Weaponizing ‘Genocide:’ Post-War International Justice in Putin’s Crosshairs
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Weaponizing ‘Genocide:’ Post-War International Justice in Putin’s Crosshairs

For Oleh Kornat, a lawyer-turned-member of the Ukrainian resistance, a disturbing element of Moscow’s invasion of his country has been its misuse of the term “genocide” to justify it.

“Civilians are being targeted. Maternity wards have been attacked. Children with cancer have been displaced. And this has all happened under the guise of Russia’s ostensible aim to end the ‘genocide’ in Donbas,” he said in a recent interview from the western Ukrainian city of Lviv.

A month ago, Kornat was a young banking and finance lawyer working long hours to advance his career at a private Kyiv firm. Now, he’s a member of the resistance, spending his days documenting evidence of war crimes in hopes of one day helping to avenge Moscow’s atrocities through international justice.

His story is remarkable, but not unique.

Since Russia launched its unprovoked invasion on Feb. 24, students, professionals, and even retirees have risen to the occasion — taking up arms, providing medical support, gathering evidence, and doing anything they can to defend their country.

What Moscow expected to be an easy victory in Ukraine has been stymied by a surprisingly powerful resistance.

But as time goes on, the attacks are growing increasingly cruel.

“The Russian authorities lack mercy and compassion. So many civilians have already been killed. That includes children and pregnant women. Even the most vulnerable among us aren’t safe,” Kornat said during a recent interview.

Moscow’s amorphous use of the term ‘genocide’

In a presidential address, Russia’s Vladimir Putin described the invasion as a “special military operation,” couching his plans in the language of humanitarian intervention.

“The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the [Kyiv] regime. To this end, we will seek to demilitarize and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians,” he said.

This was not Moscow’s first such accusation, and the lack of detail is consistent with previous messaging. Since the annexation of the Ukrainian region of Crimea in 2014, Russian criminal investigators and other officials have not shied away from the use of the term to describe what they see as the mistreatment of the Russian-speaking population of eastern Ukraine. But these statements have tended to be as sweeping as they are vague.

With Russian forces actively invading over these allegations, Ukrainian officials turned to the International Court of Justice (ICJ) to defend the country’s rights “not to be subject to a false claim of genocide,” and “not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention,” which states that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

Given the opportunity to defend its stance before the world court, Russia opted not to appear for arguments, and instead challenged the court’s jurisdiction. The ICJ agreed with Ukraine’s contention that it has jurisdiction in the case as it involves a dispute between two parties of the Genocide Convention relating to its interpretation, application, or fulfillment, and ordered Moscow to halt its invasion. Unsurprisingly, Moscow has not complied.

Meanwhile, the Organization for Security and Co-operation in Europe, of which Russia is a member, and which has maintained an independent monitoring group in the occupied areas of eastern Ukraine since 2014, has not produced evidence to substantiate Moscow’s claims. “Russia’s claim of genocide in Ukraine is a reprehensible falsehood.  The [special monitoring mission] has complete access to the government controlled areas of Ukraine and [has never] reported anything remotely resembling Russia’s claims,” the U.S. Mission to the OSCE Tweeted, citing the OSCE mission’s compendium of daily monitoring reports.

’Genocide’ declarations as a means to an end

Given all of the above, Putin’s claims of genocide have been viewed broadly within the international community as a cynical means to its political endgame.

“Putin’s allegation of Ukrainians committing genocide against Russians is an example of how genocide claims are misused for political reasons. In this case, Putin is misappropriating the term to justify invading Ukraine,” wrote Alexander Hinton, a professor at Rutgers University and director of its Center for the Study of Genocide and Human Rights, in an essay for The Conversation.

Noting that Russia has not taken the steps required under international law to legitimately intervene to stop an act of genocide, Hinton concluded: “This invasion of Ukraine violates international law and is likely to cause exactly the sort of humanitarian crisis and widespread death that Russia claims to want to prevent.”

It was Moscow’s reliance on these unsubstantiated claims of genocide that led Kornat to realize a full-blown invasion was afoot.

“There was a sudden increase in military activity after the Kremlin recognized the independence of Donetsk and Luhansk,” he said of the eastern Ukrainian regions, collectively referred to as Donbas, that have been partially occupied by pro-Russian rebels since 2014 — the same year Russia annexed the Ukrainian region of Crimea. “The Russian government then ordered its troops to go protect the locals of Donbas from ‘genocide’ they said Ukrainian authorities were committing. It was then that I knew war was possible.”

“One of Russia’s go-to moves is invading neighboring countries in the name of ‘protecting’ Russian-speaking people, in cases where they obviously don’t face any discrimination. It’s just a front. And even these Russian-speaking people are resistant to the idea of Moscow’s ‘protection,’ and you can see why,” Kornat said. “These atrocities the Russian forces are committing — these are the results of Moscow’s ‘care’ for Russian speakers.”

Broader impact for international justice

This misuse of international law could have consequences for the global community as a whole.

“Putin’s invasion of the Ukraine may be the beginning of the end to the world order begun in 1945 under the UN paradigm,” said David Crane, a law professor at Syracuse University, who previously served as Chief Prosecutor for the Special Court of Sierra Leone, during a recent interview with JURIST.

Crane believes the history of atrocity accountability has taken course through three waves.

The first wave emerged in the years following World War II, as the international community established war crimes tribunals in Nuremburg and Tokyo.

The second wave, which Crane refers to as the Age of Accountability, started taking shape in the early to mid 1990s, when the United Nations established several ad hoc tribunals to prosecute crimes committed during the Balkan wars, the Rwandan and Cambodian genocides, and the civil war in Sierra Leone. Ultimately, this led to the establishment of the International Criminal Court.

The third wave, which Crane calls the Age of the Strongman, began in 2015, and has been marked by a shift away from international accountability, and toward authoritarianism. “We see over a dozen countries now ruled by strong men — or by individuals who want to be strong men — and this has a direct and major impact on how the world views efforts by countries to commit atrocities,” Crane said.

International support for the Ukrainian resistance

In the face of Russian aggression, Crane urged global leaders to “stand strong and enforce the law and treaty obligations.” He added: “The rule of law cannot be diminished because of aggression.  Appeasement never succeeds against authoritarianism. Legal action must be taken in the form of sanctions, embargoes and eventually force in order to restore international peace and security.”

Governments and organizations have broadly risen to the occasion. From North America to Asia, many nations have slammed Russia with successive waves of damaging sanctions — targeting everything from the energy sector its oligarchs’ yachts. Hundreds of companies have severed ties with Russia. In addition to the ICJ proceedings discussed above, the International Criminal Court spearheaded an investigation into Russian war crimes. Meanwhile, dozens of countries have committed to providing military support for Ukraine.

In a series of recent appeals to world leaders, Ukrainian President Volodymyr Zelensky has struck a balance between gratitude for the outpouring of support, and pleas for the international community to strengthen its response to Russia.

“Ukraine is grateful to the United States for its overwhelming support. For all that your state and your people have already done for our freedom. For weapons and ammunition, for training and funding, for leadership in the free world, which helps put pressure on the aggressor economically,” he said in a speech before the US Congress on March 16.

“However, now, in the darkest time for our country, for the whole of Europe, I urge you to do more,” he said, calling for more sanctions, including against all Russian politicians currently holding office — “from State Duma deputies to the last official who lacks the morale to sever ties with state terror.”

Zelenskyy echoed the sentiment on Tuesday in an address before the Italian Chamber of Deputies. “You supported us — sincerely, quickly. Without asking for anything in return. You are helping us now — we really appreciate it. But still, the invasion has not stopped in 27 days. Almost a month. So more sanctions are needed, even more pressure, so that Russia is looking not for military reserves or mercenaries somewhere in Libya or Syria, but for peace.”

The Ukrainian leader has also appealed for a no-fly zone over Ukraine. “Russian troops have already fired nearly a thousand missiles at Ukraine. Countless bombs. They use drones to kill more precisely. This is a terror Europe has not seen for 80 years! And we ask for a response. For the response from the world. For the response to terror. Is this too much of a request? To establish a no-fly zone over Ukraine is to save people. Humanitarian no-fly zone. Conditions under which Russia will no longer be able to terrorize our peaceful cities every day and night,” he said before Congress.

The view from the streets of Lviv

Kornat, who volunteers his time assisting refugees who have fled bombarded cities, agrees with Zelenskyy’s plea, reasoning: “Russian jets continue to launch missiles at Ukrainian civilian targets. The Russian government and its military are violating all legislative and moral norms that exist in the civilized world. What we need the most is to be able to close off the sky to protect ourselves from missiles.”

Lviv, the western Ukrainian city where Kornat was born and raised, and where he returned after the invasion began, has so far been spared the full extent of the violence experienced by residents of Mariupol, Kharkiv, Kyiv, and other besieged cities. But this sense of calm is relative, he said, citing several recent attacks in western Ukraine, including one just a few miles from the Polish border.

In addition to helping displaced people find food and shelter in Lviv, Kornat is a member of a civilian division attached to the territorial defense forces. His responsibilities in this role include helping to maintain public order, and documenting evidence of war crimes or foul play. And in his free time, he likes to take a stand against Russian propaganda. “I like to work on getting Russian disinformation channels banned from the social networks in order to stifle their efforts to spread false information about Ukraine to both Ukrainian and Russian people,” he said.

Though Kornat is currently focused on civilian defense duties, if called upon to fight in the armed resistance, he said he is ready and willing. He and the vast majority of his compatriots have received training due to a Soviet-era educational holdover called Defense of Motherland training. As a part of this program, teenaged boys are given basic military training, while girls are taught battlefield first aid. “It was a long time ago, and I will have to refresh my memory if I do take up arms, but in any case, I can now fully appreciate the skills I gained from the course,” he said.

The U.S. State Department has asserted that while there are no credible reports of any ethnic Russians or Russian speakers having faced threats from the Ukrainian government, there are credible reports that Ukrainians in the occupied territories of Crimea and the Donbas have been targeted for their own national identities. “In Crimea, Russia forces Ukrainians to assume Russian citizenship or lose their property, their access to healthcare, and their jobs. Those who peacefully express opposition to Russia’s occupation or control face imprisonment on baseless grounds, police raids on their homes, officially sanctioned discrimination, and in some cases torture and other abuses.  Religious and ethnic minorities are investigated and prosecuted as ‘extremists’ and ‘terrorists,’” the report read.

On this point, Kornat agreed, saying: “The Russian authorities are using the term ‘genocide’ to essentially engage in genocide against the Ukrainian people.”