The creation of living conditions for a group aimed at its physical destruction, in whole or in part, as a form of genocide

This article explores the challenges associated with the form of genocide defined as the deliberate infliction on a group of conditions of life calculated to bring about its physical destruction in whole or in part, under both international and national criminal law. It is argued that the substitution, in paragraph 3 of Article 442(1) of the Criminal Code of Ukraine, of the phrase “calculated to” with “aimed at” narrows the alignment of this form of genocide with the international legal standards established by the 1948 Genocide Convention and the Rome Statute of the International Criminal Court. Such terminology is less precise and creates the risk of misclassifying acts that do not meet the strict legal definition of genocide. Therefore, the article concludes that it is advisable to revert to the original wording, which more accurately reflects both the objective elements of the act – deliberately inflicting conditions of life calculated to bring about the group’s physical destruction – and its consistency with the specific intent to destroy the protected group as such. The analysis shows that, unlike direct killing (an active and immediate act of physical destruction), the creation of such life conditions involves the gradual infliction of “slow death”, for example through the deprivation of food, medicine, shelter, and other essentials. It is demonstrated that the list of methods for deliberately inflicting such life-threatening conditions should not be exhaustive. These methods may vary depending on context, culture, historical circumstances, or the perpetrators’ tactics. A rigid, closed list may limit the legal system’s ability to respond to emerging or atypical patterns of genocidal conduct. Conversely, an open-ended list ensures greater legal flexibility and comprehensiveness. It is established that deportation alone does not constitute this form of genocide, as physical destruction must be clearly distinguished from the mere dispersion or expulsion of group members. However, deportation may qualify as genocide if it is accompanied by the deliberate infliction of conditions of life calculated to bring about the group’s physical destruction. The article affirms that, for conduct to be qualified as this form of genocide, it is sufficient that the imposed conditions of life be objectively capable of causing the destruction of at least part of the group; the actual death of individuals is not required. In the context of the Russian-Ukrainian war, actions such as the blockade of populated areas, destruction of civilian infrastructure, obstruction of evacuation and humanitarian access, and similar conduct may amount to the deliberate infliction of life conditions calculated to bring about the physical destruction of a protected group. However, such classification requires proving the specific intent to destroy the group as such, which remains the central evidentiary challenge. Finally, the article emphasizes that, unlike other forms of genocide, the deliberate infliction of life conditions calculated to bring about a group’s destruction is collective in nature and cannot be limited to the impact on a single group member.