Genocide ideologues: how to punish Russian propagandists for calling for the extermination of Ukrainians
Discussions about whether the actions of the Russian army on the territory of Ukraine are "genocide" continue in various areas. If the Ukrainian society and the political discourse speak quite confidently about genocide, international lawyers are much more cautious.
Genocide is considered the most difficult international crime to prove. The reason is that the scale and brutality of the murders and other crimes committed by the aggressor are not decisive for the legal proof of genocide itself, or even such that it would later be confirmed by international judicial institutions.
For this, it is necessary to find solid evidence that the suspected Russians committed these crimes not for the sake of subjugation of Ukraine, not for the sake of occupation, military victory, etc., but with the "specific intent" (this is a term of international law) of the physical or biological destruction of the Ukrainian nation as such or a large part of it.
Proving this specific intent beyond a reasonable doubt is a difficult task.
That is why there were only three cases in the world when an international (or hybrid) court or tribunal issued a verdict for the commission of the "crime of all crimes", that is, genocide. These are the genocide against the Bosnian Muslims, the genocide against the Tutsi in Rwanda and the genocide against the Vietnamese and the Cham in Cambodia.
Other mass killings in dozens of armed conflicts around the world have been classified as crimes against humanity or war crimes, but not genocide.
However, there is a crime committed by the Russians, which is an integral part of genocide and which is absolutely realistic to prove.
These are public calls for genocide against Ukrainians.
The problem is that Ukrainian legislation does not provide an easy and effective means of bringing to justice those Russians who call for the extermination of the Ukrainian nation. Although we are all witnesses to such genocidal propaganda being heard in Russia.
This text explains what needs to change to condemn this crime and why it is important.
The crime of genocide in the form of propaganda?
Against the background of the terrible events of the Russian-Ukrainian war, crimes related to anti-Ukrainian propaganda remained in the background, or even in the third plan, compared to murders and other violent acts.
However, it is propaganda that has created and maintains an environment in which crimes against the Ukrainian people in Russia are not only tolerated, but encouraged.
After all, propaganda is often a weapon.
And calls for the destruction of the Ukrainian nation are weapons that can really lead to genocide.
In general, the definition of the crime of genocide appeared in 1948. Then the members of the newly created UN concluded a written agreement that a tragedy like the Holocaust would never happen again in the world - that's how the Convention on the Prevention and Punishment of the Crime of Genocide was born.
And this document clearly states that calling for genocide is a special crime and that it entails punishment.
The most famous case is the conviction of the leader and presenter of the Rwandan "Radio Free" and "Thousand Hills Television" for inciting the murder of the Tutsi ethnic group. The leader of the Akayesha community, who gave a speech about the need to kill Tutsis, was also convicted for this crime, because otherwise they will "kill us".
Since the time of Nuremberg, where the criminal propaganda of the German Nazis was considered, this is almost the only international court practice that can be relied on.
And this happened in the days when there was no internet, which made genocidal messages hundreds of times more dangerous.
When propaganda approaches genocide
It should be noted that not all Russian genocidal propaganda is criminalized - only public calls for the extermination of Ukrainians.
This is important to explain, because it often seems that everything pouring out of the Russian propaganda media that contains the word "Ukraine" or "Ukrainians" calls for genocide.
Instead, from the point of view of the law, those statements that call for the physical or biological destruction of the entire Ukrainian nation or its essential part are genocidal.
The definition of "materiality" according to the practice of the Yugoslav and Rwandan tribunals involves a number of considerations. Numbers are a necessary and important starting point, but not the only one.
Both the number of victims in relation to the total number of the group and the significance of the victims for the group have weight.
If a certain part of the protected group is symbolic in relation to the others or is necessary for the survival of the whole group, then its destruction can be a genocidal crime.
Complaints are statements that directly cause such actions.
International law does not provide for the concept of "the last straw". No matter how many statements that humiliate and devalue Ukraine, such as "Ukraine is part of Russia", "Ukrainians are like pigs", "the Ukrainian nation does not exist" - this is not enough to accuse of genocide propaganda.
This requires a motivating element - a call to kill and destroy Ukrainians.
Here Ukrainian legislation differs somewhat from international legislation. The convention includes such an element as "direct" appeals - that is, those that the audience can immediately understand and that prompt immediate action.
The Ukrainian legislator left out this element, which causes a number of difficulties and questions, for example, is it possible to criminalize complaints that did not reach the audience?
By what parameters should the content of the statement be evaluated? Or from what moment is the invitation a crime - from the moment it is spoken or published or from the moment it is heard?
These questions, which seem to be almost rhetorical, are important, because today, due to the limitations of our legislation regarding this crime, we can punish those crimes committed on the territory of Ukraine. Since most propagandists "broadcast" from Russia, this creates practical difficulties.
And although it is clear to us that the flow of propaganda, even without direct appeals, destroys all rationality and that the mass of negative information about Ukraine from various Russian sources is more important than the isolated statements of certain "talking heads", but international law has specific conditions, which turns propaganda and spreading hatred into a component of genocide.
However, among the top Russian propagandists there are enough people who cross this threshold.
Punishment of criminals
Armen Gasparyan, Timofey Sergetsev, Alexander Dugin, Sergej Mardan are just a few names of those who, with their speeches, books, addresses and texts, not only justify the murders of Ukrainians, but also call for their destruction.
And Ukraine allegedly does not tolerate such statements.
These propagandists have been informed of suspicion and even have at least two convictions for calling for genocide: Russian propagandists Anton Krasovsky (who suggested drowning Ukrainian children in a river) and Yevgeny Pavlov (who called for the extermination of all Ukrainian "Banderov nationalists").
But the quality of both judgments, delivered in absentia, is questionable.
There is no argument that these sentences could indeed have created a risk of genocide, it ignores such a necessary element as publicity and does not provide sufficient reasoning as to how a Ukrainian court made a decision in absentia for a crime punishable by five years and does not allow interrogation in absence.
If the court went through the mechanism of universal jurisdiction, it had to be explained.
In a word, the level of argumentation of these judgments does not meet international standards. But if Ukraine wants its verdicts on the "crime of all" to be recognized by the whole world, then it is necessary to approach this issue. And for that, a solid legal framework is needed, under which there will be no need to bend the law over the knees to prove the obvious.
So, are there now effective tools for punishing propagandists?
The Criminal Code of Ukraine provides for the possibility of prosecution for invoking genocide, but there is a limitation in the Ukrainian Code on the prosecution of foreigners who do not live in Ukraine and have committed a crime outside its borders. They are liable only if they have committed serious or the most serious crimes.
According to Ukrainian legislation, calls for genocide are a minor crime, which sounds absurd both from the point of view of international standards and from the point of view that calls for the destruction of Ukrainians are one of the weapons used by the Russian Federation in war.
The small sanction does not correspond to the gravity of the crimes and makes it impossible to prosecute Russian propagandists who broadcast from abroad. Although the article of the Criminal Code also provides the possibility of prosecuting foreigners for crimes stipulated by international treaties, namely the Convention on Genocide.
However, the Convention itself does not foresee the possibility of criminal prosecution of criminals outside the territorial jurisdiction.
In addition, the Ukrainian prosecutor's office chose the strategic path in the investigation of war crimes, that "everything that is not allowed is prohibited." Such a strict approach is the result of the requirement for maximum objectivity in conducting investigations and the desire not to turn Ukraine into a court with a high chance of reviewing judgments in the future (for example, the European Court of Human Rights).
Another problematic issue is the actual prosecution of propagandists.
The purpose of administration of justice is not only to report suspicion or to impose punishment in absentia, but also to ensure appropriate punishment. However, due to the fact that most of the accused are outside the territory of Ukraine, even with convictions, the Ukrainian law enforcement system does not have the ability to bring them to prison.
The question of priorities and saving resources is raised, because in conditions of limited human and material resources, efforts should be focused on sentencing, where there is a realistic prospect of ensuring accountability.
Therefore, it is necessary to ensure the most developed and coordinated system of international cooperation, so that criminals do not have a "free place" where they can escape from justice.
The Nazis of the Third Reich were caught decades after the end of the war, the same situation will be with Russian criminals.
And times have changed, today the question arises of creating an appropriate coordination mechanism, with the allocation of the necessary material resources.
Another issue that needs to be addressed is the outdated nature of the Genocide Convention, especially when it comes to genocidal propaganda.
When the Convention was created, there was no Internet, social networks, bots, which increased the danger and insidiousness of its methods a thousand times.
But it should be kept in mind that some of the key states that participated in the negotiations then, in 1948, were empires that committed crimes in their colonies. There was also the reluctance of states to give up even a millimeter of their sovereignty, and "universal jurisdiction" over the most serious international crimes sounded unrealistic.
However, what was hard to imagine 75 years ago has become a reality already today.
Is it realistic to change the Convention against Genocide today? There is no answer, but such discussions should be initiated.
Also, Ukrainian diplomats should become the spearheads of discussions on increasing responsibility for genocide propaganda at the international level, because such propaganda has led to disastrous consequences not only in Ukraine, but also in many other countries.
After the genocide in Rwanda, the world community thought long and hard about the need to pay attention to genocidal propaganda and prevent its spread before the crimes took place. And now there is an opportunity to prevent repeating mistakes.
But, above all, it is necessary to act in Ukraine.
The first and easiest step should be to consider as soon as possible the bill on increasing the penalty for incitement to genocide, which will place it in the category of the most serious crimes.
And the well-founded verdicts handed down in Ukraine will draw attention to this crime in the international arena as well.