Establishing evidence of criminal intent
“Mens Rea,” criminal intent, is the keystone of any crime, especially, the most serious crime of Genocide. Evidence of criminal intent is required by any criminal court. It underlies the UN Convention on the Prevention and Punishment of the Crime of Genocide and is clearly a requirement of the International Criminal Court in The Hague. However, this court, as well as other courts that arose after such crimes were perpetrated, may not consider historical crimes, meaning those that predated them.
Historically, there are many crimes that are suitable for public condemnation, particularly serious crimes such as Genocides. The last 100 years have witnessed at least three separate crimes of at the very least attempted Genocide perpetrated against the Ukrainian nation: the “Holodomor” (The Ukrainian Famine-Genocide of 1932-33) 90 years ago; Operation “Vistula” on ethnographic Ukrainian lands 75 years ago in Communist Poland; and the current and ongoing Genocide of Ukrainians by Moscow and Vladimir Putin and his acolytes, including the Moscow Church.
It is important in each case to consider the elements of Genocide by identifying, evaluating and establishing criminal intent directly or indirectly. It is equally necessary to understand that criminal intent is very difficult to establish directly. To do so requires proclamations before corroborating witnesses, admissions, declarations against interest, and confessions akin to writing a statement or preparing a document, ascertaining coercion. When it comes to a historical crime, such documents may have been destroyed, witnesses are deceased. Furthermore, criminals mostly act covertly and do not declare their intentions.
In establishing criminal intent, particularly with reference to Genocide, key components of criminal law as they are currently defined by the International Criminal Court should be not only helpful but absolutely necessary. While Genocides have existed for centuries, the terminology was established and defined only in the XX century with the UN Convention on the Prevention and Punishment of the Crime of Genocide. The ICC came into effect only in 2002. as a belated follow up to that Convention. The Russian Federation signed the Treaty of Rome of 1998 creating the court but later withdrew its signature. Ukraine signed the treaty, however, has not yet ratified it. A crime of Genocide that takes place on the territory of Ukraine is subject to the ICC which considers four types of crimes, the most serious of which is Genocide. However, crimes of historical interest, but not of criminality for condemnation and actual punishment are beyond the ICC’s jurisdiction. Additionally, consideration and conviction only relate to physical persons, not states.
This obviously makes it impossible for the ICC to consider the “Holodomor” or Operation “Vistula.” Of the above-mentioned genocides, the ICC may only consider and rule on the current Genocide in Ukraine, and the defendants may be Putin, Lavrov, Kirill, or any Russian soldier but not the Kremlin or Russia. Obviously, there is still the UN Convention, but neither the “Holodomor” nor Operation “Vistula” can be considered, investigated, condemned and then punished because they took place before the Convention. In any event the Convention lacks a serious practical methodology for prevention and punishment as will be noted below. Nonetheless, the guidelines of both the ICC and the UN Convention are not only relevant but indispensable for a serious discussion of the very crime of Genocide, contemporary or historical.
The UN Convention imposes an obligation on UN member states to act to prevent Genocide, but because prevention, security and protection are within the purview of the UN Security Council, where Russia has the right to veto, the issue has little practical viability. Therefore, as noted above it is necessary to resort to another forum besides the UN Convention or the ICC, and this is the court of public and global assessment and opinion. In fact, this can and should be a legitimate exercise,
because of the frailties of international law where sovereign states act or consider only such topics as are politically beneficial to them.
Evidence of criminal intent is a “sine qua non” to establish the crime of Genocide. When we consider the cases raised, perhaps the most striking direct evidence comes from a review of historical documents on Operation “Vistula.” In a document dated April 16, 1947, from Warsaw entitled Project of the Organization of Operation “East” prepared by the Ministry of National Defense and the Ministry of Public Security and stamped “Top Secret” sets forth a program to achieve the following objective: “The final solution to the Ukrainian problem in Poland.” There follow five points that define the operation’s plan of action. A review of the actual operations follows those five points. Thus Communist Poland wrote a script that it then followed which, in retrospect, damned the perpetrators historically.
However, in most cases of Genocide, criminal intent is expressed indirectly or circumstantially by the commission of the following measures or proclamations by the offender: the devaluation or denigration of the victim group as a non-nation; accusations against the targeted group for mythical crimes; the dehumanization of the target group; the portrayal the target group as a danger to humanity; the preparation of the offender’s own population for crime through propaganda and disinformation; attacks in particular on civilians; specific attacks on shelters, humanitarian corridors, the bombing of residential neighborhoods, specific destruction of infrastructure and necessary-for-life services such as water supply; attacks on hospitals, clinics, orphanages; rape; forced relocation. All of these are present in the current Genocide against Ukrainians.
When one considers the evidence on the “Holodomor” of 1932-33, there is no direct document manifesting guilt. However, there is a plethora of indirect or circumstantial evidence: a letter from Stalin to Kaganovich dated August 11, 1932, the Law on Five Ears of Grain issued a few days earlier and the Decree of January 22, 1933, on closing the borders of Ukraine and Kuban only to prevent victims from seeking relief. There is no doubt that the “Holodomor” was intended for Ukrainians or Ukrainian farmers, although there is no specific document of Stalin’s direct criminal intention to commit Genocide against Ukrainians or the Ukrainian peasantry. In Stalin’s letter to Kaganovich, there are such words as “the most important thing now is Ukraine.” There are laws, decrees, and orders, along with Stalin’s swearing at everyone in Ukraine, including Communist Party ;eaders. Nevertheless, all decrees and measures are indisputable indirect documentation of the guilty mind of Josef Stalin and his acolytes, such as Lazar Kaganovich.
Similarly during the “Holocaust,” Hitler and his henchmen acted with criminal intent. They even required that an inscription should be sewn on the clothing of every Jew. They organized Jews to be shot at the very beginning of their invasion of Eastern Europe. They even held a conference on January 20, 1942, in Wannsee with Hitler’s surrogates, led by Reinhard Heydrich, elaborating their “final solution” for the Jews. But there is no single document signed by the Fuhrer ordering the extermination of the Jews as a nation. And yet, as it should be, there is no dispute that the “Holocaust” was a Genocide of the Jews.
The current Genocide against Ukrainians raises many legal issues currently allegedly under review by the ICC and many member states of the global civilized community. The intentions of Putin, his spokesmen Pskov, Kirill, and even many soldiers and their mothers are clear: “Erase the Ukrainian nation from the face of the earth.” There is direct evidence of criminal genocidal intent expressed directly by the Moscow so-called Church which is in essence a state church. There are official statements by Kremlin figures and there are publications promoting this mantra.
The shooting of civilians with their hands tied as witnessed in Bucha, is proof of the criminal genocidal intent indirectly. However, these acts, it may be argued, may be simply the criminal intent of an individual soldier or of several soldiers. However, aiming a missile at an orphanage can only
be a manifestation of the criminal intent of those who give the orders. In Russia, ultimately only one person gives the orders. This is clear evidence of the criminal intent of the Genocide perpetrated by Vladimir Putin, a person who must be under investigation by the International Criminal Court, regardless of whether Russia withdrew its signature under the Treaty of Rome This genocide takes place on the territory of Ukraine, a signatory state.
And even though the ICC arm of implementation or execution is not able to operate in Russia, it should establish the complete isolation of the individual criminals. Putin, Lavrov, and Kirill should not be able to leave Russia, and if a country like China agrees to his or their arrival and stay, it must be condemned by the world, isolated and deemed a pariah.
These thoughts are intended to foster an appreciation in the world for the rule of law and justice – a better world in the future. Today’s Genocide against the Ukrainian people takes place essentially on camera before the eyes of the world. There are many witnesses and evidence is plentiful. Russian propaganda and disinformation may sway only the most gullible or the evil. Not acting to prevent and punish this crime of Genocide by the world civilized community, international institutions such as the ICC, the UN, NATO, the OSCE, the EU or the CE can never be justified. Frankly, NATO reiterating only its Article Five commitment, oblivious to its own preamble duty to defend Europe is disturbing. Condemnation and punishment of the perpetrators of a contemporary Genocide occurring before our very eyes is not only a cry of the Ukrainian soul but that of all humanity and an exhortation for the rule of law and justice to prevail.
June 8, 2022 Askold S. Lozynskyj