Western officials gathered in The Hague on April 2 to discuss efforts to prosecute Russia for alleged atrocities committed by its forces in Ukraine. According to UN estimates, over 30,000 civilians have been killed or injured since the start of the full-scale invasion in February 2022. And the Ukrainian authorities have said they are investigating 120,000 alleged war crimes.
RFE/RL's Balkan Service spoke to Ernesto Verdeja, a professor at the University of Notre Dame and executive director of the Institute for the Study of Genocide, about mass killings, the destruction of identity, and whether what Russia is doing in Ukraine is genocide.
RFE/RL: The Russian authorities have declared that the aim of their "special operation" in Ukraine, as they call it, is the demilitarization and denazification of Ukraine, which dehumanizes the Ukrainian people and essentially justifies the destruction of Ukraine as an internationally recognized state within its current borders, as well as the Ukrainian nation. Does that also constitute the incitement to genocide or genocidal intent? Because some international lawyers object [to that description], saying that there is not yet enough evidence of genocide.
Ernesto Verdeja: I think it's a very difficult question to untangle or to disentangle. But it's also important to start off with a clear understanding of what exactly is meant by genocide. And one of the biggest challenges is the fact that the term genocide is used by many people in different contexts, and it has different meanings depending on the way in which it's used.
So, there's a legal definition according to international law that has very specific criteria. There is a way of understanding it or a kind of definition that's used broadly by policymakers, policy analysts, people involved in human rights practice, etc. It's more capacious, a little bit wider.
There's the way that most scholars use it, which is a little bit different from the way it's used in international law because the international legal definition is very narrow, and it has an odd set of thresholds that have to be met.
And then there's this popular way in which it's used to denote something that is truly evil and horrific and something that is of an enormous scale.
So, I mentioned all of this as a beginning point because often what we see is that the argument over whether, for instance, what Russia is doing in Ukraine is genocide or not revolves or pivots around these different interpretations or understanding of what is meant by genocide.
But the point is that the definition itself has very specific parameters to it, very specific contours. And the key thing is that genocide in international law refers to the intentional destruction of groups, in whole or in part. So, it's not about the amount of violence that's carried out, it's not a proportion of civilians killed, it's not a number of civilians killed, there's not a threshold. It's about violence that is intended to destroy the group in whole or in part, the civilian group.
Having said all of that, one of the things that we often find is that states that carry out genocide, they rarely say they're carrying it out because they seek to destroy the group as such. They say that they are doing it for a variety of different reasons. One of the most common reasons is the claim to security. That is the argument that some other civilian population represents an existential threat or some kind of fundamental threat to the perpetrator state's aims and goals.
The idea of a "special operation," to use the Russian Federation's language, is premised on the idea that Ukraine represents a particular kind of far right, fascistic threat to the integrity and survival of the Russian state. That's one argument. And therefore, any kind of threat has to be completely eliminated.
So, what I'm getting at here, is there's a difference between whether the violence is being carried out with the intention to destroy the group versus the reason or justification. There can be many different justifications or motives that are given by perpetrators. The real key point is whether it's intentional violence, the intention to destroy the group as such.
This argument that Russia [makes] that it's carrying out a "special operation" and that that's the only thing it's doing is incredibly misleading, one. And two, it actually doesn't say anything about whether the violence is intended to bring about the destruction of the Ukrainian population in whole or in part. The two things are compatible because there are two different kinds of arguments.
One is about the intention of what you're doing. Are you doing it on purpose, [and it's] intended to bring about the destruction of the group? The second is the motivation or the reason why you're doing it. So, you can do something intentionally. There can be a number of different reasons why you may be attempting to do it. And they give a bunch of different justifications or reasons.
One of them is this idea of "denazification." The other one is [the] threat of NATO. The other one, as we saw with [former Russian President and Russian Security Council Deputy Chairman Dmitry] Medvedev, the argument that Ukraine is really part of Russia, it should come home. That's a different kind of argument, all compatible with genocidal violence -- if the violence is intended to bring about the destruction of the civilian population.
RFE/RL: Statements by the Russian authorities denying the existence of Ukraine have been accompanied by the murder, torture, ill-treatment, and persecution of Ukrainians, the Russification of Ukrainian children, and the large-scale destruction of Ukraine’s vital infrastructure. There's also a lot of evidence about the destruction of Ukrainian cultural heritage and the Russification carried out through bans on Ukrainian books and language in the Ukrainian territories occupied by Russia. Could this be interpreted as a kind of genocidal intent?
That's really key for the genocidal point, right? Because what it shows is that Russia is trying to destroy any kind of collective identity of Ukrainian-ness. They're effectively trying to force Ukrainians to be Russians."
Verdeja: I think that's absolutely right. So, there are the actions that Russia is carrying out: the targeting of civilian infrastructure, the targeting of civilians. Just completely wholesale attacks on civilian areas, regardless of military, so-called military necessity…. There's the violence that's carried out and there's also all of the policies that have been put into place to undermine any sense of cohesive Ukrainian identity. And that's precisely because Russia -- the Russian government, I should say -- denies any sense that there are Ukrainians as such. That's really key for the genocidal point, right? Because what it shows is that Russia is trying to destroy any kind of collective identity of Ukrainian-ness. They're effectively trying to force Ukrainians to be Russians. So again, it's not just about the targeting and the actual violence that's carried out. That's extremely important.
But there's also all the language that [Russian President Vladimir] Putin, Medvedev, and others have used that points to the idea that there's no such thing in their minds as Ukrainians as such, that these are Russians who need to be brought back into the fold.
The other point I would make, too…[to emphasize that] it's not just killings but also identity destruction, is the massive deportation of Ukrainian civilians, especially children, to Russia…in order to be raised as Russians.
That again points to this idea of the destruction of any kind of collective Ukrainian identity. So, to me, I think we can make a pretty plausible argument that we can infer intention to destroy the group from not only the actions of the Russian leaders but also what they say. They themselves have talked about how there's no such thing as Ukrainians.
RFE/RL: How to translate it in legal terms as a possible indictment and then possible verdict: first, denying the existence of Ukraine as a state and Ukrainian nation and then using it as the justification for the invasion and destruction.
Verdeja: I think there's a couple of different ways to think of this, and there are different types of legal venues. One is the International Court of Justice and the other is the International Criminal Court. These are just two examples. The International Criminal Court, the ICC, is established in order to hold individuals accountable for crimes that they have committed. It's about focusing on particular people. The International Court of Justice deals with states, disputes between states, so it doesn't deal with individuals.
In addition to that, when it comes to proving intentionality, especially if you're looking at individuals in the International Criminal Court, for the purposes of law one has to prove that the alleged perpetrator not only did bad things, they not only did things that may look genocidal -- they carry out mass killing, massacres, they attack civilians, they destroy infrastructure, they do all those things -- but that they did it with the specific intention to bring about the destruction of the civilian group.
But I think the very high-level leaders, especially someone like Vladimir Putin, are unlikely to end up before one of these courts unless there's some radical transformation inside Russia where effectively he's handed over."
That's one of the reasons why so many scholars are skeptical of the convention -- the legal [definition of genocide] -- because the convention has a very narrow understanding of intentionality. So this is a challenge. This is also why in many international courts, including the ICC, it is much easier to try to convince someone of war crimes and crimes against humanity where you don't have to have that proof of intentionality in the narrow sense.
Having said all that, we have the International Court of Justice (ICJ), which deals with disputes between states. We saw some decisions that the ICJ put out recently in January of this year on Ukraine-Russia and that's basically the ICJ has said that it can look at the allegation [made by Russia]…that Ukraine has carried out genocide in occupied territories in earlier years and the court has said, we have jurisdiction to investigate that. I personally think that's a good thing, because it'll once and for all show that Ukraine has not carried out genocidal violence, but it'll go through the court process, and I suspect that'll be the decision.
I think that's important because Russia has argued for a long time that Ukraine is doing exactly what Russia is actually doing. It's accused Ukraine of carrying out genocidal violence. The International Criminal Court -- which has brought a series of charges against Putin and Maria Lvova-Belova, who's the Russian commissioner for children's rights, as well as two military commanders in Russia, Sergei Kobylash and Viktor Sokolov -- the International Criminal Court is investigating them for specific crimes. The chances of getting real decisions on any of these in the near term is very, very low. This stuff is going to take years.
This is one of the frustrations with international courts in international law. They work extremely slowly. In addition to that, both the ICC and the International Court of Justice don't have an enforcement mechanism. Others are skeptical about the utility of something like this because Putin is probably never going to go to the International Criminal Court.
So, I don't envision seeing -- at least right now -- anything like a Nuremberg [trials against defeated Nazi Germany] or an ICTY, which is the former Yugoslavia UN court. I don't see those types of tribunals necessarily being set up in the short term.
RFE/RL: It means that the chance of seeing justice is pretty unlikely, and that all people who are responsible for crimes in Ukraine will get away with impunity.
Verdeja: I think if one looks historically at cases and one looks at this particular case, it's impossible to know what Russia will look like five years from now or four years from now. We don't know. There's a good guess that Putin will still be in power. Looking at the way Russia looks right now, my sense is, first of all, Putin is not going to end up before the International Criminal Court. That doesn't mean that those cases are unimportant. I think they should be pursued because the courts at least can gather an enormous amount of evidence and collect all this evidence for the purposes of understanding what happened.
But I think the very high-level leaders, especially someone like Vladimir Putin, are unlikely to end up before one of these courts unless there's some radical transformation inside Russia where effectively he's handed over -- again, like [late Serbian President Slobodan] Milosevic.
RFE/RL: When you mentioned genocide, we have in mind first and foremost the Holocaust. But as the British chief prosecutor at Nuremberg, Sir Hartley Shawcross, said, genocide could take many forms. The method the Nazis applied to the Polish intelligentsia, he noted, was “outright annihilation.” In the German-occupied Soviet Union, the technique was death by starvation. In Bohemia and Moravia, the Nazis embarked on a policy of forced Germanization.
We know what happened later in Srebrenica or in Rwanda. So, it is actually difficult to distinguish, to track down genocidal intent from the very beginning. Because only at the end, when the [magnitude of the crime is known], are we aware of it. But we are not seeing from the very beginning that it's coming.
Verdeja: You're absolutely right. Genocide can look very different across many cases. You gave some examples just now. We could talk about the American treatment of indigenous peoples for a long period of time. All of these cases look very different from one another. What they have in common is that there's violence with the focus or the intention of bringing about the destruction of the group. But the patterns, the techniques, the strategies that are used can look very different across cases. So, it doesn't have to be extermination camps, it doesn't have to be the Einsatzgruppen (paramilitary death squads) that the Nazis used, etc.
I do think that Russia's violence is genocidal. Absolutely.... They're not just simply attacking areas of military importance. They're terrorizing and attacking civilian populations."
There's a lot of different methods to get to the same result. I agree with you, it's extremely hard sometimes, especially in the early stages, to know whether what one is witnessing is from a legal perspective genocide or not because the threshold of proving intentionality is relatively high. You have to show that the perpetrators are not only doing these terrible things, but they're doing it with the specific intent.
That is, that's the language that's used in the law, specific intent to bring about this group destruction. It's rare that you have political leaders say explicitly, "I am going to destroy this civilian group." Usually what you see is that states and other genocidal actors, they tend over time to focus on genocide because they feel that earlier actions have been unsatisfactory for their aims.
RFE/RL: Since the invasion started two years ago, is there enough evidence to think in terms of genocidal intention when it comes to Ukraine?
Verdeja: Yes, I do think so. I do think that Russia's violence is genocidal. Absolutely. And I say that again, because it's not only the actions it's carried out, which includes a lot of violence against civilians. They're not just simply attacking areas of military importance. They're terrorizing and attacking civilian populations. They're dropping massive bombs and rocket attacks and all these things in civilian areas.
It's not just the actions that point to a lack of discrimination between Ukrainian combatants and Ukrainian civilians. It's the fact that the Russian leadership, starting from Putin down, has consistently talked about how Ukrainians as such don't exist. So, there's the language of denying the existence of a Ukrainian national identity. And that is genocidal because it effectively denies the identity of a civilian population.
RFE/RL: And then using this as a justification to commit massive crimes.
Verdeja: Absolutely.
RFE/RL: Indiscriminately.
Verdeja: Indiscriminately. And again, those harms can also qualify as war crimes in international law, crimes against humanity. These are categories that overlap sometimes in terms of the actions that you might see, but they're constructed differently in international law, the overall crime, the understanding of the crime.
But as far as I see it, and I think many people would agree, many scholars of genocide, what Russia is doing is effectively carrying out a genocidal campaign, because there's a denial from the leadership, and it's been very explicit, there's a denial of anything like a Ukrainian identity. They're basically saying these people are Russians and they need to forcibly be brought back into Russian identity.
And we're going to do whatever it takes and kill as many people as it takes in order to force them to be Russian again. That's essentially genocidal.
