An expert says it may be hard, but not impossible, to prove genocide in Ukraine

Should the atrocities in Ukraine be called war crimes, ethnic cleansing or genocide?

The terms can be difficult to differentiate, but experts say the separate labels are crucial to investigating perpetrators and seeking justice in international courts.

"We are definitely seeing evidence of crimes against humanity and war crimes," says Leila Sadat, an expert on war crimes and international law at Washington University in St. Louis.

"Genocide requires this special intent, so we actually have to show that they're committing all these terrible crimes in order to destroy, in part or in whole, the particular group," Sadat says.

That's why genocide can be extremely difficult to prove before the International Criminal Court and the International Court of Justice, she says, because prosecutors have to get into the mind of perpetrators and show that specific intent existed. Past war crime allegations in Syria, Darfur and the former Yugoslavia show how challenging it can be to label crimes correctly in order to seek justice.

NPR's Leila Fadel spoke to Sadat about how experts view the brutal images and accounts coming out of Ukraine and what the allegations of war crimes may mean for future international criminal investigations.

Answers have been lightly edited for length and clarity.

On whether Russia's actions in Ukraine constitute ethnic cleansing or genocide

That is a complicated question, Leila. The international community has said that sometimes ethnic cleansing can be a form of genocide. And we've seen that in early decisions from the International Criminal Court in the situation involving Darfur, where the prosecutor did charge genocide because there was in fact a pattern of ethnic cleansing, destroying villages, driving people away from their homes, terrorizing a civilian population. Very similar pattern to what we saw in the former Yugoslavia. What we saw in Darfur. And we are now seeing today in Ukraine.

On how Ukraine has prepared to seek justice through the ICC:

Fortunately, Ukraine had the foresight to declare that the International Criminal Court statute was applicable to its territory in 2014 and 2015. So unlike Syria's Assad, who would never, never accept the jurisdiction of the ICC, the Ukrainian president and parliament has done that. And so the ICC does have jurisdiction here.

On how crimes against humanity and ethnic cleansing compare to genocide

Crimes against humanity are just as serious as genocide. There's no hierarchy here. Crimes against humanity is what the Nazis were charged with for the Holocaust. And so I know that the international community and victim groups tend to grab for this concept of genocide because we have a treaty on it and we don't yet have the treaty on crimes against humanity. So it seems as if they're less important. They're not less important. They are absolutely horrific crimes that involve attacks on a civilian population and the dehumanization of the human spirit and human beings. So it's really important to note that this idea of ethnic cleansing and crimes against humanity is a very, very serious crime.

On whether it's hypocritical for the U.S. to promise to help investigate possible Russian war crimes, when the U.S. is not a member of the ICC and does not appear to want to be held accountable for its own alleged war crimes

It is hypocritical, and yet it's a really good thing. The Biden administration is seriously considering dismantling some of the obstacles to cooperation with the International Criminal Court because it can see that this is exactly the kind of situation the ICC was created to address. We have a prosecutor already with jurisdiction. We have judges already to approve arrest warrants and hear confirmation cases. We don't have to staff up and hire new people and figure out what law should be applied. We have a court ready and willing to do the job, and those of us who have been involved with the International Criminal Court for 20 years have been making this argument for 20 years. So is the United States coming a day late to the party? It absolutely is, and I think it's great that it's finally getting there.

This story originally appeared in the Morning Edition live blog.

Copyright 2022 NPR. To see more, visit https://www.npr.org.