Opinio Juris

Russia's lower house of Parliament has passed a resolution denying that the Soviet Union committed "genocide" in Ukraine during the 1930s. The resolution states:

"There is no historical proof that the famine was organized along ethnic lines. Its victims were million of citizens of the Soviet Union, representing different peoples and nationalities living largely in agricultural areas of the country."

Interestingly, the resolution does not appear to deny (as it could not credibly do anyway) that the Soviet Union leadership was responsible for a great famine in the 1930s Ukraine that led to millions of deaths. The defense (which seems very honest and credible to me is: we may have adopted policies that killed millions, but it was not targeted toward a particular ethnic group, so it was not genocide. It was just a tragedy.

The resolution appears to respond to efforts by Ukraine's government to treat the famine as a genocide (and the U.S. government's semi-support of those efforts). The resolution is drawing support from an unlikely source: Soviet-era dissident Alexander Solzhenitsyn.

Article 2 of the Convention on Genocide doesn't help much: "[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. . ."

The intent language is key here, and it really is a question of historical fact. Is there any evidence that Stalin intended to wipe out Ukrainians? This may be unanswerable, but maybe not. It strikes me that the Ukrainians have the burden to demonstrate this element and that the Russians are right to take umbrage here. No doubt the mass murder that occurred in the 1930s was a horrible thing which deserves as much attention as genocide. But not all mass murders are genocide. And the law can help us remember that key fact.

Pardon me for missing this little news item, but the ICJ has another new case: Ecuador has applied to the ICJ over Colombia's alleged spraying of toxic herbicides over Ecuadorian territory.

Here is what Ecuador is seeking the ICJ to declare:

(a) Colombia has violated its obligations under international law by causing or allowing the
deposit on the territory of Ecuador of toxic herbicides that have caused damage to human
health, property and the environment;
(b) Colombia shall indemnify Ecuador for any loss or damage caused by its internationally
unlawful acts, namely the use of herbicides, including by aerial dispersion, and in particular:
(i) death or injury to the health of any person or persons arising from the use of such
herbicides; and
(ii) any loss of or damage to the property or livelihood or human rights of such persons; and
(iii) environmental damage or the depletion of natural resources; and
(iv) the costs of monitoring to identify and assess future risks to public health, human rights
and the environment resulting from Colombia’s use of herbicides; and
(v) any other loss or damage;

I don't know enough about this area of law to say whether this is a strong claim. I assume this claim will be brought under customary international law although Ecuador is also invoking the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. But this looks like a pretty interesting case, and one worth watching. Ecuador has recently had a run-in with Colombia over its raids on FARC rebels based in Ecuador, but perhaps since such a case would be ugly for both sides (is Ecuador harboring FARC?), no case on that front appears to be contemplated.