The Legal Ramifications of Political Rhetoric: Genocide in Russia’s Invasion of Ukraine
30 Sep, 2022 · 5833
Shivangi Seth looks at why international allegations of genocide won’t hold up in a court of law
Few words in the realm of international politics are more loaded than ‘genocide’. Six months into Russia’s invasion of Ukraine, evidence of mass killings, executions, and rape have poured out of the country. These have sparked allegations of genocide committed by Russian forces.
This article examines the international legal ramifications of such rhetoric. It makes three arguments. One, that there is limited political will among states to formally recognise genocide. Two, international judicial bodies suffer from institutional limitations that encumber the possibility of a timely genocide trial and verdict enforcement. Three, meeting the high legal threshold to establish genocide is extremely difficult. While effective as a rhetorical tool to further Russia’s political isolation, these genocide allegations have limited international legal and punitive aims.
Limited Political Will to Recognise Genocide
While several heads-of-state have accused Russian troops of committing genocide in Ukraine, there is sparse political will to formally label it as such.
The strongest voices have emerged from Europe. Multiple state Parliaments and the European Parliament have passed resolutions and statements characterising Russian actions in Ukraine as genocide. Outside Europe, only Canada’s House of Commons adopted a non-binding motion calling Russia’s crimes “acts of genocide.”
Leaders of several other countries, including US President Joe Biden, have called Russian crimes in Ukraine “genocide.” These political statements however don’t amount to official government recognition of genocide. Biden, for instance, specifically clarified that his statement was made in a personal capacity, deferring legal determination to international legal experts.
This reluctance stems from the legal obligations triggered by recognising genocide under the Genocide Convention and customary international law, wherein all states are obligated to prevent and punish genocide. Countries thus lack the political will to formally affix the ‘genocide’ label often until it is too late—as in Rwanda’s case—since it would necessitate an intervention and the associated economic and political costs. Tellingly, US officials reiterated that Biden’s genocide remark wouldn’t lead to a re-evaluation of the US position on military involvement in Ukraine. Widespread formal recognition of genocide in Ukraine is thus unlikely.
Limitations of International Judicial
International judicial mechanisms, particularly the International Criminal Court (ICC) and International Court of Justice (ICJ), are encumbered by their legal and geopolitical limitations. It thwarts the prospects of conducting the trial as well as enforcing any verdict.
The ICC opened its investigation in Ukraine on 2 March 2022, covering allegations of war crimes, crimes against humanity, or genocide committed on Ukrainian territory since 21 November 2013. It has sent 42 experts, prosecutors, and staff to Ukraine and plans to open an office in Kyiv. ICC Prosecutor Karim Khan even visited Ukraine in June 2022. State support to the ICC’s investigation in Ukraine has been unprecedented, with 43 states referring the situation to the Court and many offering investigation assistance. Russia however is not party to the ICC and is unlikely to cooperate through a surrender of its personnel under arrest warrants. Any trial to determine whether genocide was committed in Ukraine would be delayed because the ICC cannot try defendants in absentia.
Additionally, international judicial institutions lack enforcement mechanisms, further weakening the prospect of justice. This was recently demonstrated in Ukraine’s ICJ case against Russia that challenged Moscow’s allegations of a Ukraine-led genocide in the Donbas region, which was used by President Vladimir Putin to justify the invasion. Russian troops continue to ravage Ukraine six months after the ICJ ordered Russia to immediately cease its military operations.
Meeting the High Legal Threshold to Establish
The legal benchmark to establish genocide is extremely high. This stringency, among others, is why genocide has been proven in international courts for only three conflicts: Bosnia, Rwanda, and Cambodia. Genocide is the “the most heinous of all crimes” in the hierarchy of criminality. It is tougher to prove than war crimes and crimes against humanity. This results from the requirement to prove specific genocidal intent, an additional subjective requirement that complements general intent. The International Criminal Tribunal for Yugoslavia’s Trial Chamber described this as the perpetrator’s “intent to destroy” a group, in whole or in part.
Scholars have pointed to Putin’s rhetoric in establishing Russia’s genocidal intent in Ukraine. He has framed the creation of the Ukrainian state as a “mistake” that must be corrected, made necrophiliac rape-related remarks directed toward Ukraine, and dismissed Ukraine’s sovereign existence. Others have highlighted Russian troops outlawing Ukrainian identity and symbols, forcing school teachers to adopt the Russian curriculum, destroying monuments, and burning Ukrainian history books.
Reports claiming that over 200,000 Ukrainian children were forcibly transferred from Ukraine to Russia—an act that Article II (e) of the Genocide Convention explicitly lists as genocide—bolster the genocide argument. The bar for establishing genocide however is exceptionally high, often attracting the criticism that it makes holding states accountable for genocide “nearly impossible.” The complexities of proving genocide and collecting evidence will only be exacerbated in Ukraine’s case since it is an active war zone, with limited access to territory and people.
Through their speeches and statements, the international community has been incredibly supportive of investigations into Russian crimes in Ukraine. The utility of rhetorical allegations of genocide however is first and foremost as a political tool to further Russia’s isolation. Their legal and punitive consequences are minimal due to limited political will to extend formal recognition of genocide, limitations of international judicial bodies, and the difficulty of proving genocide itself.
Shivangi Seth is a Research Assistant with IPCS’ Centre for Internal and Regional Security (IReS).
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