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The Conflict in Ukraine and Genocide

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Russia-Ukraine conflict: Is genocide being committed? Noelle Quenivet examines the claim and concludes no dolus specialis identified.

Image courtesy of interviewee. January 8, 2024

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The speaker discusses their research on the topic of genocide in the context of the Ukraine conflict, noting the complex legal definitions and implications. Initially surprised to be asked to write about this issue so early in the war, the speaker conducted limited research, finding few official documents but much NGO and media reporting on atrocities in Ukraine. They highlight the difficulty in establishing whether actions meet the threshold for genocide, which requires a specific intent to destroy a protected group, as defined by the 1948 Genocide Convention.

The speaker emphasizes that the term "genocide" is often misused, even by prominent figures, and distinguishes the legal definition from common usage, pointing out that it applies strictly to national, ethnic, racial, or religious groups—not political ones. They explain that proving genocidal intent is incredibly challenging, evidenced by past legal cases.

Discussing the legal consequences of genocide allegations, the speaker mentions obligations for states to prevent genocide, the right for states to take violators to the International Court of Justice, and individual criminal responsibility for participating in genocide.

The speaker acknowledges the accusations of genocide against Russia and the complexities of the situation, especially regarding children's welfare and Russian adoption policies. Ultimately, they caution against hastily labeling acts as genocide, suggesting that these actions could be categorized instead as war crimes or crimes against humanity and pointing out that important legal avenues exist to pursue justice without necessarily invoking the term "genocide."

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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When the war started, obviously quite a lot

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of international lawyers were interested in the topic,

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and I was, asked, I was actually commissioned

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to write a piece on the conflict in Ukraine and genocide.

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And I was, at this time quite surprised, I have to say,

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to be asked to do so because the country had just started.

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And in very often, in order to find out whether there is a,

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a genocide, you need quite a lot of time to find out that.

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So I did say yes, I I will do that.

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So I, I did some research.

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It was very little, research done at the time.

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Obviously what I found were two official reports.

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I mean, one was a report from the USCE,

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which was published whilst I was writing,

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and the last one when I was about actually to,

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to submit the piece.

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So I asked for another week to,

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to make some changes for that.

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So there was very little in terms of official documents,

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but there was obviously very, a lot in the press, a lot

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of NGOs reporting on mass atrocities being

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committed in Ukraine.

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But the question was of course, whether that was genocide.

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And what I found even more interesting was that

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it was originally, Russia that had claimed

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that Ukraine was committing genocide on its nationals

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in the Donbass region.

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So it, it was quite interesting to,

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to have a look at the other side.

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My paper only focused on whether Russia was actually

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committing a, a genocide in Ukraine,

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and I didn't look at the other side, which to be honest,

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I found a bit of a spurious claim.

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So it's a very complicated term.

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Um, lots of lawyers are debating, the definition

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of genocide, but I think it's even more complicated

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because a lot of people

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who are not lawyers use the word genocide in

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a very loose way.

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Um, and I'm not even talking about people on the street,

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I'm even talking about presidents who are saying,

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this is a genocide, and we, lawyers are maybe not in fact.

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So we have to be very careful with the, the,

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the word, genocide.

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So it's very often misused.

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Um, and it misuses

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because it reminds us of, the Holocaust.

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It's also there as, a call to attract the attention

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that something is awful, something needs to be done.

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It's a call for, something needs to be done now.

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Um, and that is the way it is usually used,

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but for international lawyers,

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it has a very different meaning

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and we have to be very careful with that.

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So an international lawyer using that term,

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will use it according to the Genocide Convention,

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the 1948 Genocide Convention.

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And that definition has never changed, ever.

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It quite interesting was we have had changes in

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of crimes against,

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We always had just one single definition of genocide.

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We never, ever changed it.

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So when we looked at the genocide in wonder, we used

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that same definition as the one in,

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in the genocide convention.

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The same thing with the international court statute word

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by word, the same definition.

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So there's not so much of a,

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a discussion about the definition.

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It is well established, but it's about the interpretation.

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And we lawyers tend to argue about every single noun

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and adjective you can find in that definition.

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So yes, it is, it is a difficult one, I have to say.

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Provided it is a genocide.

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So I'll give you a definition also of

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what a genocide is for, for a lawyer.

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So, a genocide has to be one

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of a listed acts in the genocide convention.

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So clearly killing members of the group,

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imposing, conditions that will lead to them,

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dying or being not able to reproduce themself,

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but up to also transferring children.

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And, and that is something that I find quite interesting.

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So it's not necessarily about killing, people tend

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to think genocide about, you know, getting rid of the,

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the group by physical means,

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but not necessarily, so it has to be one

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of these crimes, then it has

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to be perpetrated against a certain group.

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And we have a very definite list there.

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So the group has to be a national ethnical

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racial or religious group.

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There is no genocide against political groups.

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So that is the reason why when we talk about the genocide

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of Khm Rouge in Cambodia,

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lawyers will tell you this was not a genocide.

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So this is quite important to remember.

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Um, but for everyone, you know,

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it is a genocide.

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Um, very different that, that, that's a quite a good example

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to show you the difference between what lawyers actually,

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viewing as genocide

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and what the, the general public sees it.

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Then the other part, which is the most important part

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of the definition of genocide, is

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that there must be an intention to destroy the group.

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So it's not that you don't like them,

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it's you are really killing them

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because you will destroy them completely.

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There will be none of them left.

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So at least you're making attempts.

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You don't need to have them killed all,

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but you're making an attempt at destroying them.

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And that is very difficult to prove.

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What is the intention of a person,

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and what's the d the intention of a state.

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So you are probably looking at what people are saying.

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Um, if they are saying, I want to kill you all,

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you all worthless

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and so on, that is a indicator

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of potential genocide,

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but not does, not necessarily is genocide.

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So for example, there was, who

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Was being prosecuted by the international tribunal

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for former Yugoslavia, and he absolutely hated Bosnians,

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and he was very clear about it,

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but we did not manage to get a conviction for genocide

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because he was, he couldn't, we couldn't prove

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that he was intended on killing, destroying the group.

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He didn't like them. That was for sure.

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But you, you, you can see how difficult it is actually

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to prove that there is genocide.

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So we shouldn't be using the word very easily.

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So you asked me about the, the, the legal consequences.

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So there are three of them.

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So the first one, and I mentioned this bit

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before about the, the word genocide being used to,

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to call the attention of the international community.

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And indeed there is in, in the convention on genocide,

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the obligation to prevent.

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So all states are obliged to prevent genocide,

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which would mean if we give it a, a wide interpretation

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that the states have to use all accessory means,

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including military force to ensure

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that the genocide is not happening

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and prevention is even better

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because that should be even before.

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So when we have some indicators in 19 nations has a range

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of indicators to, find out,

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in early warning system as we call it,

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to find out whether genocide is likely to happen.

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So VAs an entire system in place,

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but very often, to be honest, not much is being done

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and we end up with the genocide happening,

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and then there is the possibility to email to intervene.

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So indeed the word genocide means that there is

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a possibility, possibly an obligation to intervene.

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But we know that, the use of force is only allowed

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if there is self-defense,

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which isn't the case when we have genocide

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or when the security council has authorized it.

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As you can guess, you need to have a five permanent members

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of a security council to, authorize the use of force.

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So trying something against Russia, it's not going to happen

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because Russia is a member of a permanent,

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is is a permanent me, me member

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of the United Nations Security Council.

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So that's the first consequence.

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The second consequence is that states can then go

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to the International Court of justice

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and claim that a state has violated

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the convention on against genocide.

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So there, there is that, that possibility.

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Um, it is quite interesting that actually Ukraine did not,

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go to the International Court of Justice was,

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but is very often called the world court to save that.

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Um, Ukraine, Russia had committed genocide,

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but they were very way wound

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because what happened is

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that Russia said Ukraine is committing genocide.

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Um, as a result, we have a right to intervene in Ukraine.

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So the uk the, the, the government of Ukraine went

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to the court and said, no, you don't have a right

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to intervene because we are not committing genocide.

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It's quite interesting, this sort of twist in,

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in, in the law.

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And the third consequence is that anyone who is

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participating in a genocide can be prosecuted

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before a national court

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or an international court, such

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as the international court court for the crime of genocide.

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So really three legal consequences from the very general

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one, the global order

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and security down to one single individual, I don't think

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so, to be honest.

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Um, because I mean the, the,

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the word genocide was used very early in the conflict,

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and that was when,

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president Ukrainian President Zelensky, looked at

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what happened at the maternity hospital in Mari po and

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because babies mothers were killed,

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he actually said this was genocide

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because you were killing the next generation.

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So that sort of fits with the idea of a genocide.

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And that was actually picked up by President Biden later.

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Um, the parliaments also are, are flat via,

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did issue a resolution saying

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that they thought it was genocide.

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My personal view, looking at the documents, I have read,

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I don't think there is genocide.

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The fact that there are mass atrocities being committed

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against the Ukrainian population does not mean it

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reaches that threshold.

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Um, the threshold is very high, as I explained before,

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because you have to prove that there is this intention

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to get rid, literally to destroy that group.

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We only sort of, act that I could think is likely

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to be closer to genocide

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or for, you know, in terms of international is the unload

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for transfer of children.

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Um, at, at some stage, quite,

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quite early also on in the conflict, what happened is that,

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a number of children were, were found in Russia.

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So there were basically three ways that they ended up there.

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Some had, had guardianships,

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but they, they, they were taken by Russian forces

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and they were brought to Russia

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or on Russian occupied territories.

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Some others, were orphans.

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Others were in state institutions in Ukraine,

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because not because they didn't have any guardian,

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because the guardians were not able to take care of them,

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and they were simply brought to Russia.

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And then the third category are children who were sent

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by their parents on holiday camps in Russia,

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or in Russian occupied territory like your,

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like a crimee, which

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Is Ukraine and they wanna send back home.

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So you might think it's not so much, you know, how, how does

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that relate to genocide?

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Well, it's

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because, Russia all

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of a sudden changed its adoption laws

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and decided that, it was very easy

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to adopt Ukrainian children.

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So a number of families put themselves forward

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and adopted these children.

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So you can't imagine these children now growing up in a

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culture which is not Ukrainian.

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So you are, you know, changing them.

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So you're fundamentally changing the Ukrainian society

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by removing the possibility of the Ukrainian society

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to have Ukrainian next u Ukrainian

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generation, so to say.

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Um, the same thing about these children

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who were in the camps.

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They were indoctrinated the school curriculum.

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The, the they, completed was very nationalist,

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very anti Ukrainian.

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They were trained in the use of firearms and so on.

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So in other words, they are very likely

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to turn against Ukrainians

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and certainly not, you know,

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continue the next generation of Ukrainians.

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So you could think that this is,

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potentially a genocide from in regard to visa act.

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But my main question is you still have to prove

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that there is an intention to destroy the group.

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Is Russia really trying to destroy the group

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by placing this children in Russian families?

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That is a more difficult question.

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When you look at the case law, you have to think

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that the only time we found genocide

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was in the last few days of the seed of,

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and that can tell you already how high the threshold is

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because I think pretty much everyone will tell you

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so much there was a genocide.

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Is there a discussion here? Yes, international over is one.

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Well, my conclusion is that maybe we should not be

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so much focused on genocide.

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I know labeling is terribly important.

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You know, we, we call the spade a spade.

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We want if there is a genocide to call it a genocide.

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But what we tend to forget is that there are other ways

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to call these atrocities or the legal ways.

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So these are all war crimes,

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these are all crimes against humanity.

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And in fact, president, put Putin

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and the commissioner for, children's rights of,

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of, Russia were both indicted

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by the international criminal court

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for the unlawful transfer of children as war crimes

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and crimes against humanity.

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So in other words, there are different avenues to make sure

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that these individual will be prosecuted,

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that the states will be held responsible.

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We don't need to be that much focused on genocide.

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I know it is important,

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but as, as a lawyer, you have to find different ways to get

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to people and to get to the states.

00:00 - When the war started, obviously quite a lot of international lawyers were interested in the topic, and I was, asked, I was actually commissioned to write a piece on the conflict in Ukraine and genocide. And I was, at this time quite surprised, I have to say, to be asked to do so because the country had just started.

00:20 - And in very often, in order to find out whether there is a, a genocide, you need quite a lot of time to find out that. So I did say yes, I I will do that. So I, I did some research. It was very little, research done at the time. Obviously what I found were two official reports. I mean, one was a report from the USCE, which was published whilst I was writing, and the last one when I was about actually to, to submit the piece.

00:49 - So I asked for another week to, to make some changes for that. So there was very little in terms of official documents, but there was obviously very, a lot in the press, a lot of NGOs reporting on mass atrocities being committed in Ukraine. But the question was of course, whether that was genocide. And what I found even more interesting was that it was originally, Russia that had claimed that Ukraine was committing genocide on its nationals

01:20 - in the Donbass region. So it, it was quite interesting to, to have a look at the other side. My paper only focused on whether Russia was actually committing a, a genocide in Ukraine, and I didn't look at the other side, which to be honest, I found a bit of a spurious claim. So it's a very complicated term. lots of lawyers are debating, the definition of genocide, but I think it's even more complicated

01:48 - because a lot of people who are not lawyers use the word genocide in a very loose way. and I'm not even talking about people on the street, I'm even talking about presidents who are saying, this is a genocide, and we, lawyers are maybe not in fact. So we have to be very careful with the, the, the word, genocide. So it's very often misused. and it misuses

02:12 - because it reminds us of, the Holocaust. It's also there as, a call to attract the attention that something is awful, something needs to be done. It's a call for, something needs to be done now. and that is the way it is usually used, but for international lawyers, it has a very different meaning and we have to be very careful with that. So an international lawyer using that term, will use it according to the Genocide Convention,

02:46 - the 1948 Genocide Convention. And that definition has never changed, ever. It quite interesting was we have had changes in of crimes against, We always had just one single definition of genocide. We never, ever changed it. So when we looked at the genocide in wonder, we used that same definition as the one in, in the genocide convention. The same thing with the international court statute word

03:16 - by word, the same definition. So there's not so much of a, a discussion about the definition. It is well established, but it's about the interpretation. And we lawyers tend to argue about every single noun and adjective you can find in that definition. So yes, it is, it is a difficult one, I have to say. Provided it is a genocide. So I'll give you a definition also of what a genocide is for, for a lawyer.

03:41 - So, a genocide has to be one of a listed acts in the genocide convention. So clearly killing members of the group, imposing, conditions that will lead to them, dying or being not able to reproduce themself, but up to also transferring children. And, and that is something that I find quite interesting. So it's not necessarily about killing, people tend to think genocide about, you know, getting rid of the, the group by physical means,

04:13 - but not necessarily, so it has to be one of these crimes, then it has to be perpetrated against a certain group. And we have a very definite list there. So the group has to be a national ethnical racial or religious group. There is no genocide against political groups. So that is the reason why when we talk about the genocide of Khm Rouge in Cambodia, lawyers will tell you this was not a genocide.

04:42 - So this is quite important to remember. but for everyone, you know, it is a genocide. very different that, that, that's a quite a good example to show you the difference between what lawyers actually, viewing as genocide and what the, the general public sees it. Then the other part, which is the most important part of the definition of genocide, is that there must be an intention to destroy the group.

05:12 - So it's not that you don't like them, it's you are really killing them because you will destroy them completely. There will be none of them left. So at least you're making attempts. You don't need to have them killed all, but you're making an attempt at destroying them. And that is very difficult to prove. What is the intention of a person, and what's the d the intention of a state.

05:36 - So you are probably looking at what people are saying. if they are saying, I want to kill you all, you all worthless and so on, that is a indicator of potential genocide, but not does, not necessarily is genocide. So for example, there was, who Was being prosecuted by the international tribunal for former Yugoslavia, and he absolutely hated Bosnians, and he was very clear about it,

06:05 - but we did not manage to get a conviction for genocide because he was, he couldn't, we couldn't prove that he was intended on killing, destroying the group. He didn't like them. That was for sure. But you, you, you can see how difficult it is actually to prove that there is genocide. So we shouldn't be using the word very easily. So you asked me about the, the, the legal consequences. So there are three of them. So the first one, and I mentioned this bit

06:35 - before about the, the word genocide being used to, to call the attention of the international community. And indeed there is in, in the convention on genocide, the obligation to prevent. So all states are obliged to prevent genocide, which would mean if we give it a, a wide interpretation that the states have to use all accessory means, including military force to ensure that the genocide is not happening and prevention is even better

07:10 - because that should be even before. So when we have some indicators in 19 nations has a range of indicators to, find out, in early warning system as we call it, to find out whether genocide is likely to happen. So VAs an entire system in place, but very often, to be honest, not much is being done and we end up with the genocide happening, and then there is the possibility to email to intervene. So indeed the word genocide means that there is

07:40 - a possibility, possibly an obligation to intervene. But we know that, the use of force is only allowed if there is self-defense, which isn't the case when we have genocide or when the security council has authorized it. As you can guess, you need to have a five permanent members of a security council to, authorize the use of force. So trying something against Russia, it's not going to happen because Russia is a member of a permanent, is is a permanent me, me member

08:12 - of the United Nations Security Council. So that's the first consequence. The second consequence is that states can then go to the International Court of justice and claim that a state has violated the convention on against genocide. So there, there is that, that possibility. it is quite interesting that actually Ukraine did not, go to the International Court of Justice was, but is very often called the world court to save that.

08:44 - Ukraine, Russia had committed genocide, but they were very way wound because what happened is that Russia said Ukraine is committing genocide. as a result, we have a right to intervene in Ukraine. So the uk the, the, the government of Ukraine went to the court and said, no, you don't have a right to intervene because we are not committing genocide. It's quite interesting, this sort of twist in, in, in the law.

09:13 - And the third consequence is that anyone who is participating in a genocide can be prosecuted before a national court or an international court, such as the international court court for the crime of genocide. So really three legal consequences from the very general one, the global order and security down to one single individual, I don't think so, to be honest. because I mean the, the,

09:42 - the word genocide was used very early in the conflict, and that was when, president Ukrainian President Zelensky, looked at what happened at the maternity hospital in Mari po and because babies mothers were killed, he actually said this was genocide because you were killing the next generation. So that sort of fits with the idea of a genocide. And that was actually picked up by President Biden later. the parliaments also are, are flat via,

10:17 - did issue a resolution saying that they thought it was genocide. My personal view, looking at the documents, I have read, I don't think there is genocide. The fact that there are mass atrocities being committed against the Ukrainian population does not mean it reaches that threshold. the threshold is very high, as I explained before, because you have to prove that there is this intention to get rid, literally to destroy that group.

10:46 - We only sort of, act that I could think is likely to be closer to genocide or for, you know, in terms of international is the unload for transfer of children. at, at some stage, quite, quite early also on in the conflict, what happened is that, a number of children were, were found in Russia. So there were basically three ways that they ended up there. Some had, had guardianships, but they, they, they were taken by Russian forces

11:22 - and they were brought to Russia or on Russian occupied territories. Some others, were orphans. Others were in state institutions in Ukraine, because not because they didn't have any guardian, because the guardians were not able to take care of them, and they were simply brought to Russia. And then the third category are children who were sent by their parents on holiday camps in Russia, or in Russian occupied territory like your,

11:51 - like a crimee, which Is Ukraine and they wanna send back home. So you might think it's not so much, you know, how, how does that relate to genocide? Well, it's because, Russia all of a sudden changed its adoption laws and decided that, it was very easy to adopt Ukrainian children. So a number of families put themselves forward

12:19 - and adopted these children. So you can't imagine these children now growing up in a culture which is not Ukrainian. So you are, you know, changing them. So you're fundamentally changing the Ukrainian society by removing the possibility of the Ukrainian society to have Ukrainian next u Ukrainian generation, so to say. the same thing about these children who were in the camps.

12:45 - They were indoctrinated the school curriculum. The, the they, completed was very nationalist, very anti Ukrainian. They were trained in the use of firearms and so on. So in other words, they are very likely to turn against Ukrainians and certainly not, you know, continue the next generation of Ukrainians. So you could think that this is, potentially a genocide from in regard to visa act.

13:15 - But my main question is you still have to prove that there is an intention to destroy the group. Is Russia really trying to destroy the group by placing this children in Russian families? That is a more difficult question. When you look at the case law, you have to think that the only time we found genocide was in the last few days of the seed of, and that can tell you already how high the threshold is because I think pretty much everyone will tell you

13:48 - so much there was a genocide. Is there a discussion here? Yes, international over is one. Well, my conclusion is that maybe we should not be so much focused on genocide. I know labeling is terribly important. You know, we, we call the spade a spade. We want if there is a genocide to call it a genocide. But what we tend to forget is that there are other ways to call these atrocities or the legal ways. So these are all war crimes,

14:16 - these are all crimes against humanity. And in fact, president, put Putin and the commissioner for, children's rights of, of, Russia were both indicted by the international criminal court for the unlawful transfer of children as war crimes and crimes against humanity. So in other words, there are different avenues to make sure that these individual will be prosecuted, that the states will be held responsible.

14:48 - We don't need to be that much focused on genocide. I know it is important, but as, as a lawyer, you have to find different ways to get to people and to get to the states.

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