President Biden’s accusation that Russia is committing genocide resonated with those shocked by the images of the apparent massacre in Bucha, Mariupol and other parts of Ukraine. “Your family budget, your ability to fill your tank — none of it should depend on a dictator declaring war and committing genocide half a world away,” Mr Biden stated, though later qualifying his comments and declaring the need saw more evidence. “We let the lawyers decide internationally whether it qualifies, but it certainly seems so to me.”
Understandably, Mr. Biden spoke as he did; his use of the term “genocide” was essentially an expression of outrage and disgust. And yet it’s unclear whether he saw the gap between popular views of the word’s meaning — as it’s often used synonymously with mass murder — and its more narrow legal definition.
I also wonder if it was a wise choice of words. While there is evidence of genocidal rhetoric and of acts — including murders and rapes — that may reflect Russia’s genocide intent, the practice of international courts tells us to be cautious that much more will be needed to settle a case. to support.
The word “genocide” was invented in the context of World War II by the émigré Polish jurist Raphael Lemkin – an amalgamation of the Greek word “genos” †tribe or race”) and the Latin word “cide” (“kill”). dr. Lemkin, a refugee, attributed the idea to his student days at the law school in the Polish city of Lwow (today Lviv, in western Ukraine, recently subjected to attacks from Russia) in response to intergroup conflicts, hoping to break down a category of crime. under international law to protect groups. The term first appeared in November 1944 in his book ‘Axis Rule’ and the following year, because of Dr. Lemkin, part of the Nuremberg trial, as an example of a war crime.
In Nuremberg, genocide was joined by two other newly minted crimes, aggression (waging illegal war) and crimes against humanity (widespread attacks on civilians). And yet, the verdict ultimately failed to mention the term — in part in response to American concerns about the possibility of genocide charges against the United States and its implications for national sovereignty. That omission was explained by Dr. Lemkin as “the blackest day” of his life.
In 1948, again at the urging of Dr. Lemkin, the 1948 Convention for the Prevention and Punishment of Genocide. It required signatories to prevent and punish “acts committed with intent to destroy, in whole or in part, any national, ethnic, racial or religious group as such.” (The United States, still concerned about its own plight, didn’t sign until 1988.) The convention took a much narrower definition than Dr. Lemkin would have liked — for example, through cultural genocide and the protection of political, social and exclude other groups.
In the decades that followed, the term fell into the shadows. It was the atrocities of the 1990s in Rwanda and the former Yugoslavia that caused it to resurface. Eye-catching horrific acts of neighbor against neighbor caused genocide as a symbol of the crime of crimes. It has become a word that grabs public attention in ways that the labels of war crimes and crimes against humanity do not.
Yet the claim of genocide is not only a rhetorical indictment, but also a legal one. In the context of Ukraine, as invoked by President Volodymyr Zelensky and Mr. Biden, the legal charge will depend on evidence that Vladimir Putin or other accused perpetrators intend to destroy, in whole or in part, Ukrainians as a group. International courts have set the bar very high for proving such intent: in its ruling in the cases brought by Bosnia and Croatia against Serbia, the International Court of Justice in The Hague accepted that evidence of genocide intent could be inferred from a pattern of behaviour, but held that such intent should be the only inference that can reasonably be drawn from the acts involved.
That is an impossibly high bar, one that is difficult to prove, since a variety of intentions will invariably determine human action. International courts have rarely ruled that genocide has taken place, and this has led to accusations of inconsistency and peddling Dr. Lemkin never intended. For example, the murders of more than 8,000 Muslim men and boys in Srebrenica, Bosnia, were recognized as genocide, but the murders of hundreds in nearby Vukovar, Croatia, were not.
We don’t know if Mr Biden spoke as he did on advice or if it was just an expression of outrage born of horrific images. However, he is sure that the use of the term is also an advocacy act, one that draws widespread attention, garners support for the Ukrainian cause and further taunts Mr Putin and his cohort.
Mr. Biden’s words could have unintended consequences, reinforcing the feeling that war crimes or crimes against humanity are somehow less horrific than genocide. They are not: International law does not recognize a hierarchy of horrors, and the use of labels to describe acts of mass atrocities can be divisive, such as when President Emmanuel Macron promptly took issue with Mr Biden’s characterization.
The use of the word ‘genocide’ also raises expectations and the prospect of disappointment: An international statement that such a crime did not take place would be devastating to the victims and would be attacked by those who claim their claims are exaggerated. Using the term and then doing nothing to prevent other similar horrors – such as those imminent in eastern Ukraine – will undermine those who make this claim in the future.
In our time there are countless accusations of genocide: the Darfuris in Sudan, the Yazidis in northern Iraq and Syria, the Rohingya in Myanmar, the Uighurs in China. Last year, Mr. Biden became the first US president to characterize the assassinations of Armenians in the Ottoman Empire in 1915 as genocide—an act that unwittingly opened the door to using the term for more proximate acts of systematic misconduct, in relation to America’s history of slavery and the treatment of Native Americans. dr. Lemkin, who died in 1959, is said to have approved the use of the word in reference to all of these situations and many others, including the apparent massacre at Bucha. He would no doubt be delighted to see his word entered the legal lexicon and changed our consciousness about what states can and cannot do with people. He would, however, be horrified by the parsing of words, the distracting fights over the labeling of such despicable cruelty, and placing his term at such a high level that the legal meaning of “genocide” is separate from its ordinary conception.
Philippe Sands is a law professor at University College London, the Samuel Pisar visiting professor of law at Harvard Law School, and the author of “East West Street: On the Origins of Genocide and Crimes Against Humanity.”