Lara Kajs | 12 May 2022 |
When there is conflict and violence, it is not uncommon that some form of atrocity crimes (genocide, war crimes, ethnic cleansing, and crimes against humanity) will likely be committed. As the conflict in Ukraine has unfolded, there has been much debate over whether the conditions there amount to genocide and war crimes. While both crimes and share similarities, there is one distinct difference between them: intent.
Genocide Requires “Intent”
Genocide is defined as the deliberate killing of a group from a particular nation, ethnic, racial, or religious party with the mental intent of destroying the group. The UN standard also includes the genocidal elements of preventing births or forcibly transferring children. However, to charge genocide, the “intent” of the perpetrator must be proven.
The term genocide is driven by significance, and the perception of genocide being the worst of human crimes. The use of the word genocide can be political – and not necessarily appropriate or accurate. For example, Russia used “genocide” as a justification for the invasion of Ukraine. Genocide has also been used to describe the atrocities being committed in Ukraine by Russian forces, such as in comments made by US President Joe Biden.
Although genocide is an atrocity crime, all atrocities are not always genocide. Until there is an investigation and until intent is proven, caution should be taken about labeling what is happening in Ukraine – or anywhere else for that matter – as genocide. Atrocities should only be called genocide when they meet the criteria to be called genocide.
War Crimes – Violations of Rules of War
War crimes occur when the rules of war are violated in a manner that breaks with international humanitarian law and is committed against civilians and enemy combatants. It is important to recognize that crimes against humanity and war crimes are equally as horrific and as serious as genocide. One is not more or less than the other.
No doubt, Russia is walking a close red line to what looks like genocide. But while genocide may be more difficult to determine, the evidence of war crimes committed is overwhelming. Deliberately targeting civilians, attacks on medical facilities including the shelling of hospitals (particularly maternity and cancer centers), rape, and extrajudicial executions including burning people alive, looting, torture of combatants, and forced deportation of civilians to Russia –are all considered war crimes.
The Geneva Conventions clearly stipulate the “dos and don’ts” of war. For example, warring parties cannot attack civilians or use certain types of weapons. Biological and chemical weapons are banned. The Oslo Convention also banned the use, trade, production, and stockpiling of cluster munitions. There is evidence that Russian forces are using cluster munitions in their offense in Ukraine… also a war crime.
Charging Genocide and War Crimes
Genocide and war crimes are investigated and prosecuted by the International Criminal Court (ICC) and the International Court of Justice (ICJ). These two bodies have the power to uphold the rules of war, prosecute and punish perpetrators, and seek justice for the victims of genocide and war crimes. The ICJ rules on states. In the case of violations in Ukraine, there is an open case against Russia. If the investigation proves that Russia is at fault, and the ICJ rules against it, then the UN Security Council would be responsible for holding the country accountable. The problem lies in the fact that Russia is a permanent member of the Security Council and would likely veto any move by the UN to hold it accountable. In theory, the only way around a veto scenario would be a one-off tribunal to prosecute Russia for atrocity crimes in Ukraine.
The ICC investigates and prosecutes individuals who are not before the courts of individual states. The ICC chief prosecutor Karim Khan suggested that there is a basis for war crimes to be charged regarding Russia’s actions in Ukraine. If there is sufficient evidence, the prosecutor will petition the court to issue arrest warrants to bring individuals to trial in The Hague. However, there are limitations to the International Criminal Court. It does not have its own police force, so it relies on individual states to carry out tasks, such as arresting individuals and enforcement of its rulings.
It is important to recognize that while we are horrified by what is happening in Ukraine, there are simultaneous multiple humanitarian crises around the world as a result of ongoing conflict. There has been long-term suffering as a result of the conflicts in Yemen, Syria, Myanmar, Afghanistan, and across central Africa, as well as the Tigray region of Ethiopia. These crises affect millions and are compounded by the challenges in accessing vulnerable populations. It is human suffering, and one is not more important than the other. Without a political solution, the situation and suffering in Ukraine, as well as many other crises around the world, will continue to deteriorate, and the civilian population will suffer the consequences.
Photo Credit: “Bucha after Russian invasion (2022-04-06) 22” by АрміяInform / Віталій Саранцев, Роман Драпак is licensed under CC BY 4.0.