Cultural genocide is hard to prove, — says US professor

My name is John Hall. I’m a law professor from California, from Fowler Law School in Orange, California.

I’m in Ukraine to volunteer with a human rights organisation, the Kharkiv Human Rights Protection Group. And to assist them in any way that I could, and also to collect material for my own scholarship on the destruction of cultural heritage.

Well, I teach international law and I teach art law. And I’ve been very interested, for a number of years now since my work in Cambodia, on the issue of the destruction of cultural heritage, cultural property.

And certainly I’ve read with enormous interest about the systematic destruction of Ukrainian culture by the Russian invaders. And I’ve been very interested in researching that topic and hopefully publishing on it.

What is the problem with ‘Genocide’?

So the issue of cultural genocide is actually very interesting and a very controversial one. When genocide was first being discussed, when the genocide convention was under discussion, initially the drafts had three key components which followed Lemkin’s ideas of, physical genocide, biological genocide and cultural genocide. Now that third one, cultural genocide was ultimately dropped for the genocide convention. And it’s not included directly in, for example, the ICC’s definition of genocide either.

So what we have is an understanding of genocide, the crime of all crimes, being focused upon the mass murder of a group in whole or in part, the violent crimes against the personhood, members of that group, or the slow death of that group, the biological death of that group. And this idea that the destruction of the culture of the group, in whole or in part, should not form part of the genocide convention. It’s been very controversial ever since then. I think Lemkin had included cultural genocide in his understanding of genocide, originally.

So for example, we treat the destruction of a museum during warfare in exactly the same way, whether that was an intentional destruction of the building as part of a military campaign, versus, an attempt to erase a culture. And those two things are obviously very, very different.

By having the crime of cultural genocide, we would have that heightened legal obligation, this heightened ‘mens rea’, right? This idea that we have to show that this particular event, this crime, this destruction of a church, destruction of an art museum, destruction of an archive was part of a genocidal attempt to erase a culture, as opposed to just circumstantial destruction of a piece of cultural property.

Now, my experience in Cambodia, for example, was that there was popular outrage when the defendants of the tribunal in Phnom Penh were not initially charged with genocide. People were infuriated that this killing of millions of Cambodians did not result in charges of genocide.

Well, that’s because, as we know, the definition, the legal definition of genocide is quite limited. I’m very much in favor of expanding our understanding of this crime of genocide to very clearly include the intentional destruction of cultural heritage with the attempt to destroy a culture, an entire culture, in whole or in part.

What is the proof of the cultural destruction?

I think at this point, the most important thing that organizations can do is to collect evidence. We’re still very much in documenting what has occurred. And this is important for a number of reasons.

It lays the groundwork for future prosecutions to be undertaken by the ICC or by the prosecutor’s office in Ukraine. And so, if we document it now, we ensure that the Russians cannot subsequently claim, that Putin cannot subsequently claim, that this is an exaggeration. Or this never happened. Or this was just peripheral. This happened — a few bad actors.

We need to collect evidence of the scale of this, the systematic nature of the crimes that are occuring. That’s the most important thing. The next step will be prosecution.

It’s going to be very difficult to prove that the destruction of cultural property in Ukraine was intentional. Certainly, the defense counsel is going to argue that this was peripheral, this was accidental, that in fact it was military targets, and this was an accidental destruction of cultural heritage or that the Ukrainians had stationed military troops near the item or near the building.

However, there are clear indications, in the war in Ukraine, that the Russian military has intentionally targeted Ukrainian cultural heritage. Skovoroda museum is probably the classic example of that, that we visited.

This was the house and museum, that belonged to the 18th century Ukrainian poet and philosopher. The building, which was hit by Russian missiles in 2022, is in the middle of a forest. It’s a long way away from any other buildings. There were no military facilities or targets close by. And the nearest small villages, are several hundred metres away.

There was nothing in that area apart from this particular building which was completely destroyed by Russian missiles in March of 2022. This was not near the fighting. This was a long way from where the fighting was taking place.

So this was very clearly either accidental — that doesn’t make very much sense. Or this was an intentional targeting of this very important part of Ukrainian cultural heritage.

‘I have been shocked by the widespread nature of the depredations’

I think before I came over here as an attorney, we had been taught to be somewhat dispassionate, right? To try to treat a legal situation with some sort of distance and not necessarily to choose sides. Now as human rights lawyers, we do tend to choose sides.

But I have been shocked by the widespread nature of the depredations of the Russians during these occupations. This is not... periodic bad behaviour by soldiers in a combat or post combat situation. This has been systematic brutalisation of Ukrainian people.

Mass rape, rape of children, mass murder and killings, the intentional destruction of civilian buildings and infrastructure. This hasn’t been unusual. This has been everywhere. Everywhere that the Russians have occupied, certainly since the invasion of 2022, the peoples have been brutalised.

I’ve spoken with victims, with people, an elderly lady, for example, in a village just outside Bucha. She talked about how the Russians would simply shoot people randomly on the streets if they saw people on the streets. So she and her husband and most of the neighbours spent months in the basement.

Her husband was taking food to an elderly neighbour and a Russian shot him. And his body lay outside on the street for more than two weeks before she could collect his body. When the Russians eventually withdrew, they burned her house down with many others.

It’s almost as though the Russians treat the Ukrainians as subhuman. And it’s unforgivable. For me, that’s been the biggest change. For me, the realisation of the scale of the depredations of the Russians. And for me, a growing sense of hatred, of what the Russians have done.

I think there is a danger in the media and the West that this becomes a war of missiles and bombs. It becomes rather a distant war. And the violence of the Russian troops against the civilian population is not something which has been particularly well covered.

Impressions of Ukraine

I came to Ukraine in 2013, 2014 for a conference. So I was slightly exposed to Kyiv at that point. Obviously a very different situation than now.

And I had expected, before I came here, to see a country completely devastated by war. I think that’s the media coverage in Europe and in the United States, is of the battlefields, the missiles, the suffering. And I was expecting to, even in Kyiv, and in Kharkiv, to see that side of the war. And of course, I haven’t.

It’s been far more normal. And I think that’s the thing that has struck me, is the normalcy of people’s lives. People are just getting on with their lives as they have to do. They go to work, they go shopping, they deal with their families.

So there’s a degree of normalcy that I was not expecting. What else has struck me as interesting since I’ve been here is the strength of the people. It sounds a bit of a platitude. But I have heard nobody, not a single person in two months, talk about the possibility that Ukraine could lose this war.

People are determined. They are focused on victory and independence and a democratic future. And I think that’s surprised me. There’s been no cynicism. There’s been no sort of ‘Oh well, this isn’t going well’. No, there’s a complete commitment to fighting the invaders.

You know, it was explained to me that Ukraine is born with a steel rod down their spine. And I think it’s absolutely right.

This idea that they get on with this and they are working together for victory. This is a remarkable thing. Ukrainians, while they have been victimized by the brutality of the Russians, they are not defined by victimhood. They are strong people who are fighting for their independence against an invader.

Will Putin pay?

How can we bring the perpetrators of this to justice? This is an eternal problem with international criminal law. How do we bring, for example, heads of state to justice?

Some people say it’s impossible. We can never expect a head of state, like Putin, to ever be brought before a criminal tribunal, or before the ICC. I’m not so sure.

And history proves that even people who, at the time, seem to be completely beyond the reach of justice have subsequently been brought to justice. So I think it’s perfectly possible.