The Genocide Case Against Putin is Stronger Than You Probably Think: Part 1 – The Cultural Genocide Exclusion Doctrine

[Kurt Mundorff is the author of A Cultural Interpretation of the Genocide Convention (Routledge, 2020)]

On 12 April 2022, former U.S. President Biden doubled down on an offhanded remark accusing President Putin of genocide in Ukraine, declaring “[y]es, I called it genocide. It has become clearer and clearer that Putin is just trying to wipe out the idea of even being able to be Ukrainian.” He continued stating, “[w]e’ll let the lawyers decide internationally whether or not it qualifies,” “but it sure seems that way to me.” In this three-post series, I will argue that Biden was right to accuse Putin of genocide but misguided for placing his faith in international lawyers. 

Any prosecution of Putin will run headlong into a legal doctrine that holds the Genocide Convention was never intended to reach matters pertaining to a group’s cultural existence, and instead protects only its physical or material existence. In my 2020 book, I called this the “cultural genocide exclusion doctrine,” or simply “exclusion.”

Exclusionists argue that, although Putin and Russian officials have loudly denied the legitimacy of the Ukrainian state and the existence of a distinct Ukrainian ethnic or national group, there is insufficient proof that they intend to destroy Ukrainians’ physio-biological or “material” existence. Because Russian officials intend to absorb the Ukrainians into the Russian state, rather than kill them outright, these exclusionists say Russia intends to commit cultural genocide – not actual genocide – against the Ukrainians.

I argued in my book that exclusion is logically unsound and legally and historically unfounded. But exclusion’s infirmities have not limited its trajectory. This stubborn notion, that genocide must entail an intent to destroy a group’s physical existence and that killings “have a particular importance in proving genocidal intent,” (p. 850) structures lay and lawyerly ideas of genocide and, I believe, serves as a gatekeeper determining which cases are pursued. But the caselaw is not as settled as some exclusionists insist. Events in Ukraine could provide an opportunity for a more searching judicial scrutiny. 

This post outlines the doctrine of exclusion and compares it to the Genocide Convention’s text, finding that the weight of the text augers against exclusion. The second post debunks the idea that a majority of the Genocide Convention’s drafters had intended to exclude cultural genocide. My final post argues that genocidal intent is the only explanation for the way Russia has carried out the forced transfer of Ukrainian children.

The Exclusion Doctrine

The International Law Commission (ILC) provided the most influential statement on exclusion in 1996 (pp. 45-46):

As clearly shown by the preparatory work for the [Convention], the destruction in question is the material destruction of a group either by physical or biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word “destruction,” which must be taken only in its material sense, its physical or biological sense. . . . [T]he text of the Convention, as prepared by the Sixth Committee and adopted by the General Assembly, did not include the concept of “cultural genocide” contained in the [earlier] two drafts and simply listed acts which come within the category of “physical” or “biological” genocide.

The ILC bypasses the convention’s text, citing only differences between the convention’s first two drafts and its final draft. It makes two distinct claims. First, it claims that the Genocide Convention reaches only the “material destruction of a group,” not instances where a perpetrator intends to destroy a group by targeting its “cultural or other identity.” Next, it asserts that the convention lists only “acts which come within the category of ‘physical’ or ‘biological’ genocide.” The first claim addresses genocide’s mens rea, the “further intent” to destroy “the group, as such.” The second claim addresses genocide’s prohibited acts, its actus reus. Both claims are groundless.

The Genocide Convention’s Text

Exclusionists avoid the Genocide Convention’s text, which contains no language excluding cultural genocide. Article 2, defining genocide, reads:

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;

(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.

There are no headings designating the prohibited acts of genocide as “physical,” “biological,” or “cultural”, nor is the term “destruction” otherwise limited. The text itself provides no indication that matters of culture are beyond the convention’s reach.

Instead, the convention’s text reveals an overriding concern with the cultural functioning of certain human groups. By referencing UN General Assembly Resolution 96(1), the convention’s preamble grounds the treaty’s teleology in the protection of the “cultural and other contributions represented by … human groups….” Article 2 of the convention protects groups “as such,” which seems to implicate the group’s continued function as a group, through the medium of culture. And the convention protects only national, ethnic, racial, or religious groups, groups that self-perpetuate through child-rearing, by instilling cultural practices in their children.

The convention does mention “physical destruction,” but only in subparagraph (c) prohibiting “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Per argumentum e contrario, it appears that inflicting conditions of life to bring about non-material (cultural) destruction is excluded from subparagraph (c), an exclusion that makes no sense unless article 2’s other provisions do reach instances where they cause non-material, cultural destruction.  

The most significant challenge to exclusionists comes from subparagraph (e)’s prohibition on the forcible transfer of children. Programs directed against Indigenous groups in Canada, Australia, and the United States removed children to schools intended to strip them of their language, religion, and culture.  The history of these programs shows forcible child transfer to be an effective means of group destruction, even if, through sheer tenaciousness, the targeted groups survived.

Nevertheless, applying the principle of ejusdem generis, some have argued that because the prohibited acts listed in article 2, subparagraphs (a) – (d) are acts of physical or biological genocide, subparagraph (e) must be restricted as well. To them, forcible child transfers can amount to genocide only when they are intended to destroy the group’s physical or biological existence. But this mistakes the proof for the argument as there is no textual basis for assuming (a), (b), or (d) are purely acts of physical or biological genocide.

The idea that subgraphs (a) – (d) comprise only physical or biological acts is grounded not in text or history, but in sloppy metaphysics. Act and intended consequence are unlikely to respect the material versus cultural duality.

For instance, subparagraph (a) prohibits killing, the quintessential act of physical genocide. And, selective killings, targeting a group’s political, cultural, or religious leaders, or its military-aged men, have always been considered to violate article 2(a). Yet the targeted killing of elites is intended to destroy a group by weakening its cultural cohesion, not its physical existence. Without leaders, the group simply disperses. If killing can be said to be a purely physical act, it is one that is often intended to cause cultural destruction.

Similarly, subparagraph (d) prohibiting “Imposing measures intended to prevent births within the group” is considered an act of biological genocide.  Yet, this act was always understood to prohibit marriage restrictions, which implicates culture. Applied this way, subparagraph (d) is a cultural act that destroys the group’s biological existence.

Others assert that subparagraph (e)’s prohibition on the forcible transfer of children should only amount to genocide when a perpetrator intends the removals to be permanent, which would cause a group’s biological destruction by dispersing members and preventing them from reproducing with other group members. However, because permanent removal would prevent reproduction within the group, this act is already covered by subparagraph (d), which prohibits restricting births. This exclusionist reading violates the principle of good faith textual effectiveness (ut res magis valeat quam pereat) by rendering subparagraph (e) nugatory or redundant. To give effect to subparagraph (e) it must have a cultural reach.

The exclusionist framing of subparagraph (e) runs hard against the text. The drafters included language restricting subparagraph (c) to instances where a perpetrator intends a group’s physical destruction. Why then would they omit language in subparagraph (e) restricting it to instances where a perpetrator intends a group’s biological destruction? And why should we imply restrictive terms in subparagraph (e) when no such restrictions are implied in subparagraphs (a) and (d)? 

Why indeed should we imply a restriction to “a convention intended to confirm and endorse the most elementary principles of morality,” one in which the parties “do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention?” This appears to be a situation like the one in Military and Paramilitary Activities (Admissibility, para. 34) where the ICJ declared, “if the highly experienced drafters of the Statute had had a restrictive intention on this point, in contrast to their overall concern, they would certainly have translated it into a very different formula from the one which they in fact adopted.” Had the Genocide Convention’s highly experienced drafters intended to restrict genocide to material genocide, they would have included restrictive language. That they omitted such language should be evidence that they could not agree, or never intended, to limit genocide in this manner. “Sometimes the absence of something means simply that it is not there.”

Pre-conventional Definitions of Genocide

            The tension between materialist and culturalist ideas of genocide dates to the term’s immediate postwar emergence in international law. An anonymous 1948 International Law Reports editor (Hersch Lauterpacht?) noted that while the International Military Tribunal at Nuremberg had used the term genocide “in a restricted sense only, namely in [its] physical and biological connotations” the national courts of Poland in Goeth (p. 8)

endeavored to do much more than establish only the physical and biological aspects and elements of the crime of genocide that were involved in the criminal acts actually committed by the accused. By providing the Tribunal with ample evidence as to the general background of the accused’s activities . . . and by fully setting out the general policy and system, and the machinery set in operation by the German authorities, for the gradual elimination and final extermination of the Jewish nation, they succeeded in establishing before the Supreme National Tribunal also other components of this new type of crime, such as its economic, social and cultural connotations.

Similarly, the Polish national courts convicted notorious Nazi Gauleiter Arthur Greiser (p. 114) of “genocidal attack” “by deportation of adult Poles and Jews, germanization of Polish children racially suited to it, the new method of mass extermination of the Polish and Jewish population, and complete destruction of Polish culture and political thought—in other words, by physical and spiritual genocide.”

The “subsequent Nuremberg Trials,” conducted under Control Council Law No. 10, also applied a much broader, more culturalist definition of genocide. The Einsatzgruppen Case understandably focused on “extermination.” However, Greifelt (p.4) which focused on the Nazis’ forced transfer of “racially valuable children,” addressed “a number of different means, which may be broadly classified as physical, political, biological, and cultural,” and the Ministries Case highlighted the Nazis’ “systematic program of genocide aimed at the destruction of nations and ethnic groups … in part by murderous extermination and in part by elimination and suppression of national characteristics….”

Finally, UN General Assembly Resolution 96(1), (1946) which first declared genocide an international crime, did so because “denial of the right of [group] 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….” 

From today’s perspective, this pre-conventional, customary law of genocide has a clear cultural reach. Where the Genocide Convention is silent on an issue, this customary law should inform its interpretation.

Exclusion Today

William Schabas has declared “the absence of cultural genocide” in the Genocide Convention “a dead issue” “among international law-makers.” Courts might disagree. The ICTR’s first genocide decision highlighted issues of cultural cohesion. Although the ICTY Appeals Chamber lined up early against including cultural genocide, the ICTY Trial Chambers were deeply divided. The ICJ has endorsed exclusion but ducked its complexities. By contrast, Germany’s domestic courts did address exclusion directly, finding no reason to exclude cultural concerns, a decision upheld by the ECHR. And, while the ICC has yet to substantively address exclusion, at least one judge, Judge Ušacka, has questioned it. Reports of its demise having been greatly exaggerated; this issue remains very much alive.

Part 2 will canvass the Genocide Convention’s preparatory work to debunk the ILC’s argument that the drafters intended to exclude cultural genocide. The evidence I compile will show that most of those drafters expressing an opinion on the matter believed they had included at least one act of cultural genocide. And I will show that on two occasions, the drafters voted down language that would have restricted the convention to cover only material destruction.