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Analysis: Here’s what ‘genocide’ means and why it’s so hard to prove

The declaration is not expected to trigger any immediate changes to American policy toward the conflict, US officials familiar with the matter told CNN, though Biden’s comment marks a dramatic rhetorical escalation.

“We’ll let the lawyers decide, internationally, whether or not it qualifies,” the President said, “but it sure seems that way to me.”

So what exactly does “genocide” mean, and how is it proved? Here’s what you need to know:

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted after World War II, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” including:
  • Killing members of the group.
  • Causing serious bodily or mental harm to members of the group.
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
  • Imposing measures intended to prevent births within the group.
  • Forcibly transferring children of the group to another group.

But world leaders can designate any event as a genocide using any criteria they choose, according to Leila Sadat, a war crimes expert at the Washington University in St. Louis School of Law.

How many times has the US designated a genocide?

The US has made only eight formal determinations of genocide, according to US Secretary of State Antony Blinken.

American hesitance at calling atrocities “genocide” is rooted in the term’s strict legal definition, which was written following the Holocaust in 1948.

The UN Genocide Convention obligates countries to intervene once a genocide is determined to be underway, stating, “Genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

How is genocide designated?

Biden administration officials have cited the genocide designation in Myanmar, made only last month, as an example of a process used to generate the label. It took the United States amassing evidence over the course of years to come to the determination that Myanmar’s persecution of the Rohingya minority constituted a genocide.
Another option for world governments is to seek out prosecution for genocide through the International Criminal Court, though the process is lengthy and proving genocide can be tricky.

“The difference between crimes against humanity — which is a horrific crime — and the subset of crimes against humanity that we call ‘genocide’ is we have to show that essentially the perpetrators in this case wish to destroy in whole or in part the Ukrainian people,” Sadat told CNN.

“And it’s a very high bar,” she continued. “Whether it should be a high bar is another question.”

How long does it take to prosecute genocide?

A long time.

The International Criminal Court and national courts “have to identify specific individuals who they have reasonable grounds to believe actually perpetrated those crimes in their individual capacity,” Sadat said.

“And so the criminal investigations will take much longer because you have to identify the perpetrators; you have to collect the evidence against them. And then ultimately you would bring criminal trials to try to prove beyond a reasonable doubt that in fact they did perpetrate the crime — either war crimes, crimes against humanity or genocide,” she added.

What is the difference between genocide, crimes against humanity and war crimes?

Genocide, crimes against humanity and war crimes are related but distinct labels, per Sadat:

  • War crimes are breaches of the laws and customs of war.
  • Crimes against humanity are defined as widespread or systemic attacks directed at civilians.
  • Genocide is when crimes against humanity are carried out with the goal of eliminating a population.

Sadat describes the three labels as the “atrocity cascade.”

“Once we have an active aggression like this with an invasion of a sovereign country, typically the cascade begins with war crimes. Then we see the crimes against humanity, and we have pockets of genocidal killing within the crimes against humanity,” she said.

Could Vladimir Putin be indicted for genocide?

Hypothetically, yes.

The International Criminal Court tries four types of crimes: genocide, crimes against humanity, crimes of aggression and war crimes.

Anyone accused of a crime in the court’s jurisdiction can be tried. The court tries people, not countries, and it focuses on those who hold the most responsibility: leaders and officials. While Ukraine is not a member of the court, it has previously accepted its jurisdiction.

Putin could, therefore, theoretically be indicted by the court for genocide. However, the International Criminal Court does not conduct trials in absentia, so he would either have to be handed over by Russia or arrested outside of Russia.

How are world leaders reacting to Biden’s comment?

In Ukraine, Biden’s remark was welcomed by President Volodymyr Zelensky, who tweeted praise for the comment almost immediately.

“True words of a true leader,” he wrote. “Calling things by their names is essential to stand up to evil. We are grateful for US assistance provided so far and we urgently need more heavy weapons to prevent further Russian atrocities.”

But at least one key US ally, French President Emmanuel Macron, has pushed back on the comment.

“I want to continue to try, as much as I can, to stop this war and rebuild peace. I am not sure that an escalation of rhetoric serves that cause,” Macron said.

“What we can say for sure is that the situation is unacceptable and that these are war crimes. We are living through war crimes that are unprecedented on our soil — our European soil.”

CNN’s Kevin Liptak and Zachary B. Wolf contributed to this report.

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