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Melissa Harris-Perry: I'm Melissa Harris Perry and this is The Takeaway. Last week during a speech in Menlo, Iowa, President Biden used the word-

President Biden: Genocide.

Melissa Harris-Perry: -for the first time to describe the ongoing atrocities Vladimir Putin and Russia are committing in Ukraine.

President Biden: Your family budget, your ability to fill up your tank, none of it should hinge on whether a dictator declares war and commits genocide a half a world away.

Melissa Harris-Perry: Later, while he was departing from an Iowa airport, the president expanded on his comments.

President Biden: We'll let the lawyers decide internationally whether or not it qualifies, but it sure seems that way to me.

Melissa Harris-Perry: Now, President Biden's comments do not reflect an official designation from US agencies. Indeed, just two weeks ago, Biden's National Security Advisor, Jake Sullivan, was reluctant to use the word genocide.

Jake Sullivan: Based on what we have seen so far, we have seen atrocities, we have seen war crimes. We have not yet seen a level of systematic deprivation of life of the Ukrainian people to rise to level of genocide, but again, that's something we will continue to monitor. There is not a mechanical formula for this.

President Biden: Genocide a half a world away.

Melissa Harris-Perry: This term genocide was first introduced in 1944 by Polish lawyer Rafael Lemkin. Lemkin, who was Jewish, fled Poland after the Nazi invasion, ultimately coming to the US and teaching at Duke University. His book about the ongoing Holocaust, Axis Rule in Occupied Europe, offered a definition of a new term, combining the Greek word "Genos" meaning race or tribe with the Latin word "cide", killing.

President Biden: Genocide.

Melissa Harris-Perry: Here's Lemkin some years later discussing his work and his efforts to bring those guilty of it to justice.

Rafael Lemkin: Later on, I became interested in genocide because it happened so many times. You see, as a lawyer, I thought that a crime should not be punished by the victims, but should be punished by court by international law.

Melissa Harris-Perry: Lemkin's work was influential in establishing international law against genocide, and after the war in 1948, the Convention on the Prevention and Punishment of the Crime of Genocide, better known as the Genocide Convention, convened in Paris. It created a legal definition of genocide as "Acts committed with intent to destroy in whole or in part national, ethnic, racial or religious groups". The convention drafted a legal framework criminalizing acts of genocide and laying out specific criteria for what constitutes it and obligating countries to act in cases of genocide. Here is the then president of the United Nations General Assembly Herbert Evatt of Australia at the convention in 1948.

Herbert Evatt: The adoption of the convention is as follows. Yes, 55. There are no votes against the convention. There are three absentees so the convention is adopted by this assembly by unanimous vote.

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Herbert Evatt: Now we are protecting the most fundamental right of all, the very right of human groups to exist as groups.

Melissa Harris-Perry: Since 1948, 152 countries have ratified the convention but the US historically has been both slow and reluctant to formally designate genocide. According to Reuters, since the cold war, the state department has done so just seven times. That's in Bosnia, Rwanda, Iraq, there are four ISIS attacks on minority groups, as well as China's three treatment of the Uighurs and Myanmar's attacks on the Rohingya population in 2016 and '17. Now, in the case of the 1915 Armenian genocide, it took more than 100 years for the US government to formally recognize it when the House and Senate passed resolutions back in 2019.

What should we make of President Biden's characterization of Russia's actions in Ukraine as genocide, and what are the implications?

President Biden: Genocide a half a world war away.

Melissa Harris-Perry: With me now is Gissou Nia, who is director of the Strategic Litigation Project for the Atlantic Council. Gissou, thank you for being here.

Gissou Nia: Thank you for having me.

Melissa Harris-Perry: Now, what is the criteria in international law for genocide?

Gissou Nia: The Genocide Convention of 1948 is still the operative definition that most states adhere to and that the International Criminal Court adheres to, and that essentially says that certain acts that are committed with intent to destroy in whole or in part a group that's a nation, ethnicity, race, or religious group, that those acts would constitute genocide. Traditionally, I think people think of genocide as mass killing, but in the convention, there are a lot of other acts that can also constitute genocide, including causing serious bodily or mental harm, imposing measures intended to prevent births within the group, or forcibly transferring children of the group to another group.

Although there is this conception that you have to have mass killing, in fact, this crime is really a crime of intent, not of scale, and it can include other crimes that sometimes also have a gender lens to it in the sense that measures intended to prevent births within the group are often aimed at women, but are not necessarily always prosecuted as genocide. They might be prosecuted as crimes against humanity or war crimes. This is something that deserves focus as we look at what is happening in Ukraine.

Melissa Harris-Perry: Just to make that clearer, that's things like forced sterilization, for example?

Gissou Nia: Yes. For example, the forceable sterilization of the weaker minority in China was one of the acts that lawyers looked to establish that those acts there could potentially constitute genocide.

Melissa Harris-Perry: Now, you also talked about war crimes or crimes against humanity. What are those distinguishing characteristics? Is it it's really about that intent question between genocide versus these other kinds of war crimes?

Gissou Nia: Yes. With war crimes, you really have a situation in which the targets are not military targets. The laws of war actually permit death but the idea is that a military force needs to attack military objects. When they start intentionally attacking civilian objects, or when they're attacking places that could cause indiscriminate killings of civilians, that's when you start to have war crimes. With crimes against humanity, it's a widespread or systematic attack against a civilian population pursuant to a state or organizational policy but with genocide, you really have this specific intent to destroy in whole or in part one of these protected groups.

Melissa Harris-Perry: Now, given some of the horrifying, just gut wrenching stories that we are seeing coming out of Ukraine as international journalists are finally having an opportunity to report some of what was happening in Bucha, is that the kind of evidence that clearly fits into crimes against humanity or more likely into genocide?

Gissou Nia: I think at the moment, most investigators are quite comfortable with saying that, of course, they need to finish their legal determinations, and this process will take many months, but that they're definitely seeing evidence of war crimes and crimes against humanity. In terms of discussing President Biden using the term genocide, we saw that the US State Department did come out and say that they could establish war crimes. That was a few weeks ago. That is pursuant to an official determination.

There's some facts on the ground that definitely concern me and I should be something that investigators are looking at, so for example, we heard from Ukrainian women who were raped who say that Russian soldiers told them that they would rape them to the point where they wouldn't want sexual contact with any man to prevent them from having Ukrainian children. Again, that events the intent that would be intended to destroy this group by preventing them from having future births. Some of them have wound up pregnant. Another thing that was concerning is according to Ukraine's Human Rights Commissioner, they reported that more than 120,000 Ukrainian children had been forcibly deported to Russia.

Again, that would fit into forcibly deporting children or transferring children from one group to another group and so there's certain things that we need to look at at a higher level for looking at statements by Putin. I think anything that he says around the non-existence of a proper Ukraine, Russian opinion leaders speaking in state-owned and controlled media about how to kill Ukraine soldiers and saying that all Ukrainian language, culture, and identity should be wiped out. These are the types of language that we should be looking to that when coupled with acts that are enumerated under the Convention that this would constitute genocide.

Melissa Harris-Perry: How important is this coordination from the top to establishing genocide versus seeing these atrocities as simply the acts of rogue soldiers?

Gissou Nia: That's a great question. In order to really prosecute alleged perpetrators for this crime, you really have to in a way get into the mind of the perpetrator to know what they were doing. Certainly when there are high-level comments from the highest levels of politicians and military leaders, then that helps establish that there was this plan to essentially wipe out, destroy, exterminate a certain protected group. Those are really the kinds of statements that prosecutors will be looking for to establish whether or not the crime of genocide is being committed.

What I should say is that what has already happened and the scale of violence that we've seen against civilians that could constitute crimes against humanity and war crimes should be enough for the whole world to want to act, to want to ensure that these crimes are properly investigated, that there's accountability, and that there are robust prevention efforts.

I think too often, there's over-emphasis on wanting to get the "genocide label." We really don't need that. A question I get a lot is, why did president Biden say that genocide is happening in Ukraine, but nobody ever said that about Syria where the UN stopped counting deaths after a million deaths in the country.

The reason really is that what happened there was mass crimes against humanity and war crimes at scale but there just really wasn't the specific intent necessarily to destroy part of a protected group but it didn't mean that the scale of violence was any less. Again, genocide is really a crime of intent not scale. While it's horrific, I would say that the war crimes and crimes against humanity that we see happening right now in Ukraine are more than enough for the world to want to invest in these accountability efforts and really try to ensure prevention.

Melissa Harris-Perry: What does that mean in the context of a hot, ongoing war? What does it mean to say to invest in accountability measures and to prevent?

Gissou Nia: I think we've seen that there's been an incredible global response in terms of supporting the International Criminal Court in its ongoing investigation in Ukraine and really wanting to ensure that alleged Russian perpetrators, including all the way at the top, are held accountable. We don't often have that political unity around justice and I think that's a really differentiating factor with what we see happening in Ukraine.

Melissa Harris-Perry: Gissou Nia is the director of the Strategic Litigation Project for the Atlantic Council. Gissou, thank you so much for your time today.

Gissou Nia: Thank you.

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