When confronted with the murderous policies of the Third Reich on the eastern front in the late summer of 1941, Winston Churchill stated: “We are in the presence of a crime without a name.” Three years later, the Polish-Jewish jurist Raphael Lemkin gave the crime the name of genocide. The powerful implications of that name descend like a dark cloud over the Russian invasion and occupation of parts of Ukraine today.
Lemkin had studied law at University of Lviv in the early 1920s (Lviv, today part of western Ukraine, was then called Lwów and was within the borders of Poland). He practiced international law in Warsaw before fleeing to the United States after the Nazi invasion of Poland in 1939. Lemkin coined his famous term in a 1944 Carnegie Endowment publication: “The practices of extermination of nations and ethnic groups as carried out by the invaders [the Nazis] is called by the author ‘genocide,’ a term deriving from the Greek word genos (tribe, race) and the Latin cide (by way of analogy, see homicide, fratricide).” Lemkin knew Ukraine well; he was one of the first to identify the Holodomor (Killer Famine) of 1932–33 that killed some four million Ukrainians as a genocidal attempt on the part of Stalin’s regime to break the back of the Ukrainian nation.
Dedicated to establishing an international law that would proscribe genocide in the international system, Lemkin lobbied at the newly founded United Nations to pass a “Convention on the Prevention and Punishment of the Crime of Genocide,” which it adopted unanimously on December 9, 1948. Here, genocide is identified as a series of acts—killing members of the group is the first mentioned—“committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” The emphasis here is firmly on the destruction of a “group, as such” and its ability to continue to function as a group. Among the other acts mentioned in the convention are: “causing bodily harm . . . to members of the group,” “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction,” “imposing measures intended to prevent births,” and “forcibly transferring children of the group to another group.”
Even the quickest review of the events of the past ten weeks in Ukraine makes it evident that the Genocide Convention applies at least in part to the Russian actions in the Kyiv region revealed after the withdrawal of their forces. We still are uncertain of the extent of genocidal acts in the coastal city of Mariupol, but the pounding of the city’s civilian population, the revelation of mass graves, the forced evacuation of tens of thousands of citizens to Russia, the role of “filtration camps” in Rostov-on-Don, and the alleged relocation of Ukrainian children indicate an assault on Ukrainian nationality as such, which would constitute genocide.
Both Ukrainian President Volodymyr Zelenskyy and US President Joseph Biden have accused the Russians of committing genocide in Ukraine. It is good they bring this up, if only to put Putin and the Russian elite on alert that they will be held accountable for their crimes. Certainly, the indications of genocide are there, even if the factual materials for a legal case have not yet been collected. One of the problems in coming to an unalloyed conclusion about genocide in Ukraine is that the evidence that has been released to the public is not conclusive and there is much we still do not know about the Russians’ actions and intentions. The war is far from over and the worst may be yet to come. Even at that, as we know from the bloodshed in Bosnia, evidence from mass graves can be turned up long after the actual fighting is over. Even in the case of the Holocaust, fresh evidence continues to be produced that can be used in cases against the few perpetrators still alive.
We know that the US Department of State is accumulating evidence against the Russians, as is the Ukrainian government, the Organization for Security and Cooperation in Europe (OSCE), and a host of international NGOs. Most important, the chief prosecutor of the International Criminal Court (ICC), Karim A. A. Khan, was just in Ukraine, along with other investigators, reviewing and cataloguing the host of crimes committed by the Russians in Bucha, Irpin, and elsewhere. Most of these cases are linked to “war crimes” (willful killing, willful infliction of suffering, taking of hostages, etc.) and “crimes against humanity” (extermination, torture, rape and sexual slavery, enforced disappearance, etc.), both of which are also subject to ICC prosecution. The crime of aggressive war, for which Nazi leaders were tried and hanged at Nuremberg in 1946, also falls within the purview of the ICC. But by statute, the court cannot pursue the particular case of aggressive war—in contrast to war crimes, crimes against humanity, and genocide—against a country (Russia is one, the United States is another) that does not formally recognize the court’s jurisdiction.
There is also the crucial criterion of the perpetrators’ intentions in assessing genocide. Do Putin and his coterie of political and military leaders seek to destroy the Ukrainians as a national group as such? There is considerable evidence in the public domain to support this assertion. Putin’s historical screed of July 2021, “On the Historical Unity of Russians and Ukrainians,” and a series of his speeches and off-the-cuff remarks deny the distinctiveness of the Ukrainian nation and its historical legitimacy. For Putin, Zelenskyy and his government represent the interests of neo-Nazis and their American and European supporters. The goal of the Russian campaign in his view is the “denazification” and de-militarization of Ukraine. These statements are mimicked by Russian Foreign Minister Sergei Lavrov; former president and deputy chairman of the Security Council of Russia Dmitry Medvedev; and other Kremlin leaders who refuse to take Ukrainian national identity seriously. In this view, anyone who asserts Ukrainian identity thus becomes an enemy.
Comments by some pro-Kremlin television commentators and journalists are even more blatantly genocidal. In an April 3, 2022, article released by Novosti, the semiofficial Russian news agency, the journalist Timofei Sergeitsev took a frightening step beyond Putin’s already baleful accusations of Ukrainian Nazism. He suggested that the bulk of the Ukrainian masses were “passive Nazis” and “accomplices of Nazism” and should be subjected to re-education. The Ukrainians’ desire for independence and a European path was nothing more, he states, than pure Nazism, or what he called “Ukronazism.” Margarita Simonyan, who heads up a Kremlin news group, inserted an even more toxic additive to this dangerous rhetoric: “What makes you a Nazi is your bestial nature, your bestial hatred, and your bestial willingness to tear out the eyes of children on the basis of nationality.” It is hard to believe any Kremlin propagandists, given their mendacity, but given the viewpoints of many Russians, the media have succeeded in dehumanizing and diminishing the Ukrainians as a people, one of the signposts of genocide.
The extent to which the rhetoric has been translated into actions has become terrifyingly apparent. Simonyan’s diatribe about Ukrainians’ readiness “to tear out the eyes of children” was reflected in the signature, “for the children,” that was painted on the missile that the Russians lobbed into the train station at Kramatorsk, killing, among others, at least five children. One of the constant themes of Russian propaganda in the breakaway Donbass region since 2014 is that Ukrainians are killing and maiming children, even committing genocide.
Russian soldiers stop Ukrainian civilians at road blockades and guard posts to search for “Nazis,” looking for nationalist tattoos on the men, in which case they are dragged off to be interrogated, tortured, and worse. All it takes is for someone to be identified as having fought in a nationalist formation or even simply to be a good, patriotic Ukrainian for the Russians to wreak vengeance. The torture, executions, mass burials, indications of abuse, beatings, and rape—the senseless shelling of civilians in their homes and on the roads—leads one to believe that many Russian soldiers have absorbed the “Ukrainians are Nazis” line that they have been fed by their government and officers. Even if they do not, they have no choice but to remain silent. Some desert or surrender readily, just as hundreds of thousands of Russian citizens have left their homeland for abroad, searching for respite from the Kremlin’s lying and oppression. But most stay at their posts and fight.
The war in Ukraine grinds on; genocide hangs in the air. Evidence is being collected by the day. Some Ukrainian jurists recommend that a trial of the perpetrators be arranged in Kharkiv, which was the site in December 1943 of the first trial of Nazi perpetrators for their crimes against civilians in World War II. Putting Putin and his coterie on trial for genocide would not be easy and it will not happen soon. It took years after the 1995 Srebrenica massacre of Bosnian Muslims for former Serbian leader Slobodan Milošević to be brought to trial for genocide (Milošević died before a verdict could be rendered). The remaining Khmer Rouge leaders were brought to trial by the Cambodian tribunal only in 1997, almost two decades after they were responsible for killing more than a fifth of their population.
Like the war itself, the trials of its perpetrators will demand great patience and fortitude—above all, from the Ukrainians themselves.