by James Gow
When Russian President Vladimir Putin justified his attack on Ukraine as ‘genocide’ prevention, the hollowness was astounding, the term emptied of meaning. It has become stock for one side to cry ‘genocide’ in pretty much every violent conflict of the past three decades. Those cries usually come from those subject to attack and aiming to focus their victim status. They were — and are — echoed by supporters around the world and debated by them, opponents and commentators. Usually, there might be some suspicion of human rights abuses, at least. But, the absurdity of Putin’s claim was clear to all; a transparent act of deceit that prompts silence, aghast.
Putin’s rhetorical void perhaps also brought the term genocide into such utter disrepute that it would be better to stop using the term. “The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kyiv regime,” the Russian president announced. Yet — outside delusional circles around the Kremlin — the only questions about misdeeds concerned his decisions to annex Crimea and to stir unrest and create de-facto separate entities as the Lukhansk and Donetsk ‘People’s Republics.’ Even under those circumstances, research indicated that most Russian speakers in Ukraine preferred Kyiv’s rule to Moscow’s. Thus, there was not only an absence of humiliation in the direction Putin reported, and no question even of civil rights concerns, but a positive obverse: allegiance to Ukraine.
Objectively, there could be no question that Ukraine, following a rocky three decades of newly re-won independence, had overcome years of corruption, political turmoil, and Russian interference and aggression. It had become a promising, stable (notwithstanding the part-amputations of territory) liberal democracy, that had gained a fresh future under President Volodymyr Zelenskyy. The President himself openly challenged Putin’s claim to be ‘denazifying’ Ukraine by removing the ‘junta’ in charge, and exposing the ludicrous character of the alleged mission: ‘How can I be a Nazi?’ The rhetorical question left open the key space for an answer: Zelenskyy is Jewish, his great-grandfather and great uncles were victims of the Holocaust — a reason why his grandfather fought in the Red Army against Naziism and remained in the Soviet Army until its dissolution, when he joined the new Ukrainian armed forces.
Kyiv has raised a case at the International Court of Justice (ICJ), asking the Court to rule on the existence of acts of genocide in the country and on Russian and Ukrainian interpretations of the crime as detailed in the 1948 Convention and, presuming the vacuous Putin version is rejected, that factually there is no genocide against ethnic Russians. Ukraine has also asked the ICJ to issue ‘provisional measures’ to protect the country.
This comes to the heart of the concept. There have been two problems with the concept of genocide in the past 30 years. One is that the narrow legal definition in Article 2 of the Convention does not reflect widespread and popular understanding. That definition — ‘the intent to destroy in whole or in part’ protected groups of the types set out in the article — has left survivors and observers dissatisfied that the narrow interpretation by judges, where it has seemed self-evident to non-experts that something constituting genocide had occurred. The courts’ definition is far narrower than that originally conceived by Raphael Lemkin, who first innovated the term, and results in acquittals. The failure of the International Criminal Tribunal for the former Yugoslavia and its residual mechanism to find a single individual guilty for the very acts in 1992 — labelled ‘genocide’ broadly — that had led to the creation of that body, left many questioning both international criminal justice and also the version of genocide used by courts. The answer, it seemed, was to widen the definition to capture those actions against communities that appeared to warrant the term.
The mismatch between courtroom interpretation and popular conception was just as great, or greater, on the other side of the matter. While a criminal concept, ‘genocide’ is a powerfully charged term politically. That is why in every armed conflict there were cries of ‘genocide.’ While legally ‘crimes against humanity’ and ‘genocide’ were equal as international crimes, in terms of emotional and political resonance, the description of ‘crime of crimes’ given to genocide by one judge at the Rwanda Tribunal is immense. To claim to be the victim of genocide is not to claim simply to be a victim. It is to be a victim of unusual and special standing, rising above any other wrongdoing or misdemeanour. There is no doubt about the heinous character of genocide. But that political and emotional impact means that it is a trophy — albeit of negative suffering — to be named and claimed in every conflict. It is a device for mobilising support — the support of affected communities, the support of observers, the support of those being called upon to provide help and assistance to block their opponents and stop those actions.
The trouble with Putin’s invocation of genocide — and the justification of using armed force to prevent it — is that it is truly a case of the Emperor’s wearing no clothes and being exposed in absurdity. But, that must make us consider whether it would be better simply to excise it from the statute and the lexicon of international life. Genocide is in question already because it does not bring satisfaction where mass atrocities have clearly been carried out; If the term can be used in a case lacking even a smidgen of ambiguity, it is debased and discredited. This is all the more the case because we have to assume that there are some people who will accept the usage without knowing better — perhaps in Russia, perhaps anywhere else in the world.
In terms of war crimes, broadly, the first days of action in Ukraine have certainly given grounds for prima facie indictments — including the Ukrainian forces’ treatment of Russian prisoners of war, filming them and showing not only their faces, but also shouting at them to reveal information that goes beyond the basic requirements of the Third Geneva Convention. But, that kind of lapse can be handled by the Ukrainian authorities, in time.
The real thrust of potential charges comes with some of the Russian armed forces actions — and, with the well advertised deployment of thermobaric weapons, the scope for indiscriminate attack was increased. Already, seemingly indiscriminate artillery and rocket bombardment, redolent (as with so much else in the situation) of the Serbian approach to Sarajevo, 30 years earlier, provides grounds for questioning. The apparent splattering of residential apartment blocks in Kharkiv with cluster munitions is evidently an act to investigate. These acts of atrocity are surely not the limit of potential Russian misconduct. They are the hallmark of Russian military action in the past three decades, whether within the Russian Federation itself, or outside it in Georgia, Syria and Ukraine. Going beyond individuals — the subjects of international criminal justice — Russia has been in the dock in private actions at the European Court of Human Rights many times, each time accepting judgements for breaches of international human rights law (as opposed to international humanitarian law), and paying the fines imposed as a mere hazard of conducting armed campaigns in the Russian style. Of course, with Russia’s being suspended from the Council of Europe, the prospect of cases against Russia in its court again must be in doubt.
Karim Khan, Chief Prosecutor at the International Criminal Court (ICC), announced that he would be opening an investigation into the situation in Ukraine, on the basis that Kyiv had previously accepted jurisdiction in limited circumstances, despite its not being a party to the Statute. Without doubt, there is something to investigate. Equally, it is not particularly likely to go far — though many will hope and endeavour to reach that point. But, if there is to be prosecution for atrocities, in the end — in line with the ICC’s principle of complementarity — it may be that it is Russia itself that will need to take the responsibility.
It might be too much to hope that the Russian president himself would face trial at the hands of his own country. It would be welcome if Article 335 of the Criminal Code of the Russian Federation were ever brought to bear against Vladimir Putin — the crime of waging aggressive war. Although it only carries a maximum sentence of 20 years imprisonment, a conviction under this leftover from the era of the International Military Tribunal at Nuremberg would be a small symbolic tear of justice for the most unambiguous act of aggressive warfare.
But, there will be no trial, come what may, for the verbal atrocity of rendering the term ‘genocide’ devoid of content and bringing it into disrepute. This linguistic horror does not exceed the atrocities in Ukraine, but it does further compound them. And, while Putin’s use must raise questions about the term, perhaps a reasonable outcome — aside from the obvious arraignment and conviction of Russia’s president, his confederates and his senior military figures for war crimes and crimes against humanity — might be serious global review and recalibration of genocide as a concept.