Considering charges of genocide in the Russia-Ukraine War
Genocide is a nightmare subject. Which makes it difficult to study or even read about but also critically important to understand. Which also is anything but easy.
And, like any other concept in war, crime, or politics, it is also subject to rhetorical inflation. And right now, we are hearing regular charges that Russia is committing “genocide” in its current war on Ukraine. And not just from marginal figures on social media. A recent headline in Foreign Policy reads, “Russia’s Theft of Children in Ukraine Is Genocide.“1 The Atlantic Council carried this headline in December implying this was a settled question, “Vladimir Putin’s Ukrainian Genocide: Nobody can claim they did not know.“2
I’ll say up front that I don’t have any settled opinion on that particular designation at this moment in the Ukraine war. It’s entirely possible that some of Russia’s actions may be genocide under international law, the kidnapping of large numbers of Ukrainian children being probably the clearest warning sign at the moment. But, as Jonathan Leader Maynard reminds us in a recent article3, genocide is a specific crime defined under international law. As banal as it may sound to say that it’s complicated - it is actually complicated. It’s not just a matter of, “I know it when I see it.”
Genocide deserves to be taken very seriously - which means among other things that we should be careful about degrading it to a stock polemic accusation.
Definition of Genocide
The concept of genocide is credited to Raphael Lemkin (1900-1959), a Polish-Jewish jurist who wrote the landmark 1943 work, Axis rule in occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. that defined “genocide” as the “criminal intent to destroy or to cripple permanently a human group. The acts are directed against groups as such, and individuals are selected for destruction only because they belong to these groups.”
Lemkin was specifically focused on the kind of targeted mass killing involved in the Armenian Genocide of 1915-16 and the Holocaust. (Lemkin studied law in Lviv, then part of Poland and now Ukrainian.)
The United Nations formally declared genocide a violation of international law in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide that took effect in 1951. That definition was “incorporated verbatim in the statutes of the Yugoslavia and Rwanda 4tribunals, the International Criminal Court and several other courts established by or with the support of the United Nations.”
Here we already come across one of the problems with enforcing the international laws against genocide. The International Criminal Court (ICC) is designed to prosecute war crimes including genocide. Of the five permanent members of the UN Security Council, three of them do not recognized the authority of the ICC: China, Russia, and the United States.5
This means that the Pentagon is refusing to cooperate in providing evidence of Russian war crimes in Ukraine to the ICC:
The Pentagon is blocking the Biden administration from sharing evidence with the International Criminal Court in The Hague gathered by American intelligence agencies about Russian atrocities in Ukraine, according to current and former officials briefed on the matter.
American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans. The rest of the administration, including intelligence agencies and the State and Justice Departments, favors giving the evidence to the court, the officials said. …
The evidence is said to include details relevant to an investigation the chief prosecutor of the International Criminal Court, Karim Khan, began after Russia’s invasion of Ukraine a year ago. The information reportedly includes material about decisions by Russian officials to deliberately target civilian infrastructure and to abduct thousands of Ukrainian children from occupied territory. [my emphasis]6
According to Charlie Savage’s report, the Pentagon resistance is to reporting “Russian atrocities in Ukraine,” which is a broader term than crimes related specifically to genocide. But the systematic deportation of Ukrainian children is one action that is highly relevant to the genocide charges.
Complications of applying “genocide” to the current Ukrainian situation
Maynard notes that in March of 2022, the ICC had already opened investigations into “alleged war crimes, crimes against humanity, and genocide in Ukraine.” Ukrainian President Volodymyr Zelenskyy was already at that time accusing Russia of genocidal intent.
As he explains, these are three different legal categories of crimes, all of which formally count as “atrocity crimes,” and also as “mass atrocities” if they involved more than 1,000 victims within a year. Genocide is not defined by the number of victims involved. The ICC Tribunal for the Former Yugoslavia (ICTY) pronounced the killing by Bosnian Serb forces of seven or eight thousand civilians in the city to constitute genocide.7
Such distinctions of categories of crime are also normal in civil law. In American legal terms, theft is illegal. But no all theft qualifies as “grand theft.” Killing people is illegal (with exceptions like self-defense) but some illegal killings count as “manslaughter” rather than murder, and the law also recognizes different degrees of “murder.” And the specific nature of the crime can also define the severity of the penalties.
So, as Maynard writes, “Although genocide is sometimes referred to as ‘the crime of crimes,’ it is not synonymous with truly horrific or large-scale atrocities.” (my emphasis) And: “Violence doesn’t have to be genocidal to be heinous.“
And he explains his caution about rushing to pronounce war atrocities as genocide, particularly before a proper legal tribunal has been able to vet the evidence:
As a scholar who studies genocide and mass crime, one of my biggest fears is that people will see genocide as a kind of threshold below which violence can be effectively ignored. There is simply no reason why the genocidal murder of 8,000 Bosniaks by Serbian forces in Srebrenica in July 1995 [which the ICC formally found to be genocide] should worry us more than the non-genocidal murder of half a million alleged "communists" in Indonesia in 1965-66 or the murder of over 1.5 million North Koreans by the state-induced famine in the 1990s. [my emphasis]
In fact, the Genocide Convention does not include the deliberate targeting of people for their political identity as genocide. It also does not include the concept of cultural genocide, which is also much discussed by scholars and activists. The ”sole echo of efforts to include the notion of cultural extermination” in the 1948 Genocide Convention “is the convention's reference to forcibly transferring children of a targeted group to another group.”8
The international law definition of genocide does not address every type of racial, ethnic, political, or religious discrimination. Rafael Lemkin himself, testifying in favor of ratifying the Genocide Convention before the Senate Foreign Relations Committee in 1950, denied that American practices of racial segregation and even lynch murder did not constitute genocide under the Convention’s definition: “A thorough analysis of the Genocide Convention proves conclusively the Convention does not apply either to lynching or to rights.“9
Maynard expands on his cautionary advice in the article’s final paragraph:
Politicians and NGOs should therefore pause before rushing to use the language of genocide as a means of denouncing Russia when the main evidence of the real intentions behind the violence on the ground remains unclear. Such language is not necessary and reinforces the questionable message that only genocides and not the wide range of other atrocities really matter. It can also distort understanding of the actual nature of the atrocities and could make subsequent prosecution more difficult.
A. Dirk Moses articulates a similar worry but even more explicitly invalidating other serious misdeeds committed under that claimed imperatives of what he calls “permanent security”:
The instalment of genocide as the “crime of crimes” marked a turning point in the centuries-old language of transgression: now only mass criminality motivated by race-hatred that resembled its archetype, the Holocaust, shocked the conscience of mankind. This depoliticization had momentous consequences for the visibility of permanent security. Now only illiberal permanent security – embodied by the Axis Powers that disgraced themselves in World War II – counted as seriously criminal.10
The Journal of Genocide Research, of which Moses is the senior editor, has published various articles on the question of genocide in the Russia-Ukraine War. Moses has also written about the challenges in applying the Genocide Convention’s concept in the concrete case of the Russia-Ukraine War.11 He observes, "The states that thrashed out the UNGC [Genocide Convention] in 1947 and 1948 designed it so that state sovereignty would not be compromised in waging international and non-international armed conflict."
And he also notes there that Rafael Lemkin’s definition of genocide in Axis rule in occupied Europe was broader than the one established in the Genocide Convention itself. (Lemkin took part in drafting the Convention and actively supported its adoption.) Moses writes, “Russia’s campaign against Ukraine is precisely what Lemkin was trying to capture with his new word.“ And he concludes expressing a similar concern to that of Maynard’s quoted above:
[T]he [Genocide Convention] signatories defined genocide narrowly so that lawyers would find it most difficult to determine Russia’s—and their own—mode of warfare as genocidal. And while genocide monopolizes people’s moral imaginations as the “crime of crimes,” military assaults on civilian populations, whether in the Tigray region of Ethiopia, in South Sudan — where two-thirds of the population require humanitarian assistance—or in Yemen, continue without “shocking the conscience of humanity” quite as much as Russia’s war on Ukraine and Ukrainians. It is time to rethink the obsession with linking that reaction solely to genocide, and to reimagine a threshold of shocking criminality that does not require analogies with Nazi Germany and the Holocaust. [my emphasis]12
Russia’s Theft of Children in Ukraine Is Genocide. Foreign Policy 03/01/2023. <https://foreignpolicy.com/2023/03/01/russia-theft-children-kidnapping-ukraine-genocide/> (Accessed: 2023-13-03).
Dickenson, Peter (2022): Vladimir Putin’s Ukrainian Genocide: Nobody can claim they did not know. Atlantic Council website 12/01/2022. <https://www.atlanticcouncil.org/blogs/ukrainealert/vladimir-putins-ukrainian-genocide-nobody-can-claim-they-did-not-know/> (Accessed: 2023-13-03).
Maynard, Jonathan Leader (2023): Gräueltaten in der Ukraine. Ist es Völkermord? Wissenschaft und Frieden 1:2023 <https://wissenschaft-und-frieden.de/artikel/graeueltaten-in-der-ukraine/> (Accessed: 2023-12-03). All translation from the German here are mine.
Orentlicher, Diane (2007): Genocide. In: Gutman, R., Rieff D. & Dworkin, A., Crimes of War 2.0, 2017, 191. New York/London: W.W. Norton.
International Criminal Court. International Criminal Court website. <https://asp.icc-cpi.int/states-parties#:~:text=123%20countries%20are%20States%20Parties,of%20the%20International%20Criminal%20Court.> (Accessed: 2023-12-03).
Savage, Charlie (2023): Pentagon Blocks Sharing Evidence of Possible Russian War Crimes With Hague Court. New York Times 03/08/2023. <https://www.nytimes.com/2023/03/08/us/politics/pentagon-war-crimes-hague.html> (Accessed: 2023-12-03).
Smith, R. Jeffrey (2022): Srebrenica massacre. Encyclopedia Britannica, 12/08/2022. <https://www.britannica.com/event/Srebrenica-massacre> (Accessed: 2023-13-03).
Orentlicher, Diane (2007): op.cit., 193.
Moses, A. Dirk (2021): The Problems of Genocide: Permanent Security and the Language of Transgression, 401. Cambridge/New York/Port Melbourne/New Delhi/Singapore: Cambridge University Press.
Ibid., 396.
Moses, A. Dirk (2022): The Ukraine Genocide Debate Reveals the Limits of International Law. Lawfare 05/16/2022. <https://www.lawfareblog.com/ukraine-genocide-debate-reveals-limits-international-law> (Accessed: 2023-13-03).
Ibid.