Image Credits: @amzmahmoud on Unsplash (Unsplash License)
On April 3rd, 2022, Ukrainian President Volodymyr Zelenskyy went on CBS’ Face the Nation and made the allegation that Russian actions in the brutal war against Ukraine qualify as a genocide. The word genocide carries significant weight in international law, and Zelenskyy’s allegation that Russia is committing genocide in Ukraine raises critical questions regarding the current legal and moral responsibilities of the international community to investigate the situation. Key points of legal focus include understanding how genocide is defined within international law, recognizing what evidence is considered sufficient to classify a genocide, and following legal procedures to hold international actors responsible. These are all critical steps in avoiding a repeat of previous international failures to intervene in acts of genocide, such as in the case of neglecting the Rwandan genocide in 1994.
The Convention on the Prevention and Punishment of the Crime of Genocide
Defining Genocide
The first step in analyzing whether Russia’s war in Ukraine is genocide, or whether Russian actions indicate a serious risk of genocide, is to understand how genocide is defined. The definition resides in the Convention on the Prevention and Punishment of the Crime of Genocide, which was codified in 1948 and is acknowledged by the International Court of Justice as part of customary international law. The Convention contains 19 articles, with Articles II and III providing specific descriptions of what genocide means and what acts are punishable. Article II defines genocide as, “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and lists five specific acts: (i) Killing members of the group; (ii) Causing serious bodily or mental harm to members of the group; (iii) Deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in whole or in part; (iv) Imposing measures intended to prevent births within the group; (v) Forcibly transferring children of the group to another group.
Article III then outlines how genocidal perpetrators will be punished not only for the act of genocide itself, but also for any conspiracy, direct and public incitement, or attempt to commit genocide, as well as any complicity in the act.
The definition of genocide is intentionally specific to prevent misuse of the word. Many believe that a crime becomes genocide once a large number of people have been killed, but this is incorrect. What distinguishes genocide from other war crimes is the aspect of intent within its definition. A genocide is constituted by deliberate, organized and conscious efforts to exterminate a particular group through the acts listed in Article II, with the overarching goal of eliminating the group’s national identity. Although intent is critical to the definition of genocide, in itself it is incredibly challenging to prove. The International Court of Justice points to indicators of intent such as physical plans or documents, or the analysis of sequences and patterns of acts outlined in Article II, as potential ways to determine genocidal intent to destroy. Overall, the issue of proving intent is one of the key legal challenges in determining whether Russia’s actions in Ukraine constitute genocide.
The Responsibility to Prevent and Punish
Aside from providing a specific definition for genocide, the Genocide Convention’s other primary purpose, as outlined in Article I, is to establish the responsibility of the Contracting Parties in intervening to prevent and punish genocidal acts. There is significant emphasis on a State’s duty to prevent when it comes to genocide as it is important that preventative actions be taken as much as possible to avoid a genocide occurring in the first place. The International Court of Justice has clarified that a State’s duty to prevent is triggered when it learns of a serious risk that genocide will be committed. This explains why government officials use the word ‘genocide’ with caution, because publicly acknowledging an act of genocide triggers legal responsibility to act.
A State’s responsibility also involves participation in proper punishment of genocidal crimes. Articles IV and V of the Convention outline that Contracting Parties must enact the necessary legislation to provide the appropriate punishments for those found guilty of genocide, no matter whether the perpetrators are rulers, public officials, or private individuals.
It is important to note that although only 152 States have signed the Convention, the ICJ recognizes both the prohibition of genocide and the responsibility of States to prevent and punish as international legal norms. Therefore, all States are subject to abiding by these norms regardless of whether they are a signatory of the Genocide Convention or not.
Russian Actions in the War Against Ukraine
Direct and Public Incitement
As described above, Article III of the Genocide Convention relays how evidence of direct and public incitement of genocide is grounds for prevention and punishment. Direct and public incitement of genocide is therefore one of the key elements of the Convention that is applicable to the Russian invasion of Ukraine. There have been several instances in which high-ranking Russian government officials have made public statements denouncing the existence of a Ukrainian national identity. Many have called those who identify as ‘Ukrainian’ a threat to a coherent Russian identity, and Vladimir Putin’s essay “On the Historical Unity of Russians and Ukranians”, published in July of 2021, explicitly denies the legitimacy of Ukrainian nationality. These instances can be applied as evidence of direct and public incitement of genocide, as they suggest that those who identify as Ukranian are inferior and a threat to Russia, indicating Russian motivations to eradicate the Ukrainian population. Additionally, there is evidence to suggest that Russian soldiers are required to read Putin’s essay, as well as view “informational television programs”, further supporting direct and public incitement of genocide.
Mass Killings and Serious Bodily and Mental Harm
In addition to direct and public incitement, reports of Russian soldiers murdering innocent civilians and engaging in torture support elements a (mass killings) and c (deliberate bodily and mental harm) of Article II of the Convention.
In March of 2022, satellite images emerged of hundreds of Ukrainian civilians laying dead in the streets of Bucha, a suburb of Kyiv. The Russian ministry of defense denied responsibility for these killings, claiming they occurred after Russian troops withdrew from Bucha, but the satellite images counter this claim. The bodies showed signs of torture; some were found with their hands tied behind their backs, and others had gunshot wounds to the head. Ukrainian investigators found further evidence of torture in the basement of a children’s summer camp such as water jugs and wooden planks, which are waterboarding tools. Striking comparisons have been made between the atrocities found in Bucha and the Bosnian Srebrenica genocide that occurred in 1995, further supporting that Russia’s acts in Ukraine constitute genocide.
There have been many other instances throughout the conflict where Russian soldiers have deliberately targeted civilians, another prominent example being the bombing of a drama theatre in Mariupol. The theatre was acting as a shelter for over 1,000 civilians and large lettering was placed outside that read “CHILDREN”, indicating that children were residing there. Nevertheless, Russian forces deliberately targeted the theatre, and it is estimated that 600 civilians were killed. This deliberate attack on a clear civilian target in Mariupol, along with the evidence of torture in Bucha, aligns with elements a and d of Article II of the genocide convention.
Rape, Sexual Violence and Forcible Transfer of Ukranian Children
Element d of Article II of the Convention describes actions intended to prevent births within the targeted group, such as sexual violence and rape. There have been extensive reports of rape and sexual violence committed by Russian troops, with accounts of victims ranging from 4 years old to 80 years old. In addition to this, there have also been reports of Ukrainian children, orphaned by the war, being forcibly transferred to Russia and adopted by Russian parents. This aligns with element e of Article II, which accounts for the forcible transfer of children from the targeted group to the perpetrating group.
Preventing Genocide
Legal Obligations of Other States
The combination of direct and public incitement, strategic mass killings, reports of torture, rape and the forcible transfer of children, all point towards sufficient legal evidence to declare a high risk of genocide in Ukraine. Once States recognize this risk, they are required under the Genocide Convention to “employ all means reasonably available to them” to intervene in Ukraine and prevent the genocide. However, neither the Convention nor the International Court of Justice provide a description of acceptable actions that can be taken by States. Therefore, it is up to each individual State to determine what constitutes reasonable and acceptable means of action, which may hinder the effectiveness of preventing the genocide. For example, some states are claiming that a court must first prove genocide is occurring before they can act, and are therefore delaying their responsibility under the Genocide Convention.
The Steps to Prosecution
International Criminal Court Jurisdiction
The International Criminal Court (ICC) is responsible for the investigation and prosecution of genocide. The ICC can exercise jurisdiction over an atrocity crime only when it is referred to the court by either a State Party (a country that has ratified the Rome Statute) or the United Nations Security Council, or if the ICC Prosecutor initiates a preliminary examination. 43 State Parties have referred the situation in Ukraine to the ICC. However, this does not immediately mean that the ICC has jurisdiction to investigate and prosecute. A State Party referral only grants jurisdiction if the atrocities were committed on the territory of a State Party, and Ukraine itself has not ratified the Rome Statute. However, the 43 referrals caused the ICC prosecutor to open a preliminary investigation into the situation in Ukraine, therefore the ICC has jurisdiction in this case.
Russia has protested against the legitimacy of this jurisdiction – it has also not ratified the Rome Statute and has tried to argue that the ICC consequently cannot prosecute Russian crimes. However, this argument is legally unfeasible as the situation in Ukraine meets the requirements for ICC jurisdiction.
International Criminal Court Investigation
The preliminary investigation into the situation in Ukraine became an official investigation on March 2, 2022. During this process, the ICC Office of the Prosecutor (OTP) collects evidence in the form of videos, photographs, communications, and forensic materials, conducts interviews with those involved, and completes any other tasks relevant to the situation. In the case of investigating genocide, the OTP will be focused on evidence that demonstrates the conditions outlined in the Genocide Convention. The OTP investigation into the situation in Ukraine is currently ongoing.
International Criminal Court Trial
If the investigation yields sufficient evidence to believe Russia has committed genocide, it will issue either a summons or an arrest warrant. In this case it is probable that an arrest warrant would be issued over a summons, as it is unlikely that Russian officials would willingly cooperate and agree to appear in court. A Pre-Trial Chamber would then either confirm or dismiss the charges based on evidence presented by the OTP, and if the charges are confirmed, a trial would occur. The Trial Chamber, consisting of 18 elected ICC judges, would hear the case and reach a verdict. If the Trial Chamber reaches a guilty verdict, it would then determine sentencing. The death penalty is not an option for an ICC trial – the Trial Chamber can issue fines and forfeiture of assets, and can impose imprisonment of up to 30 years or a life imprisonment.
Why This Matters
In the past, the international community has failed to halt mass atrocities and genocide on numerous occasions, resulting in catastrophic loss of life. Legislation and institutions, such as the Genocide Convention and the International Criminal Court, have been created to improve the international community’s ability to respond to crises, save lives and hold criminals accountable. It is therefore imperative that the legislation and institutions be applied consistently and correctly to investigate the ongoing situation in Ukraine and stop mass atrocities, such as genocide, from occuring.