Editor’s Note: Daniel Rothenberg is professor of practice at Arizona State University and a senior fellow at New America. The views expressed in this commentary are his own. Read more opinion articles on CNN.
Surveying the damage and destruction in the town of Bucha, Ukrainian President Volodymyr Zelensky described the Russian atrocities as a “genocide” and predicted this designation “will be recognized by the world.”
On Tuesday, President Joe Biden echoed his Ukrainian counterpart calling the atrocities in the European country a genocide “because it’s become clearer and clearer that (Russian President Vladimir) Putin is just trying to wipe out even the idea of being Ukrainian.
“The evidence is mounting,” Biden said talking to reporters in Iowa following a speech in which he also used the term. This comes as his administration previously responded more cautiously to any references of genocide in Ukraine. And rightly so; genocide is a complex legal concept, which many experts consider difficult to apply and widely misused.
Genocide has often been described as the “crime of crimes” and a United Nations Special Rapporteur on the subject has called it “the gravest violation of human rights it is possible to commit.” Genocide is one of the most widely recognized crimes under international law and viewed as a marker of a descent into barbarism.
Legally, genocide, is defined by a 1948 UN treaty “as a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.”
Contrary to popular understandings of the term, finding a situation to be genocide does not necessarily mean there is an overwhelming number of victims. It is not solely the severity or brutality of atrocities that defines genocide, but the degree to which violence and repression expresses the intent to destroy a group.
In this way, by considering the war in Ukraine through the lens of genocide, we may better explore the underlying patterns and purpose of Russia’s brutal violence and help Ukraine make the case for accountability.
One of the justifications Russian leader Vladimir Putin presented in the run up to the invasion of Ukraine was the idea there is no legitimate state representing the Ukrainian people’s right to self-determination. In a February 21 speech, Putin explained “since time immemorial, the people living in the southwest of what has historically been Russian land have called themselves Russians and Orthodox Christians.” He went on to describe modern Ukraine as a false construction, presenting those supporting Ukrainian sovereignty as terrorists and neo-Nazis.
Given this rhetoric, along with Russia’s military actions and what UN officials have described as targeting of civilians, the term genocide may well apply to what we’re seeing in Ukraine. The designation of a genocide in Ukraine would be appropriate if there was enough evidence to demonstrate Russia’s atrocities express a purposeful effort to deny the existence of the Ukrainian people.
While it is too early at present to make this determination with certainty, the US should rigorously investigate the issue. It is worth noting one of the most significant forms of assistance to Ukraine by the US and allies is sharing intelligence gathered on Russian military actions, which may well provide insight into underlying intent. This past week, German intelligence intercepted Russian communications on the purposeful targeting and killing Ukrainian civilians.
The concept of genocide has special salience in some of the nations that emerged from Soviet control in the post-Cold War era. Several countries have drafted genocide laws that define the crime in a more expansive manner than the international definition.
Estonia, for example, has a domestic law that recognizes genocide against a group “resisting occupation.” In 2019, the European Court of Human Rights upheld a judgment by Lithuanian courts in which a Soviet operative was found guilty of genocide against the Lithuanian people based on a similarly more expansive national law. And, among scholars, there is widespread support for the idea when national groups were included in the Genocide Convention’s definition of the crime, this was done to protect collectivities very much like the Ukrainians from actors seeking to deny their right to exist.
It is also important discussions of genocide in Ukraine focus on issues of prevention and a reduction of civilian casualties. The 1948 treaty on the subject is called The Convention on the Prevention and Punishment of the Crime of Genocide and was created in direct response to the horrors of the Holocaust.
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The treaty was envisioned as mechanism for mobilizing international action to prevent future genocides from occurring, echoing the moral commitment of the phrase, “Never again.” While the document provides minimal guidance as to exactly what policy responses are required, the US and other states that have ratified the treaty are obligated to act to prevent genocide.
Now that President Biden has publicly affirmed Russian acts in Ukraine as genocide, there is a need for a concerted, yet carefully managed response. The administration should establish a special body to review Russia’s atrocities and should gather evidence from multiple sources in coordination with allies, civil society groups, and others. Regardless of whether there are ever criminal trials to adjudicate whether the war in Ukraine amounts to a genocide, considering this designation may improve our understanding of the intent of Russian aggression, justify increased protection for civilians, and set the stage for future efforts at accountability.