The State, Nation, and Genocide: How the UN could apply the Genocide Convention to Russia’s invasion of Ukraine
In justifying Russia’s violent invasion of Ukraine, Russia claims that Ukraine is not a nation — just a part of Russia to be reabsorbed. This denial of Ukrainian nationhood illustrates how the convention on “Genocide” leaves an exploitable, undefined legal ambiguity: Given that the central framing of the Russia-Ukraine war — according to both Russia and Ukraine — is the legitimacy of the Ukrainian people, if Ukraine brought claims against Russia, the argument should reflect attempts to eliminate the Ukrainian state (ie. the government) and therefore the Ukrainian nation (ie. the people). Currently, neither the Convention on Genocide nor Crimes Against Humanity prohibit the elimination of a state in order to annihilate a nation. However, if the state and the nation were explicitly linked, Russia’s denial of and attack on the Ukrainian state could be defined as genocide.
The United Nations (U.N.) never explicitly defines “state” or “nation.” However, the terms are not used interchangeably. “Statehood” is a requirement for membership in the U.N., which operates based on the “traditional definition of states in international law,” as defined by Article 1 of the 1933 Montevideo Convention. According to this article, the four qualifications of a state are: a permanent population, a defined territory, a government, and the ability to enter into relations with other states. In the preamble of the Universal Declaration of Human Rights (UDHR), “Member States” are the parties pledging to the proclamation. Consequently, when discussing more binding norms in the UDHR, “state” is used. However, the UDHR shifts to the word “nation” to imagine a “distinction” that creates a protected class; in Article Two, “nation” is conceived of in the same way as the protected classes of race, religion, sex, among others.
A codified relationship would solve inconsistencies across the U.N.: Part of the purpose of the U.N. is to “maintain international peace and security,” as stated in Article 1 of the U.N. Charter. In the Genocide Convention, genocide is defined as “[acts] committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group;” furthermore, all 152 signatory states of the convention are responsible “to prevent and to punish” the “odious scourge” that is genocide. Although the U.N. forbids both breaches of international peace as well as genocide, without a framework to connect the state and the nation, wars between states (driven by authoritarian leaders using genocidal rhetoric) can not be officially classified as genocide. As such, the international community will not view Russia’s actions in Ukraine as acts against a state in order to destroy a people. Furthermore, this absolves the international community of their responsibilities to “prevent and punish” genocide.
One clear example of how Russia is attempting to undermine Ukrainian national identity is through a policy of forced adoptions. Russia takes Ukrainian children (largely orphans or those who have become disconnected from their families) and places them into Russian homes. The Associated Press and New York Times posit that this policy qualifies as genocide based on international legal definitions outlined in the Genocide Convention, which states that genocide includes “forcibly transferring children of the group to another group.” Forced adoptions intentionally undermine Ukrainian identity and claims to nationhood; in an interview with the New York Times, one Russian adoptive mother stated, “Our family is like a small Russia. Russia took in four territories, and the Druzhinin family took in four children. We are not taking what is not ours.” Through the assimilation of Ukrainian children into Russian households, these forced adoptions attempt to create a reality in which there is no national or cultural distinction between Russians and Ukrainians. However, various human rights organizations, such as Amnesty International, have sidestepped a discussion of genocide, opting to use the term “Crimes Against Humanity,” instead.
This is, in part, due to the positioning of genocide as the “crime of crimes.” The International Court of Justice (ICJ) has been extremely hesitant in identifying genocide (as seen in “When to refer to a situation as ‘Genocide’ “), only recognizing two: Rwanda and Srebrenica. In the 2007 summary judgment on Bosnia and Herzegovina v. Serbia and Montenegro, the construction of strict scrutiny regarding “specific intent (dolus specialis)” is critical to the final holding of the court. In subsequent cases, such as The Prosecutor v Goran Jelisic, David Alonzo-Maizlish (in the NYU Law Review) argues that the high standard created leads to disturbing holdings: “The Jelisic case stands for the uncomfortable proposition that a man who publicly stated that he wanted to kill all Muslims did not have the necessary mens rea [criminal intent] to convict for genocide.”
Additionally, the current legal construction of genocide hinges on, as Professor Joy Gordon puts it, a lack of alternative motive provided (eg. economic or political). There must be state genocidal intent. This standard can only be met “if the intent to destroy the group is quite arbitrary — because ‘that's who they are,' and for no other reason.” While this may be difficult to prove in other cases (such as acts of genocide within a single state), it seems that this reading of the Genocide Convention would allow ample space for the “that’s who they are” to simply be: “Ukrainian.” However, because “state” and “nation” are not explicitly defined as depending on each other, the connection between annihilation of a state and annihilation of a people has yet to be codified.
The U.N. seems uniquely positioned to toggle between definitions of nation and state — they do throughout the Universal Declaration of Human Rights and assign nations values that states protect. One irony of human rights is that the government violating its citizens’ human rights is also supposed to protect and grant human rights. The war between Russia and Ukraine, however, does not have this complexity. If the U.N. outlined the relationship between nations and states as “a nation is a people, whom the state protects,” then the Genocide Convention could apply to cases like the one today.
Editor: Steven Huang