What is the legal definition of genocide and how is it prosecuted?

Ukraine’s leaders accuse Russian military of carrying out atrocities as brutal invasion continues

Joe Sommerlad
Wednesday 06 April 2022 12:35
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Volodymyr Zelensky accuses Russia of genocide after maternity hospital bombing in Mariupol

Ukraine’s president Volodymyr Zelensky has warned that Russia is attempting to commit genocide in his country after reports emerged that 20 civilians were left dead in the street in Bucha, some with their hands and feet bound, and satellite imagery revealed the presence of a mass grave.

Mr Zelensky paid an emotional visit to the town on Monday and has since called on the UN Security Council to take action.

Speaking on Wesnesday, UK prime minister Boris Johnson agreed with his assessment and said, somewhat imprecisely: “I’m afraid when you look at what’s happening in Bucha, the revelations that we are seeing from what Putin has done in Ukraine doesn’t look far short of genocide to me.”

Five weeks into Vladimir Putin’s invasion, the Russian military has repeatedly been accused of committing war crimes in Ukraine as it surrounds major cities like Kharkiv and Mariupol and subjects them to intense shelling campaigns.

Children’s nurseries, maternity hospitals, residential apartment blocks, a community theatre, a shopping centre and a Holocaust memorial are among the sites to have been reduced to rubble by Russian missiles so far, although the Kremlin denies intentionally targeting civilians.

Russian troops have also been accused of engaging in rape, torture and murder as weapons of war, a dehumanising tactic targeting the most vulnerable that was also used by the Red Army as it closed in on Nazi Germany during the Second World War and which is ultimately intended to demoralise the people of Ukraine beyond endurance.

Karim Khan, chief prosecutor at the International Criminal Court (ICC) in The Hague, the Netherlands, has already announced an investigation into the allegations, declaring: “I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.”

Mr Zelensky’s deputy prime minister, Olha Stefanishyna, made the same accusation last month when she appeared on Sophy Ridge on Sunday on Sky News and was asked whether she believed Russia’s brutal strategies amounted to genocide and answered: “I absolutely believe it. I am a lawyer myself and I commit myself to implementation of the decision.

“It’s really important that all political leaders around the world… stay united and establish the anti-war coalition. Only this joint effort will allow us to prevent this massive genocide and murdering in the 21st century.”

She continued: “Putin and the Kremlin are the worst criminals. They commit the worst crimes and they’re doing a targeted attempt on the Ukrainian population.

“Ukraine will resist as long as it needed to make sure that no terror, no mass murdering, no genocide is committed on this land in the 21st century. But it’s absolutely clear that only a Ukrainian army, and only a Ukrainian president, will not be able to withstand it alone.”

When Mr Zelensky addressed Israel’s parliament on 22 March, he invoked the horrors of the last century by warning the assembled MPs that Mr Putin is attempting to carry out a “permanent solution” against Ukraine, explicitly likening his methods to the Nazi extermination campaign that led to the murders of six million European Jews in its concentration camps.

Dead bodies are buried in a mass grave in Mariupol

Describing the Russian attack on the memorial at Babi Yar, where over 30,000 Ukrainian Jews were slaughtered by the Nazis in 1941, Mr Zelensky told his Israeli audience: “You know what this place means, where the victims of the Holocaust are buried.”

Bizarrely in light of what has since unfolded, Mr Putin has claimed that the true purpose of his “special military operation” in Ukraine is actually preventing genocide, baselessly alleging that Kyiv plans to wipe out pro-Russian separatists in Donetsk and Luhansk after eight years of fighting in the eastern Donbas and saying his war aims to “demilitarise and de-Nazify” the country in the greater interests of regional security, an extraordinary claim against a democratic government led by a Jewish president who lost members of his own family in the Holocaust.

In response, Ukraine filed a lawsuit with the International Court of Justice (ICJ) arguing that Russia was misusing the term to justify its attack. The ICJ ruled on 16 March that Moscow must immediately cease its military operation, an order that has so far been dismissed and ignored.

US president Joe Biden has since accused Mr Putin of being a “war criminal” and moved to formally declare that the persecution carried out by the government of Myanmar against the country’s Rohingya Muslim population in recent years amounts to genocide, drawing an explicit parallel between recent events in the Pacific and the contemporary assault on Ukraine by Russia.

But how exactly is genocide defined and how is it prosecuted?

As the United Nations’ Office on Genocide Prevention reminds us, the word was first coined by Polish human rights lawyer Raphael Lemkin in his book Axis Rule in Occupied Europe (1944), brining together the Greek noun “genos” (meaning tribe or race) with the Latin suffix “cide” (meaning killing).

Residential apartment compexes devasated by Russian bombs in Kharkiv

Dr Lemkin, who lost all but his brother in the camps, was seeking to convey the extent of the atrocities carried out by the Third Reich in their systematic execution of the Jews and to relate it to other targeted acts of barbarism throughout human history.

He subsequently led the campaign to have the crime recognised and codified as an international crime, a story gippingly told in Philippe Sands’ recent book East West Street (2016).

The UN General Assembly first recognised genocide as an international crime in 1946 and the UN Genocide Convention followed on 9 December 1948, coming into effect on 12 January 1951 and since ratified by 152 states.

Act One of the convention establishes that genocide can occur in both international and domestic warzones and in peacetime.

Article Two meanwhile defines the act, ruling that it can be said to have taken place if “any of the following acts [have been] committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group”:

  • Killing members of the group
  • 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
  • Imposing measures intended to prevent births within the group
  • Forcibly transferring children of the group to another group

Article Three outlines the five crimes that can be punished as a result:

  • Genocide
  • Conspiracy to commit genocide
  • Direct and public incitement to commit genocide
  • Attempt to commit genocide
  • Complicity in genocide

The convention has been regularly criticised, however, for offering too narrow a definition and for being too difficult to apply to specific circumstances, with some complaining it makes no mention of targeted political or social groups or of acts intended to desecrate environmental or cultural infrastructures a given group is dependent upon for survival.

Others have suggested its requirement of proof “beyond reasonable doubt” is too high a standard, making it excessively difficult to prosecute.

Another criticism of the phrase itself, raised by Medecins Sans Frontieres’ former secretary-general Alain Destexhe among others, is that it has been too readily thrown around as part of heated political rhetoric, devaluing the gravity of the accusation it is intended to convey.

Some believe that the Holocaust was the only true genocide of the 20th century by the terms of the convention, but others have argued that the massacre of Armenians by Ottoman Turks between 1915-20, the Soviet Union’s man-made famine in Ukraine between 1932-33, the Indonesian invasion of East Timor and the Khmer Rouge killings in Cambodia in the 1970s and atrocities carried out in Rwanda in 1994 and Bosnia in 1995 might also qualify.

More recently, the Islamic State’s persecution of Christian, Yazidi and Shia minorities in Iraq and Syria could be considered genocidal, as could Myanmar’s assault on the Rohingya.

The extent of the Russian invasion of Ukraine

Genocide may be prosecuted by domestic or national courts, by the ICC or by specially-convened international criminal tribunals, the Nuremberg Trials of high-ranking Nazi officers from 1945-46 being a famous example.

Article Six of the 1989 Rome Statute, the ICC’s founding treaty, recognises genocide under the same definition as the UN’s 1948 convention and grants the ICC jurisdiction over it, as well as crimes against humanity, war crimes and crimes of aggression.

These bodies are responsible for conducting their own investigations and prosecutions and, should a charge ultimately be made against a particular person as a result of their findings, the accused will face trial in The Hague before a panel of judges and presumed innocent until found otherwise.

Trials can be held in public or behind closed doors, depending on which scenario is in the best interest of any witnesses appearing to give testimony.

Anyone found guilty is likely to be sentenced to long-term imprisonment, with 30 years or life behind bars common depending on the severity of the offence. These courts do not have the capacity to impose the death penalty.

The first person to be convicted of genocide under the terms of the UN convention was Jean Paul Akayesu, Hutu mayor of the Rwandan town of Taba, in a landmark ruling on 2 September 1998 made by the International Criminal Tribunal for Rwanda.

He would be followed by 29 others, likewise found accountable for their conduct during the same conflict.

Bosnian Serb commanders Radislav Krstic and Ratko Mladic were convicted of genoicide in 2001 and 2007 respectively, as were the very elderly Nuon Chea and Khieu Samphan in 2018 for their parts in the Khmer Rouge killings.

The Independent has a proud history of campaigning for the rights of the most vulnerable, and we first ran our Refugees Welcome campaign during the war in Syria in 2015. Now, as we renew our campaign and launch this petition in the wake of the unfolding Ukrainian crisis, we are calling on the government to go further and faster to ensure help is delivered. To find out more about our Refugees Welcome campaign, click here. To sign the petition click here. If you would like to donate then please click here for our GoFundMe page.

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