The Necessity of a Structural Investigation into the Cultural Genocide in Ukraine
Since the Russian invasion, both the Chief Prosecutor of the International Criminal Court (ICC) and the Federal Prosecutor’s Office of Germany have started an investigation into events in Ukraine that are relevant under international criminal law. The primary aim of these investigations is to gather as much evidence as possible (without identifying specific suspects at this stage) in order to be able to conduct criminal proceedings against specific suspects, if the necessary evidence is corroborated. Under the German legal system, this investigation is called structural investigation proceeding (Strukturermittlungsverfahren), and the Federal Public Prosecutor’s Office is required to initiate such a criminal investigation if there is reasonable suspicion (Anfangsverdacht) of a criminal offense. This results from the ex officio principle (Offizialprinzip), according to which only the public prosecutors are competent to initiate an investigation. Under the principle of legality (Legalitätsprinzip) the public prosecutors are further obligated to initiate such investigations, when there are sufficient grounds for reasonable suspicion. If during the investigation probable cause (hinreichender Tatverdacht, i.e. higher probability of conviction than acquittal) against individual suspects is established, the public prosecutors are also obligated to bring charges before the German criminal courts.
While the German Federal Public Prosecutor has conducted such a structural investigation proceeding into possible crimes against humanity and war crimes in Ukraine, it has recently become known that he does not extend his investigation to the suspicion of genocide, because there is no evidence of an intent to destroy a group as such in the context of the Russoukrainian conflict. Following increasing reports of forced transfers of Ukrainian children from Russian-occupied territories to penal camps and to Russia, it is surprising that the German Federal Public Prosecutor does not see any evidence of a possible genocide.
This gives reason to examine why the forced transfer of children already constitutes a sufficient ground for the initiation of structural investigation regarding the crime of genocide.
The Crime of Genocide
Based on the definition of genocide in international criminal law (Article 6 of the Rome Statute) and the identical in wording in Section 6 of the German Code of Crimes against International Law, the crime of genocide requires the commission of a specified individual crime against members of a national, ethnic, racial or religious group of persons with the intention to destroy the group as such in whole or in part.
The realization of the objective element of genocide – the specified individual crime – through the forcible transfer of Ukrainian children by the Russian forces to the Russian “group” could be easily clarified by the objective evidence. Far more problematic, however, is the subjective prerequisite of the crime of genocide – the “intent to destroy”.
The Subjective Element of Destroying a Group as Such?
Genocide requires a specific/special intention to destroy a group as such. This subjectification of the crime has been argued to give the crime its special unjust character. It has not been clarified beyond doubt how this specific/special intention of destruction must be assessed. While some have suggested a knowledge-based interpretation of this requirement so that the subjective requirement of the crime is lower, there is more to be said in favor of a primarily voluntative interpretation.
It is true that the knowledge-based interpretation of the intent element offers the possibility of countering evidentiary difficulties by focusing on whether the perpetrators “knew, should know or should have known” that their act was taking place in a genocidal environment. The significance of this approach lies in the fact that the subjective element of the crime is primarily based on motives that take place in the mind of the perpetrator and that these circumstances are more difficult to investigate or prove than objective facts. Furthermore, this view offers the advantage of indirectly anchoring a contextual element in the crime of genocide in the form of knowledge about the macrocriminal overall event.
However, this knowledge-based interpretation ignores and overstretches the wording of the law. It allows only the will-based interpretation, because “intent” by definition presupposes a willful act. This adherence to the wording cannot be disregarded in view of the nullum crimen sine lege stricta principle anchored in Article 22 (2) of the Rome Statute and in common international law. Moreover, genocide derives its gravity under international criminal law from an extreme form of willful and deliberate acts designed to destroy a group. It is only through the will-based intention to destroy a group as such that genocide acquires its systematic or structural element, which qualitatively distinguishes it from “normal criminality”. In this sense, an objectively arbitrary killing of a large number of people is unlawful, but the punishment of this act as a crime under international law presupposes a deliberate and, thus, intentional disregard of standards set by international humanitarian law.
This interpretation of the special intent prerequisite also corresponds to the case law of international jurisprudence. In Prosecutor v. Akayesu (ICTR, para 518), the Chamber described the genocidal intent as the “key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator”. This is equally clear in the Appeal-Chamber’s Judgment, Prosecutor v. Krstić (ICTY, para 134).
Another argument against the knowledge-based interpretation is that its extension of the “intent to destroy” prerequisite is not necessary to counter evidentiary difficulties. The difficulties posed by the provability of the voluntary element can be effectively countered by using objectively collected circumstantial evidence to draw conclusions and inferences based on objective facts, witness statements, etc. as shown in Prosecutor v. Krstić and Prosecutor v. Al Bashir.
What Does This Mean for the Specific Events in Ukraine?
This said, for the initiation of structural investigation proceedings, it is necessary that there are sufficient indications that allow the conclusion of a willful “destroying” of the group as such.
In the case at hand, evidence for such an intention could already be derived from the published speeches and the behaviour of Russian forces in Ukraine. Vladimir Putin, for example, published an essay as early as 2021 in which Ukraine was denied its national and cultural identity. This was reiterated particularly in the declaration on “special operations” in February 2022.
However, such evidence is only sufficient if one considers the previously known forced transfer of Ukrainian children to penal camps and to Russia, as “capable of destroying” in the sense of genocide.
A Cultural and Social Genocide Covered Under International Criminal Law?
The abovementioned transfer of children leads to a loss of the cultural and social identity of the group if the children of one group are adapted to another group and, thus, the cultural offspring and cultural heritage are lost. However, the physical destruction of the group per se is not associated with this.
This leads specifically to the question of whether the intent to destroy includes only the destruction of the biological or physical existence of the group or can also refer to the cultural or social destruction of the group. According to the view expressed here, there is more to be said in favor of also considering cultural or social genocide as relevant under international criminal law. Cultural genocide is to be understood as the destroying of cultural and social identity without the material annihilation of the members of the group as such.
According to a narrow interpretation, the fact that the crime of genocide is primarily intended to protect the biological and physical existence of the affected group members already speaks against extending the intent to destroy to cultural and social genocide. This results from the variants of acts listed in Article 6 of the Rome Statute, which only aim at the destruction of physical-biological existence. This is based on the idea that the crime of genocide, as the “crime of all crimes”, does not guarantee the protection of minorities, but rather the punishment of crimes that can no longer be reconciled with being human as such. Acts, which only target the identity of a group but are not capable of eliminating the group physical, lack the necessary inhumanity to exceed the threshold of seriousness.
A narrow interpretation is supported by the historical genesis of the crime of genocide, which was developed from the Genocide Convention. Within the framework of the Genocide Convention, the inclusion of genocidal behavior, that does not affect physical existence (material destruction), was expressly rejected.
This exegesis of the intent to destroy has also become predominantly entrenched in international law jurisprudence. The Special Tribunals for Rwanda (Prosecutor v. Semanza) and former Yugoslavia (Prosecutor v. Krstić, Prosecutor v. Blagojevi, Jokic) did not consider the destruction of a group in the cultural sense to be a constituent element in various cases.
On the one hand, this would only be judged differently if the children were taken away precisely with the intention of preventing the biological reproduction of the attacked group and, thus, bringing about its destruction. On the other hand, this would also be different if, as a result of the removal, such living conditions were imposed on the children that they were capable of destroying the children as part of the group.
In contrast to this narrow understanding of the norm a more extensive interpretation is also possible and necessary. To make protection from the worst of all crimes as comprehensive as possible under international law, the interpretation could also be extended to cultural or social genocide as raised in the dissenting opinion of Judge Shahabuddeen in ICTY, Prosecutor v. Krstić. This would also include the transfer of the children to Russia with the “mere” intention to destroy the Ukrainians culturally and socially. Moreover, the wording of the genocide statute itself does not limit the intent to destroy to biological or physical existence. Rather, Article 6 (c) of the Rome Statute explicitly addresses physical destruction. In the other variants of the crime, however, there is no such limitation to physical destruction. It follows, that the partly unspecified “intent to destroy” can and should cover all forms and types of destruction. This includes cultural genocide.
The offence also provides, according to the wording of the norm, for the protection of the “group as such” – i.e. a group-specific entity. This supra-individual conception of genocide can also cover an intent to destroy beyond mere biological and physical existence.
This has already been the view of the German Federal Constitutional Court, the German Federal Supreme Court and the Higher Regional Court Frankfurt. German law does not recognize case law in the sense that precedents must be used to justify a similar decision in similar circumstances. However, a broad understanding of the “intent to destroy” can be derived from the mentioned judgments in order to extend the scope of protection of genocide as far as possible.
Furthermore, the fact that this interpretation was still applied to Section 220 (a) of the Criminal Code, which was abolished by the adoption of the German Code of Crimes against International Law, does not speak against the transfer of this interpretation. Even at that time, Section 220 (a) of the Criminal Code was and is essentially identical to the current version of Article 6 of the Rome Statute and Section 6 of the German Code of Crimes against International Law. In addition, the German Federal Constitutional Court and the German Federal Supreme Court upheld the criminal relevance of cultural genocide, especially in contrast to the judgments of the special tribunals for Rwanda and the former Yugoslavia, which had already been issued at that time.
Furthermore this broad interpretation was at least also not ruled out by the Prosecutor of the ICC in the Al-Bashir-Case. For this preferable interpretation, it is also necessary to take into account, that the elimination of cultural and social identity also represents the possibility of destroying a group, because the group can no longer be identified as such. For the specific case in question, this would mean that Ukrainians could no longer be identified as Ukrainians due to the loss of cultural identity. If this is the goal pursued by the Russian perpetrators, it could be seen as evincing the latter’s intention to destroy.
What Does This Mean for the Structural Investigation Procedure of the German Federal Public Prosecutor?
Regardless of whether cultural genocide is in fact a crime under international law – which is argued herein – the finding of objective evidence can only provide a secure basis deciding whether the events in Ukraine are genocide or not. This holds true because, according to the established international case law, the will-based intent to destroy can be derived by using objectively collected circumstantial evidence – as mentioned in Prosecutor v. Akayesu (ICTR, para 523) and Prosecutor v. Jelisic (ICTY, para 47).
The scientific service of the Bundestag expressly stated that a legal classification of the events in Ukraine is left to the criminal courts in Germany or the ICC. However, such a legal assessment by the criminal courts in Germany is only possible if an objective basis for a decision is provided through a structural investigation procedure. This is because only the facts and evidence established by the structural investigation procedure can provide a viable basis for the German Federal Public Prosecutor to decide whether to bring charges before the criminal courts in Germany.
As a result, the necessity of initiating a structural investigation procedure regarding the genocide is not dismissible. After all, according to the broad understanding of the intent to destroy outlined here, the findings on the forced transfer of Ukrainian children to penal camps and to Russia constitute sufficient evidence for an initial suspicion of genocide also in the cultural and social sense. The questions of whether genocide is actually being committed in Ukraine, whether the Russian perpetrators are acting with intent to destroy, and whether anyone will ultimately be prosecuted under international criminal law can only be clarified if the initiation of a structural investigation procedure at least creates the objective basis for such questions to be answered. Thus, a proper structural investigation procedure is indispensable.