The Russian Federation is not just waging a full-scale war against Ukraine, which has forced about a quarter of Ukrainians to leave their homes and has taken away the lives of many.
The Russian Federation also denies the very existence of the Ukrainian nation in its media space, while references to Ukraine and Kyivan Rus are already removed from the history textbooks.
Russian methods of warfare against Ukraine: the deliberate terror of Ukraine and its people in all Ukrainian regions, mass abductions, rapes, murders and tortures, destruction of Kharkiv, Mariupol, Chernihiv, horrors in Bucha, Irpin, Hostomel, Borodianka, occupation of the southern regions of the country, together with numerous statements of the Russian political leadership (supported by narrative in the Russian media) that "the Ukrainian identity did not and does not exist" - increasingly raise the question about potential genocide of the Ukrainian people.
Political recognition of this crime already exists. Statements about the genocide in Ukraine have already been made by the Verkhovna Rada and by the parliaments of several countries in Europe and North America.
Yet, the most important one is legal recognition. This article answers the most common questions and explains the legal nuances of Russia’s potential commission of genocide.
Depending on the circumstances, intentional mass murders of civilians, forced deportations, rapes and other atrocities may not necessarily be classified as genocide. Such actions may be classified as crimes against humanity or war crimes, which are also serious international crimes.
Genocide is called "the crime of all crimes".
It entails not simply an intent to harm human life and health, but to deliberately destroy, in whole or in part, a group of individuals who can be identified by nationality, ethnicity, race, or religion.
Because of the necessity and difficulty of proving such intent, committed crimes are initially classified as crimes against humanity or war crimes, and only later, after receiving evidence of the abovementioned special intent, they are reclassified as genocide.
The incrimination of genocide requires strong evidence, and the process of proving genocide can be lengthy and difficult.
There is no set number after which mass murder becomes genocide. Moreover, genocide is not necessarily committed in the form of murder.
The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 defines genocide as the commission of one of the following acts "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.
Thus, the act of genocide contains two essential components – the physical act itself in the form of the above-mentioned acts and the intent to destroy a certain group of people as such in whole or in part.
The concept of "partial destruction" is understood as at least a significant part of a protected group, the destruction of which will affect the group as a whole.
The Declaration of the Verkhovna Rada of 14 April 2022 on the commitment of genocide by the Russian Federation in Ukraine states that Russia commits all of the abovementioned forms of genocide in the territory of Ukraine, except for measures intended to prevent childbirth among Ukrainians (EP note: there is also information on genocidal rapes received from the de-occupied Bucha, but the scope of evidence is unknown).
At the same time, it is not only the number of people who have been killed or injured that matters, but also the number of people intended to be killed.
Given the well-known examples of the extermination of Ukrainians on the temporarily occupied territories, one cannot rule out the conclusion that if appropriate military capabilities to seize larger areas of Ukraine existed, the genocide of Ukrainians by the Russian armed forces would have taken place on a much larger scale.
The Genocide Convention contains a rather narrow and exclusive list of protected groups of people against whom genocide may be committed, which includes only national, ethnical, racial, or religious groups.
The Declaration of the Verkhovna Rada of 14 April 2022 recognized as such a protected group the Ukrainian people constituting the citizens of Ukraine of all nationalities living in the territory of Ukraine.
It does not matter for the qualification of genocide whether the victim is indeed a member of a national, ethnical, racial, or religious group, or whether the victim is ethnically Ukrainian or a citizen of Ukraine. The intent of the perpetrator is a crucial element. For example, in the Nchamihigo case, the International Criminal Tribunal for Rwanda concluded that to convict a person of the crime of genocide, it is sufficient that the perpetrator perceives the victim as belonging to a certain protected group. It is not necessary for the victim to actually belong to such a group.
The so-called special intent or dolus specialis, which distinguishes genocide from war crimes and crimes against humanity, must exist in two forms: first, there must be a general intent (policy, order, plan, etc.) to destroy all or part of a certain national, ethnical, racial, or religious group; secondly, the person who directly commits these acts must be aware that he is carrying them out within such general intent (policy, order, plan, etc.).
Putin’s official statements and the publication in "RIA Novosti" outlining the genocidal nature of the resolution of the "Ukrainian question" are important but insufficient evidence to prove the existence of a plan/policy to exterminate the Ukrainian people.
Establishing such intent will also be based on the general context of the committed crimes, their scale, and circumstances, which will confirm the existence and incitement of hatred towards Ukrainians within a society and the desire to exterminate them.
In a broad sense, it will be necessary to prove that the actions of the Russian armed forces are aimed at destroying the Ukrainian people as a protected group, while mass killings, including those in Bucha, Irpin, Borodianka, Mariupol, as well as the destruction of entire settlements, including Kharkiv and Mariupol, are aimed at implementation of this genocidal intent by Russia.
Some evidence of the existence of Russia’s state policy on the destruction of the Ukrainian people is provided in the explanatory note to the Declaration of the Verkhovna Rada of 14 April 2022.
Unlawful forced deportation of civilians is a crime against humanity or a war crime (Articles 7 and 8 of the Rome Statute of the International Criminal Court, respectively) but it is not specified as a form of genocide.
However, deportation may constitute other forms of genocide defined in the Rome Statute and the Genocide Convention, such as:
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- forcibly transferring children of the group to another group.
If deportation leads to the said consequences or is carried out in one of the above-mentioned forms with special genocidal intent, it can be qualified as an act of genocide.
More and more information about the forced deportation of children from the occupied territories to Russia and plans to facilitate their adoption emerge nowadays. Such measures fall directly within one of the forms of genocide provided for in the Genocide Convention.
Additionally, mass deportation from Mariupol into the territory of the aggressor state is not an isolated act since it is committed against the backdrop of complete physical destruction of the city, mass killings, and the creation of intolerable living conditions. Collectively, such acts can be qualified as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part" or "causing serious bodily or mental harm to members of the group" and, accordingly, as an act of genocide of the Ukrainian people.
The fact of systemic forced deportation of the population can also serve as additional evidence of the intent to exterminate the Ukrainian people in whole or in part.
The States Parties to the Genocide Convention have an obligation to prevent and punish the crime of genocide.
In 2007, the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro case interpreted the "obligation to prevent" the crime of genocide as one without territorial limits. It clarified that any State that has the capacity to effectively influence the action of persons likely to commit, or already committing, genocide, including those outside that State, shall take all reasonable steps available to that State to prevent genocide.
Such a broad interpretation of the Genocide Convention appeared because of the inability of the international community to prevent and stop the genocide in the Balkans and Rwanda in the 1990s.
However, the Genocide Convention does not give states the right to use force at their discretion.
This would be a violation of a general principle of international law - the prohibition of the use of force and the threat of force.
The use of force is possible only based on a resolution of the UN Security Council. It is a known fact that Russia has veto power over such resolutions.
The Genocide Convention aims to ensure the criminal prosecution and responsibility of individuals committing genocide.
Article IV of the Genocide Convention deprives heads of state and other officials of the right to invoke their official status to protect themselves from prosecution for the crime of genocide. While according to Article V of the Genocide Convention, States undertake to adopt the necessary legislation to provide effective penalties for persons guilty of genocide.
However, states are also responsible for committing genocide.
Article I of the Genocide Convention obliges States to prevent and punish the crime of genocide.
The International Court of Justice also has jurisdiction to establish state responsibility for committing genocide.
Establishing the fact of genocide is an essential element of the process of prosecuting those responsible for committing genocide.
Under the Genocide Convention, prosecution for genocide is carried out by national or international criminal courts.
Local courts at the place of commitment of genocide have primary responsibility for ensuring justice for this crime. According to the Criminal Code of Ukraine, genocide is punished by imprisonment for a term of 10 to 15 years or a life sentence.
Local courts of foreign states can also punish the crime of genocide committed in the territory of Ukraine based on so-called universal jurisdiction, which allows the state to prosecute perpetrators regardless of the place of crime and citizenship of the criminals. Among the countries that have adopted relevant legislation are France, Germany, Switzerland, and others.
The International Criminal Court also has the right to prosecute and punish the crime of genocide. The ICC does not replace but complements the powers of the relevant national courts. Although Ukraine has not ratified the Rome Statute, it has recognized the ICC’s jurisdiction over crimes against humanity and war crimes committed in its territory since 20 February 2014. However, from the numerous statements of the ICC Prosecutor, it can be concluded that Ukraine’s consent to the ICC’s jurisdiction is interpreted by the ICC Prosecutor widely to also include the crime of genocide. The ICC Prosecutor has already launched an investigation into crimes committed in the territory of Ukraine.
The Genocide Convention also provides for the possibility of establishing ad hoc international penal tribunals as alternatives to the national courts. International law knows successful examples of such judicial bodies, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
If the fact of perpetrating genocide is proven, one of the above-mentioned judicial bodies may pass sentences both upon the political leadership of Russia and on the immediate perpetrators of this crime in the territory of Ukraine.
State responsibility for the crime of genocide is possible only by the judgment of the International Court of Justice. Russia and Ukraine have both ratified the Genocide Convention, which authorizes the International Court of Justice, among other things, to consider these issues.
Ukraine is using the capabilities of the International Court of Justice. Although at this stage, the proceedings concern Russia’s use of false statements about "genocide in the Donbas" allegedly committed by Ukraine as a cause for its armed aggression.
On 16 March 2022, the International Court of Justice ordered provisional measures and, among other things, obliged Russia to immediately cease the military operation that it commenced in the territory of Ukraine on 24 February 2022.
In this case, Ukraine has not yet stated its claims that Russia commits genocide against the Ukrainian people, although it has noted that there is a risk of planning and implementing the genocide by Russia.
At the same time, Kyiv can expand its claims based on events and facts that occurred after 26 February (the date of filing a lawsuit) or it can file a new lawsuit.
At first glance, it seems to us that what is happening in Ukraine is already obvious to the whole world. However, the same atrocities can be classified as different international crimes.
The standard of proof of the crime of genocide is extremely high.
International criminal tribunals, including the International Criminal Tribunal for the Former Yugoslavia, and the Rules of Procedure and Evidence of the International Criminal Court provide guidance on evidence that can be relevant for international justice.
For example, the evidence of the Srebrenica genocide prosecution consisted of testimonies from relatives of the dead and missing, those who were lucky enough to survive, as well as peacekeepers, reports from international organizations, satellite images of mass graves, intercepted conversations of the Bosnian Serb army, admission of guilt of some of the accused. Prosecutors visited sites of possible capture of Bosnian men before the executions, where they collected blood samples and skin remains of victims on the walls, assessed traces of shootings on buildings, ammunition left at the crime scene, and more.
Unlike the Bosnian Serb leadership, which had banned international organizations and representatives of other countries from accessing Srebrenica for a long time, Ukraine accompanies world leaders to crime scenes so they can see everything for themselves, while prosecutors and journalists have a chance to document the evidence.
However, in relation to each of the accused individuals, it will be necessary to prove that they committed criminal acts while being conscious of the general genocidal intent against the Ukrainian people. Otherwise, such actions may be qualified as crimes against humanity or war crimes, which are also serious violations of international law.
Ukraine has already received unprecedented global support regarding the prosecution of crimes committed by Russia and its troops. However, we need to prepare for the legal marathon. The practice of international tribunals confirms just that.
The International Criminal Tribunal for the Former Yugoslavia operated from 1993 to 2017. One of the former Bosnian Serb commanders Ratko Mladić was convicted only in 2017, while an appeal on his judgment was pending until 2021. The International Criminal Tribunal for Rwanda issued its first sentence for genocide in 1998, in the fourth year of its work. Cases in national courts have also been pending for years.
The main task now is to consolidate the work of various initiatives, gather all possible evidence and not scale down the efforts of bringing to justice those guilty of horrific crimes committed in Ukraine.
Olesia Gontar, Special Counsel
Nadiya Mykiyevych, Associate
Translation: Dina Mazur
The authors are grateful to Zakhar Tropin, Ph.D. in Law, Associate Professor of International Law at the Institute of International Relations of Taras Shevchenko National University, for assistance in preparing this article.
Published by European Pravda