AKASAKA Kiyotaka

The word genocide is being bandied about in connection with the Ukraine crisis. The word is readily uttered by Russian President Vladimir Putin, Ukrainian President Volodymyr Zelensky, British Prime Minister Boris Johnson, and U.S. President Joe Biden, among others. Putin used claims of genocide in the Donbas region of Ukraine as an excuse for the invasion, while Zelensky and others called the killing of civilians by Russian soldiers in eastern Ukraine and near the capital genocide.

As is well known, there is a famous “genocide controversy” between Turkey and Armenia over the term genocide. It concerns the mass murder of Armenians by the Ottoman Empire in the late 19th and early 20th centuries. While Armenia insists that it was genocide, Turkey stubbornly refuses to recognize the premeditation and organization of the events and to call it genocide.

The term genocide was originally coined in the early 1940s by a Polish Jewish lawyer, Raphael Lemkin (1900-1959), who was interested in the Armenian case and combined the Greek word “genos,” meaning mankind, tribe, or family, with the Latin word “cide,” meaning murder. At the International Military Tribunal for the Trial of Nazi Officials in Nuremberg, Germany, the word genocide was included in the indictment, but as a descriptive rather than a legal term.

In December 1948, thanks to the efforts of Lemkin and others, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, and genocide was recognized as an international crime. The Convention defines genocide as murder, serious physical or mental harm, or the coercion of living conditions, committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. States Parties have undertaken to prevent and punish genocide. Those accused of the crime will be tried by the courts of the country where the act took place or by the International Criminal Court. As of 2019, 152 countries worldwide, including Russia and Ukraine, are parties to this Convention, but among the G7 countries, only Japan has not ratified the treaty yet, citing a lack of domestic legislation on incitement and conspiracy. In the wake of the recent Russian invasion of Ukraine, lawmakers from the ruling and opposition parties have called for Japan to ratify the treaty as soon as possible.

As for the International Criminal Court (ICC), neither Russia nor Ukraine has ratified its basic treaty (the Rome Statute). However, Ukraine decided to accept the jurisdiction of the Court in 2014, and ICC prosecutors can investigate cases that occur in Ukraine. Regarding the recent invasion of Russia, 41 countries, including Japan, referred war crimes and other crimes to the ICC for investigation between late February and March. Among the ICC panel of judges who accepted the referral and allowed the investigation to begin was Judge Tomoko Akane of Japan. The statement issued by ICC Chief Prosecutor Karim A.A. Khan said that there is reason to believe that war crimes and crimes against humanity were committed and that an investigation would be launched, although there was no mention of genocide. Genocide charges are also expected to be investigated. The investigation by the lead prosecutor began in mid-March.

So far, not a single case of genocide has been recognized by the International Criminal Court (ICC). However, two cases of genocide have been recognized by special international criminal tribunals based on UN Security Council resolutions, and one case of genocide has been recognized by a special national court with UN cooperation. One such tribunal was the International Criminal Tribunal for Rwanda regarding the 1994 genocide in which an estimated 500,000 to 1,000,000 people were massacred. The other case is the decision by the International Criminal Tribunal for the former Yugoslavia on the 1995 massacre of approximately 8,000 people in Srebrenica in Bosnia and Herzegovina. The only example of a national special tribunal with the cooperation of the United Nations concerned the Khmer Rouge massacre of approximately one to two million people in the late 1970s. Japan made a significant contribution to this Cambodian Special Tribunal in terms of human and financial resources as well as the passage of a UN General Assembly resolution.

Other cases that are suspected of being genocide but have not yet been officially recognized by international tribunals or the United Nations include the aforementioned mass killings of Armenians in the Ottoman Empire in the late 19th and early 20th centuries, the mass murder in the Darfur region of Sudan in the mid to late 2000s, and the Chinese government’s alleged repression of the Uyghurs in Xinjiang.

Will the case in Ukraine ever be recognized as genocide by the ICC? “The hurdle is high,” former ICC judge Kuniko Ozaki told the media. Even in the case of mass murder, it is difficult to prove “the intent to destroy all or part of a group.” And even if the criminals could be identified, it would be difficult to prove that the crime was directly ordered by President Putin. Furthermore, even if an arrest warrant is issued, a trial cannot begin until the offender is arrested. There is a practical problem of how to arrest the incumbent president and bring him to trial. He may exercise his diplomatic immunity, and even if he could be arrested after he leaves office, he might still claim immunity for past acts committed in the course of his official duties.

However, as Ozaki says, it would be meaningful to conduct a proper investigation of a crime so that it can be punished if an opportunity arises in the future, even if there are various difficult questions. Inspectors would prepare a complaint and the ICC could issue an arrest warrant. If we stretch our imagination, once an arrest warrant is prepared for the president, he could be arrested after he leaves office either in Russia or on a trip abroad and transferred to the ICC in The Hague. If this were to happen, it would be a trial of the century in world history.

An example of the issuance of an ICC arrest warrant against a sitting president is the 2009 arrest warrant issued against Sudanese President Omar Hassan Ahmad al-Bashir, who, according to the complaint issued by ICC Prosecutor Luis Moreno Ocampo, was responsible for the alleged war crimes, genocide, and crimes against humanity committed in the Darfur region of Sudan. The ICC frequently called for President Bashir’s arrest during his visits to foreign countries such as South Africa and Jordan, but no country has done so. Following domestic unrest, President Bashir was dismissed by the national army in 2019 and arrested in the country, but to the author’s knowledge, he has yet to be transferred to the ICC.

A criminal investigation by the ICC would also be meaningful in preventing a recurrence of genocide. Any country accused of genocide would vehemently deny it because it does not want to be stigmatized for the terrible crime of genocide. It would be ironic and disturbing for President Putin if Russia, which invaded Ukraine on the pretext of stopping genocide by Ukraine, continues to be accused of and pursued the crime of genocide. Hopefully, Russia will feel compelled to stop its brutal act of war. We can only hope that this Russian military aggression will cease as soon as possible.

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AKASAKA Kiyotaka was a diplomat in Japan’s Foreign Service serving in a number of international organizations including the U.N.as Under-Secretary-General.

Note: This essay originally appeared at the online site of the English Speaking Union of Japan.