What transpires in the days and months to come is anyone’s guess in terms of the human casualties on both sides. Both Ukraine and Russia are parties to the Genocide Convention.
by Dr. Ruwantissa Abeyratne in Montreal
"This is terror. They are going to bomb our Ukrainian cities even more, they are going to kill our children even more subtly. This is the evil that has come to our land and must be destroyed," ~ A statement attributed to Volodymyr Zelensky, President of Ukraine
On 27 February 2022, the third day of the Russian invasion and aggression in Ukraine, Reuters reported that “Ukraine's President Volodymyr Zelensky urged the world on Sunday to scrap Russia's voting power at the U.N. Security Council and said Russian actions verged on "genocide." Although the author does not possess sufficient information as to what is going on in Ukraine to determine the veracity of the term “genocide” in the context, he believes that the word itself and what it precisely means is not understood by many.
“Genocide” was introduced to the world by Raphael Lemkin, a Polish lawyer of Jewish descent who is known to have initiated the Genocide Convention. Of 1948. The word first appeared in Lemkin’s book Axis Rule in Occupied Europe, which was published in 1944. Lemkin’s efforts to introduce the word in the proceedings of the International Military Tribunal (Nuremberg Trials) held between November 20, 1945 and October 01, 1946, resulted in the word appearing in the drafting history of the Charter of the final text of that instrument. However, the Tribunal preferred to use the cognate term “crimes against humanity” to identify in legal terms the persecution and physical extermination of national, ethnic, racial and religious minorities. Article 6 of the Charter of the International Military Tribunal identified as punishable at international law crimes against peace, violations of the law and customs of war and crimes against humanity.
“Crimes against humanity” is a term used by Professor Hersch Lauterpacht (1897–1960) who focused on atrocities committed against a large number of individuals against their lives and wellbeing - rather than against the eradication of a whole community as Lemkin’s term “Genocide” suggests - as criminally reprehensible acts committed against humanity where crimes against a number of individuals, however disparate they may be, should be prosecuted irrespective of the overall intent to eradicate a group of persons which the term “Genocide” represents.
United Nations Resolution 96(I) adopted on 11 December 1946 formally recognized genocide as a crime under international law. The Resolution affirmed that: Genocide is a crime punishable under international law to be condemned by the “civilized” world which condemns, irrespective of whether the miscreants were principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds.
Whatever the distinction may be between genocide and crimes against humanity, it is now recognized that irrespective of nomenclature, to both offences can be ascribed universal jurisdiction rather than mere local or domestic jurisdiction. “Genocide” carries with it the element of “universality” which the District Court of Jerusalem invoked, endorsed by the Israeli Supreme Court in the Eichmann case where the Nazi war criminal Adolf Eichmann was charged with war crimes, crimes against the Jewish people and crimes against humanity. In the context of jurisdiction, the International Court of Justice (ICJ) ruled in the Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) case of 1993 where Bosnia claimed that Yugoslavia had violated the Genocide Convention, that Article 9 of the Convention devolved valid jurisdiction on the Court. Article 9 says: “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.
Genocide is defined in the Genocide Convention of 1948 in Article 2 as acts when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Article 2.9 states that the five acts constituting genocide are: (a) killing members of the group; (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. Article 3 identifies specific acts as punishable: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide.
It is clear that genocide is committed against a group which is specifically targeted by the aggressor who has the intent of eradicating that group. The difference between genocide and crimes against humanity is clearly and succinctly explained by Philip Sands, one of the most eminent human rights lawyers in practice and author of the book "Lawless World," which posits that the 2003 invasion of Iraq was perpetrated in violation of international law. “The difference between crimes against humanity and genocide is as follows: Crimes against humanity focuses on the killing of large numbers of individuals. The systematic, mass killing of a very large number of individuals will constitute a crime against humanity. Genocide has a different focus. Genocide focuses not on the killing of individuals, but on the destruction of groups. In other words, a large number of individuals who form part of a single group. And the two concepts in this way have different objectives. One aims at protecting the individual; the other aims at protecting the group.
Basically, Lemkin's view, promoting the idea of genocide, is that people are not killed as individuals. They are killed or harmed because they are members of a group -- a national group or an ethnic group or a religious group. And he says that's the reality and the law has to reflect that reality. No, says Lauterpacht. People are individual human beings and they should be protected as individual human beings, not because they happen to be a member of a group. And the danger for Lauterpacht was that Lemkin's idea of protecting groups would create the very conditions that Lemkin was trying to protect us all from -- namely, it would pit one group against another group. It would set in concrete terms the idea that groups have an identity in law and they should be protected as groups”.
What transpires in the days and months to come is anyone’s guess in terms of the human casualties on both sides. Both Ukraine and Russia are parties to the Genocide Convention. Additionally, it is reported (on 27 February 2022) that “Ukraine has submitted its application against Russia to the ICJ. Russia must be held accountable for manipulating the notion of genocide to justify aggression. We request an urgent decision ordering Russia to cease military activity now and expect trials to start next week”. The ICJ considers its jurisdiction as territorial: in other words, the Court focuses on the territory that is subject to aggression or offence rather than State membership.
It will be interesting to see what happens. If it is a toss-up between Lemkin and Lauterpacht, the author is more inclined to go with the latter in the context of what’s going on at the present time.
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