Abstract:
An exploration of Russian, Ukrainian, and Western approaches to international criminal law is timely against the backdrop of the Russo-Ukrainian war. Academic debates over this war and war-related crimes have polarly divided Western and Russian scholars inter se, Ukrainian and Russian scholars inter se, and occasionally Western and Ukrainian scholars inter se, although all of them paradoxically underscore the universality of international criminal law. The present paper focuses on such contestations about genocide. The Kremlin and some Russian legal scholars maintain that Ukraine has committed genocide against Donbas residents. Yet this allegation is claimed to be false by the Ukrainian authorities and legal scholars. Ukraine filed an application with the International Court of Justice, instituting proceedings against Russia on the interpretation, application, and fulfilment of the Convention on the Prevention and Punishment of the Crime of Genocide. The International Court of Justice has received an avalanche of written interventions in the proceedings by other (predominantly Western) states supportive of Ukraine. Moreover, some Ukrainian government officials and legal scholars have recently started to put forward genocide-related arguments against Russia itself by maintaining that genocide has been committed by Russia against Ukrainians. Such statements are treated with scepticism in the West, let alone in Russia. As regards individual criminal responsibility, it remains to be seen whether the Office of the Prosecutor of the International Criminal Court will indict anybody for the crime of genocide allegedly committed in Ukraine. Meanwhile, national criminal proceedings against alleged genocidaires have already been initiated in Russia and Ukraine. Relying on primary and secondary sources, including in Russian and Ukrainian, and using the theoretical framework of comparative international law, the present paper aims to address the following questions: Is the term 'genocide' defined differently in the legislation and case law of Russia, Ukraine, and Western states? Is there a discrepancy between international and national levels? Is the international legal prohibition of genocide understood differently by Russian, Ukrainian, and Western governments and legal scholars? If so, is the universality of international criminal law undermined?
Before going to Cologne, Sergii Masol was a visiting researcher at the University of Copenhagen and the Institute for Human Sciences in Vienna. He has worked at the Organisation for Security and Co-Operation in Europe, as well as completing internships at the International Criminal Court, the European Court of Human Rights, the Office of the United Nations High Commissioner for Human Rights, and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law.