“We are moving closer to understanding that what was and is committed by [the] Russian aggressor in Ukraine is genocide of [the] Ukrainian nation,” Ukrainian Prosecutor General Andriy Kostin said at the United States Institute of Peace on September 20.

USIP President and CEO Lise Grande, too, made the point that “there is a very strong argument that Russian conduct amounts to genocide.”

A Pattern of Atrocities

Mass graves and burial sites have been discovered as Ukrainian forces retake territory from Russia in a counteroffensive that has caught Moscow by surprise. Earlier this year, hundreds of bodies were found in mass graves in Bucha and Hostomel, near the Ukrainian capital Kyiv, and also near the southeastern port city of Mariupol. Another mass grave was found more recently in the liberated town of Izium. Ukrainian President Volodymr Zelensky said some of the bodies found in Izium showed “signs of torture.” A majority of the victims are believed to be civilians. Russia has rejected war crimes allegations as “lies.”

Since the start of its war against Ukraine on February 24, Russia’s forces have indiscriminately targeted civilians; shelled schools, hospitals and apartment blocks; committed sexual violence, not just against women, but also men and children; tortured and executed civilians; and kidnapped thousands of Ukrainian children and forcibly deported them to Russia.

William B. Taylor, a former U.S. ambassador to Ukraine who currently serves as vice president for Russia and Europe at USIP, recently visited the scene of alleged Russian war crimes in Ukraine. He acknowledges the difficulty of proving genocide. “Atrocities that build up toward genocide lead us to think about intent, and intent is hard to prove,” Taylor said.

Searching for Evidence

Teams of Ukrainian investigators and prosecutors have fanned out across towns and villages in the recently liberated Kharkiv region in the eastern part of Ukraine. Their goal is to document atrocities committed by Russian troops. The area is the size of Connecticut, Kostin said, describing the enormity of the task.

“In each of these hundreds of villages and towns, we know … are cases of war crimes committed by the aggressor,” Kostin said, adding that 50 to 60 bodies are being exhumed daily. He described evidence of a similar pattern of atrocities committed by Russian troops against Ukrainians across the region. Kostin, who is on his first official visit to the United States as prosecutor general, participated in a panel discussion at USIP.

“We all understand that the crime of aggression is the mother of all other war crimes,” Kostin said while calling for the prosecution of Russian officials in an international tribunal for starting the war against Ukraine in the first place. The Czech Republic, which currently holds the rotating presidency of the European Union, has made a similar call for an international tribunal.

The United States, the EU and the United Kingdom established the Atrocity Crimes Advisory Group in May to ensure coordination of their support for accountability efforts in Ukraine. Clint Williamson, a lead advisor to the Atrocity Crimes Advisory Group, said the scale of crimes committed by Russian forces is “almost unimaginable” and “overwhelming.” He described “crime scenes that stretch for miles,” “hundreds of bodies” and 33,000 cases of war crimes.

Williamson said that evidence of war crimes being committed by Russian forces started emerging in the early days of the war. As areas are now liberated by Ukrainian forces, evidence of crimes against humanity have also emerged, he said.

“As more and more territories are liberated, we are going to have to confront these crimes,” Williamson said. “As to genocide, there are very compelling indications that we are seeing a genocide.”

Evidence of a Genocide?

The word genocide is often incorrectly associated with mass murder as it is used to describe atrocities such as the Holocaust and the killing of Tutsis by the Hutu ethnic majority in Rwanda in 1994. Williamson explained that the definition of genocide in fact centers on intent: “It is acts that are committed to destroy, in whole or in part, a national group, race or religion.”

“People think, oh, it has to be numbers or how many people have been killed,” said Azeem Ibrahim, director of special initiatives at New Lines Institute, adding, “It has nothing to do with numbers. It is about intent.”

Ibrahim said intent can be attributed to a state through evidence of a general plan, documents or policy statements, or it can be inferred from a systematic pattern of atrocities that are taking place. He listed five acts that make up genocide: killing, causing serious bodily harm, deliberately inflicting physical destruction on the conditions of life, birth prevention and forcibly transferring children.

Ukrainian as well as U.S. officials have accused Russia of kidnapping thousands of Ukrainian children and forcibly deporting them to Russia. Ukrainian authorities have so far determined, through a laborious legal process, that 5,500 children have been kidnapped, but Kostin said the actual number is significantly higher. Ibrahim put the number of kidnapped children at 180,000.Once in Russia, the children are dispersed “so they cannot coalesce as a single-identity group,” said Ibrahim. Kostin said Russian authorities are giving Russian citizenship to these Ukrainian children thereby erasing their past and making it difficult for them to be traced.

Ibrahim led a New Lines Institute study that concluded last year that China is committing genocide against Uyghurs in Xinjiang. Subsequently, the Ukrainian government invited him to investigate whether a similar situation was occurring in Ukraine. Ibrahim put together a group that included three teams of experts — open-source intelligence experts, language experts who could translate Russian communications and legal experts. The group concluded that Russia is in breach of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), Russia bears state responsibility for inciting genocide and the pattern of atrocities indicates an intent to destroy “Ukrainian-ness,” said Ibrahim.

Inciting Genocide

Significantly, Ibrahim and Williamson said the incitement to commit genocide is itself a crime. According to Williamson, the rhetoric from Russian President Vladimir Putin, Moscow, and Russian state media “clearly indicates an intent to destroy Ukraine as a nation, to not even recognize Ukraine as a nation, to not recognize the Ukrainian people.” Putin has described Ukraine as an artificial creation.

“This is the rhetoric laying the foundations of incitement to genocide,” said Ibrahim. “And we have seen this translated into action.”

Even before the start of the war, Russian authorities were floating the idea of “denazification” as an excuse to invade Ukraine. Russian state media, RIA Novosti, for example, said “de-Nazification inevitably means de-Ukrainization.” Ibrahim described this as a genocidal tactic known as “accusations in a mirror,” where a perpetrator accuses a targeted group of planning or committing atrocities similar to those that it actually intends to commit.

“They are trying to instill in the minds of soldiers that there is a justification for doing this, for murdering, for raping, for kidnapping children, for deporting them,” said Williamson. Noting that this message did not appear overnight, he added: “This goes back for many, many years; preparing people who are willing to implement these acts, and it has to be confronted.”

Confronting Russia

The purpose of the Genocide Convention is “to prevent and punish” genocide. “‘To ‘prevent’ always comes first,” said Ibrahim, adding that “once the threshold of serious risk of genocide has been reached, the obligation is on all states to do whatever is in their power to prevent the genocide.”

Yet not all countries are living up to their treaty obligation. Some say a court needs to first determine that genocide is occurring before they can act. States that offer this excuse are “essentially obfuscating and avoiding their responsibility,” said Ibrahim.

The international community — specifically the United States and the EU — have imposed sanctions on Russia and Putin’s inner circle in response to the war in Ukraine. Despite these efforts, some countries are still buying Russian oil and gas. Ibrahim and Williamson said these states should suspend Russian energy contracts. “There are a whole range of actions that can be undertaken by governments that would help to undermine the Russian position and to confront genocide as it is happening,” said Williamson. Meanwhile, Putin is facing growing criticism over Russia’s failures in Ukraine, both from his supporters within Russia as well as from countries like China and India.

While in Washington, Kostin and U.S. Attorney General Merrick Garland signed an agreement establishing a formal framework for prosecuting war crimes allegedly committed by Russia in Ukraine. Kostin said Ukraine is well prepared to gather evidence of atrocities and its legal system is capable of prosecuting the alleged perpetrators of those atrocities.

However, Williamson said that while there is an opportunity to use a robust domestic and international capability to investigate and prosecute crimes in Ukraine, it will be difficult to get senior Russian officials in the dock. Instead, he advised that the Ukrainian Office of the Prosecutor General and the International Criminal Court lay out clear evidence against these officials so that they can be blacklisted and sanctioned. Taylor suggested that “the case for sanctions can be strengthened so significantly by making the point about genocide.”

Meanwhile, Kostin’s “accountability team” is looking to the future. It is focused on the international compensation mechanism to ensure Ukraine is rebuilt once the war ends. The Ukrainian prosecutor general said Russian oligarchs’ assets, which have been frozen by the West, should be used for this purpose.

Calling on Ukraine’s friends and allies, Kostin said: “Our joint main goal is to prove to all of us, to the civilized world, to all of the Ukrainians, that rule of law prevails over the rule of force.”

But, in order to have accountability, Taylor said, “Ukraine must win.”