Apr 13, 2022 - World
Axios Explains: Ukraine

How genocide is defined and what it could mean for Russia and Ukraine

A participant displays a placard reading 'Say no to genocide' during a protest of pro-Ukrainian activists in front of the Reichstag building

People in Germany protest against Russia's war in Ukraine on April 6. Photo: John MacDougall/AFP via Getty Images

As reports of atrocities emerge from Ukrainian cities of Bucha, Irpin, Borodyanka and others, calls are growing to label Russia's actions in Ukraine genocide.

The big picture: Ukrainian President Volodymyr Zelensky has repeatedly accused Russia of carrying out "genocide," and on Tuesday President Biden agreed, saying it's become clear that Russian President Vladimir Putin is "trying to wipe out even the idea of being Ukrainian."

Yes, but: Most other leaders have so far refrained from using the term, including French President Emmanuel Macron.

  • And despite Biden's comment, the State Department has not yet officially declared Russia's actions in Ukraine a genocide, saying Wednesday that the U.S. is working with international lawyers to determine if it meets the legal threshold.

How genocide is defined in international law

The term "genocide" was coined in the early 1940s by Polish lawyer Raphael Lemkin, who combined "genos," the Greek prefix meaning family or race, with the Latin suffix "-cide," meaning killing.

  • The term was legally defined and criminalized by the 1948 Convention on the Prevention of the Crime of Genocide, which took effect in 1951.
  • Under the Convention, genocide is defined as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."
  • Acts of genocide to those groups include killings, serious bodily or mental harm, measures to prevent births, and forcible transfer of children from one group to another.

Why genocide cases are hard to prosecute

The first genocide conviction at an international court was in 1998 — 50 years after the Genocide Convention was adopted — when Jean Paul Akayesu, the former Hutu mayor of the Taba village in Rwanda, was found guilty of several counts of genocide related to the 1994 killings of hundreds of thousands of ethnic Tutsis and others.

The challenges of prosecuting genocide lie in its legal definition, experts say.

  • First, it only applies to the four groups — national, ethnical, racial or religious — included in the Genocide Convention.
  • Second, it doesn't give a clear threshold for determining when those listed acts constitute genocide.

The third and main challenge is proving intent. "Everything really begins with the word intent," says Alexander Hinton, director of the Center for the Study of Genocide and Human Rights at Rutgers University.

  • "Genocidal regimes, genocidal leaders tend not ... to leave a paper trial," he tells Axios.
  • "It's also just sort of hard to discern what intent is," he adds. While investigators will look for clear documentation of intent, it can be "inferred from a situation and the patterns of violence."

Between the lines: Even if charges of genocide — or war crimes or crimes against humanity — are brought against an individual, a trial can not be held in the International Criminal Court or most other international tribunals unless the defendant is in custody.

Is genocide taking place in Ukraine?

Calls to label Russia's actions as genocide have grown louder since reports and images emerged of mass graves and bodies of civilians strewn in the streets of Bucha, a suburb of Kyiv.

  • Russia has repeatedly denied it targets civilians and rejected the reports of the atrocities in Bucha. Putin on Tuesday called the reports "fake."
  • Many international law experts say it's hard to argue that war crimes haven't taken place in places like Bucha, Borodyanka and Mariupol, but more data may be needed to determine whether genocide is taking place.
A photo shows massive destruction in the area of conflict at the Bucha town after it was liberated from Russian army in Ukraine on April 4, 2022.
Bucha on April 4. Photo: Metin Aktas/Anadolu Agency via Getty Images

Investigators will look to Putin and other Russian officials' rhetoric leading up to and during Russia's invasion, Hinton says.

  • "One piece of evidence would be Putin's remarks about the need to de-Nazify Ukraine and also denying the reality of the Ukrainian state — and those statements were recently echoed by Russian state media," he adds. "You begin to piece together remarks that suggest intent."
  • Hinton says investigators will also look for patterns of violence. "If you see many Buchas, that begins to suggest a systematic pattern that's informed by the intent to destroy a group."
Russian President Vladimir Putin speaks during a concert marking the anniversary of the annexation of Crimea, on March 18, 2022 in Moscow, Russia.
Russian President Vladimir Putin speaks during a concert on March 18, 2022, in Moscow. Photo: Getty Images

Eugene Finkel, a genocide scholar and associate professor of international affairs at Johns Hopkins University, argues Russia is committing genocide in Ukraine.

  • While he acknowledges there's still limited data and the legal definition of genocide is problematic, his current analysis is that Russia is now seeking to destroy Ukrainians as a national group.
  • What happened in Bucha is "not an outlier," Finkel tells Axios. "It's just the tip of the iceberg."
  • When it comes to intent, Finkel argues there's been a shift in Russian rhetoric from focusing on what Moscow initially claimed was the "de-Nazification" of Ukraine to "de-Ukrainization."
  • He also points to an article published in a Russian state media outlet by pro-Kremlin commentator Timofei Sergeytsev, who argues Ukraine "is impossible as a nation state" and the Ukrainian nationalist elite "need to be eliminated, their re-education is impossible."

Why are countries hesitant to declare genocide is taking place?

Another main reason countries are often hesitant to use the word "genocide" comes down to politics, experts say.

  • "Genocide from the very beginning — even when the concept was being legally formulated — has always been sort of a political football," Hinton explains.
  • While countries may want to ensure they have enough evidence, there are also often political and economic concerns at play. (The Genocide Convention only says states should go to the UN if they believe genocide is taking place.)

The U.S. last month formally declared that Myanmar's military committed genocide against the country's Rohingya minority — a label Myanmar has rejected. The declaration came five years after Myanmar's military intensified its bloody campaign in Rakhine State.

  • Last year, the State Department determined the Chinese government's campaign against the predominantly Muslim Uyghur minority in Xinjiang Province was "genocide."

Don't forget: The U.S. and other countries publicly avoided using the term "genocide" in 1994 — even as thousands of Rwandans were being killed every day — after the Clinton administration decided not to intervene. (President Clinton later expressed regret for this.)

The bottom line: The Responsibility to Protect, an international principle endorsed by UN member states, compels nations to prevent and help protect populations against genocide, as well as crimes against humanity, war crimes and ethnic cleansing, Hinton explains.

  • "Obviously the crime is horrendous, and something needs to be done when mass atrocities take place, regardless of how it's labeled."

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