Ukraine Pursues Genocide Charges
Although the term is currently often used in international politics, the legal complexities are huge.
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Tuesday, 2 April ‘24
This week’s overview of key events and links to essential reading.
Two Russian Soldiers to be Tried for Rape, Torture and Robbery
Servicemen accused of brutalising civilians during the occupation of parts of the Kyiv region.
Despite the huge challenges in prosecuting the crime of genocide, Ukraine continues to view this as key to justice. Yuriy Byelousov, who heads the war crimes department in the prosecutor general’s office, updated IWPR’s Olga Golovina on the ongoing processes, noting that the full picture would only become clear once all the occupied territories had been liberated.
IWPR: Some international lawyers consider it unlikely that Ukraine will be able to successfully pursue the charge of genocide against Russia. What route is Ukraine pursuing towards achieving this?
Yuriy Byelousov: The UN International Court of Justice (ICJ) examines cases in which states are parties, not individuals. Legal disputes in this instance may be related to violations of international agreements by the parties. In the final result, the court's decision states the fact of violation of the terms of the international agreement by the state without bringing the specific culprits to justice.
Currently, the ICJ is considering Ukraine's lawsuit against Russia in the case of "distortion of the concept of genocide," in particular, Russia's use of false accusations of genocide to justify a full-scale invasion, which constitutes a violation of a fundamental international treaty - the Convention on Genocide. On February 2, 2024, the court issued a decision rejecting the vast majority of the Russian Federation's preliminary objections to the jurisdiction and admissibility of the lawsuit, ruling that the case moves to the stage of consideration on the merits.
The International Criminal Court (ICC) has jurisdiction over individual international criminal prosecution, including for the crime of genocide.
It will be possible to talk about the real prospects of building a case regarding the genocide of Ukrainians for presentation in an international judicial institution only after conducting national investigations of most of the crimes committed on the territory of Ukraine and providing an assessment of the collected evidence.
Since the investigation of the crime of genocide is a complex process, which involves conducting a non-standard investigation, and an end-to-end analysis of the entire evidence base in the investigated criminal proceedings, as constituent elements of the crime of genocide. This is currently significantly complicated by the fact that part of the territory of Ukraine remains occupied, and therefore access to a large part of the evidence is absent. In addition, another challenge for Ukraine and the world community as a whole is the large-scale crimes committed by Russia, the commission of which only increases every day.
How does the office of the prosecutor general work in cooperation with international organisations and judicial bodies regarding the charge of genocide?
Due to the large-scale nature of violations of international law committed in Ukraine, the office of the prosecutor general has strengthened coordination and cooperation with national and international partners to ensure institutional capacity, operational and technical efficiency to promote swift and impartial justice and bring perpetrators to justice. In particular, it coordinates with the office of the prosecutor of the ICC in order to ensure a comprehensive investigation and prosecution of international crimes in accordance with the principle of complementarity.
Also, the US, the EU and UK, with the aim of providing strategic advice, operational and technical assistance in the investigation and prosecution of international crimes - including the crime of genocide - created the Advisory Group on the Most Serious International Crimes (ASA), with which the office of the prosecutor general closely cooperates.
Since the full-scale war in Ukraine began more than two years ago, what signs of alleged genocide has your department recorded?
One of the mandatory features of genocide is the presence of a specific genocidal intent, that is, the intent to completely or partially destroy a certain protected group.
We record examples of such genocidal rhetoric of representatives of the Russian Federation in relation to Ukrainians in speeches, interviews, articles, textbooks and other sources. These are, in particular, narratives regarding the denial of the existence of the Ukrainian people and the right to the existence of Ukraine as a sovereign, independent state; representation of the Ukrainian people as an integral part of the Russian people, etc.
The specified rhetoric must be combined with the commission of one of the five basic acts defined by the Convention. Among the most widespread in Ukraine and potentially possible for proving the crime of genocide, in our opinion, are murders; creation of living conditions designed for physical destruction - such actions may include attempts to destroy objects of energy and heat-generating infrastructure in winter - and forcible transfer of children from one group to another.
Why is the crime of genocide so difficult to prove?
Despite the fact that the term genocide is currently used quite often in international politics, its legal nature is not simple. For genocide, there are four protected groups (national, ethnic, racial and religious), five prohibited acts (murder, inflicting severe bodily or mental harm, creating living conditions designed to destroy the group, preventing the birth of children, forcible transfer of children) and no alternative to the requirement that one of these actions be committed with genocidal intent - to destroy in whole or in part one of the mentioned groups.
At the same time, such a seemingly simple definition hides a complex assessment of law and facts, which is complicated by the insufficiency of international judicial practice and sometimes contradictory decisions of the tribunals themselves.
Yes, there is still no clear explanation of how exactly to determine a sufficient part of the group to be exterminated to establish genocide. The tribunals only concluded that such a part must be significant quantitatively - a large number of victims - or qualitatively: the killing of leaders.
Difficulties also arise with the delineation of protected groups that may be targeted with genocidal intent to destroy. It is necessary to distinguish the intention to destroy Ukrainians as a national group from murders based on a political motive, because a political group is not protected by the convention.
Among other things, the presence of special intent must be proven without alternative in each specific case of committing the basic act. If there is at least one other possible motive for committing the crime, the specified act cannot be qualified as genocide.
Huge numbers of alleged Russian war crimes have been registered, with more added every day. How do these feed into creating a legal case regarding the crime of genocide?
The peculiarity of the crime of genocide is that it is not an independent illegal act. All actions that can form the objective side of the specified crime are separate crimes in themselves.
More than 123,000 war crimes have been registered in Ukraine, a large part of which could potentially be separate elements of the genocide case. War crimes committed by representatives of the Russian occupation forces are investigated by various bodies of pre-trial investigation, which is determined by the place of their commission and their number.
The task of the prosecutors in the genocide case is to analyse the specified proceedings and answer the question as to which criminal acts have all the necessary elements that will allow to qualify the specified individual crimes as part of a large campaign to destroy the Ukrainian nation.
The final picture of the genocide of the Ukrainian people can be created only after the liberation of all the occupied territories, which will give an understanding of the atrocities committed by the occupiers, their consequences and scale.
Are there any specific legislative or policy changes that the attorney general's office is proposing to strengthen the legal framework?
The legal basis for genocide primarily consists of the convention and the established practice of international court tribunals. The definition of genocide from the convention is integrated into the statute of the ICC and into the national legislation of most participating countries. Therefore, legislative changes are possible only with the consolidated participation of representatives of the entire civilised world.
It would be more effective at this stage to develop a new precedent practice taking into account and understanding that the crime of genocide is not stable or monolithic...and the interpretation of the concepts laid down in the convention 70 years ago should take place taking into account the realities of today.
At the same time, at the level of national legislation, we have initiated legislative changes regarding the strengthening of criminal liability for calls for genocide (Part 2 of Article 442 of the criminal code of Ukraine), which are currently a minor crime. In our opinion, this crime is the basis for inciting hatred, which in conditions of armed conflict leads to the commission of genocidal acts.
