Genocide
Genocide is the destruction of a people through targeted violence.
The term genocide was coined by Polish-Jewish lawyer Raphael Lemkin in the early 1940s. Lemkin lobbied for genocide to be outlawed by international treaty, but the Genocide Convention restricted his initially broad definition to five specific acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". Its definition remains contested by scholars and institutions across international law, history, sociology and related fields.
Genocide has occurred throughout human history, even during prehistoric times. Most genocides have occurred during wartime, and they are particularly likely in situations of imperial expansion and power consolidation. It is associated with colonialism, especially settler colonialism, as well as with both world wars and repressive governments in the twentieth century. Despite efforts to end genocide, effective interventions have not occurred. The colloquial understanding of genocide is heavily influenced by the Holocaust as its archetype and is conceived as innocent victims being targeted for their ethnic identity alone rather than for any political reason.
Genocide is widely considered to be the epitome of human evil and is often referred to as the "crime of crimes"; consequently, events are often denounced as genocide. It is most often a state crime, and most perpetrators are psychologically normal. Genocide typically occurs when the perpetrators believe themselves existentially under threat, and is employed as a means to another end—often after other options failed. The most common pattern of genocidal violence involves the killing of adult men and non-lethal violence, such as sexual assault and enslavement, of women and children. Other common means include forced displacement, land theft, and the destruction of cultural heritage. After genocide, denial and impunity for the perpetrators are common.
Origins
Polish-Jewish lawyer Raphael Lemkin coined the term genocide between 1941 and 1943. Lemkin's coinage combined the Greek word genos with the Latin suffix -caedo. As a law student, his interest in the subject was initially sparked by the Armenian genocide. He submitted the manuscript for his book Axis Rule in Occupied Europe in early 1942, and it was published in 1944 as the Holocaust was coming to light outside Europe. Lemkin's proposal to criminalize genocide was more ambitious than simply outlawing a type of mass slaughter; he thought that the law against genocide could promote more tolerant and pluralistic societies. His response to Nazi criminality was sharply different from that of another international law scholar, Hersch Lauterpacht, who argued that it was essential to protect individuals from atrocities, whether or not they were targeted as members of a group.According to Lemkin, the central definition of genocide was "the destruction of a nation or of an ethnic group" in which its members were not targeted as individuals, but rather as members of the group. The objectives of genocide "would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups". These were not separate crimes but different aspects of the same genocidal process. Lemkin's definition of nation was sufficiently broad to apply to nearly any type of human collectivity, even one based on a trivial characteristic. He saw genocide as an inherently colonial process, and in his later writings, he analyzed what he described as the colonial genocides occurring within European colonies, including the Soviet and Nazi empires. Furthermore, his definition of genocidal acts, which was to replace the national pattern of the victim with that of the perpetrator, was much broader than the five types that were later enumerated in the Genocide Convention. Lemkin considered genocide to have occurred since the beginning of human history and dated the efforts to criminalize it to the Spanish critics of colonial excesses, Francisco de Vitoria and Bartolomé de Las Casas. The Polish court that convicted SS official Arthur Greiser in 1946 was the first to mention the term in a verdict, using Lemkin's original definition.
Crime
Development
According to the legal instrument used to prosecute defeated German leaders during the Nuremberg trials, atrocity crimes were only prosecutable by international justice if they were committed as part of an illegal war of aggression. The powers prosecuting the trial were unwilling to restrict a government's actions against its own citizens.Lemkin brought his proposal to criminalize genocide to the newly established United Nations in 1946. Opposition to the convention was greater than Lemkin expected, due to states' concerns that it would lead their own policies—including treatment of indigenous peoples, European colonialism, racial segregation in the United States, and Soviet nationalities policy—to be labeled genocide. Before the convention was passed, powerful countries secured changes in an attempt to make the convention unenforceable and applicable to their geopolitical rivals' actions but not their own. Few formerly colonized countries were represented, and "most states had no interest in empowering their victims—past, present, and future".
The result narrowed Lemkin's original concept; he privately considered it a failure. Lemkin's anti-colonial conception of genocide was transformed into one that favored colonial powers. Among the violence freed from the stigma of genocide was the destruction of political groups, which the Soviet Union is particularly blamed for blocking. Although Lemkin credited women's NGOs with securing the passage of the convention, the gendered violence of forced pregnancy, marriage, and divorce was left out. Additionally omitted was the forced migration of populations, which had been carried out by the Soviet Union and its allies, condoned by the Western powers, against millions of Germans from central and Eastern Europe. Cultural genocide was also taken out, despite Lemkin's argument that it and physical genocide were two mechanisms aiming at the same goal.
Genocide Convention
Two years after passing a resolution affirming the criminalization of genocide, the United Nations General Assembly adopted the Genocide Convention on 9 December 1948. It came into effect on 12 January 1951 after 20 countries ratified it without reservations. The convention defines genocide as:A specific "intent to destroy" is the mens rea requirement of genocide. The issue of what it means to destroy a group "as such" and how to prove the required intent has been difficult for courts to resolve. The legal system has also struggled with how much of a group can be targeted before triggering the Genocide Convention. The two main approaches to intent are the purposive approach, where the perpetrator expressly wants to destroy the group, and the knowledge-based approach, where the perpetrator understands that destruction of the protected group will result from his actions. Intent is the most difficult aspect for prosecutors to prove; the perpetrators often claim that they merely sought the removal of the group from a given territory, instead of destruction as such, or that the genocidal actions were collateral damage of military activity.
Attempted genocide, conspiracy to commit genocide, incitement to genocide, and complicity in genocide are criminalized. The convention does not allow the retroactive prosecution of events that took place before 1951. Signatories are also required to prevent genocide and prosecute its perpetrators. Many countries have incorporated genocide into their municipal law, varying to a lesser or greater extent from the convention. The convention's definition of genocide was adopted verbatim by the ad hoc international criminal tribunals and by the Rome Statute that established the International Criminal Court. The crime of genocide also exists in customary international law and is therefore prohibited for non-signatories.
Prosecutions
During the Cold War, genocide remained at the level of rhetoric because both superpowers felt vulnerable to accusations of genocide and were therefore unwilling to press charges against the other party. Despite political pressure to charge "Soviet genocide", the United States government refused to ratify the convention, fearing countercharges. Authorities have been reluctant to prosecute the perpetrators of many genocides, although non-judicial commissions of inquiry have also been created by some states.After the failure to prevent the Bosnian and Rwandan genocides in the 1990s, the United Nations established criminal tribunals to try individuals for genocide and other international crimes. Although these tribunals had mixed results, the International Criminal Court was established in 2002 and counts a majority of states as members. Some of the most powerful states in the world, such as the United States, China, India, Russia, and Turkey, have not joined. Other perpetrators have been tried by various countries around the world, either involved in the genocide or not. As with other serious international crimes, no jurisdictional or temporal limitations apply to prosecution. The first former head of state to be convicted of genocide was Khieu Samphan in 2018 for the Cambodian genocide. Although it is widely recognized that punishment of the perpetrators cannot be an order for their crimes, the trials often serve other purposes, such as attempting to shape public perception of the past. There are several cases in which the International Court of Justice has been called upon to adjudicate accusations of genocide against states, including the Bosnian genocide case, the Rohingya genocide case, and the Gaza genocide case.