Max Dowbenko joins JiC for this blog post on recognizing the Holodomor as a genocide and the link between doing so and addressing more recent atrocities in Ukraine. Max is a Trainee Solicitor with the UK Government Legal Department. He holds an MA in law from the University of Cambridge and an LLM in Public International Law from the University of Amsterdam

February 24, 2022, saw the full-scale invasion by Russia of Ukraine, and, with it, a new and far more uncertain era in global security and international law. This is not to say that the war in Ukraine is the only threat to territorial integrity and the use of force in this century – far from it.  Other states, including those in the UN Security Council, have used force almost certainly illegally in recent times. However, this invasion marks the most significant threat to the international rules-based order since the end of the Cold War, not least because it involves an attempt by a major world power to annex territory from another state. Russia’s legal justification for invading Ukraine is extremely weak, and the genocidal rhetoric it has deployed extremely concerning. And this is not the first genocide committed by Moscow in Ukraine.

The invasion of Ukraine has been condemned by members of the international community as a crime of aggression, one of the four core crimes under International Criminal Law. A United Nations General Assembly Resolution demanded a full withdrawal of Russian forces, and the International Court of Justice ordered Russia to suspend military operations. A May 2022 report commissioned by the New Lines Institute in Washington and the Raoul Wallenberg Centre for Human Rights in Montreal found that there were “reasonable grounds to conclude” that Russia is already in breach of two articles under the 1948 Genocide Convention: (1) the public incitement of genocide (Article III(c)), and (2) the forcible transfer of Ukrainian children to Russia (Article II(e)).

Russia’s war with Ukraine did not start in February: Ukraine has been at war with Russia for eight years, since the annexation of Crimea and initiation of hostilities in the Donbas in 2014. February marked a significant escalation in activities, however, with Russian armed forces invading openly on several fronts, rather than through the use of proxies. The aims of the Russian state have been unclear and subject to much scrutiny and hypothesizing. One of the key enabling factors of the invasion itself is a history of Russian impunity for breaches of international law. Russia’s permanent place on the UN Security Council means that Russia is largely sheltered from the effects of the international legal order. Even preceding its annexation of Crimea and the conflict in the Donbas in 2014, Russia’s actions in Georgia in 2008 and in Transnistria in the early 1990s were both illegal uses of force under international law with the pretense of protecting the Russian speaking or pro-Russian local population. Russia suffered no significant international consequences for these uses of force. This has had a two-fold effect: (i) facilitateing Russia’s ability and will to use violence to assert its influence in the former Soviet Union; and (ii)  facilitateing the spread of Russian nationalism within Russian society, particularly through imperialism aimed at carving out a ‘greater Russia’ by force.

Genocide in Ukraine

Genocide has been a term alleged by both sides of the conflict. The claim of the Ukrainian state holds far more weight, although it may be too early to make a proper assessment. Jonathan Lieder Maynard argued in April 2022 that “[p]erhaps these atrocities could have been genocide or could develop into genocide in the future, but the evidence is still insufficient.” Maynard drew attention to Putin’s denial of the historical existence of Ukraine as an independent state, illustrating a “genocidal way of thinking” and “that genocide may be imminent or already underway”.  The debate in some way reflects the modern tendency in realpolitik to accuse an opposing state or non-state actor of genocide to further one’s own political gain. This tendency has led to some considering the concept of ‘genocide’ to be somewhat more of a hindrance than anything else. With its meaning blurred, allegations of genocide can be distorted and used as a justification for retaliatory uses of force. However, to dismiss the utility of the genocide concept would be to fall into an unhelpful trap. Perhaps because of this tendency to distort, there is now a need to reclaim genocide within the legal sphere, by treating the concept within the framework of international law and its definition under Article 2 of the UN Convention on Genocide:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group

Looking to a Solution – Recognition of past Crimes as Part of a Process of Accountability

Russia’s crimes against and suppression of the Ukrainian people and nation have been consistent and systematic for centuries. The most profound and bloody example of this was the Holodomor – the “Terror-famine” in 1932-33. This man-made famine was imposed by Stalin on the Ukrainian nation, resulting in the deaths of roughly 4 million Ukrainians. The international lawyer Raphael Lemkin, who coined the term ‘genocide’, applied the term to the Holodomor as an attempt to destroy the Ukrainian nation. Although there is widespread academic support for classifying the Holodomor as a genocide, only 23 out of 193 UN member states have recognized it as such, including Canada, the Czech Republic, Germany, Ireland, Moldova, Romania and the European Parliament, which marks a positive step. 

Russian accountability for the present war is paramount, but this should be accompanied with recognition of past crimes in Ukraine and elsewhere, as part of a holistic process. For the current conflict, the International Criminal Court is undertaking an ongoing investigation into potential war crimes and crimes against humanity in the Ukrainian situation, and an ad hoc tribunal has been proposed to prosecute Russia for committing the crime of aggression against Ukraine. In addition, there are several initiatives commenced by Ukrainian institutions with support from national and international allies. These are all necessary measures but they should be accompanied by a willingness from the international community to learn from its mistakes and look to accountability of past acts to prevent impunity in the future. Perhaps the risk, especially to Western states of recognizing the Holodomor as a genocide is damaging relations with Russia. However, for many nations this ship has now long sailed.  This is not to say that recognition should be made on a political basis. Unlike, for example, the Armenian genocide, which is unambiguously a genocide, yet with limited recognition, there are elements of ambiguity in the classification of the Holodomor as a genocide. The famine did not exclusively affect ethnic Ukrainians, and much evidence of the event at the time was destroyed or covered up. However, these arguments should be considered by states from a legal perspective, rather than sidelined for the sake of political expediency. 

International law is a system based on consent, and constantly treads a tightrope of balancing this consent and preventing legal impunity. Permanent members of the UN Security Council are particularly shielded from true accountability in international law. It is hard to imagine, at present, Vladimir Putin facing prosecution for crimes committed in Russia’s war of aggression. However, this stresses the importance of individual UN member states taking responsibility for promoting and enforcing international law to its fullest extent. 141 UN member states voted in favour of General Assembly Resolution ES-11/1, which deplored Russia’s invasion of Ukraine and demanded a full withdrawal of Russian forces. International public understanding of the Holodomor is limited. Nevertheless, there is now a window for these states to improve this gap by strengthening the rigour of international law and commemorating the victims of the famine through the recognition of the Holodomor as a genocide.