21 Apr Is Russia Committing Genocide in Ukraine?
[Douglas Irvin-Erickson is Assistant Professor at the Jimmy and Rosalynn Carter School for Peace and Conflict Resolution, George Mason University, where he directs the Raphaël Lemkin Genocide Prevention Program.]
A long line of blood runs from Chechnya, through Syria and Georgia, to Ukraine. Since 2014, in Ukraine, Russian forces have committed war crimes in the Donbas, and the repression of Crimean Tatars by Russian forces in Crimea certainly falls within the scope of crimes against humanity and has raised concerns of genocide.
Two things are different today, however. First, Putin has stated his genocidal intent in Ukraine in no uncertain terms. And, secondly, with United Nations and International Criminal Court investigations afoot, there is now a political opening for international justice after decades of inaction and global acceptance of three decades of mass atrocities and genocides committed or supported by the Russian army across the Middle East, the Caucuses, and Eastern Europe.
Genocide does not need to take the form of mass violence in order for it to be legally genocide. Article II of UN Genocide Convention outlaws the intended attempt to destroy national, racial, ethnical, or religious groups. Clearly the stated attempt to destroy the Ukrainian national group is inherently genocidal, therefore. Legally speaking, for genocide to be determined, the attempt to destroy one of the protected groups must be committed through one of the following five acts:
(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.
Most of these five acts of genocide have been met.
There are a lot of problems with the law, and a lot of politics behind who gets accused of genocide and why. There are many reasons why genocide prosecutions might not be the best way to seek justice. Certainly, I too have argued the UN Genocide Convention is flawed instrument for justice and the legal definition of genocide creates a morally perverse hierarchy of social groups that suggests some are more important to humanity that others. But, let’s set that aside for the moment and compare how the conflict is unfolding in Ukraine to what the law says.
It is very likely that international courts will attempt to prosecute Russian defendants for genocide in Ukraine. If the Ukrainian government decided to prosecute international crimes in its domestic courts, not international courts, as I recently suggested could be done, then Ukraine can look to genocide prosecutions in Argentina as establishing important precedents. Argentine courts charged and secured convictions for Argentine military and political leaders committing genocide against the Argentine national group during the period of military junta rule from 1976 to 1983. These convictions are, arguably, not consistent with the jurisprudence around the international law of genocide, namely because courts in Argentina diverged from international precedents in the way they defined a “nation” as a protected group. Argentine jurists made a point of interpreting the “national groups” of the UN Genocide Convention in accordance with the legal theories of the jurists who helped write the UN convention, such as Raphaël Lemkin, and the diplomats representing member states from around the world who helped draft the treaty—not just the Americans and the British. This revealed a definition of national groups that was different from understandings of the term in English, French, Dutch, and German political and legal traditions. These Western European (and North American) traditions largely view nations as large, coherent bodies of people united by common descent, history, or language, inhabiting a particular country or state, with intrinsic cultural characteristics.
Scholars have argued that the trials in Argentina did uphold a position consistent with international law, because domestic applications of international law by definition allows national courts to interpret international law according to local legal traditions, and thus “engage in flexible, culturally conscious translations of international norms.” Daniel Feierstein, one of the world’s leading legal theorists and the past president of the International Association of Genocide Scholars, led efforts in Argentina to interpret nations in the manner of Lemkin and many of the non-Western jurists at the UN, who believed national destruction could be achieved by seeking to destroy aspects of social diversity that were part of the fabric of national group.
Such destruction, often committed through idioms of national “purification” or eliminating internal threats, is now referred to as genocidal “reorganizing of society” or “partial national group destruction,” which can be achieved through various forms of oppression, terror, and violence. The courts in Argentina accepted this reasoning, and eventually found the dictatorship committed genocide by virtue of their attempt to reshape the national identity of Argentine society by targeting for elimination leftist and urban social movements, and certain social identities perceived as subversive.
In the Russian war in Ukraine, the world is watching on live television these exact kinds of acts committed by the Russian army against Ukrainian society. The genocidal intent of the war has been clear from Putin’s own statements, delivered to Russian and international audiences, before and during the war, which explicitly outline the destruction of the Ukrainian nation and ethnicity as the Russian state’s policy objectives of the war.
Arguments for why the Russian war in Ukraine is not genocide revolve questions of whether or not it is possible to prove there is a Russian intent to destroy a group in Ukraine that the UN Genocide Convention protects. Such arguments ignore thousands of murders and overlook the deliberate imposition of conditions that destroy part of the Ukrainian national group, which is important because the UN Genocide Convention treats the attempt to partially destroy a protected group as genocide.
Others suggest Russia’s war plan was to sweep Ukrainian President Volodymyr Zelensky from power, not wage a genocidal campaign of group selective destruction. This line of argument tends to suggest the Russians cannot be committing genocide in Ukraine because they are not making cultural and ethnic distinctions in their brutality, and are killing many ethnic Russians and Russians-speakers in Ukraine. This view, however, presents ethnic Russians and Russian-speakers as citizens of the country of Ukraine, but not members of the Ukrainian national group. Ultimately, this denies that ethnic Russians and Russian-speakers in Ukraine can see themselves as a full part of the Ukrainian nation. This argument, that ethnic Russian and Russian-speakers cannot be part of the Ukrainian national group, is absurd. President Zelensky—a patriotic Ukrainian nationalist leader if there ever was one—speaks Russian as a first language and clearly sees himself as a member of the Ukrainian national group. Tens of millions of ethnic Russians and Russian speakers are fighting and struggling to preserve a Ukrainian nation they view themselves as belonging to.
Moreover, political elites in Moscow also view Russians in Ukraine, who clearly prefer to identify as Ukrainians, as not belonging to “their” Russian national group. In fact, there is good evidence that elites across the Russian state are intending to wage this conflict in these exact genocidal terms. Dmitry Medvedev, the former president and prime minister of Russia and the current Deputy Chairman of the Russian Security Council, called for the extermination of all Ukrainian radicals who deny that Ukraine and Russia is one nation. This claim inherently delegitimizes and marks for death anyone who holds a belief that being Ukrainian is different than being Russian. Included in this group of “radicals” marked for death would be anyone who speaks and sees themselves as Ukrainian and therefore not Russian, or any ethnic Russian or speaker of Russian who wants to be a Ukrainian. So, if this case is not legal genocide against national groups, then it is genocide against ethnic groups.
It is not just Putin and a handful of loyalists making these statements of genocidal intent. Over the last two months, Russian state media has been awash in elite speculation about what should be done to Ukraine after the Russian victory. The narratives, broadly synthesized from statements by Putin and other Russian leaders, have coalesced around a plan to destroy Ukraine as a nation-state and begin a campaign of de-Nazification, which should be understood as a euphemism for de-Ukrainianization because elite narratives in Russia draw a direct line between being Ukrainian and being a Nazi.
One prominent article published in the state run media outlet RIA Novosti cited highly placed sources who stated the state post-victory policy would be to erase the word Ukraine from map and “liquidate” the nationalist elite and a “substantial part of the populace” who are “beyond reeducation” out of their Ukrainian nationalism, while the rest of the population who are guilty of being Ukrainians but could still be saved through reeducation that would require a “generation-long program of ideological repression.” As the noted scholar Eugene Finkel wrote recently, “It is hard to imagine a more actionable template to destroy a national group. The text’s publication on a major state media platform would have been impossible without explicit approval from above.”
Just because Medvedev, like many others, has articulated what are clearly genocidal ambitions for the Russian Security Council, does not mean that he can be automatically prosecuted for genocide. Granted, international lawyers do not need a prior order by the head of state or ruling elite to destroy in whole or in part a national, racial, ethnic, or religious group — a so-called “smoking gun” — to secure a conviction of genocide. This means Putin and Russian elites can be prosecuted for genocide even if they did not give the specific order to officers or individual soldiers to commit massacres in Bucha, or bomb hospitals and children’s shelters across the country. To do so, however, genocide prosecutions must be able to connect the high level discourses and narratives of elites to the individual acts committed by those who carry out orders.
In war crimes tribunals, judges normally hold that simply showing a defendant was in a position of authority over those who committed the criminal act is all that is required for establishing a direct causal link between the accused and the criminal act. Even if a head of state claims they did not order a criminal act, Article III(e) of the UN Genocide Convention allows for complicity in genocide to be punished as genocide. Thus a head of state, or a commanding officer, can be found guilty of genocide for not preventing those under their orders from committing it. In these instances, all that is required to demonstrate the mental element of criminal liability is to show that the defendant must have known that the crime was going to occur as a result of his or her actions or inaction as a superior in the chain of command.
When it comes to those further down in the chain of command, all that is legally necessary to prosecute soldiers, officers, and mid-ranking officials for genocide is to demonstrate they obeyed orders they knew were given within the context of a plan of group destruction. To date, there is evidence of repeated cases of rape used as a weapon of war, committed by Russian soldiers against Ukrainian civilians, and there is much evidence of torture and summary executions of Ukrainians by Russian soldiers who repeated elite conspiracy theories and told their victims they were being killed in order to cleanse Ukrainian soil of Nazis. There are strong indications that evidence of many more executions will be forthcoming, with recent reports that German intelligence has intercepted communications of Russian soldiers discussing and planning the execution of Ukrainian civilians.
Legally, in certain contexts, the genocidal intent for such acts of violence can be shown when soldiers use the same forms of hate speech and dehumanizing language by the elites and state leaders in Moscow who are organizing and ordering the genocide. Calling Ukrainians “Nazis,” and other forms of hate speech that Russian elites are using, can therefore expose individual soldiers to genocide prosecution when that speech accompanies an attack or assault. As Shannon Fyfe has argued, in certain contexts hate speech itself can even be prosecuted as incitement to genocide, which is important because Article III(c) of the Genocide Convention stipulates that “direct and public incitement to commit genocide” is punishable as genocide.
Justice Towards Peace
It is possible that the threat of prosecuting Russian war crimes will create a disincentive for Putin to stop fighting, and may even bolster his popularity at home. Both outcomes would unnecessarily drag the war on and increase human suffering. As Laurie Nathan and Tim Murithi recently debated, including a genocidal villain in a peace settlement that will ultimately save lives requires ceding painful concessions to that villain’s power, especially when the concession is justice. And, yet, we know that true peace is never really achieved without justice.
It is possible that meaningful justice is not found in the actual legal judgements of tribunals, anyway, but the many social processes and political institutions that courts create a space for in the aftermaths of atrocities. And, for that matter, any sense of justice that victims and survivors gain from tribunals usually does not have much to do with the utopian ideas of human rights and democracy that international supporters of these tribunals like to talk about, but the way courts are able to document the suffering of victims and preserve memory.
Even if no verdict is ever reached, and the justice process stalls out at the stage of investigating and documenting atrocities, a tribunal that takes seriously the international law around genocide will still be important. Genocide tribunals are powerful political tools, which do play a significant role in preventing a return to violence by providing a forum where post-atrocity conflicts can be hashed out with words, testimony, and competing narratives instead of guns. This turns a courtroom into a “theater of ideas” where the drama of how a genocidal conflict should be remembered can build new forms of social solidarity around ideas of reconciliation. An international or national tribunal that includes the crime of genocide, even if it is never able to prosecute a single case, can support national truth commissions and public education efforts, and thus offer an important form of recognition for those who often remain silent after suffering, surviving, and witnessing such horrific events.
International criminal tribunals, or national tribunals supported by Ukraine’s allies, are the best way to investigate and document atrocities according to the highest possible evidentiary standards and scholarly conventions. And, documenting what happened will matter. It always does.
Genocide, at its very core, is a philosophical denial of the principle of diversity, and a fundamental denial of the equal humanity of the victims. As such, the denial of genocide by those who commit it is actually part of the logic of genocide, carrying the dehumanization of the victims forward into time, and grounding future claims that the victims were responsible for what happened to them and deserved it. Though maybe not the final stage of genocide, denial is certainly stitched into the very conflict systems from which genocides emerged in the first place.
Even if the reasons why the genocide happened are eternally contested in perpetual culture wars over history and memory, telling the truth about what happened will fight denial and uphold the dignity and humanity of the victims that the very act of genocide denies.