Washington, DC – “This is genocide.”
That is how Ukrainian President Volodymyr Zelenskyy has described atrocities committed in Bucha and other areas near Kyiv, where mass graves and apparent executions of civilians were discovered after Russian troops withdrew from the region.
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Images of corpses lining the streets and bodies stuffed into plastic bags in Bucha have shaken the world, raising calls for credible investigations and accountability. But the explosive “genocide” charge against Russia has proven contentious.
Legal experts say it is too early to determine whether genocide has occurred in Ukraine, stressing that while the term is politically damning, other human rights violations are also serious and should not be ignored.
“In public discourse, there’s a tendency to treat genocide as the worst of all crimes,” said Ernesto Verdeja, an associate professor of political science at the University of Notre Dame. “It has a kind of political and moral resonance that other types of very severe violations may not have – like crimes against humanity or war crimes.
“That’s problematic and unfortunate because in fact, in international law, genocide, war crimes and crimes against humanity are all extremely severe.”
What constitutes ‘genocide’?
The UN’s Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, including killings and measures to prevent births.
“The easiest way to think of it is that genocide is group-directed violence. It’s not just about killing a lot of people; it’s about the intention of destroying that group of people,” Verdeja told Al Jazeera.
Zelenskyy is not the only world leader to level the genocide charge against Russia.
British Prime Minister Boris Johnson said on Wednesday that the atrocities in Bucha do not “look far short of genocide”, while his Polish counterpart Mateusz Morawiecki said, “The crimes Russia has committed on close to 300 inhabitants of Bucha and other towns outside Kyiv must be called acts of genocide and be dealt with as such.”
“We will do everything to ensure that those who have perpetrated these war crimes do not go unpunished, and therefore appear before the courts … to deal with these alleged cases of [crimes against] humanity, war crimes and why not say it too, genocide,” Spanish Prime Minister Pedro Sanchez also said this week.
But United States officials have been more cautious about using the word.
Asked whether the killings in Bucha amount to genocide, US President Joe Biden told reporters on Monday, “No, I think it’s a war crime.” His top aide Jake Sullivan later said the administration is monitoring the situation, but it has not seen a “level of systematic deprivation of life of the Ukrainian people to rise to the level of genocide”.
International law experts said that because “genocide” is a well-defined legal term, evidence first must be gathered and examined to determine whether it occurred.
“I think it merits investigating. It certainly would be a serious error to ignore the fact that many victims so far have been clearly civilians, possibly targeted because they are Ukrainians – that is a national origin, a condition that fits into the partial definition of genocide,” said Juan Mendez, a former UN special adviser on the prevention of genocide.
“But the fact that civilians die is not necessarily genocide,” he told Al Jazeera.
‘Planning acts of genocide’
Mendez, currently a professor of human rights law at the American University in Washington, DC, backed the Biden administration’s commitment to helping investigate the atrocities without making a premature determination.
“It is very important not to presume genocide because then it becomes a political game: ‘You’re the genocidaire, and we are the good guys’,” he said.
Mendez also noted that before Russia’s invasion, President Vladimir Putin made unfounded allegations that the Ukrainian government was carrying out a genocide against the Russian-speaking population of the Donetsk and Luhansk regions in the country’s east.
“Unfortunately, we sometimes too quickly use the word ‘genocide’,” Mendez said. “For example, Putin himself has used the word ‘genocide’ against the Ukrainians when there’s literally no evidence. It [was] just a political ploy to call it that, just to delegitimise the enemy.”
In a February 26 complaint to the International Court of Justice – a UN institution that settles disputes between states – Kyiv rejected Moscow’s accusations and said it was Russia that was planning genocide in Ukraine.
“Russia has turned the Genocide Convention on its head – making a false claim of genocide as a basis for actions on its part that constitute grave violations of the human rights of millions of people across Ukraine,” the filing said. “Russia’s lie is all the more offensive, and ironic, because it appears that it is Russia planning acts of genocide in Ukraine.”
But while the US has avoided using the “genocide” label so far to describe the situation in Ukraine, it has applied it in other contexts.
Last month, the Department of State formally determined that Myanmar’s military committed genocide against the Rohingya minority in a campaign that began in 2017 and included the “razing of villages, killing, rape, torture and other horrific abuses”. Prior to that, in the final days of the Trump administration in early 2021, the US accused China of committing genocide against Muslim Uighurs in the country’s western region of Xinjiang.
On Ukraine, the Department of State said last month that it had determined that some members of the Russian military had committed “war crimes” during the conflict, while senior administration officials – including Biden – have accused Putin of being a “war criminal“.
Sullivan told reporters on Monday that Washington continues to follow the situation closely and supports efforts to investigate possible violations. “It’s not just that we sit around and debate terms and then, ultimately, decide to apply a term based against static circumstances,” he said. “We watch as things unfold. We gather evidence. We continue to develop facts.”
For its part, Russia has denied targeting civilians in Ukraine, suggesting that some of the footage raising international outrage from Bucha is fake. The Kremlin also has said allegations of executions in Bucha are a “forgery” that aims to discredit the country’s military.
But US Secretary of State Antony Blinken said reports of Russian atrocities are “more than credible”.
“What we’ve seen in Bucha is not the random act of a rogue unit. It’s a deliberate campaign to kill, to torture, to rape, to commit atrocities,” Blinken said on Tuesday.
‘Investigate, prosecute, punish’
Meanwhile, the International Criminal Court (ICC) prosecutor has launched a probe into possible war crimes in Ukraine. The UN Human Rights Council last month also announced a commission of inquiry to investigate abuses.
War crimes are violations of international law that happen during times of conflict, including targeting civilians and mistreating prisoners, whereas crimes against humanity – characterised as widespread or planned out abuses of the human rights of civilians – can happen in conflict or during times of relative peace.
“You tend to see war crimes and crimes against humanity happening at the same time – some practical overlap there,” said Verdeja. He added that it is important to classify such abuses. “From a legal perspective, it matters because it’s important to understand the nature of the violation and the crime that’s happening,” he told Al Jazeera.
For his part, Mendez, the professor, said the debate on whether atrocities constitute genocide should not distract from the broader push for international justice. He said war crimes, crimes against humanity and genocide – which fall under the mandate of the ICC – are all serious.
“They’re different but very serious violations of international law,” Mendez told Al Jazeera. “And all three of them require the international community to investigate, prosecute and punish the perpetrators.”