Diplomats and international lawyers often call genocide the "crime of all crimes". It is considered to be the utmost crime, being more grave than any war crime or crime against humanity. But this also means the most difficult and demanding standards of proof apply to accusations of genocide.
It is not for nothing that since 1948, when the Convention on Genocide came into force, no state has been convicted of genocide.
For example, after the wars in the Balkans, which were accompanied by acts of ethnic cleansing and genocide, military and civilian leaders, including the ex-president of Yugoslavia Milosevic, were on trial at the international court. Several were sentenced for committing genocide, however the attempt to prove the guilt of the State of Yugoslavia was a failure - the court "acquitted" it.
Taking into account the Balkan experience, Ukraine is wary of a potentical defeat in court and has not yet dared to initiate a case of genocide against Russia.
This seems to be excessive caution on Kyiv’s part.
In recent months, the world has come to believe that Russia committed genocide in Ukraine, and most importantly, that genocide is the result of the entire state machine of the Russian Federation.
This understanding has emerged even in Germany, which is cautious about acknowledging genocide, as we learned at the international conference "International Law Against Genocide" in Berlin these days. Every single European panelists agreed that Russia committed genocide in Ukraine; the discussion was focused on what stage of the crime of genocide we are at.
So Russia could become the first state convicted of genocide (or the second, because another genocide trial is currently underway in the court).
However, Ukraine's cautious position is an obstacle to condemning the Russian Federation. Read more about this, as well as about the main emphasis in the European debate on genocide, in our article.
A crime for which no state have been convicted
"I have said many times that Ukraine should win this war, and it will win. The war will end on the terms that will be formed by Kyiv, not by Moscow," said Tobias Lindner, Minister of State for Foreign Affairs of Germany, one of the first to speak at the conference in Berlin.
Mr. Lindner moved on to the main topic and was even more specific and harsh in his accusations against the Russian Federation.
"The crimes that are currently being committed by Russia should be qualified as genocide, and thus they should be brought to court. And then the court must decide whether these are crimes against humanity or genocide"
He became far not the only German politician to speak that day in support of the thesis that Russia has committed genocide in Ukraine.
Although there were differences in the details in the qualification of genocide in the speeches during the day, the majority of speakers stressed that the responsibility for this crime lies not on a specific person, such as Putin or Shoigu, but on the Russian state.
And this in itself is revolutionary, because currently even Ukraine does not always weigh in on such statements.
The thing is that genocide is not only the most serious crime, which is provided by the system of international law; it is also one of the most difficult to prove. Especially when it comes to accusations against a state.
The term "genocide" as a clearly defined crime appeared in 1948 UN Genocide convention, so this can only be applied to the later crimes (that’s why the Holocaust as the genocide of the Jewish people never received legal confirmation of this status).
In the 74 years since this convention has been in force, there have been several mass crimes in the world that claim to be genocides. Special tribunals established with the permission of the UN Security Council, have reconginzed two genicides; the genocide of the Tutsi people in Rwanda in 1994 and the genocide of Bosnian Muslims in Srebrenica during the Balkan war in 1995.
However no state has ever been convicted of genocide.
There were individual sentences.
The prime minister of Rwanda, the presidents of Yugoslavia and the unrecognized Republika Srpska Krajina and dozens of their co-conspirators were on the dock in these cases. But only a few people were accused of genocide, and even fewer lived to be sentenced (Serbian leader Slobodan Milosevic died behind bars in The Hague).
In 1999, Croatia tried to prove that the genocide was more than the actions of individual soldiers and politicians, and filed a lawsuit at the International Court of Justice of the United Nations, claiming that Serbia as a state was guilty of the genocide of Croats; in response, Serbia filed a counterclaim against Croatia for the genocide of the Serbs.
After more than 15 years of consideration of the case, the Court dismissed both claims as unproven, and both countries declared that they cleared themselves of suspicions of genocide.
While Russian war against Ukraine is very different from the chaos in the Balkans in the mid-90s, the "Balkan scenario" and the fear of losing in court currently stops the Ukrainian authorities from legally, and not just verbally, accusing Russia of genocide. Ukraine confirmed this at the conference in Berlin.
"There have been precedents in history when one state tried to hold another state accountable under the Genocide Convention. And it turned out that these accusations are very difficult to prove", - explained the Agent of Ukraine at the International Court of Justice, Ambassador-at-large Anton Korynevich.
Moreover, the UN IC is already considering the lawsuit "Ukraine against Russia" regarding the Genocide Convention. It does not directly accuse the Russians of genocide, but is devoted to refuting the Kremlin's use of fakes about the "genocide in the Donbas" allegedly committed by Ukrainians as a pretext for the start of aggression.
This lawsuit could be supplemented with information about Russia's crimes in Bucha, Mariupol, Izyum, etc., and could try to punish Russia for the "most serious crime in the world", the crime of the crimes - but Kyiv decided not to do this.
"Many lawyers have asked us whether we will include in this lawsuit accusations against Russia that it violated the convention (and committed acts of genocide). But we decided not to do this, as this is a different case," Korynevich said, adding that instead of an interstate lawsuit, Ukraine sees the prosecution of Russian politicians, military leaders, and propagandists as the priority.
Intention as an issue. Did Russia plan the genocide?
Why is that so difficult to prove genocide? Who can doubt is when we already know the consequences of the occupation of the towns near Kyiv and Kharkiv (not to mention a not-yet-clear scale of mass murder in Mariupol and other cities in southern Ukraine)?
The issue is that the Genocide Convention requires proving not only the fact of deliberate extermination of Ukrainians as an ethnic or national group, but also requires proving "special intent" to commit genocide.
All the lawyers who took the floor at the conference in Berlin spoke about the need to prove intent; it was emphasized by Ukraine’s Foreign Minister Dmytro Kuleba, who opened the event. But we have focused on bringing individual Russians to justice, and not the entire Russian state. "We strive to bring the Russian perpetrators of genocide to justice, and we will fight for justice," Kuleba explained.
This caution contrasted with statements by Western officials and experts, such as Professor Irwin Kotler of the Raoul Wallenberg Center for Human Rights. Kotler emphasized that right now it is definitely about genocide committed by the state, and not about the actions of the military.
"We see denial of the existence of the Ukrainian people, the denial of Ukrainian identity, dehumanization... Russia has an intention. There is a plan to commit a crime - a state program supported by politicians' statements. There are systematic efforts aimed at destroying a group of the population," he described the literal correspondence of the actions of the Russian Federation as meeting the definition of genocide.
For all the politicians speaking at the conference, the presence of intent in the actions of the Russian Federation was also beyond doubt.
Historian Timothy Snyder devoted a separate lecture to explaining why the presence of genocidal intent is beyond doubt (read it in the article: "Russia Intends to Commit Genocide in Ukraine, Six Ways to Prove It")
Ukrainian officials have no doubt about the systematic intention of the Russian state to commit genocide, too. "Russia's brutal attempt to erase the Ukrainian identity, to erase the Ukrainian nation from the face of the earth is probably the most terrible event of this century," Dmytro Kuleba said emotionally. "There is incitement to genocide, it's just a fact - open RIA Novosti and read it. They simply say that we don't exist," Anton Korynevych explained.
But despite this, Ukraine cannot decide on a lawsuit against Russia.
It doesn't matter if there was genocide: even planning is enough
Despite the unanimity that Russia planned genocide and had the same "special intent" referred to in the Convention (and which is required to punish the perpetrators), there is an important detail on which opinions differed.
This is a question of whether there is evidence not only of planning, but also of carrying out mass murders on such a scale that one could talk about the fact of the genocide of the Ukrainian nation.
Several speakers spoke about the "genocide risk".
"Increasingly, we face the risk of genocide, and we call on all parties to take responsibility and prevent genocide," said the already mentioned Irwin Kotler after he finished proving the presence of criminal genocidal intent in the Russian Federation.
"There is a serious threat of genocide - so you don't have to wait for it to happen," added the representative of the organizers, co-founder of the Center for Liberal Modernity (LibMod) Ralph Fuchs.
But this is not a problem. It is not necessary to wait for more victims to condemn Russia.
Indeed, the Genocide Convention distinguishes 5 types of punishable acts: the world must punish the perpetrator not only for committing genocide, but also for conspiracy to commit genocide; direct and public incitement to genocide; attempted genocide; and complicity.
"Just as the Holocaust was not only about gas chambers, genocide in Ukraine begins with incitement. From demonization, dehumanization, etc.," argued Ralph Fuchs.
"Incitement to genocide is a crime in itself. As well as kidnapping children in order to raise them in a foreign national group. Therefore, what Russia is doing is genocide," Dmytro Kuleba agreed with him.
We left the reference to child abduction in his quote for a reason. This crime of the Russian Federation has caused the greatest reaction from the West.
This is the episode of genocide that has been proven to the best extent possible.
We are talking about the centralized, officially approved by Moscow, mass removal of children from Mariupol and a number of other territories occupied by the Russian Federation. This qualifies as genocide. The Convention on the Prohibition of Genocide stipulates that the "forcible transfer of children from one human group to another" is one way of destroying a national group as such.
"We are talking about the abduction of Ukrainian children when they were placed in families with Russian parents for so-called adoption," explained the State Minister of Foreign Affairs, Tobias Lindner.
In short, the Berlin meeting gave every reason to believe that proving the genocide committed by the Russian state is becoming an increasingly real possibility. And if this happens and Russia is found guilty of the crime of the crimes, it will be a turning point in the world's perception of the aggressor state and its punishment.
This has not happened in any other state.
Legal proof of state genocide will leave no doubt for the countries of the world, which maintain relations with Russia. It would be an invaluable achievement for Ukraine, even taking into account the fact that the consideration of the case will take years.
And finally, there is one more argument.
While there is currently no state found guilty of violating the genocide convention, that may soon change. An interstate case brought forward by Gambia on behalf of 57 muslim states, is pending before the UN Court of Justice against Myanmar over the genocide of the Rohingya people. The persecution and extermination of the Rohingya people, which was actively carried out in 2016-2017, is an undoubted example of state genocide, which (unlike Russian aggression) was committed inside the state.
In the summer of 2022, the UN Court declared the case admissible, rejected the Myanmar government's objections, and opened the door to the merits of the case. So in a few years we will find ourselves in a situation where there will be a state in the world convicted of genocide - and it will not be Russia. Of course, Ukraine must gather the courage to stand up for the truth in the international court of the UN, and file a new lawsuit there against the aggressor state.
International events like the Berlin forum help Kyiv "feel the ground" and decide on this necessary step.
Author: Sergiy Sydorenko,
editor of "European Pravda"