As Russian forces continue their brutal invasion of Ukraine, worrisome signs are emerging about the prospect of genocide. While the term is used rather freely in the media, the prospect of actual genocide returning to Europe for the first time in nearly thirty years is now quite real. There is thus value in revisiting what the legal term genocide entails, remembering why declarations of genocide are rare, and examining what current events in Ukraine may portend.
What Is Genocide?
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 specifies the crime’s elements:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The law was largely the work of one man, Raphael Lemkin, a Jewish lawyer who fled the Nazi regime, but lost his family to the Holocaust. Even during his youth, Lemkin had long been troubled by atrocities such as the massacres of Armenians during Word War I. (His remarkable life and efforts are told by Ambassador Samantha Power in her Pulitzer Prize winning book entitled A Problem From Hell).
Lemkin, who lived and studied for a time in Lviv, sought a legal mechanism to pierce the defense of international sovereignty. Until the Second World War, international law and custom did not afford States meaningful avenues to hold other States responsible for war crimes, especially if those crimes occurred within the latter’s borders. Despite the creation of the United Nations system of collective security, concerns over sovereignty prevented U.S. ratification and implementation of the Genocide Convention until 1988. Even then, Congress included reservations that threatened the Convention’s utility.
While the term “genocide” is ubiquitous now, it was not until the late 1970s that the crime entered American consciousness and genocide causation and prevention became a field of study. After the success of the Nuremberg criminal proceedings, only the end of the Cold War permitted international war crimes trials to resume. While the success of recent tribunals is mixed, the ability to detect the early signs of genocide has come a long way. Advances in technology, scholarship, and social awareness have proved helpful. Still, the world’s capacity to declare and stop ongoing genocide remains underdeveloped, making its early detection and prevention paramount.
What Are the Constraints?
Several factors often limit a State’s willingness to declare mass atrocities as genocide. First, the Convention’s language excludes political groups. Though politically motivated murder was originally included by Lemkin, the language was excised to secure Soviet ratification. The implications of this omission are legally important. For instance, while the last two Presidential administrations branded China’s treatment of the Uighurs as genocide, other entities have not. If China’s actions are rooted in, hypothetically, the Uighurs alignment with Political Islam, the crime may not meet the law’s definition. Should Russia engage in politically motivated crimes in the coming weeks and months, they also might not meet the Convention’s Article II elements.
A second constraint concerns language in the Convention’s first article, which requires that contracting parties undertake steps to prevent and punish genocide, once identified. Though vague, this requirement kept the Clinton Administration from recognizing the 1994 Rwandan genocide. In a step seen now as farcical, at one point the administration described the ongoing Hutu murder of 800,000 ethnic Tutsi as “acts of genocide” as opposed to “genocide”—solely to prevent further calls for American intervention. Similar concerns delayed a declaration of genocide by the United States during the first four years of the Bosnian civil war and recent ISIS attacks against the Yazidis.
A less talked about aspect of genocide concerns policy implications arising from the term’s use. Once an opposing party is branded genocidal, it becomes politically unpalatable to negotiate with it. Unlike the vague “do something” requirement in the Convention, the tarring effect of the term genocide can be quite real. Famously, U.S. diplomat Richard Holbrook once recounted how shaking the hands of Radovan Karadžić and Ratko Mladić—two men responsible for the Bosnian genocide—offended him. Declaring genocide may thus be counter-productive, as it limits the ability to negotiate and to end conflict. It also disincentivizes alleged perpetrators from surrendering, thus prolonging the violence.
Much research has been done in recent years to identify genocide’s warning signs. A joint initiative by the Simon-Skjodt Center for the Prevention of Genocide at the U.S. Holocaust Memorial Museum and the Dickey Center for International Understanding at Dartmouth College produces an annual report identifying the countries that are most at risk. Known as the Early Warning Project, the team relies on 30 variables based on events since the Second World War, and provides a qualitative assessment.
The United Nations’ Office on Genocide Prevention and the Responsibility to Protect uses its Framework of Analysis for Atrocity Crimes, which identifies fourteen risk factors. The Canadian-based Sentinel Project’s Early Warning System also developed a risk factor list, which iteratively examines political, economic, sociocultural, and conflict and upheaval drivers. The risk assessment leads to three additional phases, including operational process monitoring, vulnerability assessment, and forecasting. A comprehensive, if now slightly dated, list of third-party organizations committed to genocide detection and prevention is available in Stephen Wisniew’s monograph, which he produced as a School of Advanced Military Studies student.
Using the UN framework, events in Ukraine over the past two weeks should raise alarm bells. First, Putin is deliberately “otherizing” Ukraine’s Western-leaning government and its constituents. Branding them as Nazis, accusing them of developing nuclear weapons and biological agents, and depicting them as existential threats to Russia are textbook efforts at dehumanization. Dehumanization itself is often the first critical step on the road to atrocities. The charge of Nazism is particularly dangerous, given Russian losses during the Second World War. In particular it suggests Putin is unlikely to meet with Zelensky and his allies, a further indication of dehumanization. Putin’s call for “natural self -cleaning” of Russian society in the context of misperceptions about “higher race” is especially chilling.
The reported influx of mercenaries and paramilitaries from Russia is another indicator. In Poland and the Soviet Union (1941-44), Rwanda (1994), and Bosnia (1992-1994), killing squads were often comprised of unconventional units. The massive flow of refugees—whether a concerted effort at ethnic cleansing or not—risks turning these groups into Stateless persons. Denial of statehood has been a tool of genocide perpetrators from the Nazis to the Burmese persecutors of the Rohingya today.
Another important indicator is the production of “kill lists.” In a letter from Ambassador Crocker to the UN High Commissioner for Human Rights, the United States noted Russia’s production of enemy lists identifying opponents in Ukraine. Such lists were a tactic used in Cambodia and Rwanda to identify people destined for placement in camps or murder.
One Group Faces Heightened Risk
The expanding threat to Ukraine’s LGBT community merits special attention. In recent years Putin has used the suppression of the rights of homosexuals as a way to garner support from far-right elements in Europe and America. In the lead up to last month’s invasion, Putin’s actions became increasingly nefarious. Last April, he formally banned same-sex marriages through a series of constitutional amendments. In October he called teaching gender fluidity a crime against humanity, once again using the type of rhetoric too-often seen in advance of mass atrocities and genocide. Putin’s execution list allegedly includes members of Ukraine’s LGTB community, making it the only minority specifically identified as an enemy.
The United States and NATO, in partnership with the media, human rights organizations, and other NGOs should prioritize efforts to identify and publicize genocide’s warning signs. While many groups are at risk, the Ukrainian leadership, its supporters, and the LGBT community appear the most vulnerable. Although its material reach remains limited to the enumerated elements, the Genocide Convention remains a powerful legal and political tool to combat the “crime of all crimes.”
Professor Adam Oler is Chair, Department of Security Studies and Associate Professor of National Security Strategy. The views expressed in this article are those of the author and do not reflect the official policy or position of the National Defense University, the Department of Defense, or the U. S. Government.
Photo credit: LKEM via Flickr