Genocide and the acts defined by that crime: Some thoughts
Each passing day the war, now in its eighth month, forces us to consider the ongoing genocide of the people of Ukraine. The course of events, the decisions taken by the Kremlin, and the actions to which enemy forces in Ukraine have resorted — missile attacks on civilian targets and crucial infrastructure that pursue no military purpose, a total and brazen disregard for the norms of international law and the rules of war – together form a picture of deliberate and desperate deeds of which the only goal is genocide. With its open calls to destroy Ukraine and Ukrainians, Russian propaganda has poured oil on these flames.
The aim of the invasion of Ukraine as proclaimed by Moscow was the defence of the Donetsk and Luhansk “people’s republics”, entities that have been recognised by no other country in the world. Time and subsequent events have long disproved that proposition. Military operations and the killing of civilians in the north, east and south of the country — in the Kyiv, Chernigiv and Sumy Regions; in the Kharkiv Region; and in the Zaporizhzhia, Kherson, Mykolaiv and other Regions — bear no relation to those supposed defensive needs. By no stretch of the imagination can such actions be linked to the two areas of the Donetsk and Luhansk Regions.
The killing, torture, abduction and deportation of countless Ukrainians cannot be explained by a wish to gain military superiority in the field. The same is true of missile strikes against towns and cities that have not been drawn into the military conflict. These are terrorist acts: they have no other aim but to intimidate and oppress the country’s civilian population.
The above may not always be the result of strategic planning. Yet even if events happen spontaneously, they express the conscious and intentional desire of the Russian leadership. The systematic nature of these actions, their repetition and their harsh and open pursuit point to a single possible goal: genocide.
The deployment of large numbers of soldiers, the choice of weapons, the involvement of other countries (Belarus, in particular), and a confrontation with almost all the rest of the world are not random occurrences. They reveal a grasp of the situation and an awareness of the consequences of such a course of action. They point unmistakably to conscious intention.
These systematic and repeated acts have led to an ever-growing number of victims and a steadily mounting tension. This is an alarming and important indication of an underlying policy.
Among the grave crimes over which the International Criminal Court exercises its jurisdiction is genocide.
The Rome Statute defined not only the scope of the Court’s jurisdiction but also provided definitions of the crimes it investigates and prosecutes. These definitions permit us to assess whether a particular criminal act meets the criteria for consideration. The legal definition of a crime such as genocide is not exact. The formulations contained in the Rome Statute are not without their shortcomings, nor do they offer a clear conception of the defining characteristics of such acts.
As a crime the distinguishing feature of genocide is the intention of the guilty parties to destroy a particular national, ethnic, racial or religious group. Some features of genocide overlap with other types of crime. The starting point for any legal qualification of the acts committed by the Aggressor State in Ukraine is to define the group of individuals to which the legal defence of international humanitarian law, and the Statute of Rome in particular, may be extended. Given the distinctive ethnic and cultural features of the Ukrainian State it would be most accurate, in our view, to say that the real and potential victims of genocide during the current war are people who identify themselves as part of the nation of the independent State of Ukraine.
In Russia’s war against Ukraine identifying those targeted by persons who resort to mass murder, torture, abduction and rape (of combatants and non-combatants alike) may seem self-evident. Yet it also demands proof.
If the guilt of a party must be proven beyond all reasonable doubt, the main thrust of proof that genocide has taken place must be to exclude any other explanation (cause, motive and intention). We must show that the guilty party committed the crime with which he is charged in pursuit of that specific goal. A most important indication of the intention to commit genocide, in our view, is the systematic and planned nature of the Aggressor-State’s criminal activities in Ukraine.
It is not the individual deed that matters so much as the systematic and methodical actions of the Aggressor-State. The goal of those actions, moreover, must be considered in its entirety — beginning with propaganda within Russia and the invaded territory, and continuing with the actions of the invading and occupying forces and the methods whereby the war is waged: the use of prohibited weaponry; the creation of filtration camps (which segregate people according to their self-identity – those who are pro-Ukrainian do not pass filtration); the deportation of children from Ukraine; the imposition of Russian citizenship; and the holding of “referenda” in the occupied territories.
The above actions must be assessed as a whole. Taken together they are evidence of activities directed towards the destruction of an entire population – those who consider themselves part of the Ukrainian nation — in the occupied territories and areas where military operations are taking place.
At the same time, it is insufficient to rely exclusively on the national definition when formulating the existence of a direct intention, i.e., that the guilty party is aware of the unlawful nature of his actions and their consequences and yet desires their implementation.
An national model does not admit proof “beyond a reasonable doubt” since it is restricted to the time before the destruction of the protected group has taken place. Ukraine’s current criminal legislation makes it extremely hard to prove that the intention to commit genocide was present in particular episodes. The crimes must be examined, therefore, as a multiplicity of incidents systematically linked by an intention to commit genocide.
It is important to focus on the group of people concerned. The Rome Statute indicates that genocide may be committed with regard to national, ethnic, racial and religious groups. The population of Ukraine is mixed: the country is inhabited by people of different religious convictions, speaking a variety of languages, and belonging to different ethnic groups. This must be acknowledged.
The majority of people living in Ukraine identify with the Ukrainian nation as a political and territorial entity. They see themselves as Ukrainians, i.e., citizens of an independent State. It is they who make up the population of the country and constitute its nation. For various reasons, they may not always and actively display their pro-Ukrainian views. Nevertheless, they constitute the national cohesion of Ukraine. Genocide against Ukrainians is linked, by definition, to a desire to destroy a substantial part of the national group made up of such people. It is in relation to that group that we must establish that the crime of genocide is being committed.