President Biden’s accusation that Russia is committing genocide resonated with those appalled by the images of apparent slaughter in Bucha, Mariupol and other parts of Ukraine. “Your family budget, your ability to fill up your tank — none of it should hinge on whether a dictator declares war and commits genocide a half a world away,” Mr. Biden declared, although he later qualified his remarks, recognizing the need for more evidence. “We’ll let the lawyers decide internationally whether or not it qualifies, but it sure seems that way to me.”
It is understandable that Mr. Biden spoke as he did; his use of the term “genocide” was, at base, an expression of outrage and revulsion. And yet it is unclear whether he recognized the gap between popular conceptions of the word’s meaning — used as it often is as a synonym for mass murder — and its more limited legal definition.
I wonder, too, if it was a wise choice of words. While there is evidence of genocidal rhetoric and of acts — including killings and rape — that may reflect genocidal intent on the part of Russia, the practice of international courts tells us to be cautious, that far more will be needed to sustain a case.
The word “genocide” was invented in the context of World War II by the émigré Polish jurist Raphael Lemkin — an amalgam of the Greek word “genos” (“tribe or race”) and the Latin word “cide” (“killing”). A refugee, Dr. Lemkin credited the idea to his student days at the law faculty in the Polish city of Lwow (today Lviv, in western Ukraine, recently subject to attacks from Russia) as a reaction to intergroup strife, with the hope of creating a category of crime under international law to protect groups. The term first appeared in November 1944 in his book “Axis Rule,” and the following year, because of Dr. Lemkin’s persistence, it was part of the Nuremberg trial, as an example of a war crime.
At Nuremberg, genocide was joined by two other newly minted crimes, aggression (waging illegal war) and crimes against humanity (widespread attacks on civilians). And yet the judgment ultimately failed to mention the term — in part a response to American concerns about the possibility of genocide charges against the United States and their implications for national sovereignty. That omission was described by Dr. Lemkin as “the blackest day” of his life.
In 1948, again because of Dr. Lemkin’s urging, the newly created United Nations adopted the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It committed signatories to prevent and punish “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” (The United States, still concerned for its own situation, did not sign on until 1988.) The convention adopted a far narrower definition than Dr. Lemkin had wanted — for example, excluding cultural genocide and the protection of political, social and other groups.
In the decades that followed, the term fell into the shadows. It was the atrocities of the 1990s in Rwanda and the former Yugoslavia that caused it to re-emerge. Glaring acts of horror carried out by neighbor against neighbor caused genocide to symbolize the crime of crimes. It has become a word that captures public attention in a way that the labels of war crimes and crimes against humanity do not.
Yet the claim of genocide is not just a rhetorical charge but also a legal one. In the context of Ukraine, as invoked by President Volodymyr Zelensky and Mr. Biden, the legal charge will hinge on proof that Vladimir Putin or other accused perpetrators intend to destroy Ukrainians as a group in whole or in part. International courts have set the bar very high for proving such intent: In its judgment in the cases brought by Bosnia and Croatia against Serbia, the International Court of Justice in The Hague accepted that proving genocidal intent could be inferred from a pattern of conduct but ruled that such an intent must be the only inference that could reasonably be drawn from the acts in question.
That is an impossibly high bar, one that is difficult to prove, since a variety of intentions will invariably inform human actions. International courts have only rarely ruled that a genocide has occurred, and this has given rise to accusations of inconsistency and of putting the legal conception of genocide on a pedestal that Dr. Lemkin never intended. Thus, the killings of over 8,000 Muslim men and boys in Srebrenica, Bosnia, were recognized as a genocide, but the murders of hundreds in nearby Vukovar, Croatia, were not.
We do not know whether Mr. Biden spoke as he did on the basis of advice or whether it was merely an expression of outrage generated by terrible images. He surely knows, however, that use of the term is also an act of advocacy, one that draws broad attention, rallying support to the Ukrainian cause and heaping further opprobrium on Mr. Putin and his cohort.
Mr. Biden’s words may have unintended consequences, reinforcing the sense that war crimes or crimes against humanity are somehow less terrible than genocide. They are not: International law does not recognize a hierarchy of horrors, and the use of labels to describe acts of mass atrocity is liable to create divisions, such as when President Emmanuel Macron promptly disagreed with Mr. Biden’s characterization.
The use of the word “genocide” also raises expectations and the prospect of disappointment: An international ruling that no such crime occurred would be devastating for the victims and seized upon by those who argue that their claims are being exaggerated. To use the term and then do nothing to prevent other similar horrors — as may be imminent in eastern Ukraine — will undermine those who make the claim in the future.
In our times, charges of genocide abound: the Darfuris in Sudan, the Yazidis in northern Iraq and Syria, the Rohingya in Myanmar, the Uyghurs in China. Just last year Mr. Biden became the first American president to characterize the 1915 killings of Armenians in the Ottoman Empire as genocide — an act that unwittingly opened the door to the use of the term for more proximate acts of systemic wrongdoing, in relation to America’s history of slavery and its treatment of Native Americans. Dr. Lemkin, who died in 1959, would have approved of the use of the word in respect to all these situations and many others, including the apparent slaughter in Bucha. He would no doubt be delighted that his word has entered the legal lexicon and has changed our consciousness about what states can and cannot do to human beings. He would be horrified, however, by the parsing of words, the distracting fights over the labeling of such abject cruelty and the placing of his term on a perch so high that the legal meaning of “genocide” is held apart from its ordinary conception.
Philippe Sands is a professor of law at University College London, the Samuel Pisar visiting professor of law at Harvard Law School and the author of “East West Street: On the Origins of Genocide and Crimes Against Humanity.”