Genocide in Ukraine, War Crimes and Biden
Gearóid Ó Loingsigh
17 April 2022
People hold banners during a demonstration
outside the Russian embassy in Warsaw.
Joe Biden has recently ratcheted up the accusations being levelled against Russian forces in Ukraine and against Putin in particular. He has gone from accusations of war crimes, which depending on their nature Putin may be liable for or responsibility may just rest with the soldiers and commanders on the ground, to accusing Russia of genocide.
There is a reason for this, genocide unlike war crimes can be tried in any jurisdiction of the world. Russia is not a signatory to the Rome Statute and has not signed up to the International Criminal Court and so, like the US it cannot be subjected to war crimes tribunals under its jurisdiction. The accusation of genocide gives Biden much greater leverage and scope.
It is important to understand what genocide is. It is not just a series of massacres, nor is it a simple accumulation of many war crimes, nor is it dependent on the number of people who are murdered. It is a specific crime in and of itself and certain conditions must be met in order to qualify as genocide. What constitutes genocide is covered by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Though there have been some further developments in the jurisprudence to cover political groups. Article II states.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;The Convention is straightforward in some respects. Though many nations presented their reservations at the time of signing it, including the United States, which reserves the right to veto the prosecution of US citizens. Most of us when we think of genocide we bring our minds to the extermination of European Jews by the Nazis, quietly leaving to one side the genocide carried out in the same period by the Nazis against other groups such as Gypsies and gays. The Nazi led genocide however, was neither the first nor indeed the last. The Turks had carried out an attempt at genocide against the Armenians, which this NATO member still classifies as a crime even mentioning it. One of the other genocides in more recent times was that of Bosnia. The Bosnians were not left just to their own devices during that war. The UN imposed an arms embargo on Bosnia, cut off telecommunications with the outside and even limited how many letters journalists could bring out of Bosnia with them to forward on to relatives of those they met. It was the UN that closed down the airport at Banja Luka forcing people to run the gauntlet of Serbian forces. It was also the UN that stood by and watched whilst the massacre at Srebrenica was carried out. This massacre was part of the genocide and Article III (e) of the UN convention is quite clear that complicity in genocide is a crime. Those who stood by and did nothing to try and prevent it are complicit. When it came to trying those responsible, no one in the UN or the Dutch armed forces present on the day was tried.
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.(1)
The International Criminal Tribunal for the former Yugoslavia did hold that the Srebenica massacre was an act of genocide when in 2001 it found Radislav Krstic guilty of genocide,(2) it then went on in 2017 to find Ratko Mladic(3) guilty of the same. There was an attempt to destroy a specific group. Unlike the Nazi led genocide, the genocide of Bosnians was something that was well known and many examples of it occurred before the cameras. Norman Cigar made the following point.
One element and perhaps the key element in the emergence of genocide is leadership. One must examine how the elite in a society channel the competition, or conflict, among ethnic communities, whether within a single state or across international boundaries. Genocide in Bosnia-Herzegovina was neither a spontaneous expression of communal hatreds, extending back over a millennium, nor was it a primeval popular emotion, which the Serbian leadership could not control. On the contrary, in seeking to develop a vehicle for its own acquisition and consolidation of power, the Serbian elite (both governmental and non-governmental) found it necessary to engage in a systematic and intensive campaign in order to create a nationalist movement and to exacerbate intercommunal relations to the extent that genocide could be made plausible.(4)His point is relevant today. Genocide is not an accumulation of massacres, it is a policy. For Putin to be guilty of genocide it must be shown that it is a policy and not just the work of some commanders. It must be systematic, not in the industrial sense the Nazi’s employed but in general. A genocide may lack the industrial precision of the Nazis, but would still be widespread and targeted against a specific group or groups.
Genocide is also a social practice. The Argentinian activist and academic Daniel Feierstein pointed out that the Nazi Holocaust wasn’t just about killing Jews or other groups but about reorganising German society. Genocide need not be successful nor indeed aim to completely eliminate a group, in the physical sense of the word. In Argentina a genocide was attempted by the Generals. It was systematic and aimed at particular group in society. Social and political groups were excluded from the UN Convention, not because such groups cannot be victims of genocide but rather due to realpolitik and saving the skins of the Allies leadership.
In the aftermath of the Holocaust, the essential elements of this definition – an “intent to destroy” either “in whole or in part” groups defined in terms of nationality, ethnicity, race or religion – seemed like a reasonable compromise given that several countries such as the USSR and Great Britain had a recent history of domestic and/or colonial repression and had insisted on the exclusion of social and political groups as targets of genocide.(5)Over time the definition of genocide would expand to include social and political groups as well. The Inter-American Court of Human Rights, now uses a definition that includes political groups and has condemned Colombia for the genocide of the political party Unión Patriotica. Genocide goes beyond murder.
The Nazis had resorted to ruthless methods not only to stifle dissent but— more importantly—to reorganize German society into a Volksgemeinschaft, or people’s community, in which racial solidarity would supposedly replace class struggle. It was no coincidence that after seizing power in 1976, the Argentine military described its own program of forced disappearances, torture, and murder as a “Process of National Reorganization” aimed at remodeling society along “Western and Christian” lines.
This realization led me to explore an important but relatively neglected aspect of genocidal processes, namely, the ways in which annihilation has been used to destroy and reorganize social relations.(6)This is one of the aspects in looking at genocidal practices in Latin America and can be seen in the case that is currently before the Inter-American Court of Human Rights regarding the extermination of the Unión Patriótica, a left-wing political party set up initially as part of a tentative peace agreement with the FARC guerrillas.(7)
So, when Biden makes claims about genocide, his options are a bit wider than comparing it to the Nazi genocide against Jews, Gypsies, gays and other minorities during WWII. But does it measure up? There are obviously examples of the killing of civilians by both Russian and Ukrainian forces. Some of these may constitute war crimes, but as of yet there is no evidence to implicate Putin. For a massacre of civilians or the direct bombing of a civilian target to implicate him, it would have to be Russian policy to do so. The killings would have to be part of a systematic or at least widespread attack on the civilian population as policy. What is almost certain is that Russian soldiers could be brought before courts for war crimes. This would involve those on the ground and up the chain of command to a certain point.
It is clear that there is no intention to carry out a Holocaust style genocide, not even Biden has claimed that. Neither is there any attempt to erase the presence of Ukrainians from their own country. There have, so far, been no examples of what the Spanish author Juan Goytisolo referred to as Memorcide when covering the war in Bosnia, where Serbian forces razed mosques, cemeteries and anything that indicated anyone other than Serbs had lived there. In fact, if anything the behaviour of the Ukrainian regime and the actions of the Azov Battalion come closer to that than current Russian actions, with eight years of curtailing rights of Russian speakers and openly calling for their removal from Ukraine.
Biden’s claims on genocide are baseless, they are politically motivated. In Iraq, Saddam was compared to Hitler as tends to happen with anyone who opposes the US, ignoring actual fascists in league with the US. It is a bit more difficult to invoke Hitler directly given that it was the former Soviet Union that defeated the Nazis and bore the brunt of the war in terms of civilian deaths. So, genocide is a round about way of doing so. But there is no basis to it in law. No evidence has been produced to indicate a plan to exterminate the Ukrainian population, or even a significant part of, no evidence on the targeting of a specific social group and the fascist Azov Battalion doesn’t count as such, it is a fascist military organisation engaged in hostilities. There is no evidence of an attempt at the cultural destruction of the Ukrainian social fabric, none whatsoever. Biden has, like the Zionists, cheapened discussion on genocide, giving new meaning to Arendt’s expression on the banality of evil, making a phenomenon such as genocide just another insult to throw around divesting it of all meaning as part of a pro-war propaganda drive.
Notes
(1) UN (1948) Convention on the Prevention and Punishment of the Crime of Genocide. General Assembly Resolution 260 A (III) of December 9th 1948 https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
(2) ICTY Press Release https://www.icty.org/en/press/radislav-krstic-becomes-first-person-be-convicted-genocide-icty-and-sentenced-46-years
(3) ICTY Press Release https://www.icty.org/en/press/icty-convicts-ratko-mladi?-for-genocide-war-crimes-and-crimes-against-humanity
(4) Cigar, N. (1995) Genocide in Bosnia: The Policy of “Ethnic Cleansing”. USA. Texas A&M University Press. P.6
(5) Feierstein, D. (2010) Political Violence in Argentina and its Genocidal Characteristics pp 44-63 in Esparza, M. et al. (2010) State Violence and Genocide in Latin America: The Cold War Years. London. Routledge.
(6) Feierstein, D. (2014) Genocide as Social Practice: Reorganizing Society under the Nazis and Argentina’s Military Juntas. New Brunswick. Rutger University Press. p.1
(7) See Cepeda Castro, I. (2006) Genocidio político: el caso de la Unión Patriótica en Colombia. https://www.corteidh.or.cr/tablas/r24797.pdf