Since the Russian invasion of Ukraine on February 24, 2022, international accusations have ramped up from war crimes and crimes against humanity to full-fledged genocide. On March 2, 2022, 41 state parties to the Rome Statute of the International Criminal Court (ICC) signed a petition to bring the case of the Russian invasion of Ukraine before the ICC. Ukraine’s pre-existing acceptance of the Court’s jurisdiction has allowed ICC Prosecutor Kharim Khan to open investigations on Russian violations in the Ukrainian territory (while on 17 April 2014, Ukraine had accepted ICC jurisdiction over alleged crimes committed on Ukrainian territory during the Maidan Revolution between November 21, 2013, and February 22, 2014, on 8 September 2015, it extended the Court’s jurisdiction on an indefinite basis to include any alleged crimes committed on its territory from 20 February 2014 onwards).
According to the Rome Statute, which established the ICC in 2002, the Court can examine allegations of genocide, war crimes, crimes against humanity, and the crime of aggression. Dealing with individual criminal accountability, the ICC is investigating whether single individuals like Vladimir Putin, his advisors or members of the Russian armed forces have committed any of the above-mentioned crimes in the context of the Russian invasion of Ukraine, with the exception of the crime of aggression. Differently from the other three crimes, according to Article 15bis(5) of the Rome Statute, when it comes to aggression, the ICC does not have jurisdiction over a national of a non-party state to the Court.
Two avenues for accountability
At the same time, Ukraine has also resorted to another avenue for potential accountability, that of the International Court of Justice (ICJ). Differently from the ICC, the ICJ deals with state responsibility. In addition to its advisory opinions at the request of the UN, its main task is to settle disputes between states regarding the interpretation, application or fulfilment of an international treaty. On these grounds, on February 27, Ukraine filed an application before the ICJ accusing Russia of having violated the 1948 Convention of the Prevention and Punishment of the Crime of Genocide. According to Article IX of the Genocide Convention, disputes between states concerning the interpretation, application or fulfilment of the Convention can be settled at the ICJ. On the one hand, Ukraine claims that Russia has illegally justified its invasion of Ukraine through the false claim that the Russian-speaking population in the self-proclaimed republics of Luhansk and Donetsk is undergoing a genocide at the hands of Ukraine. On the other hand, it has accused Russia of committing a genocide against the Ukrainian people. Despite Russia’s absence at the first round of hearings, claiming that the ICJ lacks jurisdiction, the ICJ has proceeded and is currently looking into whether Russia’s actions amount to a genocide.
Allegations of genocide have magnified especially after the atrocities committed in Bucha (a small town near Kyiv), which led Ukrainian President Volodymyr Zelensky to claim: “this is genocide”. This assertion was soon taken up by US President Joe Biden, as well as a number of EU states, such as Poland, Spain, the Czech Republic and Lithuania. Similarly, media attention has shifted from the invasion of a sovereign state as a major breach of international law to accusations of war crimes and crimes against humanity, and eventually genocide.
Are the atrocities committed in Ukraine a genocide?
Russia and Ukraine’s mutual genocide allegations beg the question of what is meant by genocide under international law. While the term was coined by Raphael Lemkin in the aftermath of the Holocaust, the crime of genocide was officially codified under the Genocide Convention (1948). According to Article II of the Genocide Convention, a genocide refers to “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”.
The legal definition of genocide is quite narrow, in the sense that for a genocide to be defined as such, there are some necessary conditions. First, the criminal act must be committed with the so-called dolus specialis, which refers to the specific intent to destroy one of the groups mentioned in the Convention (national, ethnic, racial or religious groups). Second, if any of the aforementioned criminal acts are directed at any other group that is not specified in the Convention, they cannot be defined as a genocide. Needless to say, the narrowness of the legal definition of genocide renders the labeling of a crime as full-fledged genocide under international law extremely difficult, setting the bar so high that very few events meet the definitional requirements.
In the context of the current human rights violations committed by Russian forces in Ukraine, there is no consensus as to whether they amount to genocide. What should be demonstrated is that Putin and Russian military officials acted with the specific intent to exterminate, in whole or even just in part, the Ukrainian people. In other words, for a court to establish whether the atrocities committed are a genocide, it needs to find concrete evidence of the perpetrators’ intent to target and exterminate the Ukrainian people based on its identity as a national group. Without a public speech or a written document explicitly evidencing such intent, according to the jurisprudence on genocide, the intent may be inferred from the context. This, however, undoubtedly leads to different, and often competing, interpretations as to whether widespread human rights violations can be called a genocide.
According to some preliminary findings by the UN, atrocities committed by Russian forces in Ukraine seem to range from the numerous and evident killings of civilians in Bucha, and the indiscriminate bombings of schools and hospitals, to the widespread use of torture, and sexual violence. Despite the heinousness of these acts, it is still open to question whether they amount to a genocide under international law. Indeed, the ICC and the ICJ are currently looking into whether these were committed with the specific intent to destroy the Ukrainians as a group. At this point, however, it seems to be much more likely that the horrific acts committed by Russia amount to war crimes and crimes against humanity.
Differently from genocide, which can be committed in times of both war and peace, war crimes are committed in the context of an armed conflict and are codified under the Geneva Convention (1949). According to the Rome Statute of the ICC (2002), crimes against humanity refer to widespread and systematic attacks directed against civilians, but do not presuppose an intent to wipe out a group based on its identity. In addition, the Russian invasion of Ukraine most likely amounts to a “crime of aggression”. Codified under the Rome Statute only in 2010, as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”, this crime is nevertheless often neglected. As mentioned above, this is due to the ICC’s lack of jurisdiction over non-state parties.
Debating about labels
Given the narrowness of the definition of genocide under the Genocide Convention and the obstacles to legally proving this crime before a court, why is this still the main focus of current international debates? Genocide is generally considered “the crime of crimes” with respect to crimes against humanity, war crimes, and the often ignored crime of aggression. Although this is not actually the case under international law, there is widespread belief that genocide is the worst possible crime. This stems from the fact that the term originated to describe the atrocities of the Holocaust and is consequently emotionally evocative of this tragic event. The idea that genocide stands above other crimes has therefore become deeply embedded in the way we conceptualize this crime today.
As a result, the word “genocide” has become increasingly abused and misused by political actors, the media and the general public to either attract attention and foster international action or, as the Russian narrative highlights, to justify unlawful acts. For this reason, the status that the crime of genocide has acquired with respect to other crimes has spurred a war of words even in the context of the current human rights violations in Ukraine, as much of the debate is about language and whether we can use the term “genocide” to describe the situation. In this regard, the current discussion about Ukraine further illustrates the politicization of the genocide label, which is often attached to some events more than others for political reasons.
All in all, although the debate on whether we can name what is happening in Ukraine a genocide has undeniably raised worldwide condemnation, it has nonetheless diverted international attention to what seems to be a pointless question. Indeed, discussing whether Russia is committing a genocide in Ukraine misses the key point that other equally appalling and punishable crimes have been committed and deserve the world’s attention.