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‘It takes years to prosecute’: Experts assess Biden's accusation of Russian genocide in Ukraine

“I called it genocide because it’s become clearer and clearer that Putin is just trying to wipe out even the idea of being Ukrainian,” President Joe Biden said.
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It was the first time he had leveled the accusation of “genocide” against his Russian counterpart, President Vladimir Putin, for the atrocities committed by his forces in Ukraine. But President Joe Biden was clear about why he did so.  

“I called it genocide because it’s become clearer and clearer that Putin is just trying to wipe out even the idea of being Ukrainian,” Biden told reporters Tuesday on a trip to Iowa. 

He added that it would be up to international lawyers to decide whether what was happening in Ukraine qualified as genocide, “but it sure seems that way to me.” 

But was his claim of genocide valid? NBC News takes a look. 

What is genocide? 

Coined by Polish lawyer Raphael Lemkin in 1944, partly in response to the systematic murder of Jews by Adolf Hitler’s regime in Nazi Germany, “genocide” was later defined by the United Nations as any acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Such acts could include killings, inflicting serious bodily or mental harm, deliberately inflicting lethal life conditions, measures to prevent births and forcibly transferring children, according to the U.N. definition.

It was codified by the U.N. as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, known as the Genocide Convention

The U.S. has its own genocide legislation, “a federal statute that basically takes the definition from the genocide convention, so it doesn’t really depart from it,” William Schabas, a professor of International Law at Middlesex University in London, said by telephone Wednesday.  

Who can be prosecuted? 

The Genocide Convention states that everyone can be prosecuted and punished for genocide, including constitutionally elected leaders.  

Having adopted the U.N.’s definition of genocide when it was set up in 2002, the International Criminal Court statute states that anyone who commits, orders, assists and even incites genocide can be prosecuted. A separate court, the International Court of Justice, which deals with states, can also rule that countries are responsible for genocide.   

In the U.S., the State Department makes determinations whether mass killings amount to genocide and will collect evidence over a long period of time before it makes a ruling. 

Last month the State Department — in what it said was only the eighth time the U.S. had concluded that genocide had been committed since the Holocaust — found that members of the military in Myanmar had committed genocide and crimes against humanity against the Rohingya community.   

Since August 2017, more than 700,000 members of the mostly Muslim Rohingya group have fled Buddhist-majority Myanmar for neighboring Bangladesh, where they live in crowded refugee camps. The refugees have accused Myanmar security forces of killings, mass rape and arson to drive them out. The military denies the allegations.

U.S. law does not require any specific action after the government declares a genocide, but the designation can increase international pressure. 

What could constitute genocide in Ukraine? 

Biden said Tuesday that he made the determination of genocide because it had become clear that Putin was trying to “wipe out the idea of even being able to be Ukrainian.”

The explanation could fall under the international definition of genocide if it is proven, said Paola Gaeta, a professor of international law at the Geneva Graduate Institute in Switzerland. 

But the burden of proof is high, she said, adding that proving genocide would be difficult with the war still ongoing.

“In order to prove evidence of genocide, you need to prove that there is either a policy of a government to commit it or at the individual level that those individuals wanted to destroy the Ukrainians as a nationality,” she said. 

Biden’s assessment had no legal value, although his personal opinion holds weight, because, as an important head of state, he could mobilize public opinion and help shape the international reaction, she added.

Will a prosecution ever be brought? 

“It takes years to prosecute the crime of genocide,” Schabas said, adding that the procedures at the international courts take a long time. 

“So it’s not possible to get a quick decision on this,” he said. 

Things have happened in Ukraine “that would be elements in evidence if you were trying to convict Russia of genocide, but I haven’t seen anything that comes close to what you would need to show, because you would need to be able to show that Russia had the intent to exterminate the group,” he said.  

He added that there “had to be a standard of great certainty” that either a state or an individual had committed genocide before a conviction could be secured.   

“It’s because of the gravity of the charge,” he said. “It has to be hard to prove, because if you can prove it, it’s really dire.”