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What is genocide and has the legal threshold been crossed in Ukraine?

Ukrainian President Volodymyr Zelenskyy has accused Russia of committing genocide after saying hundreds of civilians were found dead in the town of Bucha after the Russian army withdrew.

Ukrainian officials said more than 400 civilians were killed in Bucha, many with their hands tied behind their backs, shot at close range.

The Russian Defense Ministry said in a statement on Sunday that all photos and videos released by Ukrainian authorities alleging “crimes” committed by Russian troops in Bucha were a “provocation” and claimed that no residents of Bucha were suffered violence from Russian troops.

Russia claimed that all of its units withdrew completely from Bucha around March 30. An ABC News analysis of video and satellite imagery confirms that some of the bodies seen lying in the streets of Bucha were there as early as March 19, when the city was still occupied by Russian forces, contradicting Russian claims that the scene was “staged” after his troops left.

President Joe Biden called Russian President Vladimir Putin a war criminal and alleged acts by Russian troops “war crimes” but did not call it genocide. Experts say that could, in part, be a political decision.

“To say that genocide is happening is also to say that we cannot sit back and do nothing here,” said David Simon, senior lecturer and director of the studies program on the genocide at Yale University, ABC News.

The US government also has an internal process to designate whether genocide has taken place. It took five years for the State Department to designate that genocide had occurred in Myanmar, Simon said.

This story explains the legal term “genocide” in relation to the war in Ukraine.

What is a genocide?

Genocide is defined as an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, according to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.

Acts of genocide against members of a group listed in the convention include murder; causing them serious bodily or mental harm; deliberately inflicting living conditions calculated for his physical destruction; impose measures to prevent births; or the forced transfer of children from the group to another group.

Genocide is not just any large-scale violence, or violence that becomes particularly horrific or macabre, Simon said. There must be an intent by the perpetrators to destroy the group, he said.

Murders are also not the only form of genocide that could have occurred in Ukraine, another expert said.

“Further attempts to diminish the group, placing it in harsh living conditions, as if you were thinking of starving a group to death, and in fact you were thinking of certain cities in Ukraine today, where, thanks bombings and cutting off the flow of humanitarian aid, people will potentially starve,” said Alex Hinton, director of the Center for the Study of Genocide and Human Rights and holder of the UNESCO Chair on prevention of genocide, at ABC News.

Whether or not these acts of violence allegedly committed by Russian forces against civilians are considered acts of genocide, they are illegal under international law and warrant a response from the international community, Simon said.

“What we see in Ukraine almost certainly involves crimes against humanity, war crimes, and then, in less well-defined terms, ethnic cleansing and mass atrocities,” Simon said.

Legal threshold for defining genocide

The legal definition of genocide does not set a threshold for an amount of violence that must have taken place for it to be considered genocide.

“The prominence of intent in the definition of genocide really means that there is no legal threshold. Especially because the convention says ‘the intent to destroy in whole or in part,'” said Simon.

In practice, however, Simon said the possibility of genocide usually arises when the death toll is in the thousands.

On Wednesday, at least 1,480 civilians have been killed and 2,195 others have been injured in Ukraine since Russian forces invaded on February 24, according to the Office of the United Nations High Commissioner for Human Rights.

Consequences for the Genocide

The UN Genocide Convention tells countries to file a complaint with one of the UN bodies for the prevention and punishment of acts of genocide. However, with Russia’s right of veto, the Security Council, the body primarily charged with ensuring international peace and security, is unlikely to be able to act, Simon said.

There are a number of things states or geopolitical actors can do, Hinton said.

Organizations, including Human Rights Watch, and government actors are currently on the ground collecting evidence for a possible trial of those who may have committed crimes. An inquiry could also be launched to investigate alleged war crimes committed.

The International Criminal Court has opened active investigations into potential war crimes committed, but Simon said it could take years for this to be litigated.

“In most cases, the ICC can only act after a conflict has ended,” Simon said.

The ICC investigation into crimes committed in Myanmar is still mostly in the investigative phase, despite the most intense episodes of violence in 2017, Simon said.

Investigators will have to prove that Russia intended to destroy Ukraine or the Ukrainians as a group. That evidence would be any articulation of the idea on social media, public broadcasts, in writing or even in private communications, Simon said.

But, “there can’t be a real case until those under warrant are arrested and brought to The Hague for trial,” Simon said.

Radovan Karadzic, who committed war crimes in the former Yugoslavia in 1992 and 1993 and was convicted by the International Criminal Tribunal for the former Yugoslavia in The Hague, was free until 2008.

“His trial, which included charges of genocide, took place about a decade and a half after the acts he committed,” Simon said.

Experts say leaders should act both ways

This violence could push actors to take a tougher stance against Russia, which could have included military action if Russia was not a nuclear power, Simon said.

Biden has repeatedly said that US troops will not join the war in Ukraine, warning that a face-off would lead to “World War III”. Biden also rejected Zelenskyy’s demands for a no-fly zone over Ukraine.

“But it could make the Europeans more eager to extend the sanctions to include Russian gas and oil exports, which could be far more devastating to the Russian economy than the sanctions in place so far.” said Simon.

Hinton agreed that additional sanctions could be imposed, but said diplomatic channels should remain open, Hinton said.

“There has to be a way out of the conflict, so diplomacy is absolutely key,” Hinton said.

On Friday, Russian and Ukrainian negotiators held virtual talks for the last time during which they discussed the draft security guarantee treaty.

Ukraine has proposed a new system of security guarantees similar to NATO’s collective defense clause that would legally oblige “guarantor countries” to supply weapons and impose a “no-fly” zone over Ukraine, in case of attack.

Simon said the term “genocide” can often be used politically, to describe crimes that do not fit its legal definition.

“People tend to use genocide as a label for anything that bothers them. Indeed, the Russians used the neo-Nazis and the genocide against the Russians as a pretext to invade in the first place, when there was no has absolutely no evidence of anything, especially the intent to destroy Russians in Ukraine,” Simon said.

Hinton agreed, stating that “genocide has always been, from the very beginning, a kind of political football. It is used and abused by states to serve their interests.”

A designation that the crimes committed against Ukrainian civilians constitute genocide should not make a difference in the response, according to Simon.

“There are clearly violations of international law that are causing great harm to civilian populations. And that alone should trigger a stronger response,” he said.

“We have enough evidence of crimes against humanity, that if we think mass atrocities are a reason to increase pressure, military or otherwise, against the perpetrator force, we have that evidence with us now and we don’t we don’t need to have a genocide determination to decide whether or not we find bodies in Bucha Street repulsive or revolting,” Simon said.

ABC News

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