Claims of Genocide and other International Crimes in the Russia-Ukraine Conflict
By John Cerone, Visiting Professor of International Law, The Fletcher School of Law & Diplomacy at Tufts University
The Russia-Ukraine armed conflict began with accusations of genocide. Russia sought to justify its use of armed force against Ukraine on several bases, one of which was its claim that the Ukrainian government has been committing genocide against people in eastern Ukraine, including Russian nationals living there. In recent weeks, Ukrainian officials, as well as a handful of western officials, have started leveling accusations of genocide against Russia. When pressed about his assertion that genocide is occurring, US President Joe Biden responded, “we’ll let the lawyers decide internationally whether or not it qualifies.”
In addition to these claims of genocide, the international media have widely reported numerous allegations of other international crimes. Indeed, references to war crimes have become commonplace in news coverage of the conflict. A recent report by an OSCE-appointed panel of experts has suggested that Crimes Against Humanity may also be occurring.
International Crimes
There is no single definition for the term “international crime” in international law. As used in this post, it refers to the rules of international law that directly bind individuals, and upon breach give rise to the individual criminal responsibility of the perpetrator. The most comprehensive codification of international crimes at the global level is found in the Rome Statute of the International Criminal Court (ICC). The subject matter jurisdiction of the ICC encompasses War Crimes, Genocide, Crimes Against Humanity, and the Crime of Aggression.
War Crimes
As noted in my last post, war crimes are criminal violations of the international law of armed conflict (also known as International Humanitarian Law (IHL) or the jus in bello). Other international crimes, such as Genocide, may be committed in peace time, and thus would not be considered war crimes in the technical sense.
War crimes are not uncommon. It is highly unlikely that a war could be waged without the commission of a single war crime. The media often uses the term “war crime” as a catch-all for any international crime. This unfortunate tendency can distort the public perception of the relative gravity of different international crimes. War crimes are not necessarily atrocities. A single act by an individual acting in isolation can constitute a war crime. Conversely, Genocide, Crimes Against Humanity, and the Crime of Aggression can only take place in the context of a larger inhumane enterprise, giving rise, necessarily, to the gravest consequences.
For war crimes, there is no requirement of scale, or systematicity, or a larger policy or plan. Indeed, war crimes are not necessarily of greater moral gravity than ordinary domestic crimes. For example, while the mercy killing of a catastrophically injured enemy soldier would constitute a war crime, it is surely no graver than the ordinary domestic crime of murder. It is for this reason that the war crimes provision of the Rome Statute stipulates that the “Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”[1]
Crimes Against Humanity
Crimes Against Humanity may be distinguished by their contextual elements. The ICC Statute lists a number of inhumane acts, such as murder, deportation, torture, and rape, that will constitute Crimes Against Humanity if committed in the requisite context. In order for such acts to constitute Crimes Against Humanity under the ICC Statute, they must be committed “as part of a widespread or systematic attack directed against any civilian population,”[2] entailing the commission of such inhumane acts “pursuant to or in furtherance of a State or organizational policy to commit such attack.”[3] While the existence of a policy may be inferred, the policy requirement significantly raises the threshold for establishing this category of international crime.
The recent OSCE expert mission was unable to conclude “whether the Russian attack on Ukraine per se may qualify as a widespread or systematic attack directed against any civilian population.” Nonetheless, it found that “some patterns of violent acts violating [International Human Rights Law], which have been repeatedly documented in the course of the conflict, such as targeted killing, enforced disappearance or abductions of civilians, including journalists and local officials, are likely to meet this qualification. Any single violent act of this type, committed as part of such an attack and with the knowledge of it, would then constitute a crime against humanity.”
The Crime of Aggression
The crime of aggression is a particularly grave violation of the prohibition on the use of force between states. Just as war crimes are criminal violations of the jus in bello, so the crime of aggression is a criminal violation of the jus ad bellum. The definition of the crime of aggression in the ICC Statute is based on the UN General Assembly’s 1974 definition of an act of aggression. According to the ICC Statute, the crime of aggression is “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[4]
While war crimes only generate accountability for destructive acts that violate International Humanitarian Law, the crime of aggression captures all of the harm caused by the destructive acts of warfare, irrespective of whether the acts causing that harm were permissible under IHL.
As noted above, a threshold element of the crime of aggression is the perpetration of an act of aggression. The UN General Assembly, in its resolution ES-11/1 of March 2, 2022, took the position that the Russian invasion of Ukraine met this threshold. After recalling its 1974 definition of aggression, the GA “[d]eplore[d] in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter.”
Genocide
The essence of genocide is the intentional extermination of a particular racial, ethnic, national, or religious group of people. As such, it is considered to be a particularly heinous international crime. Accusations of genocide can generate tremendous stigma and are seen as demanding action. In response to Russia’s accusation, Ukraine launched legal proceedings at the International Court of Justice (ICJ). It claimed that a dispute had arisen regarding the interpretation and application of the 1948 Genocide Convention, to which both states are parties and which, in its article IX, confers jurisdiction upon the Court to resolve such disputes.
In international law, genocide is defined as the commission of one of a specified number of inhumane acts accompanied by a special intent requirement. It is this intent requirement that distinguishes genocide from other international crimes. The ICC’s definition of genocide, which is drawn from the Genocide Convention, requires that the perpetrator act with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such…”[5]
-Genocidal intent
International courts and tribunals have consistently maintained that the intended destruction must be physical, biological destruction. The intent to expel a group or to destroy its culture would not suffice. As explained by the ICJ, “Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterises genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.”[6] While the 1947 draft Genocide Convention prepared by the UN Secretariat included the concept of cultural genocide, these provisions were specifically excised by the negotiating states prior to the Convention’s adoption.
At the same time, the inclusion of the phrase “in whole or in part” makes clear that this intent need not extend to wiping out an entire group. Nonetheless, international courts have maintained that the intended part must be “substantial”, either qualitatively or quantitatively.
-Discerning Genocidal Intent During War
International criminal tribunals have held that genocidal intent may be inferred from a range of factors, including large scale killing. However, this factor becomes more difficult to assess in the context of armed conflict. The UN Secretary General addressed this issue in his Report accompanying the draft Genocide Convention.[7] After underscoring that the object of genocidal conduct “must be the destruction of a group of human beings,” the Report explains that certain “acts which may result in the total or partial destruction of a group of human beings are in principle excluded from the notion of genocide, namely, international or civil war, isolated acts of violence not aimed at the destruction of a group of human beings, the policy of compulsory assimilation of a national element, mass displacements of population.” As such, widespread civilian casualties cannot of themselves prove genocidal intent: “The infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide.”
Nonetheless, the Report recognises that genocide may occur simultaneously with a situation of armed conflict. According to the Report,”This happens when one of the belligerents aims at exterminating the population of enemy territory end [sic] systematically destroys what are not genuine military objectives. Examples of this are the execution of prisoners of war, the massacre of the populations of occupied territory and their gradual extermination. These are clearly cases of genocide.”
In the current conflict, a number of buildings that would typically qualify as protected civilian objects have been destroyed. However, as noted in my last blog post, it may be too soon to determine whether they were intentionally targeted or whether they had been used in such a way as to convert them to military objectives. Similar questions will have to be resolved concerning the killing of Ukrainian nationals to ascertain whether the aim was “exterminating the population of enemy territory” or a similar genocidal intent.[8]
-Enumerated Acts
Among the enumerated acts that will constitute genocide when accompanied by the requisite intent are: killing members of the group; causing serious bodily or mental harm to members of the group; and forcibly transferring children of the group to another group. Recent news reports contain allegations of each of these acts occurring in the conflict. However, the intent requirement sets a very high bar.
For example, the act of forcibly transferring children from a protected group to another group cannot of itself constitute genocide unless it is accompanied by an intent destroy that protected group. An intent to destroy the group’s cultural identity will not suffice. In introducing the language of “forcibly transferring children of the group to another group” into the definition of genocide in the draft Convention, the Greek delegation made clear that “[t]he forced transfer of children had not only cultural, but also physical and biological effects since it imposed on young persons conditions of life likely to cause them serious harm or even death.”
-Contextual Elements for Genocide?
While the definition of genocide does not contain any contextual elements, the intent requirement has been read to require such an element. In addition to commission of an enumerated act with the requisite intent, the ICC Elements of Crimes also requires that the “conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” This brings the definition of genocide more in line with Crimes Against Humanity. It essentially imposes as a contextual requirement a large-scale or systematic enterprise, while also leaving open the possibility that a lone perpetrator could effect comparable destruction (e.g. by using weapons of mass destruction).
-Beyond Criminal Responsibility
In addition to giving rise to the criminal responsibility of the perpetrator, any commission of genocide will entail other legal consequences. States parties to the Genocide Convention are required to take steps to prevent and punish genocide. The ICJ has held that this obligation is not limited to states that are directly involved in the genocide. Third states are also under an obligation to act to prevent genocide. The Court formulated this obligation as one of ‘best efforts,’ to be assessed in light of a given state’s capacity to influence the perpetrators. At the same time, the Court made clear that states “may only act within the limits permitted by international law.”[9] Ordinarily, armed intervention would be precluded. However, in the current context, intervening states may be able to invoke collective self-defense in order to expand the range of permissible measures.
This piece is republished from Raoul Wallenberg Institute.
[1] ICC Statute, art. 8(1) (emphasis added).
[2] ICC Statute, art. 7(1).
[3] ICC Statute, art. 7(2)(a).
[4] ICC Statute, art. 8 bis (1).
[5] ICC Statute, art. 6.
[6] Bosnia v. Serbia, ICJ judgment of 26 February 2007, at para. 190.
[7] It should be noted that the draft Convention set forth a broader definition of genocide than what was ultimately adopted as the final text of the Genocide Convention.
[8] Extensive investigation may be required to determine, for example, whether civilians were intentionally targeted, as opposed to being killed incidental to an attack against a military objective. Some acts may more readily be established as war crimes. Recent media reports have suggested that Russian forces executed detainees, as evidenced by the fact that corpses were found with their hands tied behind their backs. Summary execution of a detainee, whether civilian or combatant, is a war crime. A consistent pattern of such executions could provide a sufficient basis for inferring genocidal intent.
[9] Bosnia v. Serbia, ICJ judgment of 26 February 2007, at para. 430.