Can Ukraine Set a New Standard in International Law?

Russia is waging war not only against Ukrainian culture but against Ukrainian identity. Ukraine is seeking to make international law recognize the full extent of that campaign. When Russian forces enter a Ukrainian city, they do not look only for military personnel and officials whose names appear on their lists. They also search for teachers, priests of the Orthodox Church of Ukraine, museum workers, local historians and librarians. Russia is waging war on memory, and those who carry that memory are more dangerous to it than weapons.JOIN US ON TELEGRAMFollow our coverage of the war on the @Kyivpost_official. International law is not powerless in the face of attacks on culture: conventions and statutes already prohibit many such acts. Yet this legal framework primarily recognizes what can be counted, while the deepest dimension of the crime does not fit neatly into any existing category. We have become accustomed to discussing the destruction of culture through the language of losses: how many sites have been damaged or destroyed and what exactly has been lost. This is a necessary and legitimate conversation, but it overlooks an important point: culture is a much broader and deeper concept. It holds communities together, transmits values, shapes consciousness and identity, and creates practices and an entire way of life around them. A church is not only its walls but also its community. A school is not only a building but also a language. A local history museum is not merely a collection of objects but a city’s answer to the questions of who we are and where we come from. Other Topics of Interest How Russia’s Cultural Projects Conceal Their Human Atrocities Russia’s cultural outreach yearns to present a polished image abroad, but performances by Kremlin-linked artists can serve as a form of soft power that distracts from the realities of war. Russia understands this perfectly well, and the consequences of its actions are becoming increasingly evident not only on the battlefield but also under occupation. Raphael Lemkin, who coined the term genocide, warned from the outset that a group could be destroyed without every member being killed. It was enough to take away what made its members a group: their culture and collective consciousness. Today, we call this cultural genocide. Yet the final text of the 1948 Genocide Convention did not include cultural genocide as a separate punishable act. Attacks on culture can be prosecuted as war crimes or crimes against humanity and may serve as evidence of genocidal intent, but cultural destruction alone is not among the acts listed in Article II of the Convention. Law Moves Only When the Damage Is Obvious One could object that international courts have repeatedly developed the interpretation of existing legal norms. In the Krstić case, the International Criminal Tribunal for the former Yugoslavia treated the destruction of religious and cultural property as evidence of an intent to destroy a group. In cases concerning the shelling of Dubrovnik, the tribunal prosecuted attacks on the historic city as violations of the laws or customs of war. In the Akayesu case, the International Criminal Tribunal for Rwanda recognized that rape and sexual violence could constitute genocide when committed with the specific intent to destroy a protected group. These rulings are rightly regarded as groundbreaking. But the consequences of the crimes were so extensive and immediately visible that they could not be denied: destroyed mosques were there for all to see, the shelling of a medieval city was broadcast to the world, and the scale of violence in Rwanda left no room for doubt. The judges did not so much get ahead of their time as recognize what had become impossible to ignore. It seems that the law is capable of evolving only when the damage has become too obvious to overlook. Damage to culture, however, is not always immediately visible. A child taught someone else’s history does not look like a victim in a photograph. A community deprived of its place of worship quietly disperses. A language retreats from one generation to the next. The most devastating consequences emerge later, among descendants who no longer know what was taken from them. The law, however, demands harm that can be presented here and now. What unfolds over decades is, at best, treated as “context” and, at worst, as nothing at all. Twelve Years That Change Everything This is where Ukraine may occupy a distinctive position. Russia’s war against Ukrainian culture has been underway since at least 2014. Crimea and the occupied parts of the Donbas have lived under forced Russification for more than 12 years. This means something terrible but legally invaluable: the delayed consequences that the law has rarely had the opportunity to observe have already begun to emerge, and they can now be documented in real time. Children who entered school in occupied Crimea in 2014 are adults today. Researchers can trace how their language, historical memory and values have changed under an education system designed to replace Ukrainian identity with a Russian imperial one. The consequences also extend to territories occupied during the full-scale invasion. Oleksandr Mustiatse, a 19-year-old from the village of Krynky in Kherson Oblast, was listed as missing on Ukraine’s Children of War platform after Russia occupied his home in 2022. He was later identified as serving in the Russian army. According to the Back to Ukraine initiative, he explained his decision by saying that “Russia was always in his heart.” His case is one example of where the systematic indoctrination and militarization of Ukrainian children under occupation can lead. — Ed. For the first time, judges could be presented not only with the perpetrator’s policies and decrees but also with evidence of the consequences those measures produced — from school materials designed to reshape historical memory to measurable changes in language, affiliation and identity. The damage that was not obvious in the first years has become visible. The duration and nature of Russia’s occupation allow Ukraine to advance new legal arguments about how attacks on culture should be understood and classified. This evidence would not remove the requirement to prove specific genocidal intent, nor would it expand the Genocide Convention by itself. It could, however, help demonstrate that coordinated attacks on language, education, religion, memory and cultural institutions form part of a campaign intended to destroy a group. Ukraine also faces an enforcement problem absent from the Krstić and Akayesu prosecutions. Those were cases against individuals before ad hoc international tribunals. Efforts to hold Russia accountable must contend with the fact that the accused state is a permanent member of the UN Security Council. That political reality does not change the legal definition of genocide, but it profoundly affects the prospects for enforcement. A New Ukrainian Standard? For years, professional communities and civil society organizations — including the Raphael Lemkin Society, the Dofa Fund, the Ukrainian Heritage Monitoring Lab and dozens of other initiatives — have documented Russian crimes against Ukrainian culture: destroyed museums and churches, looted collections, rewritten history and the persecution of cultural figures. From thousands of separate episodes, one thing has emerged above all: a pattern. The same process is repeated in occupied city after occupied city. Once that pattern is visible, the next step is to find the language in which it can be legally defined. That step has already been taken. Draft Law No. 15331 proposes adding a cultural dimension to the genocide provision of Ukraine’s Criminal Code. It would cover the destruction, damage or appropriation of cultural heritage, as well as the systematic denial of access to language, education, religious practices, traditions, historical memory and cultural institutions, when intended to eliminate a group’s cultural identity as a condition or means of its physical or social destruction. In essence, Ukraine is seeking to bring back into the legal sphere what was removed from the Genocide Convention in 1948 — and to define the obvious as obvious. The initiative is part of a broader shift. Ukraine has begun treating cultural heritage as a national-security concern, created a specialized Cultural Property Protection unit within the Armed Forces and established specialized prosecutorial units to investigate crimes against cultural heritage. These are the opening arguments Ukraine is bringing to a broader debate: an attempt to move cultural genocide from the margins of academic papers into the realm of evidence, prosecution and judgments. This is where a possible Ukrainian standard lies — not in punishing the destruction of heritage sites more severely, but in teaching the law to recognize the second dimension of the crime: the harm done to social bonds, values and identity, demonstrated through long-term consequences. This will require new methodologies. But more than 12 years of occupation, as bitter as that experience is, have already created an evidentiary record that no country had before Ukraine. The law has always been reluctant to classify crimes against culture. It has waited for consequences that are immediately visible and treated the wider issue as too complicated to address. Ukraine may be able to teach it a different approach — one shaped by awareness, painful experience and the terrible consequences of failing to act. The empty space left in 1948 could then be filled not with declarations, but with judgments. The views expressed in this opinion article are the author’s and not necessarily those of Kyiv Post.