nations High Commissioner for Human Rights, has noted his “concerns regarding freedom of religion and belief in Ukraine,” and the “continuing action by the authorities against the Ukrainian Orthodox Church.” The Norwegian Human Rights NGO, Forum 18, and the Church of England, have expressed their own objections to Draft Law 8371, as documented in this letter. Such statements are just the tip of the iceberg of international condemnation of Ukraine’s actions against the Church. I shall now detail the newly revealed plan, evident in the internal documents of which we are in possession, to establish a new exarchate in Ukraine as well as the tangible effects of that plan as implemented by your government.

I. The Ukrainian government’s secret plan to establish a new exarchate in Ukraine

The documents we have in our possession shed new light on the purpose of Draft Law 8371 and the Ukrainian government’s intentions for the future of the UOC (see Annex One). The contents of these internal documents suggest that they have been drafted in recent months by individuals with authority and access to internal government planning. One of these documents provides guidance on your government’s plans to establish a new exarchate in Ukraine to be administered by the EP. It appears to be the goal of your government for this new exarchate to subsume the UOC following the passage of Draft Law 8371. This is framed as the first step in a process that will lead to the unification of the UOC and OCU, in full violation of the UOC’s rights to manage its organisational and administrative affairs and the international legal guarantees of religious freedom (see Annex Two).

This document contemplates a series of steps to be taken by your government against the UOC in pursuit of this goal of forced unification. These steps include reducing the influence of the church; creating a positive image of the OCU; imposing sanctions against sponsors of the UOC; creating a toxic perception in society of the very fact of belonging to the UOC; and ensuring that all leases concluded with the UOC are reviewed by national, regional and local authorities, with a view to terminating those leases. That many of these steps are already underway, suggests that this document is authoritative and is being implemented by officials under your command. Not only are these actions illegal under international and Ukrainian law, but they are also seriously harmful to social cohesion in Ukraine at a time of war.

Significantly, the plans presented in this document fail to consider canonical barriers to the establishment of a new exarchate in Ukraine, which suggests that it has been developed by officials ignorant of canon law. Canon law forbids the existence of two churches in one Orthodox state, since there is an ancient principle that there can only be one bishop in one town. Although the establishment of the OCU has already created this state of affairs, the UOC and OCU each only acknowledge the bishops in their own church, thereby papering over the violation of canon law. Should the new exarchate be established in Ukraine, this would entail the EP recognising two bishops in any given town—one for the OCU, and one for the new exarchate of the UOC. Given the importance placed on tradition and canon law, it is inconceivable that the EP would agree to this plan or that it would be accepted by global Orthodoxy.

It is also quite unclear how the plan would succeed in uniting the UOC and OCU, other than through violence. Your government’s arrests of UOC priests and the forcible transfers of UOC parishes, often with the involvement or tacit support of OCU adherents, has created divisions between the two churches that will last generations. Indeed, the plans to create a “toxic perception” of the UOC undermines your very aim of unification and confirms your government’s intent to further poison the well of Orthodoxy in Ukraine.

The other document in our possession reveals that there are dissenting voices in your government who are concerned about how poisoned the religious landscape of Ukraine has become. Significantly, this document provides a critical assessment of the key “players” behind the attack on the UOC, including the OCU, DESS (under Yelenskyi) and Poroshenko’s political party, all of whom are complicit in the intended destruction of the UOC. The document paints a picture of naked political ambition and shows that the OCU has unchecked influence on religious policy in Ukraine. It recognizes the danger inherent in “the OCU leadership's unbalanced policy and excessive ambitions [that] have led to catastrophic consequences - polarization of society by religious affiliation, and condemnation of the methods of policy-making by international partners.” Having raised well-founded concerns about the hijacking of Ukraine’s religious policy by the OCU, the document urges your government to enact policy initiatives in a more balanced way to avoid undermining Western support for Ukraine. Unfortunately, these wiser voices have been ignored at the higher levels of your administration. However, despite the note of caution in this document, it still envisages the transfer of the UOC under the canonical guarantees of the EP.

II. Harassment of and abuse of law against UOC priests and journalists

The plan to destroy the UOC as an independent church is predicated on the intimidation of UOC clerics and supporters in order to reduce the influence of the Church. The Ukrainian government has deployed the powers of the state and judiciary—including civil and criminal processes—to discriminate against and harass the UOC and its priests, as well as Orthodox journalists. Your government has unjustifiably imposed sanctions on senior UOC leaders. The SBU has opened unfounded criminal investigations of UOC priests and has carried out extensive searches of buildings under the UOC’s authority and the homes of priests and journalists. Some of those arrested have been subject to highly dubious investigative techniques, including questioning under polygraph. Your government has turned to “psycho-linguistic” examinations as a form of “expert” evidence in a concerning throwback to Soviet-era legal procedures. I draw attention to just two of the most egregious cases of wrongful arrest as illustrative of Ukraine’s failed commitment to the rule of law and willingness to arrest the innocent on false charges as a means of intimidation.

Metropolitan Arseniy, the superior of the Sviatohirsk Lavra of the Holy Dormition was arrested in April 2024 for the alleged crime of betraying the location of military checkpoints under Article 114-2 of the Criminal Code. In September last year, Arseniy preached a sermon in which he complained that pilgrims had been prevented from reaching the monastery due to temporary checkpoints erected in the region. Although his complaints were accurate and innocuous, Metropolitan Arseniy was charged by the SBU six months later and remains in detention, facing a jail term of eight years.

In February 2023, Metropolitan Feodosii of Cherkasy and Kaniv was informed that a criminal case had been opened against him under Article 161 of Ukraine’s Criminal Code for inciting national and religious hatred. The case was based on talks on ecclesiological and theological matters given by Feodosii over a period of ten years. Metropolitan Feodosii has been placed under house arrest and is permitted to leave only for court appearances, during which he is often humiliated by large groups of protesters, likely with government encouragement. In a grave violation of the laws of war, the SBU has offered Metropolitan Feodosii freedom if he agrees to be sent to Russia in exchange for Ukrainian prisoners of war. Ukraine and its officials may bear responsibility for this illegal offer under the Third Geneva Convention of 1949 and the Rome Statute of the International Criminal Court. A Ukrainian patriot, Metropolitan Feodosii has refused all such proposals. The wrongful arrests of Metropolitans Arseniy and Feodosii are just two among many.

III. Harassment of parishioners and illegal transfers of churches

The property of the UOC, including sacred religious sites, is under threat of seizure by the government and theft by OCU adherents with the support and acquiescence of the Ukrainian authorities. The government has taken no steps and implemented no policies to protect UOC places of worship from interference, attacks, and seizure. Its police and security services—when not undertaking attacks on the Church themselves—simply stand by and allow the invasion and desecration of UOC religious sites. To date, around 1,500 churches have been seized, most of them illegally. These seizures are fully consistent with the government’s secret plans to merge the UOC into the OUC as envisaged in the recently released documents in our possession.

For example, on March 28, 2023, a group of men forced their way into the UOC’s Cathedral Church of Ivano-Frankivsk to forcibly remove UOC priests and worshippers. The attackers, accompanied by priests and believers of the OCU, used tear gas in the church, desecrating holy places of worship. On the same day, the Church of the Blessed Virgin Mary of the UOC in the village of Kordyshev in Ternopil region, was burned. According to the rector of the church, arsonists threw Molotov cocktails and then later poured gasoline onto the blaze. These are just two of the many attacks on UOC property.

Many of the churches seized by the OCU have been closed and turned into “ghost” parishes. Quite simply, the OCU does not have the numbers of believers to fill these empty churches. UOC parishioners who have had their churches seized are being left with no choice but to attend liturgies in private apartments and even in the open air. These actions are dividing Ukrainian society and undermining national unity during a time of war.

IV. Draft Law 8371 will ban the UOC

In accordance with the government’s secret plan revealed in the documents we have in our possession, the Verkhovna Rada is in the final stages of a legislative effort to ban the Church. Your government, with significant direction from Mr. Yelenskyi, has prepared Draft Law 8371, a deeply divisive piece of legislation that bears all the hallmarks of a Soviet-era approach to religious affairs. In January this year, my firm published a detailed legal review of the version of the law that passed its first reading in the Verkhovna Rada on October 19, 2023. By drawing upon the opinions and legal guidance of the Venice Commission, the Council of Europe’s advisory body on constitutional and administrative matters, this analysis showed that Draft Law 8371 would fail not just one, but all the criteria required for permissible restrictions on the freedom of religion under the European Convention of Human Rights. A legislative ban on the UOC constitutes collective punishment, in violation of international law on the freedom of religion and belief (see Annex Two). Consequently, my firm has called on Ukraine to submit Draft Law 8371 for review by the Venice Commission, a call echoed by others in the international community, including the Church of England.

Draft Law 8371 has been amended several times since its first reading in the Rada. While its provisions have been significantly expanded, nothing has been done to address the myriad of legal problems with the bill, including its discriminatory impact and violation of international religious freedom. The bill empowers DESS to undertake an examination of the relationship between the UOC and ROC, and it provides a near limitless set of grounds for a determination that the two churches remain “affiliated.” It ignores the efforts of the UOC to separate from the ROC. Most egregiously, several of the grounds for affiliation are wholly outside the control of the UOC (namely the statutes, administrative documentation and actions of the ROC, which can, independently of any actions by the UOC, lead to a determination of affiliation). Once such a determination has been made, DESS can apply to court to denude the UOC of its legal status and property rights, and outlaw its religious activities. Given the government plan revealed to us, there is every reason to assume that even acts of worship would be included in this prohibition.

In what appears to be a calculated attempt to pass the law with minimum oversight and scrutiny and in violation of basic democratic norms, the most recent versions of Draft Law 8371 have not been made publicly available. Despite this, my firm, along with other international organisations, have been able to obtain copies of each version of the law. In its review of the legislation, Forum 18 opined that the revised bill “would not implement Ukraine's legally-binding international obligations to respect and protect the freedoms of religion or belief, expression, and association.” The Church of England sharply criticised the legislation in a report for its General Synod in February this year, raising “concerns that recent legislative developments in Ukraine may impact enjoyment of FoRB [Freedom of Religion and Belief],” and concluding that “Draft Law 8371 threatens Ukraine’s social cohesion at a time when it needs a unified societal response to Russian aggression.” The Church of England observed that the bill “encourages an ethno-religious nationalism that will be detrimental to Ukraine’s long term Western trajectory.”

In recent weeks, militantly nationalist deputies in the Verkhovna Rada have renewed momentum to pass Draft Law 8371. Led by Poroshenko, these deputies are promoting a radical political program of ethno-religious nationalism, just as the Church of England’s report feared. Your government has assessed that Poroshenko’s political party is responsible for creating “information and psychological support” for the attacks on the UOC. For Poroshenko, enacting Draft Law 8371 would be the culmination of the state policy on religion, which he set in motion during his presidency by actively promoting the OCU and lobbying the EP to grant the new church a Tomos of autocephaly.

Poroshenko, with the support of other deputies, is demanding a second reading of Draft Law 8371 to secure its final approval by blocking any urgently needed legislative activities until the bill is approved. Poroshenko’s obstruction of the Verkhovna Rada’s legislative business amounts to a severe infringement of Ukraine’s democratic process. Should Draft Law 8371 be passed into law, Poroshenko will claim a significant victory in his efforts to promote the OCU as the sole Orthodox Church in Ukraine. However, Ukraine will suffer from a grave breach of religious freedom and international standing.

Public statements by the chairman of the Verkhovna Rada indicate that Draft Law 8371 is undergoing further revision and will be added to the legislative agenda when the Rada reconvenes in late August. Given your government’s secret plan as revealed in the internal documents of which we have possession, there is every reason to assume that the revised bill will remain as problematic as prior iterations, if not worse. The passage of this legislation would breach Ukraine’s international legal obligations and seriously undermine its efforts to join the European Union pursuant to the Copenhagen Criteria.

Your government’s pernicious, secret plans outlined in the documents that have come into our possession reveal a systematic effort to undermine religious liberty and insert the Ukrainian state into independent religious affairs. Ukraine has the right to defend itself against Russia’s illegal aggression. Even as it does so, however, it must preserve basic human rights, including the freedom of religion. Particularly in light of what now can only be understood as a state policy to destroy the UOC, I call on you to reverse course and protect the rights of the UOC. In so doing, you will preserve Ukraine’s international standing and uphold the rights of all Ukrainians to worship freely. Before there is any further damage to Ukrainian society and the country’s reputation, you must withdraw Draft Law 8371 from the Verkhovna Rada and disavow the plans your government has laid out to forcibly transfer the UOC to the EP and, ultimately, unite the Church with the OCU. As President of Ukraine, and based on legal doctrines of command responsibility, you bear personal responsibility for the actions of your government and subordinates. Should you fail to stop them, you will be at risk of being held personally responsible for crimes against humanity.

Yours Sincerely,

Robert Amsterdam
Amsterdam & Partners LLP"

Notes:

1. Article 7 of the Rome Statute of the International Criminal Court

2. ffice of the High Commissioner for Human Rights (OHCHR). "Russia should immediately cease its use of force against Ukraine: Turk." December 2023. Available at: https://www.ohchr.org/en/statements-and-speeches/2023/12/russia-should-immediately-cease-its-use-force-against-ukraine-turk

3. Office of the United Nations High Commissioner for Human Rights. "Report on the Human Rights Situation in Ukraine, 1 August 2022 - 31 January 2023." 24 March 2023.

4. Forum 18 Archive. "In Ivano-Frankivsk, a crowd came to drive out UOC believers from the cathedral." Available at: https://www.forum18.org/archive.php?article_id=2823.; and Kyiv Post. “Skirmish Between Rival Orthodox Churches in Ivano-Frankivsk.” Available at https://www.kyivpost.com/post/15073

5. Synodal information and educational Department of the UOC. “In Ternopil Oblast, a UOC temple was set on fire (photo, updated)”. Available at: https://news.church.ua/2023/03/28/na-ternopilshhini-pidpalili-xram-upc-foto/#2024-04-19.; and Ternopil Diocese. See also “The antimins and all the shrines in the altar burned down: in the village. The Kordyshes set fire to the household premises, which had been adapted as a UOC community temple”. Available at: https://ternopil.church.ua/2023/03/28/zgoriv-antimins-i-vsi-svyatini-u-vivtari-u-s-kordishiv-pidpalili-xram-gromadi-upc/?fbclid=IwAR3SLtq-xdFeNkRHt9XVod4rd7B1snxaf7hOoXrXbg3ECNyINdFECsrwKBs#2024-04-19

6. “Legal Analysis of Ukrainian Draft Law 8371,” available at https://savetheuoc.com/document-library/

7. A list of questions raised by the Right Reverend Nicholas Baines, the Lord Bishop of Leeds, to the Foreign, Commonwealth and Development Office of the United Kingdom, available at https://questions-statements.parliament.uk/written-questions/detail/2024-05-20/hl4779

8. Forum 18 Archive, "Ukraine: Religious freedom survey, February 2024". Available at: https://www.forum18.org/archive.php?article_id=2896

9. Church of England. "War in Ukraine." February 2024. GS 2348. Available at: https://www.churchofengland.org/sites/default/files/2024-02/gs-2348-war-in-ukraine-final-final.pdf

10. Id.

11. Ukranews. “Chairman of the Verkhovna Rada Ruslan Stefanchuk: Ukraine cannot unequivocally hold one-on-one talks with Russia.” Available at https://ukranews.com/ua/interview/3122-ruslan-stefanchuk-ukrayina-ne-mozhe-odnoznachno-provodyty-peremovyny-odyn-na-odyn-z-rosiyeyu