How can the international community respond to evidence of genocide in Ukraine?

President Biden must have known that his use of the word genocide would attract attention when he spoke in Iowa about rising energy price and referred to Russia's actions in Ukraine. It has a particular meaning in international law. The Genocide Convention defines genocide as the “intentional effort to completely or partially destroy a group based on its nationality, ethnicity, race, or religion. ” Anyone committing genocide should be punished, regardless of whether they are “constitutionally responsible rulers, public officials or private individuals.”

Several actions can comprise genocide and there is a prima facie case for invoking this term in respect of current Russian actions in Ukraine. These include killing members of a particular group, inflicting conditions likely to bring about the destruction of that group, and forcibly transferring children to another group —all of which overlap with other war crimes and/or crimes against humanity outside the Genocide Convention such as widespread rape, so they may be double criminalised. What sets the crime of genocide apart is the dolus specialis, the “special deceit” or especial intent to destroy a particular group wholly or partially.

The evidence of genocidal acts includes images of executed civilians in areas around Kyiv recaptured by Ukrainian forces, the devastation inflicted on Mariupol, and credible claims of deportations of Ukrainian women and children—including it appears forced adoption—to remote parts of Russia. Evidence of genocidal intent to destroy Ukrainian identity can be found in the words of President Vladimir Putin and his advisers, where they say that “There is no Ukraine” and Russians and Ukrainians “are one people,” as well as intercepted military communications preceding massacres.

Mr. Biden qualified his comments by saying “we'll let the lawyers decide internationally whether or not it qualifies.” The International Court of Justice has already ruled with extraordinary speed that the Genocide Convention applies in the Russia-Ukraine conflict—save for dissents by the Russian and Chinese judges—and provisionally enjoined Russia from committing further aggressions, which of course Russia has ignored. Likely, as in Srebrenica, the final legal reckoning may only be made when it is too late for many victims. But that does not mean the spectre of the Genocide Convention is not haunting present realities: Putin knows that he faces a choice where if he does not die in office he may do so in prison, with vanishing odds of a better outcome.

The world's challenge, then, is to hasten the end of his leadership, which can only be done by intervening on Ukraine's side, in support of its self-defence. This is allowed and it does not depend on the UN Security Council, where Russia holds a veto. Should third countries think it necessary and prudent to use force against Russia, their hands are much less tied than many suppose.

The International Court of Justice laid out the path. It reaffirmed the obligation upon states party to the Genocide Convention “to prevent and punish” genocide but emphasised that they must “act within the limits permitted by international law.” The court used that criterion to discount Russia's ludicrous argument that it is using force to prevent Ukraine committing genocide and the court noted that it is “not in possession of evidence” that this is happening.

But in what must be one of the most remarkable “own goals” ever scored in international law, Russia caused the court to endorse others using force against it, in ways authorised by the spirit and aims of the UN Charter. Article 51 of the charter, the capstone statement on the use of force in international law, reads in part:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Note the language: collective self-defence. Ukraine need not be left to its own defence against Russia's armed attacks; it can invite friendly third states to exercise their inherent right to help it. It informally has, by President Volodymyr Zelenskyy ’s many entreaties for support. The third state need not be limited to military action on Ukrainian territory, and should it accept the obvious risks—including perhaps nuclear reprisal—it could lawfully carry out attacks on Russian territory, so long as there is a nexus with Ukraine's defence. There is no way that Russia could call on the Security Council to stop this happening; Britain, France, and the United States surely would veto that, even if China chose to side with Russia.

Many countries have been supplying Ukraine with weaponry and intelligence. And countries may have protection from Russia's reprisals by mutual defence agreements, such as NATO.

There is much that is wrong with the UN system. The five Security Council vetoes, a relic bestowed on the victors of the second world war, too often stand in the way of timely intervention against unlawful aggression, even genocide. Yet in Ukraine's plight there is the odd exception—the ability to muster a collective self-defence while respecting international law and the present UN arrangements. Even a broken clock is right twice a day.

Declaration of Interests

MM has worked in Ukraine, Russia, and Belarus for over 30 years and has many friends in all three countries. AA and JL declare none.