8 May, 2022
by Sam Biden, Global Leadership Fellow
In the wake of the liberation of Bucha by Ukrainian forces, 412 bodies were found littered in the streets, buildings and shallow graves throughout the region. As of 15 April, this tally has risen to over 600, with 80% of victims being identified as having bullet wounds. These bullet wounds may seem typical and the part and parcel of warfare. However, these wounds belong to civilians. Claims that Russian forces had a ‘citywide’ shooting spree that was both targeted and random are becoming substantive. Some of the victims were merely walking down the street while others were systematically targeted. Those killed on the street were indiscriminately targeted. One witness speaks of a marksman team surrounding a block of apartments on Tarasivska street. This team shot anyone who walked in the street, regardless of their connection to the conflict. Six deaths have been linked to this marksman team. Others were gunned down for no apparent reason. One man was cycling when he was shot to death while another turned a corner and ran into Russian troops before being killed.
Large scale searches happened in the region – Russian forces went from door to door looking for Ukrainians in every house, apartment, institution and business. Some claims suggest the Russian forces had ‘lists’ of political leaders, city members and regional government officials that they were tasked with hunting down. During these searches, people not on the list were still taken away, often being men of military age and have subsequently never been heard from again.
Initial inspection of these events causes serious concerns for the safety of civilians in the ongoing conflict. Russia currently has control of the majority of the Eastern border including the Donbas region, Mariupol, Melitopol, Kherson and Northern Kharkiv. Given that only the liberation of Bucha led us to this tragic discovery it creates a genuine fear of repeated events in Russian controlled areas. If the events of Bucha aren’t atypical of the developing Russian advance then there may be a claim not just for crimes against humanity against the superpower State, but potentially a genocide claim. For now, there are immediate implications for Russia.
After the gruesome discovery of hundreds of innocent bodies, the international community rapidly deployed a list of fresh sanctions aimed at further constricting Russia’s ability to continue the conflict. State officials have claimed the Bucha massacre has directly affected new sanctions against Russia. One anonymous Estonian diplomat claimed Bucha has been the trigger to really get sanctions moving and that a new pressure has been put on international governments to help end the conflict. Another anonymous diplomat from Latvia claimed the events of Bucha have moved the momentum forward regarding sanctions against Russia.
The EU deployed a long list of sanctions focusing on the regression of the Russian economy. The fifth sanction package to be delivered since the outbreak of the war details a complete ban on Russian coal imports and the prohibition of Russian and Russian-owned vessels from using European ports. The sanctions are expected to halt over $4.3b worth of Russian coal in the EU. The sanctions expand further into technology, specifically targeting quantum computers, semiconductors, sensitive machinery and transportation equipment. This sanction is expected to cause an $11b loss for Russia, nearly three times the economic damage caused by the coal ban. Bans on commodities are not the only new sanctions as direct financial cutoffs are being made against Russian banks. Four major Russian banks will have a transaction prohibition placed upon them, restricting them from making international transactions. Given Russia imported over $29.4b and exported $56.8b during international trade in December 2021 alone, this restriction will cripple Russia’s international financial relations. These relations will swiftly break down as financial assets need to be exchanged to comply with trade agreements, such as the Free Trade Agreement for the CIS region. This constricting effect means Russia will be even more self-reliant on its internal finances, hopefully pushing us closer to a peaceful settlement with Ukraine.
Individual states have begun circulating new sanctions as well. A German government spokesperson said new sanctions are coming in a few days, he also urged the EU to further the energy sanctions against Russia by banning gas imports. US Secretary of State, Antony Blinken said new sanctions are on the way in collaboration with their European allies and are expected to result in the reeling of Russia’s economy.
The immediate financial consequences against Russia will have an almost instantaneous effect that will only worsen as Russia struggles to fund its illegal war. The legal implications are not so instantaneous as there are a series of complications regarding what Russia is guilty of. These implications can be split into three categories, two of which are conclusive while the third is uncertain. These categories are; violation of the principle of distinction, murder as a crime against humanity and the claim of genocide.
1. Distinction & Crimes Against Humanity
As the easiest of the three legal implications to conclude, there is significant evidence Russia has failed to uphold this principle. Codified in the First Additional Protocol to the Geneva Conventions, the principle of distinction states:
“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
The principle of distinction does not require a quantitative minimum number of indiscriminate events to be engaged but can occur even when one civilian is killed without due precaution. We have over 600 civilians killed by Russian troops in Bucha and potentially many more cities-worth after more liberations.
It appears from the survivors and their testimonies that the Russian troops were using guns indiscriminately against the Buchan residents. Over 80% of the victims have bullet wounds. These bullet wounds are significant as it deconstructs the only argument Russia has. This argument is predicated on the notion that if an objective or series of objectives in Bucha are identified as military in nature that an attack can be launched against it. This would typically be executed with explosive measures such as airstrikes, mortars and shelling. In instances like this, there is a risk of civilian injury and if this risk is present, the attack cannot take place. If the 600 victims were killed by ‘accident’ during territorial clearance of a military objective in Bucha then Russia could claim, albeit not legitimately, that they only attacked a military objective and that civilian injury was merely collateral, not intended. Even in this instance, Russia is guilty of war crimes relating to murder for failure to ensure civilians were evacuated. This scenario would be the best for Russia as they have some form of defence for the attacks, even if it’s a hollow one. However, the number of victims with bullet wounds is undeniable, it shows a pattern of systemic, indiscriminate shootings that took place over weeks. This method of attack is legally indefensible as no reliance can be put on collateral effects of territorial clearance using weapons with a wide area of effect.
Their attacks were not limited to combatants but were instead unlimited and planned. For example, the marksman team that kept tabs on the apartment blocks in Bucha was systematically targeting anyone on the street regardless of their status. This shows a planned level of intent for the murder of civilians and a potential precursor to genocidal intent to be discussed later. Other attacks that appear instinctive such as the man killed while cycling shows that perhaps orders were given to shoot on-site, regardless of association. If this is the case then we are potentially dealing with a systemic and over-arching plan to eliminate Ukrainians, a fundamental component of genocidal ideology.
There is no doubt that Russian troops in Bucha indiscriminately targeted Ukrainian civilians because of their nationality, constituting a grave and repeated set of violations of the principle of distinction.
As with the principle of distinction, there is no quantitative minimum for claims of crimes against humanity to be made. It can be an individual act or set of acts aimed at persecuting a group by association. As discussed above, 600 deaths have been linked to Russian forces in Bucha with gunfire being a primary cause of death. As analyzed, this evidence points to a series of targeted, indiscriminate attacks on Buchan residents who are not a party to the conflict.
The soldiers who pulled the triggers as well as the officials who ordered this tactic have taken part in crimes against humanity.
As the war crimes of all war crimes, special care must be taken when accusing a party of a conflict of genocide. While there is a grey area for when genocide has occurred in contrast to mere crimes against humanity, precursors and the mental element to genocide known as ‘genocidal intent’ (GI) can be analyzed.
GI is the mental element of genocide and a claim of genocide cannot be made without it. Intent within genocide relates to the aim to destroy a group in whole or part, the genocide itself occurs through an act or series of acts. This special intent is often supplemented by tertiary evidence such as public distaste towards a specific group of people, a history of mistreatment of this group, testimonial evidence demonstrating hatred towards this group and even plans that detail how to violently deal with this group. This tertiary evidence showing genocidal intent towards Ukraine can certainly be concluded.
Russia has demonstrated inflammatory rhetoric regarding Ukraine and its people. Putin has individually claimed that Ukrainian statehood is a myth and this is further supported by the Russian propaganda plaguing the now almost closed-off State. Additionally, a document published on 3 April titled ‘What should Russia do with Ukraine’ outlines serious ill-intent towards Ukraine. This document makes a series of shocking claims against Ukraine, including indirect threats. It speaks of how Ukraine’s name ‘cannot be retained’, how ‘the Ukrainian nationalist elite need to be liquidated’ as well as how Ukraine needs to be ‘re-educated’ and be ‘ideologically repressed’ in an effort to commit ‘de-Ukrainization’ of the State. These arguments are a mirror of the distasteful attitude the Russian government has for Ukraine, showing an emerging consensus amongst the Russian officials over their true intentions in Ukraine.
There are clear indications of genocidal intent within the Russian government and its officials. While the committing of genocide is most likely far round the corner, the ideological cornerstones have certainly been placed and are being implemented gradually, starting with Mariupol, then Bucha. In the event of a continuation of widespread, indiscriminate executions and killings of innocent Ukrainians we will see a shift from a mere crime against humanity claim to a full-blown genocide. However, for now, a certain conclusion on genocide in Ukraine cannot be reasonably made.
In summary, the discovery of over 600 innocent victims only leads to further concerns regarding the safety of civilians in other Russian controlled areas. The propaganda machine Russia is implementing is evidently not all talk but has translated into targeted mass attacks on innocent civilians just because of their national identity. If this translation continues in this manner, collective responsibility to protect Ukraine could reasonably be engaged. If this occurs, the largest war seen for generations will rapidly unfold. Additionally, if the pattern of mass, indiscriminate killings are discovered to have been replicated in other areas it could display the most egregious acts of genocide in 80 years.
Image: European Union President Ursula von der Leyen and other EU and Ukrainian officials visit Bucha after the massacre, 8 April, 2022 (Source: Cabinet of Ministers of Ukraine via CC BY 4.0)