When President Joe Biden this week said Russia’s actions in Ukraine are tantamount to genocide, it set off an international debate about the power of his words – and whether the leader of the free world had uttered the term preemptively.
“Your family budget, your ability to fill up your tank, none of it should hinge on whether a dictator declares war and commits genocide a half a world away," President Joe Biden said at an event in Menlo, Iowa, on Tuesday to discuss actions to lower gas prices in the wake of Russia's invasion.
Biden later doubled down on his use of the word, telling reporters: “It’s become clearer and clearer that Putin is just trying to wipe out the idea of even being a Ukrainian.”
In the days since, administration officials have walked a fine line, simultaneously defending the president's decision to use the term “genocide” while also acknowledging there is an ongoing process to determine whether the atrocities in Ukraine reach the legal threshold to be labeled as such.
“The president was speaking to the impression that he had garnered from watching the horrific footage that we've all seen from places like Mariupol, from places like Bucha, from Kharkiv and from other places,” State Department spokesperson Ned Price told reporters on Wednesday, adding: “[Biden] also said there is a complementary effort by international lawyers, a process that the State Department is plugged into and will continue to support, to determine if there is a legal threshold that is met.”
Shortly thereafter, White House press secretary Jen Psaki said the president was “calling it like he sees it,” adding she “would take his words for exactly what they are.”
“He's the President of the United States and the leader of the free world and he is allowed to make his views known at any point he would like,” Psaki continued. “Regardless of what you call it, what our objective now is — as evidenced by the enormous package of military assistance we put out today — is continue to help and assist the Ukrainians in this war and one where we see atrocities happening every single day.”
Both Russia and the United States are parties to the Genocide Convention, which in 1948 established the first internationally agreed-upon definition of the crime of genocide and codified it as a violation of international law.
The act of genocide requires two parts, under U.N. doctrine. The perpetrator must have “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” which can be carried out by systematically killing members of the targeted group, causing serious mental or physical harm to members, subjecting the group to “conditions of life calculated to bring about its physical destruction,” proposing measures to forcibly restrict or prevent births and removing children from the targeted group to be raised with another community.
The process to determine whether such thresholds have been reached are both lengthy and complex. In its guidance on when to refer to a scenario as genocide, the United Nations says the use of such a term “should only be made following a careful and detailed examination of the facts against relevant legislation.”
“National legislative and executive authorities have sometimes characterised certain incidents or periods of violence as genocide, following processes that include political assessments alongside legal considerations,” the U.N. acknowledged. “These characterisations cannot be treated as authoritative or determinative, at least beyond the States concerned.”
Due in part to the genocide treaty, calling a group’s actions “genocide” may require a nation to take action against the aggressor.
Bruce Jentleson, a longtime former State Department employee and current professor at Duke University, said he does not believe Russia’s actions have yet reached the level of genocide.
“It doesn’t appear to be that [Putin is] trying to exterminate the Ukrainian people. He wants to take over Ukraine,” Jentleson told Spectrum News, saying Putin likely still has committed war crimes. “There’s been an argument that kind of directing and personalizing this with Putin makes it even harder to ever get any kind of effort to try to negotiate an end to this.”
Biden’s use of the word “genocide” wasn’t an official declaration and it didn’t trigger any immediate policy change – but it was met with support from Ukrainian President Volodymyr Zelenskyy, who called Biden a “true leader” for using the term.
“Calling things by their names is essential to stand up to evil,” Zelenskyy wrote in a tweet. “We are grateful for US assistance provided so far and we urgently need more heavy weapons to prevent further Russian atrocities.”
And it is entirely possible that the United States, which is conducting an ongoing review alongside international partners of potential war crimes in Ukraine, may formally conlcude that Russia has, in fact, committed genocide in its neighboring country. State Department officials last month formally accused Russian forces of committing war crimes in Ukraine.
Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack, will meet with the Ukrainian prosecutor general who is “leading efforts when it comes to criminal accountability for what has already transpired in Ukraine,” Price told reporters on Thursday.
“That same broader process – the process to collect, analyze, share documents, evidence of atrocities and potential atrocity crimes – is the very same one that could ultimately inform other potential atrocity crime determinations, including the atrocity crime of genocide,” he added. “As you know, the department has already assessed that members of Russia's forces have committed war crimes, one of the three forms of atrocity crimes.”
According to the United Nations, the three “atrocity crimes” are genocide, crimes against humanity and war crimes, which the international body says is “based on the belief that the acts associated with them affect the core dignity of human beings, in particular the persons that should be most protected by States, both in times of peace and in times of war.”
There are a number of ways Russia could be held accountable for its actions, should investigators deem certain individuals or groups committed an act of atrocity. One way would be through the International Criminal Court, which has already sent investigators into Ukraine to collect and verify evidence.
While Russia, Ukraine nor the United States are party to the ICC – meaning the court would typically not have jurisdiction – Ukraine has in the past “exercised its prerogatives to accept the Court's jurisdiction” for crimes committed within its territory, meaning the court would be able to prosecute individuals on an international level on behalf of the country.
“We know that the ICC is one potential venue for accountability. We have cooperated with the ICC in the past,” Price noted on Thursday, adding that the U.S. is also “consulting very closely with allies and partners about potential other accountability mechanisms.”
While Price would not discuss specifics of Friday’s meeting, he said Van Schaak and other government officials are “providing our Ukrainian partners with a range of information, or strategic information, tactical information, information that they would need for the purposes of primarily self defense.”
The court can only put a suspect on trial in the Netherlands, where it’s based, if the person is arrested – for that it relies on international cooperation.
“In theory, [Putin] could be put in the Hague, in prison,” Jentleson told Spectrum News. “I think everyone doubts that’s going to happen. It does give a basis for countries continuing with economic sanctions, for increasing military aid to the Ukrainians.”