How to prove genocide, the most serious of war crimes?

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THE HAGUE — Washington and kyiv accuse Russia of genocide in Ukraine, but the ultimate war crime has a strict legal definition and has rarely been proven in court since it was cemented in humanitarian law after the Holocaust.


The 1949 Geneva Conventions define it as “an intentional effort to destroy in whole or in part a group because of its nationality, ethnic origin, race or religion”.

So far, three cases have reached the threshold of international tribunals: the Cambodian Khmer Rouge massacre of the Cham minority and Vietnamese in the 1970s, who were among an estimated 1.7 million dead; the 1994 mass massacre of Tutsis in Rwanda that claimed 800,000 lives; and the 1995 Srebrenica massacre of some 8,000 Muslim men and boys in Bosnia.

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Criminal acts comprising genocide include killing members of the group, causing them serious bodily or mental harm, creating conditions conducive to their destruction, preventing births, or forcibly transferring children to other groups.


To establish genocide, prosecutors must first demonstrate that the victims were part of a distinct national, ethnic, racial or religious group. This excludes groups targeted for political beliefs.

Genocide is more difficult to demonstrate than other violations of international humanitarian law, such as war crimes and crimes against humanity, because it requires proof of intent.

“Genocide is a difficult crime to prove. The parties have to bring a lot to the table,” said Melanie O’Brien, president of the International Association of Genocide Scholars. She cited the combined requirement to show intent, targeting a protected group and crimes like murder or forcible removal of children.

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The International Criminal Court opened an investigation into allegations of war crimes and crimes against humanity in Ukraine in February. It also has jurisdiction over genocide.

Ukrainian prosecutors, who had already been investigating alleged Russian crimes since the annexation of Crimea in 2014, said they had identified thousands of potential war crimes by Russian forces since February 24 and compiled a list of hundreds of suspects.


Ukrainian President Volodymyr Zelenskiy and US President Joe Biden have both accused Russian soldiers of genocide, focusing on evidence of rape, torture and murder in areas around kyiv taken over by Ukrainian troops this month .

“Yes, I called it genocide because it has become increasingly clear that (Russian President Vladimir) Putin is just trying to erase the idea that he can be Ukrainian and the evidence is piling up,” he said. Biden said.

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British Prime Minister Boris Johnson said last week that the scale of the atrocities “seems not far from genocide”.

Moscow, which called the attack on its smaller neighbor a “special operation” to end the genocide against Russian speakers in Ukraine, says the West rigged evidence to smear its military.

The US administration has declared seven situations of genocide since the 1990s: Bosnia, Rwanda, Iraq, the Sudanese province of Darfur, the killings of the Islamic State, including against Yazidis, the repression of Rohingya Muslims in Myanmar and the treatment of Uyghur Muslims in China.


The International Criminal Court has previously issued a genocide warrant for former Sudanese President Omar al Bashir, but his trial cannot begin until he is detained in The Hague.

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The International Court of Justice also has jurisdiction over the Genocide Convention, the first human rights treaty adopted by the United Nations General Assembly in 1948, setting out the commitment of the international community to prevent atrocities of World War II do not happen again.

He hears two cases: one claiming that Myanmar committed genocide against the Rohingya Muslims, the other brought by Ukraine to claim that Russia is using the genocide charges as a false pretext for the invasion.

Such cases usually take years to reach a verdict.

(Reporting by Stephanie van den Berg; Writing by Anthony Deutsch; Editing by Andrew Cawthorne)



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