Determining “mens rea” (meaning criminal intent) is integral to the criminal trials process. It underpins the UN Convention on the Prevention and Punishment of the Crime of Genocide and is a clear requirement of the International Criminal Court (ICC) in The Hague. However, the courts may not consider historical crimes as part of their deliberations, meaning those that predated them.
Many serious and historic crimes, particularly genocide, have attracted public condemnation The last 100 years alone have seen at least two separate attempts of Russian-led genocide against the Ukrainian people: First the “Holodomor” (Ukrainian famine-genocide of 1932-33) some 90 years ago; and today’s ongoing genocide of Ukrainians ordered by Russian President Vladimir Putin and his acolytes, including the Moscow Church.
In assessing these cases in relation to specific elements of genocide, it is important to establish criminal intent either directly or indirectly.
Determining direct criminal intent is difficult since it requires proclamations before corroborating witnesses, admissions, ascertaining coercion, as well as documentary confessions. When it comes to a historical crime, such documents may have been destroyed and witnesses may be deceased. Furthermore, most perpetrators act covertly and do not declare their intentions.
In most cases of genocide, criminal intent is expressed indirectly or circumstantially via the following measures or proclamations by the offender:
- Devaluation or denigration of the victim group as a non-nation;
- Accusations against the targeted group for mythical crimes;
- Dehumanization of the target group;
- Portrayal the target group as a danger to humanity;
- Preparation of the offender’s own population for crime through propaganda and disinformation;
- Attacks on civilians, shelters and humanitarian corridors;
- Bombing of residential neighborhoods, specific destruction of infrastructure and necessary-for-life services such as water supply;
- Attacks on hospitals, clinics and orphanages;
- Rape;
- Forced relocation.
All of these are present in the current genocide against Ukrainians. So why does it seem to difficult to get justice for past and present genocidal acts in the country?
Fraught with difficulties
While acts of genocide have existed for centuries, the term was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. It formed part of the UN Convention on the Prevention and Punishment of the Crime of Genocide in 1948, but the ICC only came into effect in 2002 as a belated follow up to that Convention.
The Russian Federation signed the Treaty of Rome of 1998, creating the court, but later withdrew its signature. Ukraine signed the treaty but has not yet ratified it.
A crime of suspected genocide that takes place on the territory of Ukraine is subject to the ICC which considers four types of crimes, the most serious being genocide. However, crimes of historical interest are beyond the ICC’s jurisdiction. Additionally, consideration and conviction relate only to physical persons, not states.
This obviously makes it impossible for the ICC to consider the “Holodomor”. However, the ICC may consider and rule on the current suspected genocide in Ukraine, with the defendants potentially including Putin, Sergey Lavrov, Patriarch Kirill, or indeed any Russian soldier. But not the Kremlin or Russia.
Obviously, there is still the UN Convention, but the “Holodomor” cannot be considered, investigated, condemned and then punished because it took place before it was formed. In any event, the Convention lacks a serious practical methodology for prevention and punishment.
Nonetheless, the guidelines of both the ICC and the UN Convention are not only relevant but indispensable for serious discussions in relation to crimes of genocide, be they contemporary or historical.
The UN Convention imposes an obligation on UN member states to act to prevent genocide, but because prevention, security and protection are within the purview of the UN Security Council, where Russia has the right to veto, the issue has little practical viability.
It is therefore necessary to resort to another forum besides the UN Convention or the ICC, and this is the court of public and global assessment and opinion. In fact, this can and should be a legitimate exercise, because of the frailties of international law where sovereign states act or consider only such topics as are politically beneficial to them.
The Holodomor and the Holocaust
When one considers the evidence on the “Holodomor” of 1932-33, there is no direct document manifesting guilt. However, there is a plethora of indirect or circumstantial evidence: a letter from Joseph Stalin to close associate and politician Lazar Kaganovich dated August 11, 1932; the Law on Five Ears of Grain issued a few days earlier; and the Decree of January 22, 1933 on closing the borders of Ukraine and Kuban only to prevent victims from seeking relief.
There is no doubt that the “Holodomor” was intended for Ukrainians or Ukrainian farmers, although there is no specific document of Stalin’s direct criminal intention to commit genocide against Ukrainians or the Ukrainian peasantry.
In Stalin’s letter to Kaganovich, there are such words as “the most important thing now is Ukraine.” There are laws, decrees and orders, along with Stalin’s swearing at everyone in Ukraine, including Communist Party leaders. Nevertheless, all decrees and measures are indisputable indirect documentation of the guilty mind of Stalin and his acolytes.
Similarly, during the “Holocaust,” Adolf Hitler and his henchmen acted with criminal intent. They required that an inscription should be sewn on the clothing of every Jew; and organized Jews to be shot as they began their invasion of Eastern Europe. They even held a conference in Wannsee on January 20, 1942, elaborating on their “final solution” for the Jews. But there is no single document signed by the Fuhrer ordering the extermination of the Jews as a nation. And yet – rightfully so – there is no dispute that the “Holocaust” was a genocide of the Jews.
The current genocide against Ukrainians
The on-going Russian invasion of Ukraine raises many legal issues allegedly under review by the ICC and many member states of the global civilized community. The intentions of Putin, his spokesmen Dmitriy Peskov, Kirill, and many soldiers and their mothers are clear: “Erase the Ukrainian nation from the face of the earth.”
There is direct evidence of criminal genocidal intent expressed directly by the Moscow so-called Church which is in essence a state church. There are official direct statements by Kremlin figures and there are state publications evincing this intent.
The shooting of civilians with their hands tied, as witnessed in Bucha, is indirect proof of criminal genocidal intent. These acts, it may be argued, may simply be the criminal intent of an individual soldier or of several soldiers. However, aiming a missile at an orphanage can only be a manifestation of the criminal intent of those who give the orders.
In Russia, only one person gives the orders. This is clear evidence of the criminal genocidal intent of Putin – who must be put under investigation by the ICC regardless of Russia having withdrawn its signature under the Treaty of Rome. After all, this genocide is taking place on the territory of Ukraine, a signatory state.
And even though the ICC arm of implementation or execution is unable to operate in Russia, it should establish the complete isolation of individual criminals. Putin, Lavrov, and Kirill should not be able to leave Russia, and if a country such as China agrees to harbor them, it must be condemned by the world, isolated and deemed a pariah.
These thoughts are intended to foster an appreciation in the world for the rule of law and justice – a better world in the future. Today’s genocide against the Ukrainian people is taking place on camera before the eyes of the world. There are many witnesses and evidence is plentiful.
Russian propaganda and disinformation may sway only the most gullible or the evil. Not acting to prevent and punish this crime of genocide by the civilized world and key international institutions such as the ICC, the UN, NATO, the OSCE and the EU, can never be justified.
Frankly, it is disturbing that NATO simply reiterates its Article Five commitment, oblivious to its own preamble duty to defend Europe.
Condemnation and punishment of the perpetrators of a contemporary genocide occurring before our very eyes is not only a cry of the Ukrainian soul but that of all humanity and an exhortation for the rule of law and justice to prevail.
Askold Lozynskyj is an attorney based in New York City. He is a former president of the Ukrainian World Congress.
The views expressed in this article are the author’s and not necessarily those of the Kyiv Post.
