Is it genocide?

There is little doubt Russia is committing war crimes in Ukraine. Do they amount to genocide?

On Tuesday, President Joe Biden made a striking declaration: Russia is committing “genocide” in Ukraine.

“It’s become clearer and clearer that Putin is just trying to wipe out even the idea of being Ukrainian,” he told reporters. “We’ll let the lawyers decide internationally whether or not it qualifies [as genocide], but it sure seems that way to me.”

Biden’s assessment, grounded in recently discovered horrors like the the slaughter of Ukrainian civilians in the town of Bucha, is by far the most high-profile assessment that Russia is committing genocide to date. While a handful of experts on war crimes have come to the same conclusion as the president, most experts and international authorities are still unsure.

“I don’t know yet, is the honest answer. [But] it’s not a crazy question to be asking.” says Rebecca Hamilton, an expert on the law of war at American University. “I’m not going to be surprised if, in time, evidence comes out and we can put together a picture that there is genocide.”

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It’s easy to see this as a mere argument over definitions. It is clear that Russia is committing war crimes in Ukraine; these crimes do not become worse, in any legal or moral sense, if they are found to meet a legal or scholarly definition of “genocide.” Nor could any such finding legally require third parties, like the United States, to intervene directly in the war.

But in other ways, the debate over what to call Russian war crimes is hugely significant.

The charge of “genocide” is uniquely powerful in international public opinion, owing to the memory of World War II and the Holocaust. Nowhere is this more true than Germany, the country that also will play the most important role in determining whether to impose painful new sanctions on Russia’s oil and gas sector.

And if a genocide really is occurring in Ukraine, it matters for the victims to document it and show the world — and then, after the fighting, identify ways to hold at least some of the perpetrators accountable.

Is what’s happening in Ukraine “genocide?”

“Genocide” is not merely a word for mass killing in general. In international law, per the 1948 Genocide Convention, it refers to any of the following five acts if they are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:”

(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.

Under this definition, not every act of violence against civilians qualifies as an act of genocide — nor does every such act motivated by racial, national, or religious hatred. Instead, it is an act of genocide when it is part of a plan to “destroy” the target group — that is, to annihilate not just individual members but the group as a collective.

In the Russian case, establishing that Russian soldiers intentionally killed Ukrainian civilians is not enough to prove genocide. It wouldn’t even be enough if the soldiers said they did it because they hated Ukrainians. Instead, you would need to show that the killings were part of an intentional effort to wipe out the Ukrainian people.

Most of the recognized authorities, including independent genocide watchdogs like the US Holocaust Memorial Museum, have yet to join Biden in saying that such a campaign is happening in Ukraine. But some experts, like Johns Hopkins University political scientist Eugene Finkel, are ready to label what’s occurring genocide.

A scholar of the Holocaust who was born in Ukraine, Finkel was skeptical of Ukrainian claims of genocide early in the conflict. But the events of the past two weeks have changed his mind.

First, he argues that the horrors of Bucha — where entire families were executed — were not isolated incidents, pointing to evidence of other civilian killings in Russian-occupied towns. (Russia has denied its soldiers are responsible for the killings in Bucha; on Tuesday, Russian President Vladimir Putin said reports of the atrocities there were “fake.”)

“Bucha is a feature, not a bug. It’s not some localized incident,” Finkel says. “In each of those places, it could be written off as undisciplined Russian soldiers … but together, it clearly indicates that they were looking specifically for Ukrainians [to kill].”

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Second, Finkel argues, recent statements from the Russian government provide evidence of intent to commit genocide.

An April 4 article in the Russian state-run news outlet RIA Novosti called for a generation-long process of “re-education” in Ukraine, with an aim toward destroying the very idea of Ukrainian identity (“Denazification will inevitably include de-Ukrainization,” as the author put it). On April 5, top Putin deputy Dmitry Medvedev took a similar line: “It should not be surprising that Ukraine, which has been transformed mentally into the Third Reich … will suffer the same fate.” These comments reflect a broader turn in Russian state media commentary, portraying the entire Ukrainian population as a brainwashed threat to Russia that must be transformed if “Nazism” is to be defeated.

These statements, for Finkel, provide the crucial evidence of genocidal intent — linking the actions of Russian soldiers in towns like Bucha to a broader aim of exterminating an entire “national” group.

“I never thought I would see a government almost advertising genocide, but that’s what Russians are doing,” he tells me.

Other experts are more cautious. Though all agree that Russian soldiers have engaged in intentional mass killings, they argue that there’s limited evidence of a systemic plan to exterminate the Ukrainian people. While the comments from Medvedev and the Russian press are disturbing, we have yet to see conclusive evidence attributing Russian behavior in places like Bucha to those specific motivations.

“It is very hard to tell at this point why these acts were committed,” says Kate Cronin-Furman, a professor who studies war crimes at University College London. “It is obvious that mass atrocities have been committed. It is hard at this point to infer intent.”

In the post-Holocaust world, people committing genocide rarely provide “smoking gun” proof of their thinking — a written-down order or meeting record detailing a plan to exterminate the target group. Instead, scholars and war crimes prosecutors pore over a repository of data — ranging from interviews with victims and perpetrators to satellite photos of the killings — to make their most educated guesses. Even with the benefit of hindsight, these methods can be frustratingly inconclusive: There are still tremendous debates over historical cases of mass killing, and even the adequacy of the Genocide Convention definition itself.

“We come up with very different counts of how many genocides there were in history,” says Franziska Boehme, a scholar of genocide at Texas State University. “In the 20th century, some say three. Others say upwards of 20.”

This difficult task is, of course, much harder in the context of an ongoing war. Information on the ground in Ukraine is scarce, and what does come out can be polluted by the fog of war. The Ukrainians, for understandable reasons, have every incentive to play up any report of Russian wrongdoing — no matter how thinly evidenced.

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It’s not impossible to make genocide determinations while the killing is still ongoing, as some authorities did during the genocides in Rwanda, Darfur, and Myanmar. But we are still less than two months into the war in Ukraine, and only a little over a week after the appearance of the most compelling evidence of genocide in Ukraine (the Bucha massacre). It’s very hard to imagine leading authorities making a determination of genocide swiftly.

This doesn’t mean they never will. It’s possible, maybe even likely, that more evidence will come out proving that Russian soldiers have been acting with genocidal intent. But as of right now, few are joining Biden and Finkel in concluding that a genocide is clearly taking place in Ukraine.

Could evidence of genocide alter the course of the war?

One of the most common misconceptions about genocide is that it carries some kind of special status in international law — that once there’s a finding of genocide from some authoritative international body, there’s a special set of legal obligations that kick in requiring governments to take some specific set of actions.

In reality, war crimes are non-hierarchical: There is nothing in international law that says genocide is “worse” than any other war crime. Virtually every serious observer agrees that Russia has committed a series of war crimes in Ukraine, ranging from the execution of civilians to attacks on hospitals. In fact, the invasion itself is clearly one big war crime: International law prohibits wars of territorial conquest, which fall under the crime of “aggression.”

The United States and its allies did not send their own armed forces to stop these crimes because the risks are too high: Any direct intervention poses a serious risk of escalation to nuclear war. The Biden administration has repeatedly and categorically ruled out joining the war for these reasons; the president’s assessment that genocide is ongoing does not seem to have altered this cold, fundamental logic.

More broadly, there are good moral reasons not to hang the entire debate over Russian criminality on the term “genocide.” What happened in places like Bucha is an outrage regardless of whether it meets any particular definitional criteria; placing too much weight on definitions in our assessment of Russia’s behavior could actually end up distracting from that basic recognition.

“We have set up genocide to be this magical word such that victims all over the world feel as though they have to have the label ‘genocide’ attached to the horrific atrocities that are unfolding around them before they will get truly serious attention,” Hamilton argues. “That’s a problem because the world needs to pay attention to crimes that are horrific, but just don’t happen to meet the legal definition of ‘genocide.’”

At the same time, this “magical” power of the word, its unique ability to link current events to the most infamous crimes in human history, means that the debate over its use matters politically regardless of whether it should morally. Nowhere is this more true than in Germany, a country that has built its entire post-World War II identity on a repudiation of the Nazi regime and the Holocaust — a country that’s also at the center of the Western debate on doing more to punish Russia for its invasion.

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So far, the lifeblood of Russia’s economy — its oil and gas sector — has escaped European Union sanctions. German dependence on Russian gas, in particular, is a big reason why; Russian gas makes up over a fourth of Germany’s entire energy use. While Germany is putting together a long-term effort to wean itself off of Russian gas, it is still resisting some steps — like canceling the proposed shutdown of its nuclear power plants — that might give Berlin more flexibility in the immediate term.

In theory, it’s possible that evidence of outright genocide in Ukraine could change the political calculus.

During the Holocaust, roughly one-quarter of all murdered Jews were killed in present-day Ukraine, executed by German soldiers and Einsatzgruppen mobile killing squads as part of the so-called “Holocaust by bullets.” Crucially, these killings began in the summer of 1941, before the 1942 Wannsee conference that historians typically pinpoint as the moment when the Nazi government began coordinating a more systematic campaign of genocide. Ukraine was the proving grounds for Hitler’s slaughter; it was the place where the Holocaust began.

Echoes of this very specific, very potent cultural memory in today’s Ukraine could very well further inflame German public opinion against Russia. “There’s already been a significant shift in German policy since the beginning of the war, and a watershed moment in defense policy,” says Boehme, who is herself German.

At the same time, she cautions, there are many reasons Germany has not changed its policy on oil and gas sanctions — ranging from a desire to hold some sanctions in reserve in case Russia threatens escalation, to the fact that such a move would cause real economic pain for German citizens. The revelations of the horrors in Bucha last week did not seem to transform Berlin’s position on sanctions; it’s hard to predict whether clearer evidence of genocide would have a stronger effect on either public opinion or political elites.

But for this reason alone, the debate over the term “genocide” is not merely academic: It carries real-world implications for the way that foreign powers, including one of the most important ones, calibrate their response to Russia’s crimes.

Could Putin be tried for genocide?

Whenever there’s evidence of war crimes, there’s always talk of some kind of punishment for those crimes. Biden, even before labeling the war genocide, had seemingly called for Putin’s prosecution.

“We have to get all the detail [to] have a war crimes trial,” Biden told reporters on April 4. “This guy is brutal.”

Barring a revolution or coup in Russia, such a trial is almost impossible to imagine. The International Criminal Court, which has a mandate to prosecute war crimes and other atrocities, cannot act without a referral from the UN Security Council, where Russia has a veto. The political constraints on the ICC mean the body has an inconsistent track record; the US, which is not a signatory to the ICC treaty, has managed to avoid any accountability for alleged war crimes committed by its soldiers in Afghanistan.

While national courts in some countries have “universal jurisdiction” — meaning they are legally empowered to prosecute war crimes committed elsewhere — they would need to get their hands on Putin in order to do so. So long as he is in power, he could simply choose not to travel to those countries and remain untouchable.

The man most responsible for Russia’s crimes is very unlikely to be tried; neither are his top deputies so long as they remain in Russia or friendly countries. But that doesn’t mean any kind of accountability for war crimes, genocide or otherwise, is impossible.

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“I read the prospects of post-conflict as a little better than usual,” Cronin-Furman says. “Because of the fact that this is interstate conflict, and the Ukrainian demand for justice is so legible to everyone, there will be — and already is — much more support and mobilization around accountability.”

For the past several decades, civil wars (intrastate conflict) have been a lot more common than wars between countries (interstate conflict). Getting justice for war crimes in an intrastate conflict is trickier, because the perpetrators very often remain in power once the fighting is done. In these cases, war crime prosecutions can depend on international authorities that may lack the power or will to actually conduct a serious criminal investigation — see, for instance, how few perpetrators have been prosecuted for crimes during the Syrian civil war.

In an interstate conflict, victims of aggression have their own government that can detain war criminals and set up trials. It is within the Ukrainian government’s authority to prosecute prisoners of war for war crimes, provided they get a fair trial. It’s likely that they will do so, and the international community can help.

“We in the West do have this [fact-finding] apparatus that Ukraine does not have,” Finkel says. “There are people in transnational organizations — lawyers, academics, forensic anthropologists — who know how to collect this evidence.”

This kind of prosecution will not amount to full justice: The realities of war mean that Ukraine will only be able to try Russians who are within reach. These are overwhelmingly likely to be lower-level perpetrators rather than the generals or political leaders who bear the most responsibility for the crimes.

But even partial justice is rare when it comes to mass atrocities. Regardless of what one thinks about the appropriateness of the term “genocide,” the world needs to start preparing for more revelations of Russian war crimes — and for thinking through the best ways to create at least some form of accountability.