Zelensky Warns Russia Has Committed "Genocide" In Ukraine — But For Other Countries, Saying So Is More Complicated

Despite strong words from Ukraine on the nature of the crimes taking place amid the conflict with Russia, several experts have said those seeking justice should expect “a long game” when it comes to prosecution.

They have also warned against using the term genocide “colloquially”, as opposed to a confirmed legal definition, in order to gain “political capital” when describing similar internationally recognised atrocities such as war crimes and crimes against humanity.

Zelensky said that genocide had been committed in Ukraine following reports that 421 bodies in civilian clothes, some with their hands tied, were found in Bucha and other towns close to Kyiv once Russian forces had retreated from the area

“These are war crimes, and they will be recognised by the world as genocide. You are here today and can see what happened," Zelensky told reporters on Monday.

“We know of thousands of people killed and tortured, with severed limbs, raped women, murdered children. This is a genocide.”

How do you define genocide?

Dr Iva Vukusic, lecturer in international history at Utrecht University, told PoliticsHome that genocide has a “very precise definition” in international law.

“The key thing that sets it apart from other international crimes is an intent to destroy, in whole or in part, one of four so-called protected groups — national, ethnic, racial or religious groups,” she explained.

“Outside of law — in social science, in history, or in some other disciplines — genocide is used more broadly. Often, in lay terms, it’s used whenever there's a mass violence event.”

Genocide is “one of the international crimes that has the highest intent threshold”, according to Yasmine Ahmed, UK director of the charity Human Rights Watch (HRW).

“That's what makes genocide hard to prove. That the intent threshold is that there is an intention to destroy the part or the or a particular group within the population,” she told PoliticsHome.

“That's hard because, even though it might be widespread and systematic, the court would need to make a specific determination that there actually was that intent when they were doing it to actually destroy that whole particular group or the nation itself.”

Why is Zelensky calling it a genocide?

While Zelensky has been very forthright in accusing Russia of genocide, other states have been more reticent to use the term.

Boris Johnson said this week that the events in Bucha do not "look far short of genocide", but his official spokesperson has clarified that a "determination of genocide should rightly be made by a competent court rather than by the UK government".

US president Joe Biden has also declined to repeat the term, telling reporters only that Putin is a "war criminal" who needs to be held "accountable" when asked about the comments. 

The Ukrainian president is not alone in his use of the term genocide, however, with both the Polish and Spanish prime ministers echoing his claims. 

Both Vukusic and Ahmed agree that Zelensky is likely used the word genocide to draw international attention to the events in Ukraine, as it carries more “political expediency” than other such crimes.

“There is a sense that genocide is ‘the crime of crimes’. But actually, that's not set in any law,” Vukusic said.

“Crimes against humanity, war crimes, genocide — it's all awful. But for some reason, when you say this is a war crime, not so many heads turn in terms of urgency and concern.”

According to Ahmed, the term genocide was likely being used to get across “that there is a wholescale attack against a people, or a part of a people”.

“It may be being used in a more colloquial way than in strictly the legal way to convey the fact that Ukrainians are under threat in a way that maybe war crimes don't necessarily convey.”

Neither were critical, however, of Zelensky’s decision to use the word, with Ahmed adding that it was completely right for “these questions to be asked and to be discussed in the public domain”.

Are war crimes being committed in Ukraine?

Alongside genocide, war crimes and crimes against humanity both also have set definitions in international law. 

War crimes relates solely to crimes committed in the context of a conflict, and covers a range of atrocities including killing civilians or prisoners of war, unnecessarily destroying civilian property, sexual violence and related atrocities. 

Crimes against humanity can relate to events both in war and peacetime that, as part of a widespread systematic policy by a state, cause large scale human suffering or death to a civilian population. 

Unlike war crimes, which can be committed by individuals, crimes against humanity are generally committed by a state body.

Dr Mark Ellis, executive director of the International Bar Association, said current evidence coming out of Ukraine supported suggestions that both such categories of crimes were being committed. “There's no question in my mind that there's absolutely prima facie evidence for saying that war crimes are being committed by the Russian military and I would also add crimes against humanity,” he told PoliticsHome.

Vukosic added that, images of bodies found in Bucha with their hands tied demonstrate something that is “pretty straightforwardly a crime”.

“There's no scenario in which that is legal, it just doesn't exist, shooting someone in the head when their hands are tied,” she said. 

How can those committing crimes in Ukraine be brought to justice?

As Vukusic puts it, there are “fragmented options for justice” when it comes to the conflict in Ukraine. 

The first is the investigation by the International Criminal Court (ICC), which announced on 28 February its intent to open an investigation into the conflict.

Another option is internal investigations by the Ukrainian national judiciary. As of this week, it reported that it was already investigating 4,820 incidents of alleged war crimes by Russian forces in the country.

Several European states have also announced their intent to open investigations into suspected war crimes, in collaboration with Ukraine, to help prosecute perpetrators. 

Crimes that violate international law are considered under universal jurisdiction, which means that a state can prosecute perpetrators even if the crimes did not occur in their territory, or if the perpetrators aren’t citizens of that country. 

However, as Ellis explains, nation states cannot prosecute sitting heads of state, whereas the ICC can. 

“We know that the ICC has launched an investigation. I have very little doubt that ultimately, this will move to the next step of proceeding with an eventual indictment against individuals, possibly all the way up to Vladimir Putin,” Ellis said. 

Putin could be brought to a trial under the concept of command responsibility, Ellis continues. “Wherever you can prove that Putin, in essence, has effective control over the planning and execution of the military attack in Ukraine, and he did nothing to stop them, or punish those that committed them. 

“He can be held accountable just as if he was in Ukraine, perpetrating the crimes himself,” he added.

How long will it take for these crimes to go to court? 

Experts that PoliticsHome spoke to all agreed that, when it comes to bringing the perpetrators of atrocities in Ukraine to justice, the process could take several years.

“This is a long game. It was a long game in the former Yugoslavia, and it is a long game everywhere else. Justice on the quick and on the cheap doesn't exist,” Vukusic said.

“There is hope for justice, but not tomorrow, and not in two months.”

She also suggested that any potential prosecutions would be a “drop in the bucket” compared to the number who actually committed offences as there’s “no capacity to process hundreds and hundreds of people”.

Ellis, however, is a little more optimistic that things could move more quickly, as the current conflict was “the most documented war in history”. 

“There will be no shortage of pictorial evidence coming into the authorities, from all different sources, and assuming those assuming the evidence can be verified,” he said.

With this in mind, the IBA executive director was confident that prosecutions would happen “at a much more rapid pace than what we’ve seen in the past”.

“There's no statute of limitations for these crimes, and so individuals who have committed the crimes will know that they are going to be targeted during their lifetime to be brought to justice,” he said.

“I think that's a very powerful, very emotive concept, in principle that makes these individuals realise that they're not going to walk away with immunity.”

Is there enough evidence? 

The priority for Human Rights Watch, according to Ahmed, is to ensure that existing physical evidence in Ukraine was preserved “until such time that there are people with adequate expertise” able to examine it.

This is especially true of reported mass graves that have been found in several locations across Ukraine, she adds.

“The evidence for a court is something different from the evidence that maybe journalists would write or even a human rights organisation would write about. 

“It needs to be to a certain level, and there needs to be things that corroborate it, or there needs to be adequate assessment of certain evidence before it can be put in [court].”

Ellis is also calling for a concerted effort by the international community to ensure evidence is properly collected so it can be used in a court of law. 

“90% of what you see will not be able to be used in court proceedings. That's the reality. Now it's very important to raise awareness of what's happening in Ukraine, that I feel very strongly about,” he said. 

“The international community has to get more sophisticated in gathering evidence that can speak for itself, that doesn't require the individual who's sitting there taking the video to be testifying in court.”

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