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

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."

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.

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."