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Why genocide is difficult to prove before an international criminal court

LEILA FADEL, HOST:

As civilian deaths mount in Ukraine, some in the international community accuse Russia of war crimes. Others, including Ukraine's president, use another word - genocide. But that word is specifically defined as killing or other actions committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Is that what we're witnessing?

Leila Sadat is an international law professor at Washington University in St. Louis and advises the International Criminal Court prosecutor on crimes against humanity.

LEILA SADAT: Genocide is extremely difficult to prove before an international criminal court. That said, this does look like a pattern of ethnic cleansing or crimes against humanity.

FADEL: So what's the difference there? If it looks like ethnic cleansing, do Russia's actions in Ukraine then constitute genocide?

SADAT: That is a complicated question, Leila. The international community has said that sometimes ethnic cleansing can be a form of genocide. And we've seen that in early decisions from the International Criminal Court in the situation involving Darfur, where the prosecutor did charge genocide because there was, in fact, a pattern of ethnic cleansing - destroying villages, driving people away from their homes, terrorizing a civilian population - very similar pattern to what we saw in the former Yugoslavia, what we saw in Darfur and we are now seeing today in Ukraine.

FADEL: Why the international outcry here? I mean, Russian forces conducted themselves similarly in Syria - civilians being targeted and killed. We saw it in Chechnya - and now a call for war crime charges and possible genocide charges.

SADAT: We definitely have seen this before, and it's a really awful movie. Right now, Mariupol looks like Aleppo. In fairness, there were calls for criminal prosecution. We had two vetoes by the Russian Federation in the Security Council with respect to Syria, and we did not have the international political well sufficient to overcome that through either the establishment of a no-fly zone to stop the atrocities or creating a special tribunal to try those crimes, because the vehicle for getting to the International Criminal Court was blocked. Fortunately, Ukraine had the foresight to declare that the International Criminal Court statute was applicable to its territory in 2014 and 2015. So unlike Syria's Assad - who would never, never accept the jurisdiction of the ICC - the Ukrainian president and parliament has done that. And so the ICC does have jurisdiction here. And one also has to say that I think at some point the fact that the invasion was done in such a blatant fashion to a European neighbor clearly played a part.

FADEL: You mentioned that genocide is really hard to prove, but right now what we're seeing in Bucha and Chernihiv - these places that have been liberated from Russian forces - are these pockets of genocide, or is that ethnic cleansing? I think for me, it's still kind of unclear to me legally what the difference is.

SADAT: So in the former Yugoslavia, the massacre at Srebrenica, for example, was labeled and adjudicated a genocide, even though some of the violence in other communities around the former Yugoslavia was labeled crimes against humanity. The differentiation that the tribunal made was that with respect to Srebrenica, we had a specific intent that we could demonstrate, and they actually used cell phone intercepts and documents and communications in order to show that. And they also showed that a substantial part of the population was exterminated and that by exterminating the men and boys of Srebrenica - these 8,000 individuals who were slaughtered - that actually made it impossible for the community to ever be constituted again.

FADEL: Is it easy to assess based off the fact that we've seen mass graves, that we've seen these burned bodies, these bodies that have been stripped and people who had seemingly been executed, the mock executions, the sexual violence, all of this stuff?

SADAT: We are definitely seeing evidence of crimes against humanity and war crimes. Genocide requires this special intent. So we actually have to show that they're committing all these terrible crimes in order to destroy, in part or in whole, the particular group. And so that's why genocide is more difficult, because you have to get into the mind of the perpetrator, as opposed to being a look-in at the circumstantial evidence that we can see with our own eyes and our own ears.

FADEL: Yeah.

SADAT: The other thing I would say, Leila, is that crimes against humanity are just as serious as genocide. There's no hierarchy here. Crimes against humanity is what the Nazis were charged with for the Holocaust.

FADEL: Yeah.

SADAT: And so I know that the international community and victim groups tend to grab for this concept of genocide because we have a treaty on it, and we don't yet have the treaty on crimes against humanity, so it seems as if they're less important. They're not less important. They are absolutely horrific crimes that involve attacks on a civilian population and the dehumanization of the human spirit and human beings.

FADEL: Yeah.

SADAT: So it's really important to note that this idea of ethnic cleansing and crimes against humanity is a very, very serious crime.

FADEL: Now, the U.S. has promised to help with any type of investigation into possible Russian war crimes. But, you know, some people would point to the U.S. and say, well, this is hypocritical or politically motivated when the U.S. is not a member of the ICC and does not appear to want to be held accountable for its own alleged war crimes.

SADAT: It is hypocritical, and yet it's a really good thing. The Biden administration is seriously considering dismantling some of the obstacles to cooperation with the International Criminal Court because it can see that this is exactly the kind of situation the ICC was created to address. We have a prosecutor already with jurisdiction. We have judges already to approve arrest warrants and hear confirmation cases. We don't have to staff up and hire new people and figure out what laws should be applied. We have a court ready and willing to do the job, and those of us who have been involved with the International Criminal Court for 20 years have been making this argument for 20 years. So is the United States coming a day late to the party? It absolutely is. And I think it's great that it's finally getting there.

FADEL: Leila Sadat is a professor of international law at Washington University in St. Louis. Thank you for speaking with us.

SADAT: Thank you. It was really a pleasure. Transcript provided by NPR, Copyright NPR.