The Ukrainian Genocide
As more bodies are exhumed from mass graves following a successful Ukrainian counteroffensive in Russia’s ongoing invasion of Ukraine, it is right to ask whether Russia is committing a genocide.[1] The goal of this short piece is not to discuss jurisdictional issues or the impossibility of prosecuting Russians for their actions in Ukraine. Rather, it is to demonstrate that, by the International Criminal Court (“ICC”)’s definition, what is happening in Ukraine constitutes the crime of genocide.
Under Article 6 of the ICC Rome Statute, genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”: killing members of the group, causing serious bodily injury or mental harm to members of the group, and/or forcibly transferring children of the group to another group.[2]
The crime of genocide under the Rome Statute has a two-tiered intent requirement. First, a party must intend to commit the predicate act.[3] Second, the party must have the specific intent to destroy a protected group, in whole or in part.[4]
In Ukraine, there is extensive evidence that Russians have intentionally carried out predicate acts constituting genocide. In Bucha, 458 bodies of civilians have been found, with 419 of them showing signs that they had been tortured and executed.[5] Mass graves are now being uncovered in recently-liberated Izyum, with some corpses showing signs of torture and execution.[6] In addition to executions, the Russian military has routinely targeted civilian infrastructure like evacuation corridors,[7] theaters full of civilians,[8] and apartment blocks.[9] Russian atrocities are not limited to killings — Russian forces have deported over 1.9 million Ukrainians to Russia and put over 300,000 Ukrainian children up for adoption by Russian families.[10]
None of these actions are accidental; rather, they are part of an intentional campaign to kill, maim, torture, and destroy Ukrainian families. To satisfy the requirements of genocide, the question left to answer is whether these atrocities are being committed with the specific intent to commit genocide? Specific intent can be proven through statements, speeches, and emails of those conducting the genocide.[11] Additionally, the genocidal acts and victims of those acts can themselves prove specific intent through inference.[12]
There is a strong case suggesting the specific intent of the Russian state is to destroy the Ukrainian nation and identity through this military invasion and its subsidiary atrocities. The policy-makers driving the war have repeatedly denied Ukraine’s right to exist and the legitimacy of a Ukrainian cultural identity.[13] Russian state-owned media outlet RIA Novosti, in a baseless attempt to associate the Ukrainian state with Naziism, has stated that “de-Nazification inevitably includes de-Ukrainization” and has called Ukrainism an “anti-Russian construct.”[14] Shortly before the invasion, Putin himself stated that Ukraine never had real statehood — rather, it was artificially created from Russian territory.[15] Given what the Russian state is willing to admit publicly, it is reasonable to assume additional evidence of Russia’s specific intent will surface after the war ends and classified wartime correspondence becomes public. Nevertheless, the current public hostility of Russian policymakers towards the very concept of a Ukrainian people or state points to genocidal intent.
It can therefore be shown that because Russia is intentionally killing, maiming, targeting, deporting, and separating Ukrainian families, in a war justified by delegitimizing Ukrainian identity, Russia is carrying out a genocide in Ukraine.
Liam Turner is a staff member of Fordham International Law Journal Volume XLVI.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
[1] Vasilisa Stepanenko, Ukrainian President: Mass Grave Found Near Recaptured City, AP (Sept. 16, 2022), https://apnews.com/article/russia-ukraine-putin-zelenskyy-kyiv-uzbekistan-7d08fe990651bf86e43aba642b2259ac.
[2] U.N. Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 3.
[3] Id. at art. 30.
[4] Id.
[5] Lis Sly & Kostiantyn Khudov, Accounting of Bodies in Bucha Nears Completion, Wash. Post (Aug. 8, 2022, 6:50 PM), https://www.washingtonpost.com/world/2022/08/08/ukraine-bucha-bodies/.
[6] Stepanenko, supra note 1.
[7] Ukraine Says Russia is Shelling Evacuation Route from Encircled Mariupol, Reuters (Mar. 8, 2022, 6:01 AM), https://www.reuters.com/world/ukraine-says-russia-is-shelling-evacuation-route-encircled-mariupol-2022-03-08/.
[8] Lori Hinnant et al., AP Evidence Points to 600 Dead in Mariupol Theater Airstrike, AP (May 4, 2022), https://apnews.com/article/Russia-ukraine-war-mariupol-theater-c321a196fbd568899841b506afcac7a1.
[9] Anna Voitenko & Tom Balmforth, Rescuers Pull Survivors from Ruined Ukrainian Apartment Building, REUTERS (July 11, 2022, 7:37 PM), https://www.reuters.com/world/europe/dozens-feared-trapped-after-russian-strike-ukraine-apartment-building-2022-07-11/.
[10] Kristina Hook, Why Russia’s War in Ukraine is a Genocide, FOREIGN AFFAIRS (July 28, 2022), https://www.foreignaffairs.com/ukraine/why-russias-war-ukraine-genocide.
[11] Richard A. Wilson, Inciting Genocide with Words, 36 Mich. J. Int’l L. 277 (2015).
[12] Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement, ¶ 47 (Int’l Crim. Trib. for the Former Yugoslavia July 5, 2001), https://www.icty.org/x/cases/jelisic/acjug/en/jel-aj010705.pdf.
[13] Hook, supra note 11.
[14] Id.
[15] Billy Perrigo, How Putin's Denial of Ukraine's Statehood Rewrites History, TIME (Feb. 22, 2022, 2:42 PM), https://time.com/6150046/ukraine-statehood-russia-history-putin/.