Genocide is a word filled with tragedy, despair, and suggests generational trauma for decades to come. This is the word most people nowadays with a stable geopolitical situation only hear about during history lessons or social media. I had once too – until I was forced to witness it with my own eyes during russia’s barbaric war in Ukraine, together with the horrors it caused in various regions of my homeland.
That was the turning point where millions of Ukrainians found themselves in a hopeless situation of screaming to the world about the terrors committed by russian troops, only to be met by questions about the meaning and use of the term “genocide” and its applicability to the case of Ukraine.
“Is that a genocide, or is that not a genocide? That is the question.”
But for me, as a representative of people now suffering at the hands of a clear exterminator, it is not up for debate – it is a given. Because I can’t afford the privilege of indifference or indecision, nor do I want to possess it.
According to human-rights lawyer Amal Clooney, "Ukraine is, today, a slaughterhouse. Right in the heart of Europe". Despite so many people publicly voicing a clear condemnation of the atrocities done by russia, the apathetic and ignorant attitude of certain individuals continues to shine through.
This project was done for everyone to not only understand the specifics of the crime of genocide had to come through and the consequences of which constituted the issues we have today, but to also share the reasoning as to why I will always regard what russia is doing in Ukraine as a “genocide” – and why you should too.
Chapter 1: So, what exactly does the word “genocide” mean?
The question itself may seem to be unproblematic to answer at first, as the legitimate definition can quickly be found on the official site of the U.N. It is stated that according to Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention):
Genocide means 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.
At first glance, this characterization makes a clear distinction between the crime of genocide and other crimes known to humanity. Yet looking into it further I can’t help but notice the rather narrow and dry formulation of such a factually diverse term, especially when applied to practice. And that is not at all a coincidence.
The road leading to the definition we have nowadays is a fairly long and complicated one, filled with ignorant as well as purposeful gaps that contribute to various issues many historians and international lawyers now face when following the war in Ukraine. And the historical reasoning behind all of this is even more ravaging, specifically in the context of the russia’s neocolonial and neoimperialist nature of warfare.
But before we dive deeper into this mess, let us first take a step back to the roots of the term itself, namely its etymology and the so-called “original explanation”, created by the outstanding Polish lawyer Rafał Lemkin.
Etymologically, the word “genocide” consists of the ancient Greek prefix “génos”, meaning “race or tribe”, and the Latin suffix “-cide”, meaning “killing” and relating this new formation to the words like “homicide”.
As mentioned earlier, the creator of this term for such an entirely new conception, Rafał Lemkin, first published that formation in 1944 in his book “Axis Rule in Occupied Europe”, where he collected all normative legal acts of Nazi Germany that would testify to its the policy of persecution. In this publication, however, the interpretation of the crime of genocide has a very broad approach compared to the official definition we have today.
Firstly, Lemkin noted that the word “genocide” would indeed entail “the persecution of national, ethnic, racial, political, and other groups” as well as characterize the newly coined term in the following way:
“Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population, which is allowed to remain, or upon the territory alone, after removal of the population and colonization of the area by the oppressor's own nationals.”
Moreover, Lemkin recognized the crime of persecution in the discriminatory cultural policy, i.e. annihilating a group’s identity by destroying the cultural monuments, attacking cultural symbols or traditions of certain groups of people, destroying their literature, banning teaching in the native language, and limiting educational and cultural practices in general. Such a phenomenon is now known as the “cultural genocide” and would, according to Lemkin, constitute a crime.
Furthermore, in the section “Prohibition of genocide in war and peace”, Rafał Lemkin has issued a refined and detailed criticism of the general mishaps of the 1907 Hague Regulations, vocally arguing that it should indefinitely criminalize “Every action infringing upon the life, liberty, health, corporal integrity, economic existence, and the honor of the inhabitants when committed because they belong to a national, religious, or racial group.”
And lastly, the Polish lawyer considered genocide as a supreme crime (or “the crime of crimes”), emphasizing the destructive impact that the policy of persecution can have on the development of society, the preservation of generations, the transmission of national, cultural, and historical memory. Hierarchization of crimes – such was the idea of the author of the concept.
According to A. Dirk Moses, an Australian historian specializing in the history of genocide and intellectual history, “Russia’s campaign against Ukraine is precisely what Lemkin was trying to capture with his new word”. However, his widespread and inclusive definition was surprisingly not followed in the U.N. Genocide Convention of 1948. Instead, the acts linked to the crime of genocide were scattered to other international crimes, thus making the thread between them less clear and more confusing for ordinary people to trail. But why?
That is when our previous question comes back, with the answer being relatively simple yet immensely shocking – that was done so that certain states could wage colonial-style warfare. And the Nuremberg trials established the roots behind such a “tragedy of international justice”.
Chapter 2: The thorny road of “genocide” as a crime.
To truly understand the sudden shift from the original concept of genocide to how it is portrayed now, it is essential to dive deeper into how politics and shadowy agreements during the Nuremberg trials influenced the definition of “genocide” as well as comprehend the turbulent relations between Rafał Lemkin and the representatives of U.N. in general.
Nuremberg Trials – “the darkest day” for the concept of genocide.
Only a year after publishing “Axis Rule in Occupied Europe”, Lemkin was finally given a chance to publicly put his ideas into practice. With his eccentric persistence, he became an advisor to the Nuremberg Trial’s Chief Counsel Robert H. Jackson, and thus guaranteeing his concept of genocide to be a part of the discussion. Yet what was at first a promising day for the legal recognition of the “crime of genocide”, ultimately resulted in “the blackest day” of Dr. Lemkin’s life.
First, genocide was listed as a war crime and was joined by two other international crimes – crimes against peace (issued for waging a war) and crimes against humanity (issued for attacks on civilians). In the indictment it was described as:
“The extermination of racial and national groups among civilian populations in occupied regions, in order to destroy particular races and classes of people and national, racial or religious groups”.
Initially, the term was used at Nuremberg to talk about the extermination of the Jews and the Roma, but as the case continued over the course of the trials, its usage was broadened and brought more into line with what Lemkin initially had intended. What created an issue, however, was when genocide was not at all reflected in the decision of the Nuremberg trials, due to widespread concerns about the probable genocide charges against the United States as well as other global superpowers and their implications for national sovereignty.
Furthermore, Rafał Lemkin’s notion that “genocide is a problem not only of war but also of peace” was simply absent in the practice of the tribune. The main cause behind that was the decision of the Allied coalition that all crimes that are to be considered within the framework of the Nuremberg Process would relate exclusively to the situation of armed conflict. That meant, that all crimes committed before 1939 (including part of the Holocaust and countless discriminatory crimes) were not at all punished by the council, instead only taken into account.
Lastly, Lemkin’s legal activism was simply not accepted due to the general beliefs of the main characters in the trial – specifically the interests of “the avatar of Nuremberg justice”, Robert H. Jackson. Only a month after the tribunal was concluded, the chief US prosecutor wrote an article for the New York Times Magazine named “Worst Crime of All”, where he explained why the crime of aggression was the most supreme crime. Yet what started as a simple educational material turned to be more sinister with each reasoning given, with Jackson not only justifying civilian destruction, but also voicing his support for violating the legally established ‘principle of distinction’ between combatants and noncombatants. One of the article’s conclusions was:
‘If there are to be future wars we have got to win them. And we can win only by being better killers, by killing more and killing more quickly than the enemy, by killing with less risk to ourselves.’
It was clear that not everyone wanted a term such as genocide to exist. For this would constitute a huge problem for powerful countries to pursue their permanent security as they see fit. And the consequences of this exact policy would not at all be dealt with even nowadays...
Resolution 96 - first mention of the concept of genocide in the practice of the UN Assembly.
To say that Lemkin was outraged is an understatement. He was completely shocked that the Nazi’s actions committed until 1939 did not find their legal condemnation and that, in general, mass violence and mass acts of persecution against identifiable groups were not punished by legal means. Such a horrific ignorance from the participants in the process became the impetus for him to find his own allies from among the countries that fought primarily against colonialism to back up his concept of genocide, thus bettering the chances for this term to finally enter the international arena. And it worked.
Just a few days after the publication of the Nuremberg Trial’s decision in 1946, Lemkin was able to lobby the UN General Assembly for the adoption of a resolution condemning the crime of genocide. With this, Resolution 96 was conscripted, which for the first time mentions the concept of genocide in the practice of the United Nations Assembly. According to this declaration:
“Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.”
“Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.”
At the conclusion of the fifty-fifth plenary meeting, the UN Assembly recommended that:
“..International co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.”
Ironically, it was adopted immediately after the implementation of Resolution 95, which recognized the principles of international law documented in the statute of the Nuremberg trials. Such a sequence of these two resolutions undoubtfully implies that Rafał Lemkin wanted to oppose the overall glorification of the Nuremberg tribunal and the way it categorized international crimes. Knowing that Resolution 95 would not reference genocide (because it was not mentioned in the tribunal's decision) he lobbied for Resolution 96, which reflected the lacunae (or white spots of the Nuremberg Process).
Despite this Resolution being just a predecessor of the Genocide Convention, which later established the definition of genocide known today, one has to realize that this document in itself has marked an enormous shift in the history of international law. Without it, not only would there be no evidence for the Convention of 1948 that genocide was a pre-existing crime, but there would also be no immediate effect both in the drafting and eventual adoption of the Genocide Convention.
I would go even further to state that without this Declaration, the concept of genocide would have simply disappeared with Lemkin’s passing, thus enabling this method of crime to flourish without appropriate legal recognition and retribution.
The Genocide Convention of ’48 – the treaty full of narrowings.
After countless drafts and rewritings of the resolution to be presented in the next regular session of the General Assembly, the United Nations officially adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, which ultimately classified genocide as a crime under international law as well as enshrined a narrowed-down version of Lemkin’s concept in an international treaty.
It committed signatories to prevent and punish “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
At its core, the choice of narrowing some abstract ideas and concepts down to organized chunks is an incredibly helpful thing to do, if done with careful consideration of all factors given by all the participants. In this case, however, Lemkin felt the same omission of his well-thought notions regarding the crime of genocide was happening just as it had during the Nuremberg trials. But with the reasoning behind this decision given in the first chapter, it is unsurprising that after the adoption of this document certain states still managed to evade consequences, until the first international tribunals were established.
Nevertheless, one of Lemkin’s essential concepts did make it to the official publication of the document: the crime of genocide does not contain links to armed conflict. This correlates back to the message he published in his book “Axis Rule in Occupied Europe”, namely that violent practices against groups should be prohibited and should be subject to criminal prosecution regardless of whether they were committed in peacetime or in situations of armed conflict. Such recognition can also be classified as Rafał Lemkin’s legal payback for the injustice Nuremberg trials carried out on countless victims of the Third Reich’s discriminatory policies before 1939.
Furthermore, the 1948 Convention criminalized not only the commission of genocide as such, but it also criminalized conspiracy to commit genocide, direct and public calls to commit genocide, attempt to commit genocide, and complicity in the commission of genocide. What is also immensely important to have in mind is that in accordance with Article VIII the treaty includes the obligation of the participating states to prevent and suppress acts of genocide:
“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”
Lastly, the Convention has introduced a new element, which, at the first glance, should have eased the complications in differentiating the crime of genocide from other types of international crimes - the special intent (dolus specialis). To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnic, racial, or religious group. Yet as the upcoming practice showed, what started as a good intention to properly constitute the genocide transformed into the most difficult element to determine.
ICTY and ICTR – the crime of genocide in practice.
During the period after genocide was legally established as a crime, the geopolitical situation of the world was far from perfect. Countless regional and political conflicts between numerous states after World War II were turning out to be more gruesome and appalling each year onward, with rapid escalations in the world resulting in two of the most brutal historical events: the Srebrenica massacre and the Rwandan genocide.
After showcasing shocking violations of numerous international principles and displays of horrific sufferings, the likes of which were not seen since World War II, both tragedies have for the first time made the international community establish two ad hoc International Criminal Tribunals to prosecute individuals responsible for the atrocities committed.
The International Criminal Tribunal for the former Yugoslavia was a U.N. court of law that dealt with war crimes during the conflicts in the Balkans in the 1990s, including the Srebrenica massacre, where more than 8,000 Bosniak Muslim men and boys in and around the town of Srebrenica were brutally executed – marking the peak of “ethnic cleansing” carried out by Serb nationalist forces.
The first trial began two years before the previously mentioned massacre occurred. Many observers initially mistrusted the court’s value, regarding it as another symbol of the UN’s ineffectiveness in stopping the violence in the Balkans. Even when the tribunal concluded that what happened in Srebrenica was a genocide, many observers still derided the court for such a decision. Yet despite such an appalling initial response to the verdict, the court’s finding of genocide is a major accomplishment in international justice. For those who lost loved ones in Srebrenica, international acknowledgment of the genocide is immensely meaningful – as it not only brought justice to thousands of victims but also gave them a voice.
The International Criminal Tribunal for Rwanda was established in 1994 to judge those responsible for the Rwandan genocide (which resulted in around 500,000 to 662,000 Tutsi deaths) was the first process to interpret the concept of genocide in judicial practice. Overall, two main cases made massive changes in the spectrum of punishment for the crime of genocide.
Firstly, the infamous case of Jean-Paul Akayesu marks the first time that acts of rape were defined as those that could constitute genocide. The statement of the presiding judge Navanethem Pillay after the verdict was as followed:
"From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war."
Note: This exact case has influenced the main nature of the Roman Statute, which is to be the first international criminal law instrument that recognizes forms of sexual violence, such as rape, sexual slavery, and enforced sterilization, as distinct war crimes. In particular, it also gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide.
Secondly, the case of Hassan Ngeze, Ferdinand Nahimana, and Jean-Bosco Barayagwiza – three key figures in the massive distribution of hate media - influenced the first ever decision when incitement to commit genocide was recognized as a criminal offense and a specific decision was made. According to the Article 6 (1) and (3) of the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994:
“1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
3. The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
In spite of how much these two tribunals contributed to strengthening the position of genocide inside the ICL, a broader interpretation of genocide (at least in the sense that extermination can occur not only by taking life but also by destroying cultural heritage and changing history) has unfortunately not yet been reflected in international law.
That in its own context presents the issue much larger than one would imagine – it creates “the problem of genocide”, which results in the incomplete punishment of the perpetrators and the overall injustice from such an omission.
Chapter 3: “The problems of genocide”.
With a rather turbulent history aside, it is simply bizarre how much the entire concept of what we now deem as “genocide” has changed. Of course, it is inevitable for any term to stay unaffected for a long time, as the time itself is bound to always change. Yet one sudden thought has pushed me to remind myself of a universal caution: Each choice has a consequence. It can be either the one that steadily elevates someone or something to perfection or the one that inevitably develops issues with no means to an end.
The crime of genocide is not an exception to this case. Therefore, before diving deeper into the two upcoming analyses, it is essential to understand three main dilemmas of genocide, which usually contribute to heated debates or outright obliviousness.
- The problem with the concept of genocide.
- The problem with proving the special intent of genocide.
- The problem with the public ignorance of genocide.
1. The problem with the concept of genocide:
The first semi-problem already presents itself in the definition of “genocide” portrayed in the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. It states that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” by various means. The emphasis on “as such” is not at all random, as this requires that victims are to be targeted solely on the ground of their identity and are to be categorized as one of the 4 given groups.
Such a formulation entails the following: if, for instance, a state or criminal group were to organize as well as carry out mass extermination of cyclists or artists (because of their hobby or activity) and we cannot classify these groups as ones that are mentioned in the Convention, then the crimes against them would be classified as crimes against humanity – no matter the number of casualties or the clear genocidal intent.
Now, let us address the big elephant in the room: In comparison with Lemkin’s original concept, the Genocide Convention of 1948 excludes cultural genocide as well as the protection of political, social, and other groups.At the first glance, this alone would not seem to be extremely problematic, yet, as the practice shows, such an omission not only allows for certain offences to simply go unpunished but also constitutes the victims of such crimes as “irrelevant”.
With that, I would like to draw your attention to two of, in my opinion, most controversial issues in today’s notion of the crime of genocide - the rejection of the cultural as well as the political genocide.
Cultural genocide (also known as “ethnocide”) is the systematic destruction of traditions, values, language, and other elements that make one group of people distinct from another. The first mention of this type of genocide was first published in Resolution 96, which called on states to draft a convention to prevent genocide, and to specify that:
“… such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.”
As was mentioned earlier, Resolution 96 concluded with a call to create a draft for the Genocide Convention. Prepared by an ad hoc committee on genocide, a draft devoted an independent article to cultural genocide. Nevertheless, the newly presented version exclusively protected the material products of the culture (and not the limitation of educational and cultural practices as Lemkin has initially proposed), which made the cultural genocide no longer associate as an integral part of genocide. Instead, such a change would pose ethnocide as a less serious crime than physical or biological genocide, as it only protected the cultural commodity of a group.
In the end, however, the entire notion of cultural genocide was deleted altogether from the final version of the Convention. Why?
There are countless debates regarding such an issue. But despite everyone having various views and beliefs about this theme, in the end they always determine one conclusion: such an exclusion was the result of a real fear states with minorities or colonial powers expressed about the international intrusion in what they saw as internal matters. In particular, countries with indigenous peoples voiced huge concerns that many of their assimilationist policies would be regarded as ‘ethnocide’. That is why, for instance, forced assimilation through education does not constitute a crime of genocide.
Nowadays, the only thing remanent of the “cultural genocide” can be noticed in Article 2, paragraph e of the Genocide Convention, where “forcibly transferring children of the group to another group” is considered to constitute the crime of genocide. This compromise, however, ultimately weakens the insight that the annihilation of collective identity is the basic driving force of genocidal activities aimed at obliterating the group as such.
The exclusion of political groups is also regarded as one of the key differences between Lemkin’s original concept and the definition published by the U.N. Political genocide (or “politicide”) is the deliberate physical destruction or elimination of a group whose members share the main characteristic of belonging to a political movement. It is even more dangerous, as countries can conceal their actions with the color of legitimacy by announcing a "state of emergency" or "state of siege" justifying the application of special powers.
There have been countless debates within the parties in the U.N. Assembly on whether to include the protection of political groups inside the Genocide Convention. The drafters knew that such an inclusion would not have the support of the USSR, which have been carrying out systematic political persecution for decades – thus establishing a threat of the whole convention not being accepted at all. In the end, the consensus was reached, namely that it would be dangerous to extend protection to political groups "in view of the frequent and inevitable changes of political opinion."
Nevertheless, such an elementary response does not establish proper reasoning to completely delete the concept from the Convention. Even according to Beth Van Schaack’s article “The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot”:
“An examination of the travaux preparatoires of the Convention reveals the compromises - born of politics and the desire to insulate political leaders from scrutiny and liability - that can occur when political bodies attempt to reduce customary law principles to positivistic expression. The exclusion of political groups from the Genocide Convention represents one such compromise. No legal principle can justify this blind spot.”
Additional fact: the draft of the Genocide Convention also mentioned countless diverse forms of discrimination like harassment of women, drug trafficking, and other crimes that should have been criminalized worldwide. With this, Lemkin and Global South wanted to introduce the principle of universal jurisdiction over a wide range of crimes, which was not only an immensely progressive idea for the 1940s, but for nowadays as well.
Note: Universal jurisdiction - the ability of any state to exercise jurisdiction over the most serious crimes under international law, wherever and regardless of who committed them, precisely because these acts pose a very great threat to world order and law and order.
In conclusion, the drafting compromises that were mentioned in this block resulted in a legal regime that in some ways protects world leaders from being charged with the very crime that they may be most likely to commit: the forceful assimilatory practices established as an “internal policy” and the extermination of politically threatening groups. This, however, resulted in the worst issue known to justice – global impunity.
russia’s despicable slaughtering of everything relating to the Ukrainian nation is immensely obvious to see for the whole world. But according to A. Dirk Moses, “… the UNGC signatories defined genocide narrowly so that lawyers would find it most difficult to determine Russia’s—and their own—mode of warfare as genocidal.” That exact quote leads us to the second problem of genocide.
2. The problem with proving the intent of genocide.
According to the U.N. Genocide Convention, genocide is a crime with double mental elements: a general one that is simply called “general intent”, and an additional “intent to destroy”. A general intent relates to all objective elements of the offense definition (actus reus), while the ‘intent to destroy’ represents a special or specific intent (dolus specialis) emphasizing its voluntary or purpose-based tendency.
In general, determining and proving the intent to exterminate in whole or in part is well-known to be the most difficult element of proving the crime of genocide, mostly because the intention must be connected to the extermination of one of these four groups: national, ethnic, racial, and religious. As was mentioned earlier, the cultural destruction, as well as an intention to simply disperse a group, do not suffice to be recognized as “a part of genocidal policies”.
Because of its divisiveness, the process of verifying the crime as genocide has proved to be massively confusing and complicated in practice. Such an outcome contributes not only to the ill manner of choosing the suffering of which victim is enough to be recognized, but to the morbid perception of the concept itself by ordinary people. For instance, the ICTY directly stated that the slaughter of Bosnian Muslims in Srebrenica constituted genocide, while countless mass killings carried out by Serb nationalist forces in other settlements were not, thus causing a heartless distinction that understandably infuriated the survivors of other devastated towns.
To make matters even more overwhelming, one has to note that the international court of justice in the Hague has set an “impossibly high” legal threshold for proving genocide. And while it is true that investigators need to collect evidence and lawyers need to make their case, as gathering evidence is critically important not only for future trials but for historical records as well, we shouldn’t be afraid to call out a genocide because it may be difficult to prosecute.
This “appeal” to go for an easier option, as well as discouragement for lawyers to fight for a crime to be categorized properly, is unspeakably unjust and disrespectful to all those people, who have been exterminated by various horrific means to only then be forgotten as another “war crime”. If the legal threshold is, indeed, “impossibly high” and not “appropriately high”, perhaps it is finally time to rethink that exact threshold. Perhaps it is time to broaden the meaning of the term and bring it more in line with its original conception…
3. The problem with the public ignorance of genocide.
Usually, when people say that genocide isn’t happening or hasn’t yet reached the bar, they possess the most extreme archetypal in mind – the model of the Holocaust. And that is not at all coincidental, as the original concept of genocide was mostly based around this horrific tragedy. But even after other disastrous massacres have broadened the characteristics of the crime of genocide, people still hold onto the belief that only the Holocaust is “a true genocide”. That, unfortunately, establishes a rather problematic perception of the term.
For instance, White House National Security Adviser Jake Sullivan once said that political representatives in the U.S “have not yet seen a level of systematic deprivation of life of the Ukrainian people to rise to the level of genocide.” This rhetoric automatically points out that all murders and sexual violence witnessed since 2014 in the occupied regions of Ukraine and the horrid destruction seen nowadays are simply less grave and insignificant in the grand scheme of things if it doesn’t represent the previously mentioned model.
Of course, one has to also know that in modern international law there is no hierarchy of international crimes. That is, the crime of genocide is not more abysmal than a crime against humanity or crime of aggression, as these three categories are equivalent. Yet this is not where the issue stands. What troubles me in the first place, is that no major political leader truly explains this to the crowd and the fact that recognizing the genocide in any country is not only a juridical decision – it is a political one. This results in the willful blindness to the “foreign suffering” that contributes an unhealthy amount of insensitivity onto societies.
Holocaust deniers, victim-comparers, and other terminologies are now nothing of the ordinary and that is what scares me the most. The fact that distorting history and denying human decency (to either seem “not like others” or because one truly believes in what one says) became so normalized with public support is simply appalling – as it results in an outrageous assault on truth and understanding.
Furthermore, russia’s war in Ukraine has reawakened the phenomena of certain individuals, who have no relation to the genocides they use to compare another massacre to, publicly sharing their evaluation of who from these two tragedies is allowed to express their sorrow based on their race, religion, nationality, and other factors and who isn’t – with no regard for the consequences these publications have on the affected. That is an immensely detrimental practice. No one deserves to be told in their face how they should feel or perceive crimes they have witnessed themselves.
Especially in the context of genocide.
Chapter 4: Why do some insist on not calling the ruscists’ crimes in Ukraine a “genocide”?
As of August 2022, eight countries have officially recognized the actions of russia in Ukraine as genocide, with even more world leaders publicly describing the atrocities committed by russian soldiers with the same terminology. And that, in my opinion, is an absolutely correct action to take, because it not only clarifies the intensity of what is happening in Ukraine, but also helps us understand what is at the stake in this war for the Ukrainian people. Even as I write this chapter down, countless attacks and massacres executed in the name of “russian peace” keep happening with no means to an end. Yet “even more” doesn’t mean “all”. And in this section, I would like to clarify the possible reasonings as to why some refrain from determining ruscists’ crimes in Ukraine as genocide.
Firstly, let us start with the countries themselves. Most of the states that haven’t yet publicly called ruscists’ crimes in Ukraine a “genocide” either ignore the topic of the civilian destruction overall or claim to punish all the atrocities committed by russia, while referring to them all as simple “war crimes”. As was mentioned in the third chapter, recognizing the crime of genocide in any country is not only a juridical decision – it is a political one. Therefore, one can state a conclusion that the leaders of such countries are not yet ready to fully burn the bridges with the russian federation and its influence on their economy, politics, and society.
Yet the most “outrageous” claim Ukrainians had the displeasure of hearing was published on April 13th, 2022, by French President Emmanuel Macron, who decided to decline the usage of “genocide” when asked to comment on Biden labeling russia’s actions in Ukraine in this way, arguing that an “escalation of words” would not help bring peace. Furthermore, Macron specified that he would rather use the word "war crimes" to define atrocities committed by ruscist troops:
“I am prudent with terms today. Genocide has a meaning. The Ukrainian people and Russian people are brotherly people. It’s madness what’s happening today. It’s unbelievable brutality and a return to war in Europe. But at the same time I look at the facts, and I want to continue to try the utmost to be able to stop the war and restore peace. I’m not sure if the escalation of words serves our cause.”
On the one hand, the usage of “war crime” does not mean that the horrors classified in this category are somehow less severe, because international law does not recognize a hierarchy of international crimes, and the use of labels to describe acts of mass atrocity is liable to create divisions. The French President could have possibly wanted to entail this fact into his account, thus choosing the most “appealing” version for all the parties involved. On the other hand, an unfortunate application of straightforward russian propaganda in his apparent argument that the term “genocide” did not apply because Ukrainians and Russians were “brotherly people” indicates that the reasoning is more convoluted than that.
As for the international institutions, there has been no public recognition that russia is committing genocide in Ukraine - only condemnations and recommendations for the russian federation to stop these atrocities. What is more interesting is that the representatives of many institutions usually insist on rejecting the term genocide to be used in the context of Ukraine.
For example, on April 3, 2022, Aisling Reidy (who is a Senior Legal Counsel at Human Rights Watch) once stated to Deutsche Welle that "[In Bucha itself] there's certainly war crimes, potential crimes against humanity, where we're seeing civilians killed, clearly killed in a summary execution format," concluding her speech by stating that it is "too early" to call what happened “genocide”.
Furthermore, the same type of ambiguity that is usually based on the divisive nature of the crime of genocide can also be seen in a comment made by former UN Special Adviser on the Prevention of Genocide, Juan E. Méndez, when asked about whether the genocide is happening in Ukraine:
"I think this deserves an investigation. Of course, it would be a serious mistake to ignore the fact that many of the victims so far were clearly civilians, perhaps because they were Ukrainians - this is a national origin, a condition that fits into the partial definition of genocide ... But that the fact that civilians are killed is not necessarily genocide."
A. Dirk Moses - Frank Porter Graham Distinguished Professor of Global Human Rights History - has also argued that the discriminatory intent based on nationality that was seen in russia’s conduct in Ukraine is better captured in the separate crime of persecution, i.e. the crimes against humanity. What also strengthens his point of view is that the prosecutors of the International Criminal Court have already determined the crime against humanity of persecution taking place in 2020 on the territory of the occupied Crimea and in certain areas of the Luhansk and Donetsk regions, with a lot of patterns emerging now in Kherson, Zaporizhzhia, and other occupied territories.
Lastly, most remarks about the inappropriate usage of “genocide” in the context of Ukraine unsurprisingly come from international lawyers, as there are countless criteria in modern international law that need evidence to be fulfilled. On the one hand, many international lawyers note that the issue of genocide is immensely relevant to what is now happening in Ukraine and should be centered in the upcoming debates. On the other hand, they strongly believe that the framing of “whether genocide is committed by russia in Ukraine” is an incorrect legal framework to engage with today, as such formulation risks serving as a distraction and would potentially lead counties to incorrectly believe that only when there has been a determination of genocide are they obligated to act.
Furthermore, they mention that the question of a determination of the commission of genocide is not an inquiry that states are properly suited to carry out, as they are not judicial bodies and should not attempt to mimic or replicate judicial proceedings. There are important process rights that cannot be severed from the applicable standards of proof, which cannot be insured outside of judicial proceedings.
For instance, Phillipe Sands - a British and French lawyer at Matrix Chambers - have suggested to try russia for the crime of aggression instead of the crime of genocide, as that would be much easier to prove from the point of jurisprudence. And while it is, indeed, true, I still can’t help but wonder: Should we really just abandon the pursuit of the just categorization simply because it would be harder to prove such a crime? Should I, as a representative of the Ukrainian people - who have been mercilessly beaten, tortured and raped - only settle for an easier option and humble myself in our collective search for justice?
Of course, I do realize that most foreign internationalists, who did not work in the context of Ukraine until February of this year or did not delve into the historical and cultural discourse and the history of relations between russia and Ukraine, find it difficult to accept the arguments and evidence about neo-colonialist and neo-imperialist behavior of russia and its soldiers – and thus need more time to process everything that is going on. Yet one must realize that time is also ticking, taking away more innocent lives with each omission of action. That is why we need to talk about this.
Chapter 5: What suggests that the ruscist crimes in Ukraine constitute “the crime of genocide”?
When asked about what the threshold is for calling russia’s atrocities a “genocide”, Professor Francine Hirsch, the author of “Soviet Judgment at Nuremberg”, had only these words to say: “We are well past the threshold for calling this a genocide”. And I painfully agree with that statement. There is enough significant evidence out there for international institutions to confirm that russia has settled to destroy in whole or in part the Ukrainian nation.
First, russian soldiers murder Ukrainians on the daily basis as well as cause them serious bodily and mental harm. The russian occupied territories suffer vastly from the deliberately created conditions calculated to bring about the destruction of the Ukrainian nation itself. The targeted bombing of innocent civilians, cases of rapes, the kidnapping of Ukrainian children, forced deportation of 2 million Ukrainians to russia, the targeted murder of local Ukrainian political leaders and activists, destruction of the Ukrainian culture –russia has breached the Genocide Convention and all moral laws in existence in international law.
Note: One can fully see the grotesque scale of russia’s atrocities committed against Ukrainians here (https://war.ukraine.ua/russia-war-crimes/).
But alas, many international lawyers, politicians, certain scholars, and ordinary people still question (and in worse cases deny), that genocide is indeed happening in Ukraine due to the countless reasonings provided in previous chapters. And for those still doubting whether “the crime of genocide” is an appropriate term to use in the context of russia’s war in Ukraine, let us look once more into the definition of genocide:
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“In the present Convention, genocide means 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:
Once we look at the atrocities russian soldiers are committing in Ukraine, we can always see their distinct plan of annihilating as many Ukrainians as possible once the territory is temporary occupied, as well as when it is suitable for russia to inflict yet another terror to manipulate the world’s opinion on certain matters. As of July, deliberate bombings are committed every single day on the city centers of various regions of Ukraine, with up to 1000 people located there.
Bucha massacre is an evident example of mass killings, in which there has been a clear pattern of deliberately annihilating Ukrainian men by lining them up with their hands behind their backs and shooting them at point-blank range. Additionally, there have been reports of basements being used as torture chambers, where countless bodies were found burned and mutilated. As of now, approximately 1300 bodies have been recovered from the town, including 31 children.
Yet Bucha is by far not the only city where the genocidal acts can be witnessed. As of now, many settlements in 8 regions liberated by Ukrainian forces have documented countless mass slaughters committed by russian troops, with many more cities suffering even more under russian occupation. Nobody knows what horrors will be documented there. But what I do know is that the eventual revelation of enormous mass graves in these towns will constitute a peak of russia’s genocidal policy against the Ukrainian people.
(b) Causing serious bodily or mental harm to members of the group:
Intentional attacks on evacuation routes and agreed humanitarian corridors, air raids of shelters (especially when there are signs reading “children”), deliberate terroristic attacks on the city centers, and continuous bombardment of residential areas – these are the infamously typical methods russia uses not only to inflict as many injuries or deaths of Ukrainian people as possible but to also cause 44 million people to experience what will continuous trauma for generations.
The pinnacle of such a brutal imposition of violence is considered to be numerous reports of russian soldiers organizing the so-called “safari” for Ukrainian children in the occupied regions.
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part:
Mariupol
(d) Imposing measures intended to prevent births within the group:
As was already mentioned in chapter 2, the ICTR established for the first time that acts of rape were defined as those that could constitute genocide. In the context of Ukraine, the russian federation was and still is using sexual violence and rape as a pattern to establish a proper terror to control civilians and brutally silence any possible resistance. Women and girls constituted most of the alleged victims, while some reporting instances of sexual violence were also men and boys. There have also been cases where molested children were not even old enough to be considered a toddler.
A national hotline set up to track any notion of gender-based violence happening in Ukraine has received countless shocking reports consisting of the stories about gang rape as well as coercion, where Ukrainianswere forced to watch russian soldiers commit horrid acts of sexual violence against their partner, their parent or their child. As of June, the Office of the United Nations High Commissioner for Human Rights had obtained reports of 124 acts of sexual assault across Ukraine, with Ukrainian sources stating that there have been more than 400 – with new cases coming every single day.
Furthermore, there has been official documentation of revolting situations, where russian soldiers have told their victims that they would continuously rape them “until they stopped wanting sexual contact with any man in order to prevent them from giving birth to Ukrainian children”. Moreover, the sinister command from the wife of the russian soldier to “go and rape Ukrainian women” constitutes a clear incitement to continue committing genocidal acts against the Ukrainian people.
We need to pay attention to the testimony of victims of other crimes about the genocidal rhetoric they heard. Quotations are important to preserve, because they can speak to a policy of preventing the possibility of childbearing within a certain group. Lastly, international institutions need to be more active in combating such heinous crimes instead of always waiting too long to act. According to Pramila Patten, the Secretary-General’s Special Representative for Sexual Violence in Armed Conflict:
“An active battle-ground is never conducive to accurate ‘book-keeping’ […] if we wait for hard data and statistics, it will always be too late”.
(e) Forcibly transferring children of the group to another group.
Currently, the strongest argument for the international lawyers that genocide is happening in Ukraine is the deportation of Ukrainian children and a simplified procedure for their adoption in russia. Furthermore, russian officials have themselves admitted to transferring more than 200 000 children, including orphans, for further assimilation through re-education.
According to the law on simplified registration of orphans, an application and an ID are enough for registration. That means that all orphans abducted by russia will receive the so-called “social support” and the government will not impose any accountability for residence without registration.
Moreover, the State Duma and russia’s Ministry of Education have prepared a deal with the illegally proclaimed “DPR” and “LPR,” in which any russian family can “legally” adopt an orphan from the occupied territories of Ukraine – with russian citizenship not being an essential requirement for taking custody of a Ukrainian orphan. That addition enables so many horrid crimes to happen after the “adoption”, such as child trafficking, or even worse.
All these statements that russia openly publishes must be documented to shown how synergistic it really is with the procedures of identity emasculation in educational and cultural processes.
Incitement:
In the context of Ukraine, propaganda plays a key role in genocidal politics. The International Criminal Court separately criminalizes incitement to the crime of genocide. According to Article 25, Clause 3e of the Rome Statute:
“In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
e. In respect of the crime of genocide, directly and publicly incites others to commit genocide;”
russian leaders have been inciting genocide against the Ukrainian people for decades, while the russian military only now carries out mass atrocities. They have been audaciously announcing their intent to erase the Ukrainian identity, which they have been describing for some time now as “artificial” and “anti-russian”. The Ukrainian people have been continuously demonized and referred to as “Nazis”, so that the russian military would without any hesitation carry out a campaign of denazification. Furthermore, the russian media also contributes a lot to such incitements, with countless state-owned propagandist shows and propagandists themselves spreading hate speech equating denazification with de-Ukrainization 24/7.
The most daring evidence of incitement is a program published by the russian official press agency “RIA Novosti” for the complete elimination of the Ukrainian nation as such. To make matters even more horrific, the article was published at the same time when countless atrocities were being uncovered in once russian occupied cities. It calls for various horrid things to be done to the Ukrainian people once russia wins the war, such as:
The elimination of Ukraine’s political elite as well as those, who are “passive Nazis” or “Nazi enablers”.
Full and forced re-education, achieved by ideological suppression of any “Nazi ideas” and implementation of strict censorship in all possible spheres.
The full erasure of the name “Ukraine”, because such a name “cannot be retained as a title of a territory that was fully liberated from Nazi regime”.
“Ukraine is not possible as a national state”, as it is anti-russian production that has never had its own civilizational background, instead always posing itself as an alien one.
The article also publicly admits that “russia, as a denazifying country cannot use the liberal approach as a base of denazification” – thus implying that genocidal practices would become a daily norm. The further clarification that “denazification will inevitably be de-Ukrainization” deeply support such an intent. Lastly, it concludes with the words that ordinary Ukrainians “must experience all the horrors of war and absorb the experience as a historical lesson and atonement for their guilt as Nazis…”.
This is russia's very own genocide handbook.
Moreover, the day after this article came out former russian president, Dimitry Medvedev, declared that “Ukrainian identity is one big fake and the goal of the de-Nazification is to change how Ukrainians perceive their identity.” Just a week later, russian-state “channel one” featured a “discussion” about the elimination of Ukraine, and such “discussions” have been a reoccurring feature of this programming.
Numerous published training materials for the russian military on how "Nazism" came to Ukraine are also immensely relevant when talking about incitement, because genocidal intentions – in this case, indoctrination - can be detected in them. Interceptions also play a vital part in establishing genocidal intent.
Unfortunately, the provided examples are not the only ones to prove that russia is encouraging the idea and execution of “de-Ukrainization” in the name of the “russian world”, as they literarily never end. Additionalstatements of incitement, which range from putin’s presidential addresses and articles as well as other officials’commentary on russia’s TV channels and social media can be found here (https://www.justsecurity.org/81789/russias-eliminationist-rhetoric-against-ukraine-a-collection/).
It is immensely important to record such evidence as, according to Timothy Snyder, the Levin Professor of History at Yale University, “Seeing putin’s [and russia’s] genocidal aspiration can help the rest of us understand where this war has come from, where it is going and why it cannot be lost.”
Given this incitement and the atrocities committed by russia, I wholeheartedly believe that we are obligated to talk about what is happening in Ukraine as a genocide.
Chapter 6: What next?
As another day arrives with an additional set of horrific news about destructions happening seemingly everywhere in Ukraine, it is simply heartbreakingly hurtful to witness nothing being done to stop it by the institutions that were established to tackle these issues in the first place as well as their member states – in a deeper level than one can imagine. Yet I am fully aware that I am currently powerless before the affairs in the international arena and the rules of modern international law. Time is now our savior and our doom.
But that is where so many other questions stand: what next? Should we truly abandon any pursuit of justice for all the mercilessly killed Ukrainians, if the ICC or U.N. won’t recognize the atrocities done by russia as “genocide”? What can we do to prevent the terrors committed by russians in Ukraine?
Currently, there is only one answer: In parallel with the documentation of the probable genocidal intent, we should also place an emphasis on prevention and appeals to such mechanisms as the 1948 convention. Article 1 of the Genocide Convention sets out two main obligations: in addition to the prohibition on the commission of genocide states are also obligated to prevent and punish genocide.
The 2007 judgment from the International Court of Justice is also incredibly important with respect to providing much-needed clarity about the prevention obligation. It stated:
“In the view of the Court, the Yugoslav federal authorities should have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale might have been surmised. Yet the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed”
Several Ukrainian lawyers have also noted that due to political and legal debates about whether russia's policy is genocidal not being yet agreed upon it would be more sensible if, factually, Ukraine did not reach the situation, where it could be said that there, indeed, was a genocide. Even from a human-centered point of view, it is better to appeal to this duty of prevention.
The 1948 Convention gives us the opportunity to talk about prevention and the duty of the world community to be more sensitive to phenomena that may indicate that the policy of persecution is transforming into a genocidal policy. The obligation to prevent genocide applies extraterritorial, which means that states have an obligation to prevent genocide not only within their own borders but in others when there is a risk that it is occurring or could occur in other countries. It also establishes that it is an erga omnes obligation, meaning that obligation applies to all state parties in the Genocide Convention as well as all states in the international community even when a particular state has not ratified the genocide convention:
“A state’s obligation to prevent and the corresponding duty to act arise at the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide may be committed. From that moment onwards, if the state has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”
According to Erin Farrell Rosenberg, an attorney specializing in international criminal law and reparations and who has worked at the ICTY and the International Criminal Court, “The urgency of the international community to mitigate the risk of genocide is incredibly high.” That applies ten times more after the amount of evidence and arguments given in the previous chapter.
Furthermore, it is a must for the member states of the 1948 Convention to very carefully monitor when the policy of persecution transforms into a genocidal policy and to act accordingly. But as of today, even that was not successfully undertaken – as the russian federation still upholds the seat of the U.N. And despite Ukraine already submitting evidence of russia’s violation of the Convention on the Prevention of Genocide to the U.N. International Court of Justice with an appeal for every member state to take measures to prevent the atrocities committed by russian troops, the answer is yet to be given.
In the end, I will always refer to what russia is doing in Ukraine as a “genocide”. Because not calling genocide out and not recognizing that this is what the war is about because the aggressor state has nuclear weapons has consequences. For me, for you, for Ukraine, and for the world.
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