U.S. President Joe Biden and Ukrainian President Volodymyr Zelensky have both pointed to weekslong devastation throughout Ukraine, particularly in cities such as Bucha and Mariupol, to declare that Russia is committing genocide with its invasion of that nation.
But as a new ABA Legal Fact Check posted May 18 explains, from a legal basis it is too early to term Russian atrocities in Ukraine “genocide.” Under international and U.S. law, a determination must first be made that the “intent” of the alleged perpetrator is to destroy a national, ethnic, racial or religious group before the crime of “genocide” can be established.
Coined by Polish lawyer Raphael Lemkin in 1944 amid the Nazis’ systematic murder of Jews during the Holocaust, genocide derives from the Greek prefix for “race” (génos) and the Latin suffix for “killing” (-cide). The efforts of Lemkin and others led to the United Nations’ approval of the Convention on the Prevention and Punishment of the Crime of Genocide, also known as the Genocide Convention, in 1948.
Today, 153 countries, including the U.S. and Russia, have signed on to the Genocide Convention, which gives the International Court of Justice (ICJ) the responsibility to hear genocide complaints against nations. In 1998, the International Criminal Court (ICC) was established to prosecute individuals.
U.S. approval to implement the Genocide Convention came 40 years later, in part because of opposition related to concerns that the treaty surrenders too much U.S. sovereignty. The U.S. law mirrors the critical Article II provision of the international pact that requires a determination of intent (emphasis added) to destroy a national, ethnic, racial or religious group. It carries maximums of life in prison and a $1 million fine.
The ICJ, the ICC and the U.S. Department of State have initiated separate inquiries in regards to whether genocide has occurred in Ukraine. The process takes time, as Biden suggested in April when he said, “We’ll let the lawyers decide, internationally, whether or not it qualifies (as genocide).” The last U.S. genocide finding, which involved the slaughter of the Rohingya by the Burmese military, came in March five years after the height of the onslaught.
As the ABA Legal Fact Check points out, establishing genocide as a legal finding will depend on whether a definitive determination can be made that actions are being taken with the “intent” to bring about the physical destruction of a national group.
- United Nations: Background and elements of genocide
- Key international pacts:
- Convention on the Prevention and Punishment of the Crime of Genocide and signatories
- Genocide Convention Implementation Act of 1987 (U.S.)
- International Criminal Court (ICC), which was established by the Rome Statute
- International Court of Justice: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)
- Relevant documents:
- U.S. Holocaust Memorial Museum: “By Any Other Name: How, When and Why the U.S. Government Has Made Genocide Determinations”
- U.S. Department of State: “Secretary Antony J. Blinken on the Genocide and Crimes Against Humanity in Burma”
- ABA Journal stories on genocide