Ukraine President Volodymyr Zelenskyy has accused Russia of carrying out an "obvious policy of genocide" in the country's eastern region of Donbas.
It's the latest use of the word genocide from a world leader since Russia launched its invasion on 24 February - and one which carries significant historical weight, Australian international law experts have said.
But they point to the difference between political rhetoric and legal judgment - for which the threshold for committing acts of genocide is "extremely high".
Mr Zelenskyy used the term during his daily televised address on Friday as he condemned Russia's offensive on the Donbas region, home to pro-Russian separatists, where it has redirected its forces after having failed to capture Kyiv.
He said Russia's offensive could leave the entire region "uninhabited".
"All this, including the deportation of our people and the mass killings of civilians, is an obvious policy of genocide pursued by Russia," Mr Zelenskyy said.
Mr Zelenskyy previously used the term in early March after officials said Russian aircraft bombed a children's hospital despite a ceasefire deal at the time for people to flee the besieged city of Mariupol.
"What kind of country is this, the Russian Federation, which is afraid of hospitals, is afraid of maternity hospitals, and destroys them?" Mr Zelenskyy said in a televised address on 9 March.
The bombing of the children's hospital, he said, was "proof that a genocide of Ukrainians is taking place".
Kremlin spokesman Dmitry Peskov told Reuters at the time: "Russian forces do not fire on civilian targets." Russia calls its incursion a "special operation" to disarm its neighbour and dislodge leaders it calls "neo-Nazis".
Ukraine President Volodymyr Zelenskyy during his regular address to the nation from the capital Kyiv on 11 March 2022. Source: AAP / Ukrinform/ABACA/PA
"It is hell there - and that is not an exaggeration," he said in a late night video address, adding that 12 people had been killed in the "brutal and absolutely senseless bombardment" of the city of Severodonetsk on Thursday.
"(There are) constant strikes on the Odesa region, on the cities of central Ukraine. The Donbas is completely destroyed," he said.
"This is a deliberate and criminal attempt to kill as many Ukrainians as possible, to destroy as many houses, social facilities and enterprises as possible," he said.
Joe Biden accuses Vladimir Putin of 'genocide'
United States President Joe Biden accused Russian leader Vladimir Putin of committing "genocide" in Ukraine last month.
, saying: “Your family budget, your ability to fill up your tank, none of it should hinge on whether a dictator declares war and commits genocide a half a world away."
Mr Biden later clarified his remark to reporters.
“I called it genocide because it has become clearer and clearer that Putin is just trying to wipe out the idea of being able to be Ukrainian, and the evidence is mounting,” he said.
“We’ll let the lawyers decide internationally whether or not it qualifies, but it sure seems that way to me.”
The White House said at the time that a legal process would be undertaken.
President Joe Biden speaks to the media before boarding Air Force One at Des Moines International Airport, in Des Moines Iowa, 12 April, 2022. Source: AAP / Carolyn Kaster/AP
“They've been used fairly liberally in the context of Ukraine over the last six or seven weeks. And there's a difference between political rhetoric and clear-headed legal analysis and, ultimately, judgment,” he said at the time.
“Genocide in particular, moreso than war crimes, carries with it such significant historical consequences that care needs to be really used in using that term.”
“There’s a number of elements associated with the crime of genocide, and they set fairly high thresholds to be met."
Mr Biden had previously described Mr Putin as a "war criminal" but had stopped short of using the term "genocide" in line with longstanding US protocol, because of its strict legal definition and the heavy implication the accusation carries.
Canadian Prime Minister Justin Trudeau the following day, repeating Mr Biden’s accusation.
The Kremlin denounced Mr Biden’s description of Moscow’s actions, with spokesman Dmitry Peskov saying this was unacceptable coming from the leader of a country he said had committed crimes of its own.
Challis chair of international law at the University of Sydney, Ben Saul, said in April that Mr Biden’s remarks reflect a view in the US administration “that there may be evidence of genocide occurring”, but noted the president qualified his statement.
“He’s not necessarily drawing a firm legal conclusion, as opposed to politically labelling or stigmatising Russia for those acts ... certainly it has upped the pressure on Russia by claiming that it has happened.”
What is genocide?
According to the United Nations’ Genocide Convention, set out in the wake of the events of World War Two and the Holocaust, genocide is a crime under international law.
It states the term refers to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
“Certainly in the popular imagination, genocide is seen as the worst crime imaginable, and it shocks the conscience. It's the deliberate extermination of a group because of their identity characteristics,” Professor Saul said.
But he said it’s not necessarily accurate to position it as the “worst international crime”.
Such acts of genocide include killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part; and imposing measures intended to prevent births within the group or forcibly transferring children of the group.
The definition has been widely adopted at national and international levels, including in the International Criminal Court’s (ICC) founding treaty, the Rome Statute.
Professor Saul said some group characteristics are left out of that definition, including cultural and political groups.
“Political genocide is not legal genocide, because political groups, political opinion, are not protected by that definition.
“It has to be a specific intention to destroy the group by one of those methods, because of those listed characteristics of race, ethnicity, religion, nationality.”
He said such intent sets genocide apart from war crimes - defined as serious violations of the laws and customs applicable in international armed conflict - and crimes against humanity, which are serious violations committed as part of a large-scale attack against any civilian population.
“It requires that extra step of showing that the killing is because of those identity-based characteristics of the group,” he said.
Professor Rothwell argues genocide “has a political dimension, in that there is a political objective seeking to be obtained by perpetrators of the crime”.
A United Nations vehicle in Bucha, Ukraine. In April, the chief prosecutor of the International Criminal Court, Karim Khan, visited Bucha, where Russian forces are accused of committing war crimes. Credit: FADEL SENNA/AFP via Getty Images
“An act of genocide is not just a random act, quite clearly, it needs to be directed at the very highest levels and there needs to be a political context to it.”
Since the end of the Cold War, the US State Department has formally used the term seven times.
These were to describe massacres in Bosnia, Rwanda, Iraq and Darfur; the self-proclaimed Islamic State's attacks on the Yazidi people and other minorities; China's treatment of Uighurs and other Muslims (China ); and this year over the Myanmar army's persecution of the Rohingya minority.
Who prosecutes the crime of genocide?
The ICC’s treaty grants it jurisdiction over four main crimes, including genocide, crimes against humanity, war crimes and the crime of aggression.
Professor Rothwell said strong debate exists within legal circles for a separate tribunal to investigate Mr Putin for the crime of aggression - invading a sovereign nation - for which the ICC does not technically have jurisdiction.
When it comes to genocide, the jurisdiction of the ICC is clear.
“It [the ICC] unambiguously has jurisdiction with respect to the crime of genocide, if that crime of genocide has been committed in Ukraine. And so that opens the door for the ICC prosecutor much more clearly to potentially commence a prosecution against Putin for genocide,” he said.
It is unlikely that Russian President Vladimir Putin will appear before the International Criminal Court in The Hague. Source: AAP
How might this fit into the ICC's current investigation?
The ICC has already started an investigation into alleged war crimes committed by Russia, surrounding the targeting of civilian sites such as kindergartens, hospitals, residential blocks and homes that have led to the deaths of hundreds of innocent people.
Russia has denied targeting civilians and has said Ukrainian and Western allegations of war crimes are fabricated.
Professor Rothwell said the investigation is not limited to any particular type of crime.
“The evidence has been accumulating, and the evidence could provide grounds for multiple prosecutions ranging from ordinary Russian soldiers all the way to Vladimir Putin,” he said.
“And the evidence could relate to standard war crimes, all the way up to the crime of genocide as we are now discussing.”
An ‘extremely high bar’
Professor Rothwell cautioned against offering an assessment as to whether or not genocide may have been committed, “given the threshold is very high”.
“It's very important to distinguish between Russian attacks on hospitals, or on schools, for example. Those are, at face value, war crimes. But they certainly don't constitute crimes of genocide,” he said.
“It's rather the continued attack being launched against the civilian population, to seek to destroy elements of national, ethnic or racial character, and that there's a pattern associated with that.”
Professor Saul agreed the bar is “extremely high” to show that genocide has been committed.
Mr Putin has justified launching a “special military operation” to “demilitarise and denazify” Ukraine. Kyiv and its Western allies reject that as a false pretext.
Professor Saul views the claim as evidence the term genocide does not apply, “because it’s suggesting precisely that his objectives are political and military”.
But Professor Rothwell argues otherwise.
“That in itself is an indicator of one of the elements of the crime of genocide - and that is an intention to destroy either a national, ethnic or racial or religious group - however that might be defined,” he said.
He said the claim offers an indicator of political intent which “adds to the ability to make out the crime of genocide”.
“As this conflict continues, size and scale also become important dimensions in that.”
The road ahead
Experts say there is a long, drawn-out process ahead. If the court finds sufficient evidence of such crimes, it could issue arrest warrants.
“Any prosecutor, let alone the prosecutor of the ICC, is going to have to seek to build a methodical case before they issue arrest warrants,” Professor Rothwell said.
“Even then, issuing an arrest warrant against the president of Russia, for example, is not a very easy thing to do in terms of actually getting the president of Russia arrested.”
Despite this, he said the response to the conflict thus far has been “remarkable”.
“It has built up such a significant amount of momentum that we will eventually see consequences flow. It will just take some time.”
Ultimately, Professor Saul said all international crimes should be taken very seriously.
“I don’t think we need to fixate on whether it’s genocide or not to ensure that perpetrators are brought to justice."
With AAP / Reuters / AFP
