Dr Melanie O’Brien, Australian Outlook.
Discussion about genocide is currently circulating in the context of the Ukraine-Russia conflict. “Genocide” has appeared from two angles: firstly, as Russia’s justification for its invasion of Ukraine under the (notably false) allegation that Ukraine is committing genocide in its Donbass region; and secondly, some have raised the question of whether Russian atrocities in Ukraine amount to genocide.
Genocide has a specific definition, meaning that not all atrocity situations are genocide. There is a tendency for some situations to be labelled genocide, even when they are not. As Eyal Mayroz has pointed out, this is because “for many around the world genocide is the crime of crimes,” leading some atrocity victims/survivors to believe “that nothing short of the ‘G’ label could capture and bestow public recognition on their personal tragedies.” This is even though other atrocity crimes (war crimes and crimes against humanity) are equally as serious, grave, and tragic. However, recognition of genocide when it occurs is crucial, as recognition of an atrocity situation attracts political and legal ramifications.
Who Recognises Genocide?
Recognition or labelling of an atrocity situation as genocide can be carried out by different entities: states (from a head of state, member of the executive, or parliament), domestic or international courts (in judgments), investigation and analysis by non-governmental organisations (NGOs), and inter-governmental organisations (IGOs) such as the UN (for example, UN fact-finding missions or Special Rapporteurs).
Organisations and Courts
For NGOs or IGOs, genocide recognition is usually ensuring the facts meet the determination, monitoring the situation on the ground, reporting on that situation, supporting victims/survivors, and calling for action against perpetrators, whether they be states or individuals. NGO or IGO reports may, however, avoid directly labelling a situation as genocide, instead noting that a situation may amount to genocide.
There may be political considerations in the decision of an NGO (or even an IGO) to recognise a situation as genocide. For example, an organisation may not wish to risk state funding, or it may have a subjective goal that can only be achieved by using “the G word.” Further, as Mayroz also noted, advocates may be more willing to “hitch the [genocide] label to their causes” due to the belief in the power of “the G word” to influence policymakers.
For courts, affixing the genocide label is a factual question, analysing whether the evidence presented demonstrates that the atrocities in question fulfil the legal definitional requirements of genocide. Courts have placed a high threshold on what constitutes genocide, including an inflexible emphasis on physical destruction of the targeted group. A court’s finding that an atrocity situation amounts to genocide is the strongest affirmation of the application of this crime label, given the extensive interrogation of circumstances that occurs for the court to come to that conclusion and the high threshold that must be met.
State Recognition of Genocide
States, are generally reluctant to recognise a genocide — because if a situation is genocide, this triggers obligations under the Genocide Convention. These obligations to prevent and punish genocide fall not only on the state carrying out the genocide, but on all states party to the Genocide Convention.
In the Bosnia and Herzegovina v Serbia and Montenegro case, the International Court of Justice (ICJ) confirmed that state parties to the Genocide Convention have “a direct obligation to prevent genocide.” The ICJ held that state parties are obligated “to employ all means reasonably available to them, so as to prevent genocide so far as possible.” This is an obligation to act, whether or not the actions are successful. Such acts, of course, may consume time, personnel, and other resources, resulting in states’ reluctance to trigger such obligations.
In addition, states may be unwilling to recognise a genocide because of the potential repercussions such a recognition may have on relations with the perpetrator state.
Consequently, it is rare for states to recognise genocide, and significant when it occurs. For example, many states still refuse to recognise the Armenian Genocide, even though it took place over 100 years ago.
The Ukraine-Russia Situation
Some have alleged that the atrocities being committed by Russia in Ukraine amount to genocide or a risk of genocide. One report published in May 2022 has concluded that there are reasonable grounds to conclude that Russia is carrying out direct and public incitement to commit genocide, that the pattern of atrocities infers the intent to destroy the Ukrainian national group, and that there remains a serious risk of genocide.
In April 2022, US President Joe Biden called the Russian atrocities genocide. The United States has generally been reluctant to make determinations of genocide. While President Biden’s remark was informal and does not amount to a formal government recognition, it is still striking that he made this comment.
In the Bosnia v Serbia case, the ICJ noted that a state’s obligation to prevent arises “at the instant that the State learns of… the existence of a serious risk that genocide will be committed.” Thus, if genocide were to be recognised to be occurring in Ukraine, or even a serious risk of genocide, states would be obligated to act under the Genocide Convention. States also need to implement the Responsibility to Protect principle, under which states should help to protect populations from atrocity crimes including genocide, including through collective action in accordance with the UN Charter.
If the Russian atrocities are recognised as genocide, the legal solutions may be limited, as Russia has an unfortunate history of committing atrocities with impunity (including the Holodomor, a genocide of Ukrainians by starvation in the 1930s). Russia has already shown it is unwilling to engage with the ICJ — its delegates failed to appear at the preliminary hearing in the case that Ukraine has already brought before the ICJ against Russia relating to Russia’s justification for the invasion (a case supported by 41 states and the EU). Of course, as a Permanent Five member of the UN Security Council, Russia also has the power to veto any resolution proposed regarding its own actions.
However, Russian aggression is already prompting responses from states and private entities, with widespread sanctions imposed on Russia and Russian individuals having a significant impact. Russia has also been suspended from the UN Human Rights Council. If genocide were deemed to be taking place, Russia would undoubtedly be further isolated by the global community.
If genocide were recognised, this also would lead to specific and amplified campaigns from NGOs and the public on Russia to stop the violence in addition to existing calls for cessation, as well as more pressure on other states to act against Russia.
However, it is clear states are unwilling to directly intervene in Ukraine, out of fear of another world war. This would likely not change even with a credible accusation of genocide.
Beyond state responsibility is individual criminal responsibility. With the International Criminal Court (ICC) already investigating on the ground in Ukraine, if Russia’s atrocities amount to genocide, the ICC Prosecutor will be able to bring such charges. Politically and practically, many states and the EU have already declared and supplied support for the ICC’s investigation. While neither Russia nor Ukraine are state parties to the ICC’s Rome Statute, Ukraine has made two declarations accepting the ICC’s jurisdiction. The second of these declarations gave the ICC jurisdiction over genocide, war crimes, and crimes against humanity committed in the territory of Ukraine from 20 February 2014 onwards. However, of course, the ICC’s greatest challenge is obtaining defendants for trials, and, as Russia is not a state party, it would be unwilling to surrender any Russians under ICC arrest warrant requests. This could mean arrest warrants could sit unfulfilled for years, and therefore no judgments passed on whether genocide had occurred in Ukraine.
Ukraine’s Criminal Code also contains a provision prohibiting genocide, under which domestic prosecutions could be brought, although the legitimacy of any genocide recognition through domestic trials would depend upon those trial being fair and the decision being supported by adequate legal reasoning.
Thus, there are many possible legal, political, and economic ramifications that would stem from a recognition of Russian atrocities in Ukraine as genocide. It is important that such recognition only occurs if atrocities actually amount to genocide, but even if genocide occurs, it is notably and historically challenging to obtain such a recognition, particularly from states.
Dr Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars (IAGS).