By Mel Gurtov
Mass Violence in Our Times
In just the past few years, we have witnessed mass violence directed at innocent people in many places: China’s Xinjiang province, the Saudi-led war in Yemen, the Myanmar (Burma) junta’s atrocities against the Muslim Rohingya, and of course Russia’s invasion of Ukraine. Each of these episodes has its distinctive characteristics, but they all violate international law and our common humanity. None of them can be excused by arguments based on state sovereignty, national security, historical analogy, or the sins of others past and present.
Crimes of war, which I’ll collectively call mass violence, come in three categories: war crimes, crimes against humanity, and genocide. The lines of separation aren’t entirely clear, but here is one clarification:
“Crimes against humanity refer to specific crimes committed in the context of a large-scale attack targeting civilians, regardless of their nationality. . . . Crimes against humanity have often been committed as part of State policies, but they can also be perpetrated by non-State armed groups or paramilitary forces. Unlike war crimes, crime against humanity can also be committed in peacetime, and contrary to genocide, they are not necessarily committed against a specific national, ethnical, racial or religious group.”
Victims of mass violence have legal outlets through the International Court of Justice (ICJ), the International Criminal Court (ICC), special tribunals, and regional human-rights courts such as the European Court of Human Rights.
Thus, the ICJ considered Ukraine’s complaint in response to the Russian claim of genocide by Ukraine forces in the Donbas region. By a 13-2 vote—the Russian and Chinese judges being in the minority—the court ruled that Russia “shall immediately suspend military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Russia never attended the ICJ hearing, claiming the court lacked jurisdiction inasmuch as its invasion was in self-defense. The ICJ’s opinion is binding under the UN Charter, but Russia was undeterred.
The charge that Putin and Russian military forces are guilty of war crimes might go before the ICC. The Swiss lawyer Carla Del Ponte, who was chief prosecutor in the Rwanda and Bosnian Serb international tribunals, has called Vladimir Putin a “war criminal” and urged that the ICC issue a warrant for his arrest.
Note that the US, Russia, and Ukraine have never signed or ratified the 1998 Rome Statute that established the ICC. But Ukraine has accepted ICC investigations of crimes committed on its territory; and any state that has signed it can refer Russian violations to the ICC. Forty countries have done so. Moreover, any country can use its domestic law to prosecuteindividuals for war crimes even if those crimes are committed outside its territory.
The Rome Statute specifies 10 crimes against humanity:
4. Deportation or forcible transfer of population
7. Sexual violence
8. Persecution against an identifiable group
9. Enforced disappearance of persons
10. The crime of apartheid
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health may also qualify.
Russia’s military–its political and military leaders, and its troops–has committed many of those crimes, in particular forced deportation to Russia, imprisonment of Ukraine government personnel, use of children as shields, persecution of a population, attacks on civilian facilities (hospitals, schools, theaters, shelters), use of prohibited weapons (cluster munitions and white phosphorus), and endangerment of a nuclear complex. The massacre of civilians in Bucha this month raised the question of genocide. Russia may also be found guilty of committing a war of aggression, a charge that cannot apply to a state that has not accepted the ICC and may therefore require formation of a special tribunal.
Since 2017 the mostly Muslim Rohingya people have been persecuted by the Burmese military junta and driven from their homes and lands. Roughly 1.5 million Rohingya are now displaced, about half in refugee camps in neighboring Bangladesh and the other half inside Myanmar. The military junta has variously been charged by UN agencies (including the UN High Commissioner for Human Rights in 2018) and governments with ethnic cleansing, crimes against humanity, and genocide. The crimes include mass rape of women, large-scale killings, and arson, carried out not only by army units but also by Buddhist nationalists. In January 2020, the ICJ agreed that Myanmar had breached the Genocide Convention. It ordered the government and military to prevent genocidal violence against its Rohingya minority and preserve evidence of past attacks. The court’s decision is binding, but violence against the Rohingya continues, finally (after much internal debate) leading to the US designation of the repression as a genocide.
In China, as I have reported several times, the forced internment, displacement, and cultural assimilation of Uyghurs and other Muslims is well documented (for instance, at the Uyghur Tribunal). To my mind, Chinese policies constitute genocide, not merely crimes against humanity, as I read the Genocide Convention of 1948, specifically:
“(b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group.”
As mentioned above, Russia’s charge of genocide in Ukraine got turned around by Ukraine, enabling the ICJ to investigate and rule on Russian genocide. As a state that has ratified the Genocide Convention, Russia has put itself in the untenable position of being a genocide state. The ICJ’s ruling in March is a temporary one; the investigation continues, with more and more evidence piling up, in civilian bodies and mass graves, to make the charge of genocide credible.
Naming, Shaming, and Prosecuting
One option for bringing pressure on an aggressor state is international condemnation. In the UN, Russia was able to escape such a resolution in the Security Council by vetoing it, but it could not prevent a similar resolution from passing almost unanimously in the General Assembly.
International law, though lacking enforcement mechanisms, can prove as effective as condemnations. For one thing, while Russia’s current leadership engages in nonstop denials of war crimes, “establishing a criminal record could go a long way in stopping the nationalist propaganda which has promoted cycles of violence in the region,” writes Prof. Ruti Teitel.
Another authority, Oona Hathaway, writes:
“. . . international law remains one of Ukraine’s most powerful weapons against Russia. The law is helping states that agree on little else unify in opposition to the invasion. The law has brought together an unprecedented global coalition of states to oppose the Russian intervention and forge a program of sanctions that will raise the costs of the Kremlin’s aggression. And the law has led these same states to pour assistance into Ukraine . . . .”
As an American, it is not easy to condemn the atrocities of others when the United States has been guilty of mass violence in many places, from the atomic bombings in Hiroshima and Nagasaki to its interventions in Vietnam, South and Central America, and the Middle East over the last 60 or so years.
Leaders of great powers, however, rarely appear before the bar of justice to answer for their crimes, or even have to apologize for them, whether or not their use of force succeeds. Nor does calling out the crimes against humanity of others lessen one’s own guilt. US credibility is undermined by continuing failure to join the ICC, and in the past by defying ICJ rulings just as the Russians are doing now. The Biden administration only now is reportedly debating how, and whether, to support the ICC’s work.
Still, calling attention to US war crimes cannot exonerate the war crimes of others. All such crimes deserve exposure and, whenever possible, punishment. All national leaders who decide on or acquiesce in criminal behavior must be called to account.
No appeal to the “national interest” or “national security” can cover for war crimes. The highest purpose of international law is to protect human life and dignity against the power of the state.