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27th April 2022

Reviewing the use of the term ‘genocide’ in European conflicts

Defining genocide in relation to Lemkin and Lauterpacht and assessing Russia’s crimes in Ukraine?
Reviewing the use of the term ‘genocide’ in European conflicts
A Bust Of Raphael Lemkin: MSyuzan @Wikimedicommons

On April 12, President Biden used the term “genocide” when describing Russia’s actions in Ukraine. He is not the first political leader to use such a term when commenting on Vladimir Putin’s actions. Indeed, Poland’s Prime Minister has declared that the killings in towns such as Bucha must be understood as genocide and “dealt with as such”. Likewise, UK Prime Minister Boris Johnson has remarked that Putin’s actions do not “look far short of genocide”. 

Whilst Ukrainian President Volodymyr Zelensky has lauded Biden’s comments, many countries have not gone so far as to label what is happening in Ukraine as “genocide”. French President Emmanuel Macron, for example, has said that he is hesitant to adopt such a term, fearing an “escalation of rhetoric”. It is clear across the geopolitical landscape, that the use of the term “genocide” is divisive and confusing. 

Against this backdrop, Phillippe Sands’ seminal book East West Street: On the Origins of Genocide and Crimes Against Humanity is ever more relevant. To even debate whether or not Russian actions can be described as “genocide” is largely due to the work of two men: Hersch Lauterpacht, and Raphael Lemkin. Sands narrates the life and work of those of these men in his book. He reveals how Lauterpacht (responsible for the concept of the crime against humanity) and Lemkin (who coined the term genocide) originated the ideas whilst they were law professors in the city of Lviv (then Lemberg). It is fitting that the focal point of Sands’ book is the Ukrainian city of Lviv. A city where it now feels as if history is repeating itself. 

In East West Street, Sands writes engaging biographical accounts of figures such as Lemkin and Lauterpacht, as well as Hitler’s personal lawyer Hans Frank. Yet alongside this, he guides readers through the establishment of the concepts which allowed the Nazis to be prosecuted. These concepts changed the course of the Nuremberg trials and international law more broadly. Despite having established the crime of genocide, Lemkin was somewhat disappointed with the outcome of the Nuremberg trials. Nazi leaders were charged with “crimes against humanity” meaning that genocide was not formally recognised in the law as a crime. As a result, following the trials Lemkin concentrated his efforts into persuading the United Nations to enter into a treaty which would recognise genocide as an international crime. 

Lemkin’s efforts were successful: in December 1948 the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide. This defined genocide as committing certain acts “with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group”.  It also acknowledges that there can be “genocide,” “conspiracy to commit genocide,” as well as “attempt to commit genocide.”

Yet, it is this very definition of genocide which means (as was the case in the Nuremberg trials) that genocide is fairly subjective and certainly quite difficult to prove. There is no unanimous definition or understanding of what ‘in part’ comprises. Likewise, it is extremely difficult to categorise genocide as actual or attempted or if it is a genocidal conspiracy. Riddled with subjective considerations, it is, for this reason, so challenging to reach a consensus when it comes to genocide.

The same qualms Lemkin had on the back of the Nuremberg trials are playing out again: this time, however, it is with regard to Russia’s actions in Ukraine. Not only are politicians struggling in a lexical sense to speak about Ukraine in the correct manner, but scholars are also debating how to classify Putin’s actions.

It is indisputable that Russia has committed mass murder in Ukraine. Actions such as bombing Maternity Hospital No 3 in Mariupol or executing hundreds of civilians in occupied towns certainly could represent war crimes. Yet it is hard to definitively say that these actions are motivated by genocidal intent. It is blatant that Vladimir Putin is waging a war that is illegal. However, to argue that he is waging a genocide is a whole different story. 

Above all, the lack of consensus around legal understandings of genocide has allowed it to become somewhat of a tool for political point-scoring. Indeed, politicians have frequently made arguments about the definitions of genocide in order to reject that it was happening. This is infamously evidenced by the US denial that the mass violence in Rwanda in 1994 constituted genocide for it did not represent the “precise legal meaning” of the term.

When Lemkin coined the term “genocide”, as well as referring to the Nazi massacres of Jews, he drew on the atrocities committed against Armenians primarily during the first years of WW1 between 1915 and 1916. The Armenian genocide involved the murder of somewhere between 1 million and 1.5 million Armenian people in the Ottoman empire. It represents a deliberate attempt to eradicate the Armenian people and identity. Yet whilst the experience of Armenians contributed to the establishment of the term “genocide” many, including Turkish officials, still argue that there was no organised attempt to eradicate Christian Armenians.

Closer to home, a Foreign Office note from 1999, uncovered by the Freedom of Information Act stated that “Given the importance of our relationships (political, strategic, commercial) with Turkey … recognising the genocide would provide no practical benefit to the UK.” Once more, this underscores how the use of the term “genocide” is circumstantial, used by countries how and when it suits them.

In more recent times we have again seen countries deny genocide. Indeed, China has denied that the forcible detention of more than 1 million Uyghur Muslims in the Xinjiang region constitutes genocide. By the same token, we have also seen countries make genocide claims in order to justify their foreign policy.

Russia attempted to frame its annexation of Crimea in 2014 as a humanitarian intervention. Moreover, in February 2022 Putin claimed that Ukrainians have been “facing humiliation and genocide perpetrated by the Kyiv regime”. – He offered this as a justification for his subsequent attacks. Putin’s claims here are nothing new. As evidenced above, politicians have been playing a point-scoring game with the term genocide since its establishment in 1948.

There is not enough evidence at this present moment to say decisively if Russia’s actions in Ukraine are genocidal. In the meantime, however, whilst lawyers contemplate this matter, if politicians use the term “genocide” as a rhetorical device, they must carefully think about the term’s gravitas. Britain, for example, shouldn’t rush to label Russia’s actions as genocidal – especially not before recognising past atrocities, such as the Armenian genocide.

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