On Monday, in a video message on the opening day of the session of the UN Human Rights Council in Geneva, the Ukrainian Foreign Minister Dmytro Kuleba said that Russia's reported transfer of thousands of children from Ukraine was a "genocidal crime." Several Western officials, including German Foreign Minister Annalena Baerbock, have denounced the reports of systematic deportation of children to Russia. The accusations have rekindled the debate about prosecuting the Russian authorities.

But what exactly constitutes genocide and when can the term be applied?

Defined as an intent to exterminate a particular group of people, the term genocide was first coined amid the horrors of the Holocaust during the World War II.

In 1943, Jewish-Polish lawyer Raphael Lemkin came up with the term partly in response to Hitler's systematic murder of Jews in Nazi Germany. Lemkin lost his entire family, with the exception of his brother, to the Holocaust.

Lemkin campaigned to have genocide recognized as a crime under international law, paving the way for the adoption of the United Nations Genocide Convention in 1948 which came into effect in 1951.

Article Two of the convention defines genocide as any acts "committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group."

Such acts could include killings, inflicting serious bodily or mental harm or life-threatening conditions, measures to prevent births and forcibly transferring children, according to the UN definition.

Who can be prosecuted?

The UN Genocide Convention states that everyone can be prosecuted and punished for genocide, including elected leaders.  

The International Criminal Court has a mandate to investigate and prosecute genocide, war crimes and crimes against humanity. According to its statutes, anyone who commits, orders, assists and even incites genocide can be prosecuted.

A separate court, the International Court of Justice at the Hague, deals with interstate disputes and can also rule that states are responsible for genocide.

Proving genocide not easy

"Very often the term genocide is used loosely in common language by people to refer to the biggest, gravest crime because somehow it sounds far worse than war crimes or crimes against humanity," Valerie Gabard, an expert on international law based in the Hague, told DW.

"But, legally speaking, the definition of genocide is very narrow," Gabard, who is co-founder of UpRights, a law consultancy, said.

"It's not a matter of numbers that decides whether there is genocide or not. The intention to physically exterminate a group is the main criterion for this crime," she said.

But experts say proving that "special intent" is not easy because often there is no direct evidence.

"The problem with proving genocidal intent is that you're likely not going to have perpetrators in court make some direct admission," William Schabas, professor of International Law at Middlesex University in London told DW.

"So the courts have to infer the intent of the perpetrators based on their conduct. So you have to rely on circumstantial evidence. And the rule is that it has to be beyond reasonable doubt. That's where it gets harder."

Is transfer of children an act of genocide? 

According to a report published by Yale University in February, Russia has been holding about 6,000 Ukrainian children in camps in occupied Ukraine and the Russian Federation.
The report describes a network of child custody centers for Ukrainian children, whose primary purpose appears to be political re-education. Some of the children are apparently being put up for adoption by Russian families, even if they already have families and/or guardians.

Russia has claimed that the adoption of Ukrainian children by Russian families is an act of generosity that gives new homes and medical resources to helpless minors. Russian state media have shown local officials hugging and kissing children and handing them Russian passports, the Associated Press reported in February.

Russian UN Ambassador Vasily Nebenzya said the camps were simply facilities for registering people who come to Russia. "As far as we can judge similar procedures are applied in Poland and other countries of the European Union against Ukrainian refugees, " he told the UN Security Council in September 2022.

"The process (of illegally deporting Ukrainian minors to Russia) has become of massive and systemic nature," wrote Volodymyr Pylypenko from Lviv University in January. He argued that a case could be made for genocide since this process had the potential to destroy the cultural and linguistic identity of Ukraine by depriving it of future generations, who would be raised with the Russian language and values. Pylypenko added that the illegal transfer of minors is part of a larger pattern of Russian aggression towards Ukraine, whose clear intention is to crush the Ukrainian nation and which includes the 2014 annexation of Crimea and the ongoing conflict in Donbas.

The UN Genocide Convention does include the forcible transfer of children to another group, Schabas told DW, emphasizing that this is only genocide if it can be established beyond a reasonable doubt that a transfer was conducted with the intent to destroy a group physically and to the exclusion of any other reasonable explanation.

"I don't think the evidence is very strong that Russia intends to exterminate the Ukrainian national group physically," he added.

Genocide prosecutions can take time

Gabard, who has worked on international criminal tribunals for Cambodia, Rwanda and the former Yugoslavia, said the prosecution of genocide can take time.

"It takes very long, also because of the scale of the crimes," Gabard said.

"Generally when you speak of genocide, there are lots of victims and it takes a long time to investigate the crimes and to prove not only an intention to kill, but to kill people because they were part of a group."

Genocide or not?

In 2021, the US, Canadian and Dutch governments all accused China of committing a genocide against the Uyghur people in Xinjiang, while several other countries brought parliamentary resolutions making the same accusation.

Experts, however, point to three genocides recognized to date by a court of law at an international level — Rwanda, where an estimated 800,000 Tutsis and moderate Hutus died in the 1994 genocide, the 1995 massacre at Srebrenica which was ruled to be genocide by the International Criminal Tribunal for the former Yugoslavia and the Khmer Rouge killings in Cambodia in the 1970s.

On the latter, there is disagreement over the fact that many of the victims of the Khmer Rouge were targeted because of their political or social status — putting them outside of the UN definition of genocide.

In 2010, the International Criminal Court issued an arrest warrant for Sudanese President, Omar al-Bashir, on genocide charges, accusing him of waging a campaign against the citizens of the region of Darfur.

"We have the legal definition of genocide being used at cases at the International Court of Justice and in the convictions of the Rwanda tribunal. We have a very well established law of what genocide is." Schabas said.

"But then you have this phenomenon of attempts to use the label genocide that does not correspond to the legal definition of genocide, whether it's with the Uyghurs in China or the war in Ukraine," he said.

This article was updated on March 1, 2023 to reflect developments in Russia and Ukraine.