Destruction of a nation not only through mass killings: the "problem" of proving genocide and how culture is involved

Is Russia committing genocide in Ukraine? Every Ukrainian who wakes up to yet another air raid siren would likely answer this question affirmatively. According to a 2022 survey, almost 90% of Ukrainians believe Russia's actions constitute genocide. Before the launch of a full-scale war, this term was primarily used by a narrow circle of experts. In April 2024, the Verkhovna Rada of Ukraine recognized the actions of the Russian armed forces and its political and military leadership as genocide. This political declaration includes legal reasoning and explains why Russia's actions should be considered genocide against the Ukrainian people. Most importantly, for the first time in 30 years, these actions are mentioned at such a high level in historical and cultural contexts.

Meanwhile, external observers of events in Ukraine and, in particular, experts in international law claim that "it's not so clear-cut." However, they do not substantiate their position. Instead, such theses have generated the narrative that proving the crime of genocide is difficult, impossible, unrealistic, insert your synonym here.

This thesis is so actively spread that even in Ukraine, by the third year of the full-scale war, voices regarding the fact of genocide are not as confident. In the investigative documentary about the Russian genocide in Ukraine, it is ultimately not unequivocally stated that Russia is committing this crime; this question remains open.

William Schabas, a professor of international law, in an interview with journalists, stated that there are no grounds to speak of genocide in Ukraine due to a supposed lack of evidence: "Killing although is only one of the five punishable acts, it`s the most important. Because in the absence of the killing of a large number of people, it is very difficult to infer an intent to physically destroy the group."

However, it's not just about physical destruction, which is currently the main focus of public communication. Physically exterminating a 40-million-nation is impossible. So, if we support the rhetoric that genocide is solely about physical acts of destruction, we are unlikely to achieve international recognition and punishment of Russians for genocide. Thus, we paint ourselves into a corner and give Russians and the sensitive international community a chance to avoid the term genocide and instead investigate war crimes or even crimes against humanity (which Russians undoubtedly commit).

Russia commits genocide on a cultural basis, which does not involve the physical extermination of a group but rather the destruction of its identity. Therefore, in the occupied territories, Russians primarily prohibit the Ukrainian language, kill for speaking Ukrainian, destroy cultural monuments, plunder museums, and so on. Ukrainian lawyers and cultural activists have united in the public association "Raphael Lemkin Society" to hold Russia accountable for centuries of genocide against Ukrainians and punish the organizers of this crime. In particular, through participation in criminal proceedings on behalf of museums, their employees, and other cultural institutions affected by Russian aggression. The Lemkin Society believes that a holistic integrated approach to investigating crimes against culture will bring us closer to holding Russia accountable for the crime of genocide.

The thesis "It's hard to prove genocide" has no scientific basis

The criminal theory does not divide crimes into difficult and easy-to-prove. The crime of genocide, like any other intentional crime, requires evidence of the subjective elements – intent, purpose, and motive.

From the perspective of criminology, all crimes are investigated similarly. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide is the main but not the only document. Article 2 of the Convention defines this crime as any of the defined acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such.

The Rome Statute of the International Criminal Court (ICC) defines four international crimes: crimes against humanity, war crimes, genocide, and the crime of aggression. Thus, there is nothing in the Rome Statute or in any other written law that distinguishes the crime of genocide from other international crimes.

According to Article 21 of the Rome Statute, the ICC, in its practice, also follows international treaties, principles, and norms of international law and even national laws of states. Additionally, decisions of other international tribunals are sources of law for the ICC. In its policy on cultural heritage, the ICC suggests that considering crimes against culture within the context of genocide is not only possible but can also serve as evidence of genocidal intent to destroy a group in whole or in part.

Proving genocide involves proving objective consequences and intent. And it is the intent that is the hardest to prove because no one since Hitler has declared it. Except for Putin. Since the beginning of the war, Russia, its officials, and the media have been talking about how Ukraine does not exist and needs to be destroyed. The author of the article "What Russia Should Do with Ukraine" equated denazification with de-Ukrainization: "Further denazification of this mass of the population involves re-education, achieved by ideological repression (suppression) of Nazi attitudes and strict censorship: not only in the political sphere but necessarily also in the field of culture and education." Denazification, as declared by Russian officials, equates to the destruction of Ukrainians as such.

In the context of proving Russia's genocidal war against Ukraine, it is important to understand why Russians speak about culture and why we also need to pay more attention to culture and show the scale of destruction in this area. 

Precise definitions, historical context, and the scholarly work of Raphael Lemkin are critically important for proving the crime of genocide

Statutes of international courts and their practice are largely based on a narrow understanding of genocide – the physical extermination of a particular group. However, even within this paradigm, courts have paid attention to cultural heritage. In the Krstić case (Prosecutor v. Krstić 1998), the International Tribunal for the Former Yugoslavia noted that "where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group". Later, this conclusion was confirmed by the International Court of Justice in the cases "Bosnia and Herzegovina v. Serbia and Montenegro" and "Croatia v. Serbia."

In the Policy on Cultural Heritage of the Office of the Prosecutor of the ICC, it is also stated that attacks on cultural heritage are of significant importance for proving genocidal intention. According to this Policy, attacks on cultural heritage can manifest as attacks on buildings of cultural significance to specific groups of people, "which occur alongside other actions aimed at protected groups."

The case of Ukraine shows that it is equally important to consider historical and political contexts and understand the true meaning of narratives that emerged in the last century and still dominate Russian ideology and propaganda.

"Were it possible to do [the extermination of cultures and nations] even without suffering we would still be driven to condemn it, for the family of minds, the unity of ideas, of language and of customs that forms what we call a nation constitutes one of the most important of all our means of civilization and of progress," wrote Raphael Lemkin, a Polish Jewish scholar and graduate of Lviv University. During World War II, he managed to evacuate first to Sweden and then to the United States, but 49 of his relatives were killed by the Nazis. Lemkin dedicated his entire career to working on the massive crime – the mass extermination of people based on their belonging to a particular group.

Although today genocide is used in the context of the physical or biological destruction of a group, Lemkin understood and justified it differently. His concept not only includes the cultural dimension of genocide but also forms the basis for determining such a crime. According to Lemkin, genocide has two phases: the first – the destruction of the national pattern of the oppressed group, and the second – the imposition of the national pattern of the oppressor.

Long before, Raphael Lemkin proposed criminalizing barbarism and vandalism, considering assaults on the cultural heritage of certain groups of people as evidence of the intent to destroy such a group. Later, Lemkin made vandalism an integral part of his concept of genocide.

His first attempt to describe the term appeared in the work "Axis Rule in Occupied Europe" in 1944, where he listed various forms of genocide: physical and biological, but also economic, moral, cultural, and so on. Some of these forms were later abandoned, but genocide on a cultural basis was and still is the subject of discussion.

The scholar believed that genocide on a cultural basis involves the destruction of features that define a group of people and distinguish it from others. As a result, such a group turns into a mass of people to whom other characteristics can be imposed. Those who commit cultural genocide can liquidate cultural figures and moral authorities, and kill or deport groups of writers, artists, priests of the national church, and bearers of traditions. Further – prohibition of language use, even in private communication. Buildings that are cultural centers and cultural artifacts are also subject to destruction. A less obvious but important step in carrying out cultural genocide is the separation of families and the deportation of children outside the group. These children will eventually lose their identity and grow up as part of another group. That is, a group can be destroyed without resorting to the physical extermination of a large mass of people.

After the war, Lemkin began working on the text of the Convention on the Prevention and Punishment of the Crime of Genocide. The working group, which included not only Raphael Lemkin but also Romanian international law expert Vespasian Pella and a French lawyer, who was a judge at the Nuremberg Trials, Henri Donnedieu de Vabres, prepared the first draft of the document, which included cultural genocide. Even though many participating countries recognized its importance, several major Western states felt threatened by such an interpretation being used against their colonial policies. Therefore, after lengthy discussions, cultural genocide in the final version of the Convention can only be traced in the inclusion of the forcible transfer of children to another group as a genocidal act. This step rendered the Convention unsuitable for real-life application and punishment for the crime of genocide, let alone prevention.

The forced compromise in the work on the Convention did not stop Lemkin, who continued to develop his concept. Describing the Soviet genocide in Ukraine, Lemkin insisted on the cultural aspect of the destruction of Ukrainians. He identified four phases of the policy of destroying the Ukrainian nation. The first – the destruction of the "brain," that is, teachers, writers, artists, thinkers, political leaders, "to paralyze the rest of the body". The second – the destruction of the "soul," that is, the Ukrainian clergy: arrests and persecution of the priests and hierarchy of the Ukrainian Autocephalous Church and the Ukrainian Greek Catholic Church, which often were unifying institutions of Ukrainian communities. The third stage of the genocide of Ukrainians, according to Lemkin, was the extermination of peasants by starvation. Here he emphasized that it was the peasants who were the bearers of folk traditions, which are an integral part of Ukrainian identity: "If the Soviet program succeeds completely, Lemkin argued, if the intelligentsia, the priests and the peasants can be eliminated, Ukraine will be as dead as if every Ukrainian were killed, for it will have lost that part of it which has kept and developed its culture".

Why Lemkin's works are relevant today

What is Russia doing today? The same thing, destroys the brain and soul. Since the beginning of the full-scale invasion, over five hundred churches and other religious institutions have been damaged or destroyed, and Russians are abducting and torturing Ukrainian priests. Russia is killing Ukrainian cultural figures: among them, for example, children's writer Volodymyr Vakulenko,  killed during the occupation of the Kharkiv region, or Viktoria Amelina, who died from an enemy missile attack. Russians are abducting Ukrainian children, forcing them to grow up in the Russian space.

Russia is destroying our cultural heritage: the Ukrainian Heritage Monitoring Lab documented 784 damaged or destroyed objects in 12 regions. Russians are seizing and destroying Ukrainian books in the occupied territories. Moreover, Russians do not spare bombs and missiles to destroy printing houses that print Ukrainian books. Russian soldiers kill civilians just for using the Ukrainian language.

By the 1980s, Lemkin's research on the nature and methods of Soviet genocide in Ukraine lay among forgotten papers in an archive. Only relatively recently has it started to enter the academic circulation through Russia's invasion of Ukraine. It is a unique scientific work on the real nature of genocide in Ukraine.

At the same time, the observations expressed by Raphael Lemkin help to understand the nature of modern Russian aggression against Ukraine. Due to the revealing nature of the researcher's work, Russia in 2015 included his texts in the list of extremist materials. Therefore, the destruction of Ukrainian culture is an instrument of Russia's genocidal war aimed at destroying the Ukrainian national group and Ukrainian statehood.

Why it is necessary to prove genocide rather than reducing everything to war crimes

The legal aspect—prevention—is guaranteed exclusively by punishment for the committed crime. If the international community genuinely intends to fulfill the requirements of the Convention—to prevent future crimes of genocide on a cultural basis—we must criminalize, identify, and punish such acts.

So, if we want to end this three-hundred-year-old conflict and prevent or at least minimize future Russian attacks, we need to hold the highest military-political leadership of the Russian Federation accountable for the crime of genocide, rather than merely punishing individual Russian servicemen for war crimes. Because for committing war crimes, those who committed them directly are punished. At international conferences, a lot can be heard about "Putin's war," but Putin himself does not commit war crimes directly. The President of Russia is responsible for genocide, and only this qualification can lead to his punishment and that of his accomplices in the highest offices of the Russian Federation.

Moreover, reparations will be possible only after the end of hostilities based on decisions of international judicial/quasi-judicial bodies that must determine the amount of compensation and its order.

However, lost cultural values have no monetary equivalent. It is impossible to rebuild a 17th-century church, not to mention the loss of intangible components and the destruction of their bearers. At the same time, we must expect that the ICC or any other international institution will consider compensation issues only in the context of crimes committed after February 24, 2022.

War crimes artificially narrow the jurisdictional framework of the probable court. Again, in the context of war crimes, we will talk about the actions of not the highest military-political leadership of the state but individual servicemen within specific episodes, not a targeted state policy to destroy the Ukrainian nation.

Therefore, we as Ukrainians must speak about Russia committing genocide and proving its intent, primarily by appealing to the destruction of our identity through culture. If we only talk about physical victims, we will trap ourselves, as ICC prosecutors consider these victims in the context of war crimes. Russia's crimes in Ukraine need to be considered comprehensively, not detached from the context of Putin's main intention, which is that Ukraine should not exist.

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This article was compiled with the support of the International Renaissance Foundation. Its content is the exclusive responsibility of the authors and does not necessarily reflect the views of the International Renaissance Foundation.