What Is Genocide, and Is Russia Committing It in Ukraine?

By: Patrick J. Kiger  | 

funeral Bucha, Ukraine
Andrii Holovine, a priest of the church of St. Andrew Pervozvannoho All Saints in Bucha, Ukraine, conducts a funeral service April 18, 2022, for three civilians ages 61, 70 and 75. All three people were killed during the Russian occupation outside Kyiv. Anastasia Vlasova/Getty Images

After Russian forces invaded Ukraine in February 2022, the world was shocked by horrifying revelations of the systematic mass slaughter of Ukrainian civilians. After the Russians pulled back from Bucha, a suburb of the Ukrainian capital of Kyiv, scores of residents were found shot to death in the streets, including some who had their hands tied behind their backs and showed signs of torture, according to this report from Radio Free Europe/Radio Liberty. Others were discovered buried in mass graves, including hundreds at a 45-foot-long (13-meter-long) trench the church of St. Andrew Pervozvannoho All Saints.

The carnage shocked the world. Even so, U.S. President Joe Biden still stirred controversy when, for the first time, he used a specific term to describe the Russians' crimes: genocide.

"I called it genocide because it's become clearer and clearer that Putin is just trying to wipe out even the idea of being Ukrainian," Biden told reporters before he boarded Air Force One April 12, 2022. "The evidence is mounting."

Biden's choice of words was momentous, because he was accusing the Russians of committing one of the most monstrous offenses imaginable.

The term genocide was first coined during World War II by Polish lawyer Raphael Lemkin. It described the mass extermination committed by Nazi Germany during the Holocaust, when a systematic effort succeeded in wiping out 6 million Jewish lives in Europe. Lemkin, who lost 49 members of his own family, including his parents, framed the term from the ancient Greek word genos (meaning race or tribe) and the Latin term cide (meaning killing).

Lemkin defined genocide in a way that rose above the typical brutality of war and collateral damage that it invariably inflicts upon non-combatants. In genocide, Lemkin wrote in 1945, "The intent of the offenders is to destroy or degrade an entire national, religious or racial group by attacking the individual members of that group."

Lemkin's idea that the systematic effort to kill an entire group of people was as much of a crime as any one murder eventually caught on. In 1948, the United Nations General Assembly enacted Resolution 260, which officially designated genocide as a crime under international law. In 1998, the Rome Statute of the International Criminal Court also listed genocide as one of the crimes under its jurisdiction.

mass grave Bucha, Ukraine
French forensics investigators, who arrived to Ukraine for the investigation of war crimes amid Russia's invasion, stand next to a mass grave in Bucha, Ukraine, April 12, 2022.
Maxym Marusenko/NurPhoto via Getty Images

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Defining Genocide in War

There are two key elements to the definition of genocide, explains Laura A. Dickinson. She's a research professor of law at George Washington University whose work focuses on human rights and the law of armed conflict, among other topics. Her works include this recent law review article on national security law and human rights.

"The first is a very specific intent: 'to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,'" Dickinson says via email.

"The second element consists of acts, such as killing members of the group, causing serious bodily or mental harm to members of the group, inflicting conditions on the group calculated to bring about its physical destruction, imposing measures intended to prevent births within the group, or forcibly transferring children of the group to another group," Dickinson continues.

Though genocide has been an international crime for a long time, it took decades for a head of state actually to be found guilty of genocide by a court. Former Rwandan Prime Minister Jean Kambanda was sentenced to life imprisonment for six counts of genocide and crimes against humanity in 1998 by the International Criminal Tribunal for Rwanda. That court was established to try leaders involved in the mass murder of as many as 1 million members of the Tutsi ethnic minority in 1994. Though Kambanda pled guilty to all the counts against him, he later tried to appeal his sentence, but it was upheld in 2000.

Since then, other prominent figures convicted of genocide have included two former leaders of the Khmer Rouge regime in Cambodia, and former Bosnian Serb Army Commander Ratko Mladic.

"Genocide can be committed not only by state actors but also non-state actors," Dickinson notes. "A United Nations investigative team concluded that ISIS committed genocide against the Yazidi people, for example."

Ratko Mladic
Ex-Bosnian Serb military chief Ratko Mladic, dubbed the "Butcher of Bosnia" looks on before his 1995 genocide conviction over the 1995 Srebrenica massacre at the International Residual Mechanism for Criminal Tribunals (IRMCT) in The Hague, was upheld.
PETER DEJONG/POOL/AFP via Getty Images

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Who Says When It's Genocide?

But international tribunals and investigators aren't the only ones who can make accusations of genocide. The U.S. government makes its own determinations that genocide has occurred as well, and has concluded that China has committed genocide against the Uyghurs, and that Myanmar committed genocide against the Rohingya minority.

"When a government acknowledges that a genocide is occurring, it is very significant, because the genocide convention obligates all state parties to take measures to suppress, prevent and punish genocide, including by enacting legislation and punishing perpetrators," Dickinson explains.

Despite President Biden's statements, whether the U.S. government officially will label Russia's actions as genocide isn't yet clear. State Department spokesman Ned Price said in an April 13 briefing that the U.S. is working with the Ukrainians and other international partners to collect, preserve and share evidence of Russian atrocities and potential war crimes, but that lawyers will need to determine "whether what we are seeing meets that legal threshold of genocide."

(This report from the U.S. Holocaust Memorial Museum explains in depth the process that the U.S. uses to determine whether or not an incident is genocide.)

Some legal scholars and human rights activists see the legal concept of genocide, as described in U.N. Resolution 260, as too narrow, explains Edward B. Westermann via email. He's a professor of history at Texas A&M University San Antonio, and author of the 2021 book "Drunk on Genocide: Alcohol and Mass Murder in Nazi Germany."

"The requirement for 'specific intent' on the part of the perpetrators is often criticized, as is the absence of official recognition of acts of cultural genocide or the targeting of 'political' groups," Westermann says.

It's also not easy to make the case in court.

"It is very difficult to prove genocide, both because of the scope and scale of the predicate acts that must be shown, but also, and probably most significantly, the intent requirement," Dickinson says. "Proving the level of intent required to establish genocide is very difficult."

To make things more complicated, the connection between national leaders and the actual killers can be blurry, especially if the killers don't have official positions in the government or military.

"Does the act of genocide need to include the knowledge and approval of a state entity, or can it be conducted by non-state actors with the state's tacit knowledge?" Westermann asks.

forensics investigators
French forensics investigators from Institut de Recherche Criminelle de la Gendarmerie Nationale (IRCGN) examine a body after it was exhumed from a mass grave in Bucha, northwest of Kyiv. French gendarmes and forensic doctors arrived in Ukraine to help investigate the discovery of hundreds of dead in Bucha and other towns around Kyiv.
SERGEI SUPINSKY/AFP via Getty Images

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Genocide vs. Ethnic Cleansing

It also sometimes happens that brutal leaders walk right up to the legal boundary of genocide, and foment brutal atrocities that accomplish pretty much the same purpose. That sort of fuzziness has led to the rise of another term, ethnic cleansing, which first came into use during the Balkan wars in the 1990s, when Bosnian Serb forces committed massacres and sexual assaults against Bosnian Muslims in an effort to drive them out of Bosnia. Ethnic cleansing is the use of violence and terror to drive a group of people, such as a religious or ethnic group, from a geographic area.

Unlike genocide, ethnic cleansing isn't officially designated as a crime, though the U.N. and international prosecutors have used it to describe a pattern of other offenses.

Westermann says that ethnic cleansing sets a lower bar for a state's criminality. "Mass murder or mass displacement of target populations can serve as ethnic cleansing and the term itself has been used in some cases in an attempt to avoid the issues involved with the stricter legal definitional requirements related to genocide," he says.

Once the world recognizes that genocide is being committed, there's an even more difficult question of what other countries should do immediately in response, since putting perpetrators on trial later doesn't stop the killing. Though the U.N. General Assembly passed a resolution demanding an end to the invasion, Russia's veto power blocks the U.N. Security Council from intervening militarily or sending in a peacekeeping force.

"U.N. Resolution 260 clearly sets a positive obligation for the signatories to 'prevent and punish' the crime of genocide," Westermann explains. "In this sense, the law is clear, but it has been the political will to take action that has been missing.

This was clearly the case in Rwanda in 1994 and we have seen the same political kabuki dance in other cases including in South Sudan and Syria. In other words, we don't need a stronger law, but rather a stronger political resolve to enforce the existing resolution."

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