On May 27, 2022, Raoul Wallenberg Centre for Human Rights and New Lines Institute for Strategy and Policy published a legal analysis of the serious risk of genocide in Ukraine and Russia’s incitement to commit genocide. The report follows the growing body of evidence of Russia’s atrocities in Ukraine. The report, which is supported by 35 international experts on genocide and atrocity crimes, makes two important findings of the existence of a serious risk of genocide in Ukraine, and of the direct and public incitement to commit genocide. The report cites a litany of open source data in relation to both findings, including evidence of mass killings, torture, the use of rape and sexual violence, and deportations of children to Russia, among others.
Ukrainian civilians and soldiers who lost their lives due to the Russian attacks are being buried in ... [+]
In relation to the serious risk of genocide, the report analyses the risk factors specific to genocide, as per the UN Framework of Analysis for Atrocity Crimes, focusing on evidence of Russia’s denial of the existence of a Ukrainian group, history of atrocities committed with impunity, and past conflicts over resources or political participation, and signs of genocidal intent including “documentation of incitement, targeted physical destruction, widespread or systematic violence, measures that seriously affect reproductive rights or contemplate forcible transfer of children, dehumanizing violence, use of prohibited weapons, strong expressions of approval at control over the protected group, and attacks against homes, farms, and cultural or religious symbols and property.”
The report puts States on notice. Now that the serious risk of genocide is established, States are to trigger their duty to prevent under the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Indeed, as confirmed by the International Court of Justice (ICJ), “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” From that moment onwards, States parties are to employ all means reasonably available to them, so as to prevent genocide so far as possible.
States have been taking some steps in response to Russia’s crime of aggression, including several legal steps to investigate the atrocities and collect the evidence, steps to freeze assets and impose bans of individuals, or steps to provide humanitarians assistance to refugees and internally displaced persons (IDPs). However, as the risk of genocide is present, States are under a legal obligations to employ all means reasonably available to them. The question is then what other steps, not already taken to day, are reasonably available to them and should be employed.
Also, as the ICJ confirmed, the duty to prevent genocide is conduct-oriented, not result-oriented. As such, the argument that whatever States do is not going to change Putin’s mind is not a valid one.
The report sends a chilling warning that the risk of genocide is imminent. This warning cannot be ignored and States must step up their efforts to ensure that the serious risk does not materialize. In this Putin’s war, we cannot say we did not know.
