On November 14, 2022, the Commission on Security and Cooperation in Europe, the U.S. Helsinki Commission, will host a briefing on the issue of Russia’s genocide in Ukraine. The briefing comes months after Rep. Steve Cohen introduced House Resolution 1205 on recognizing Russian actions in Ukraine as a genocide and a similar resolution was tabled before Senate by Sen. James E. Risch, Senate Resolution 713. Several months later, the resolutions have not been agreed yet.
Do Putin’s atrocities amount to genocide?
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as any of the prohibited acts such as “(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group” committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
In May 2022, Raoul Wallenberg Centre for Human Rights and New Lines Institute for Strategy and Policy published a legal analysis of Putin’s atrocities against the definition in Article II of the Genocide Convention. The report, which is supported by 35 international experts on genocide and atrocity crimes, makes two important findings of the direct and public incitement to commit genocide and of the existence of a serious risk of genocide in Ukraine.
Among others, the analysis examines the issue of Russia’s State-orchestrated incitement to genocide, including evidence of the denial of the existence of a Ukrainian identity, accusation in a mirror (namely, Russia accusing Ukraine of planning, or having committed atrocities), dehumanization, construction of Ukrainians as an existential threat.
The analysis further engages with evidence of genocidal intent and genocidal pattern of destruction targeting Ukrainians including mass killings, deliberate attacks on shelters, evacuation routes, and humanitarian corridors, indiscriminate bombardment of residential areas, deliberate and systematic infliction of life-threatening conditions (destruction of vital infrastructure, attacks on health care, destruction and seizure of necessities, humanitarian aid, and grain), rape and sexual violence, and forcible transfer of Ukrainians. The report cites a litany of open source data in relation to both findings, including evidence of mass killings, torture, the use of rape and sexual violence, and deportations of children to Russia, among others.
As more and more evidence of the atrocities comes to light, there is more engagement from Parliaments and governments on the issue of Putin’s genocide in Ukraine.
Most recently, in October 2022, Lord Alton of Liverpool, Peer at the U.K. House of Commons, said that the atrocities perpetrated by Putin in Ukraine can be classified as genocide: “2022 has shown us that atrocity crimes, and possibly even genocide, may well be happening on European soil in Ukraine. (…) Since Putin’s illegal war on Ukraine began on February 24, evidence of atrocity crimes, be it war crimes, crimes against humanity and even possible genocide, has accumulated.”
While the House and Senate resolutions are yet to be agreed, as early as April 2022, President Biden suggested that Putin’s atrocities amount to genocide. As Biden said, “I called it genocide because it has become clearer and clearer that Putin is just trying to wipe out the idea of being able to be Ukrainian and the evidence is mounting.” However, a formal determination by the U.S. State Department did not follow. In the last few years, the U.S. State Department has made such determinations in the cases of the Daesh atrocities in Iraq, the Burmese military’s atrocities in Myanmar, the Chinese Communist Party’s atrocities in Xinjiang. Such a determination is not unlikely to follow. Indeed, the situation in Ukraine is already featuring in the 2022 Report to Congress Pursuant to Section 5 of the Elie Wiesel Genocide and Atrocities Prevention Act of 2018.
The atrocities in Ukraine must be recognized for what they are. However, the determination is not to be an end in itself but a trigger to more action, including in accordance to Article I of the Genocide Convention: to prevent and to punish the crime of genocide. Furthermore, and more importantly, the duty to prevent genocide is not to be triggered when we are sure that the atrocities amount to genocide. No. As explained by the International Court of Justice, the duty to prevent is to be triggered “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” As such, at minimum, States must conduct an analysis of the serious risk of genocide and this to inform their responses, including, in accordance with the Genocide Convention.
Dr. Ewelina U. Ochab, Contributor