The UN does not believe that the Russians are committing genocide in Ukraine. Does this surprise and (to put it mildly) infuriate you? Adviser to the ICC Prosecutor Payam Akhavan explains why everything is so complicated

Oksana Kovalenko
Dmytro Rayevskyi
The UN does not believe that the Russians are committing genocide in Ukraine. Does this surprise and (to put it mildly) infuriate you? Adviser to the ICC Prosecutor Payam Akhavan explains why everything is so complicated

Payam Akhavan at a press conference after a hearing at the International Tribunal for the Law of the Sea (ITLOS), September 11, 2023, Hamburg, Germany.

Getty Images / «Babel'»

Representatives of the UN commission investigating crimes committed during Russian aggression have repeatedly stated that it is too early to talk about genocide in Ukraine — there is not enough evidence for this. Many international lawyers agree with this. One of them, international lawyer Philip Sands, is sure that it will be easier to prove the crime against humanity and the crime of aggression, which are as terrible as genocide. Professor Payam Akhavan worked at the United Nations, was the first legal adviser at the International Tribunal for Yugoslavia, an adviser and defender in famous cases at the International Court of Justice of the United Nations, the European Court of Human Rights and other instances. He is currently an adviser to the Prosecutor of the International Criminal Court, Karim Khan, on issues of genocide. Babel correspondent and lawyer Oksana Kovalenko spoke with Akhavan about what genocide is, why the destruction of identity and culture is not considered genocide, how to judge for inciting genocide, and how to prove it all. Since Payam Akhavan works for the International Criminal Court, he is not allowed to discuss Russian crimes in Ukraine while they are being investigated.

What is genocide?

The 1948 Genocide Convention states that it is the intent to physically or biologically destroy a group — racial, religious, national or ethnic one. Political and social groups are not included in the definition of genocide. And the convention does not talk about the cultural destruction of the group.

Genocide is called a "crime of crimes". But some lawyers say that genocide is no worse than crimes against humanity. Is there competition between these two crimes?

At the time of the Nuremberg Tribunal, genocide was actually derived from crimes against humanity, so they are closely related. For example, murder can be an element of both genocide and crimes against humanity, as well as war crimes. The only difference is with what purpose the criminal committed this murder. There are cases when genocide is more serious than crimes against humanity, and sometimes it is the other way around. Killing to be a crime against humanity must be part of widespread and systematic attacks on civilians. And for genocide, the intention to physically or biologically destroy a group is necessary, and theoretically it can be a small number of murders, the main thing here is the intention.

As a rule, the more serious the crime, the higher the punishment. If you look at the experience of the International Tribunal for Yugoslavia or the International Tribunal for Rwanda, sentences for genocide have not always been harsher than for crimes against humanity or war crimes.

Sometimes people are more concerned about the stigma attached to a certain name. Like, when we call something genocide, we are saying that it is more serious than crimes against humanity. This is a big mistake. Crimes against humanity are serious crimes against all humanity. And the question of definitions often distracts attention from real suffering. Behind every victim is a name, he or she has a mother and a father, a brother and a sister, a whole universe of human relationships.

For example, in Cambodia, the Khmer Rouge destroyed two million people because of their ideology. They killed the bourgeoisie, city dwellers, educated people. These are representatives of political and social, not racial, ethnic or religious groups. Therefore, this crime was not recognized as genocide. But to say that this crime is not serious is absurd.

A memorial monument with the skulls of victims of the Pol Pot regime, March 3, 2016, Phnom Penh, Cambodia. During the rule of Pol Pot during the years 1975-1979, approximately one million and 700 thousand people died.
A room filled with photographs of dead prisoners at Tuol Sleng Prison, also known as S-21, on August 7, 2014, in Phnom Penh, Cambodia.

A memorial monument with the skulls of victims of the Pol Pot regime, March 3, 2016, Phnom Penh, Cambodia. During the rule of Pol Pot during the years 1975-1979, approximately one million and 700 thousand people died. A room filled with photographs of dead prisoners at Tuol Sleng Prison, also known as S-21, on August 7, 2014, in Phnom Penh, Cambodia.

Getty Images / «Babel'»

Can we talk about citizens of one country as a group?

The term "national group" is different from the term "ethnic group". "Nationality" most often means belonging to a nation, that is, citizenship. But the intention to destroy the state is not the same as the intention to destroy the group.

But if it is the intention to destroy the state through the destruction of the citizens of this state?

Itʼs vice versa. If it is the intention to destroy a group through the destruction of a state, then it qualifies as genocide.

Why is genocide so hard to prove? And why are international institutions always cautious in assessing genocide?

Politicians may use these terms in different ways. But when it comes to international commission, let alone the international court, they have to determine the crime based on the evidence, they canʼt just throw accusations. For example, in the former Yugoslavia, only the mass execution of 8,000 people in Srebrenica was classified as genocide. Horrible and cruel treatment in the camps or many acts of ethnic cleansing were not qualified as genocide.

Genocide is a specific and narrow crime, and itʼs not easy to prove it. On the one hand, this is a "crime of crimes", and on the other hand, it is difficult to apply this in practice, because it is necessary to prove genocidal intent.

And what evidence is needed to prove this intent?

It happens differently. Sometimes evidence can come from statements made by the criminal. But if the criminal does not explicitly state his intention to destroy the group, then you must infer that from the circumstances. Attacks on children are one of the signs of genocidal intentions. The destruction of cultural property is not in itself a crime of genocide, but it can indicate an intent to attack a group by attacking its identity. There are different elements and each case must be considered in its own context.

You mentioned Yugoslavia. There were two cases — Srebrenica, where eight thousand Muslims were killed, and the siege of Sarajevo, where the number of people killed varies from five to eleven thousand people. Why is one of these crimes genocide and the other is not?

Itʼs not just about the numbers, itʼs about the context. If we talk about Srebrenica, it is not just a matter of thousands of Muslim men who were killed. These were the circumstances — a siege, a campaign of ethnic cleansing, and among these men there were young boys as well as old people. It is about the fact that the execution was accompanied by a whole series of other atrocities against the civilian population. Therefore, it is not only a matter of counting the killed. There may be fewer killings and it may qualify as genocide, and vice versa.

A worker smokes a cigarette in a mass grave with the bodies of men killed in Srebrenica in July 1995. October 17, 2002.

Getty Images / «Babel'»

The UN had been monitoring the killings in Rwanda for about three months and could not decide whether it was genocide. And it was a political issue. Why is genocide politicized?

Genocide is associated with the Holocaust. And the Holocaust in our historical memory is regarded as the worst crime imaginable. The word "genocide" appeared as a signal that what was committed was the height of evil, and such a crime deserves special attention.

I think this is an unfortunate way to look at atrocities, suffering and justice. Because the legal names simply describe different types of offenses. We could, for example, discuss which is worse: rape, torture, deportation or murder. And come to different conclusions. Someone will say: "Murder is the most terrible thing, because a personʼs life is lost, and the person is no more." And someone might say, "No, if youʼre the victim of a violent rape and youʼre going to be traumatized for the rest of your life, then death might be easier compared to that." So even that can be debated.

We describe different crimes under different names, because one of the functions of criminal law is to identify types of illegal acts and to give a clear signal to society that this particular act is prohibited. It should deter people from committing crimes. You canʼt tell someone, "Youʼre a rape victim, not a murder victim, so weʼre going to give you less attention."

This is a false view of justice. And that is exactly what happened in Rwanda. There was a great deal of debate about whether the mass killing of innocent civilians was genocide or something else. Who cares? They were being destroyed and the international community had to step in to protect them. We spent months debating in the UN Security Council whether it was genocide, while children and women were being macheted on the streets of Rwanda. This is the absurdity of this way of thinking. We have to think more broadly, simply in terms of mass atrocities, no matter what you call them.

A boy stands on a pile of machetes, Rwanda.
Appalling conditions in the Ruhango refugee camp, May 25, 1994, Rwanda.
Hutu refugees stand by a dirt road in the Maza refugee camp in southern Rwanda.

A boy stands on a pile of machetes, Rwanda. Appalling conditions in the Ruhango refugee camp, May 25, 1994, Rwanda. Hutu refugees stand by a dirt road in the Maza refugee camp in southern Rwanda.

Getty Images / «Babel'»

In his concept, Rafal Lemkin predicted cultural genocide. But as a result of negotiations between the countries, only five types of crimes were included in the convention. These debates are reflected in the Preparatory Works for the convention, where cultural genocide was mentioned. Do international courts pay attention to these documents?

The Vienna Convention on the Law of Treaties provides that Preparatory Works are considered only in the case where the meaning of the term is ambiguous or would lead to an absurd result. Such documents are an additional source. Rafal Lemkin in his book "Axis Rule in Occupied Europe in 1942-43" introduced the term "genocide" initially as a sociological concept, not a legal one. And then, because of the loss of many members of his family in the Holocaust, he made the Genocide Convention his own "crusade" of sorts. But the definition that was finally adopted was significantly different from what Lemkin had in mind, and cultural genocide was not included in the convention, but was limited to physical and biological.

It is interesting that the countries could not agree and adopt the Convention on Crimes against Humanity in 1948. Because crimes against humanity were a more important and broader category than genocide. Probably because states believed that genocide was so narrow in its focus that it could never be applied to entire countries. Whereas crimes against humanity are possible.

Can the destruction of identity be considered genocide?

No. A possible exception is the forced transfer of children. Itʼs a bit ambiguous, but if you permanently remove children from a group and destroy their identity, then it qualifies as genocide because youʼre depleting the groupʼs gene pool. But forced cultural assimilation is not in itself an act of genocide.

Lemkin included in the definition what he called cultural vandalism: the destruction of cultural objects, the closing of libraries, etc. But this part was excluded from the definition of genocide. There is a statement in the Preparatory Papers from the delegate of Denmark who said that we cannot consider the gas chambers and the closing of libraries to be the same crime. But a Pakistani representative said at the time that destroying a mosque or burning a Koran could be a crime worse than killing many people. So it shows different political and cultural priorities. Be that as it may, there is a definition that has been agreed upon, and that is where the relevance of the Preparatory Works ends. Acts that destroy identity may be relevant to an inference of genocidal intent, an intent to target a group, but they are not a crime of genocide per se.

Rwanda was tried separately for inciting or calling for genocide. There is also such a thing in Ukrainian legislation. The International Criminal Court does not have such a separate crime as incitement to genocide. Can the ICC investigate the actions of propagandists who spread hate speech?

Yes, but such an appeal must be direct and public. And specifically by calling for genocide, and not just inciting hatred. In Rwanda, there was direct public incitement, when the radio called for the extermination of the Tutsi and called them cockroaches.

Punishment for genocide often depends on the position of the UN Security Council. As we have Russia in the Security Council, there will be no joint solutions. Is there a way out of this situation? Is the Security Council deadlocked?

There were calls to reform the Security Council. But as it stands, any of the permanent members can veto the resolution. If the Security Council is paralyzed, the General Assembly can pass a resolution, but it has no enforcement powers. Therefore, the decision of the General Assembly is not binding. But it can still have considerable legitimacy and persuasive power.

Hearing of the court of first instance at the International Tribunal for Yugoslavia in the case of Bosnian Serb Duško Tadic. He was sentenced to 20 years in prison.

Getty Images / «Babel'»

Translated from Ukrainian by Anton Semyzhenko.

This publication was made possible by the support of the American people, provided through the United States Agency for International Development (USAID) within the Human Rights in Action Program, implemented by the Ukrainian Helsinki Human Rights Union.

The views and interpretations presented in this publication do not necessarily reflect the views of USAID, the US Government, or the UHSPR. The authors and editors of the Babel website are solely responsible for the content of the publication.

USAID is one of the worldʼs leading institutions in the field of development, acting as a catalyst for these processes and helping to achieve positive results. USAIDʼs activities are a manifestation of the benevolence of the American people, and also support the advancement of aid-recipient countries to self-reliance and stability and contribute to strengthening the national security and economic well-being of the United States. USAID has been supporting partnership relations with Ukraine since 1992. During this time, the total cost of aid provided to Ukraine by the Agency exceeded $3 billion. Among the current strategic priorities of USAIDʼs activities in Ukraine are strengthening democracy and mechanisms of good governance, promoting economic development and energy security, improving health care systems, and mitigating the consequences of the conflict in the eastern regions. In order to receive additional information about the activities of USAID, please contact the public relations department of the USAID Mission in Ukraine at tel. (+38 044) 521-57-53. We also suggest visiting our website or Facebook page.

Oksana Kovalenko
Dmytro Rayevskyi

Noticed an error? Highlight it and press Ctrl + Enter — we will correct