Editing Genocide (section)

== Crime ==
{{main|Genocide Convention|international criminal law}}

=== Development ===
[[File:Bundesarchiv Bild 183-1983-0422-315, Umsiedler auf dem Güterbahnhof Berlin-Pankow.jpg|thumb|The [[expulsion of Germans]] was one of the instances of [[state violence]] that was deliberately written out of the legal definition of genocide.{{sfn|Weiss-Wendt|2017|pp=267–268}}]]
According to the [[Nuremberg Charter|legal instrument]] used to prosecute defeated German leaders at the [[International Military Tribunal]] at Nuremberg, [[atrocity crimes]] were only prosecutable by international justice if they were committed as part of an [[crime of aggression|illegal war of aggression]]. The powers prosecuting the trial were unwilling to restrict a government's actions against its own citizens.{{sfn|Irvin-Erickson|2023|p=20}}

In order to criminalize peacetime genocide, Lemkin brought his proposal to criminalize genocide to the newly established [[United Nations]] in 1946.{{sfn |Irvin-Erickson |2023|p=20}} 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 (both Western powers and the Soviet Union) secured changes in an attempt to make the convention unenforceable and applicable to their [[Cold War|geopolitical rivals]]' actions but not their own.{{sfn|Irvin-Erickson|2023|pp=20–21}} Few formerly colonized countries were represented and "most states had no interest in empowering their victims– past, present, and future".{{sfn|Bachman|2021b|p=1021}}

The result severely diluted Lemkin's original concept;{{sfn|Curthoys|Docker|2008|pp=13–14}} he privately considered it a failure.{{sfn|Irvin-Erickson|2023|pp=20–21}} Lemkin's anti-colonial conception of genocide was transformed into one that favored colonial powers.{{sfn|Irvin-Erickson|2023|p=22}}{{sfn|Bachman|2021b|p=1020}} Among the violence freed from the stigma of genocide was the destruction of political groups, which the Soviet Union is particularly blamed for blocking.{{sfn|Weiss-Wendt|2017|p=4}}{{sfn|Bachman|2022|p=53}}{{sfn|Curthoys|Docker|2008|pp=13–14}} 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.{{sfn|Irvin-Erickson|2023|p=8}} Additionally omitted was [[ethnic cleansing|the forced migration of populations]]—which had been carried out by the Soviet Union and its satellites, condoned by the Western Allies, [[expulsion of Germans|against millions of Germans from central and Eastern Europe]].{{sfn|Weiss-Wendt|2017|pp=267–268, 283}}

=== Genocide Convention ===
{{main|Genocide Convention}}
[[File:Genocide Convention Participation.svg|right|upright=1.2|thumb|Participation in the Genocide Convention
{{legend|#00aa00|Signed and ratified}}
{{legend|#008000|Acceded or succeeded}}
{{legend|#eeee00|Only signed}}
]]
Two years after passing [[United Nations General Assembly Resolution 96 (I)|a resolution affirming the criminalization of genocide]], the [[United Nations General Assembly]] adopted the [[Genocide Convention]] on 9 December 1948.{{sfn|Weiss-Wendt|2017|p=3}} It came into effect on 12 January 1951 after 20 countries ratified it without [[Reservation (law)|reservations]].{{sfn|Weiss-Wendt|2017|p=158}} The convention defines genocide as:

{{blockquote|...&nbsp;any of the following acts committed with [[intent to destroy]], in whole or in part, a [[nation]]al, [[ethnic]]al, [[racial]] or [[religious]] group, as such:{{plainlist|
* (a) Killing members of the group;
* (b) Causing serious bodily or mental harm to members of the group;
* (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
* (d) Imposing measures intended to prevent births within the group;
* (e) Forcibly transferring children of the group to another group.{{sfn|Kiernan|2023|p=6}}}}|sign=|source=}}

A [[dolus specialis|specific]] "[[intent to destroy]]" is the ''[[mens rea]]'' requirement of genocide.{{sfn|Schabas|2010|pp=136, 138}} 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.{{sfn|Ozoráková|2022|pp=292–295}}{{sfn|Irvin-Erickson|2023|p=13}}{{sfn|Schabas|2010|p=136}} 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.{{sfn|Lemos|Taylor|Kiernan|2023|p=35}}{{sfn|Jones|2023|pp=49–50}} Intent is the most difficult aspect for prosecutors to prove;{{sfn|Kiernan|Madley|Taylor|2023|pp=4, 9}}{{sfn|Ochab|Alton|2022|pp=28, 30}} the perpetrators often claim that they merely sought the removal of the group from a given territory, instead of destruction as such,{{sfn|Bachman|2022|p=57}} or that the genocidal actions were [[collateral damage]] of military activity.{{sfn|Bachman|2022|p=47}}

Attempted genocide, [[conspiracy (law)|conspiracy]] to commit genocide, [[incitement to genocide]], and [[complicity in genocide]] are criminalized.{{sfn|Kiernan|Madley|Taylor|2023|p=2}} The convention does not allow the retroactive prosecution of events that took place prior to 1951.{{sfn|Kiernan|Madley|Taylor|2023|p=2}} Signatories are also required to [[genocide prevention|prevent genocide]] and prosecute its perpetrators.{{sfn|Ochab|Alton|2022|p=32}} Many countries have incorporated genocide into their [[municipal law]], varying to a lesser or greater extent from the convention.{{sfn|Schabas|2010|p=123}} The convention's definition of genocide was adopted verbatim by the [[ad hoc international criminal tribunals|''ad hoc'' international criminal tribunals]] and by the [[Rome Statute]] that established the [[International Criminal Court]] (ICC).{{sfn|Ozoráková|2022|p=281}} The crime of genocide also exists in [[customary international law]] and is therefore prohibited for non-signatories.<ref>{{Cite web |date=September 2021 |title=Genocide: The legal basis for universal jurisdiction |url=https://www.amnesty.org/es/wp-content/uploads/2021/06/ior530102001en.pdf |website=[[Amnesty International]] |archive-url=https://web.archive.org/web/20241231035342/https://www.amnesty.org/es/wp-content/uploads/2021/06/ior530102001en.pdf |archive-date=31 December 2024}}</ref>

=== Prosecutions ===
{{Undue weight section|date=January 2025|events in Iraq}}
[[File:ICTY - Court room 1 in session.jpg|thumb|[[International Criminal Tribunal for the former Yugoslavia]] in session]]
During the [[Cold War]], genocide remained at the level of rhetoric because both [[superpower]]s (the United States and the Soviet Union) felt vulnerable to accusations of genocide and were therefore unwilling to press charges against the other party.{{sfn|Weiss-Wendt|2017|p=9}} Despite political pressure to charge "Soviet genocide", the United States government refused to ratify the convention, fearing [[We Charge Genocide|countercharges]].{{sfn|Weiss-Wendt|2017|p=266}} Authorities have been reluctant to prosecute the perpetrators of many genocides, although non-judicial commissions of inquiry have also been created by some states.{{sfn|Stone|2013|p=150}}

[[International court]]s have found a small number of events as constituting genocide, such as the [[Rwandan genocide]] and the [[Srebrenica genocide]].{{sfn|UN Office on Genocide Prevention and the Responsibility to Protect|n.d.|p=2}} 

On 25 January 2010, Iraqi official [[Ali Hassan al-Majid#Trial and execution|Ali Hassan al-Majid]] (1st cousin of [[Saddam Hussein]]) was executed by hanging after being convicted of committing genocide by using chemical weapons against Iraq's Kurdish population during the 1997–1998 Al-Anfal campaign. Al-Majid was captured following the [[2003 invasion of Iraq]]. During the trial, the Iraqi court heard tape-recorded conversations between al-Majid and senior Ba'ath party officials regarding the use of chemical weapons: "I will kill them all with chemical weapons! Who is going to say anything? The international community? Fuck them! The international community and those who listen to them." In the recordings, Al-Majid calls the Iraqi Kurdish leader Jalal Talabani "wicked and a pimp", and promises not to leave alive anyone who speaks the Kurdish language.<ref>[https://www.hrw.org/en/reports/2006/08/14/genocide-iraq-anfal-campaign-against-kurds "The Anfal Campaign Against the Kurds"]. A Middle East Watch Report: [[Human Rights Watch]] 1993.</ref><ref>{{Cite news |title=Saddam Hussein's henchman 'Chemical Ali' executed |url=https://www.telegraph.co.uk/news/worldnews/middleeast/iraq/7072155/Saddam-Husseins-henchman-Chemical-Ali-executed.html |access-date=2 September 2021 |work=[[The Daily Telegraph]] |date=25 January 2010 |archive-url=https://web.archive.org/web/20250108211035/https://www.telegraph.co.uk/news/worldnews/middleeast/iraq/7072155/Saddam-Husseins-henchman-Chemical-Ali-executed.html |archive-date=8 January 2025}}</ref><ref>"[https://www.hrw.org/campaigns/iraq/chemicalali.htm Chemical Ali in his own words]", [[Human Rights Watch]]. Retrieved 24 June 2007</ref>

The first head of state to be convicted of genocide was in 2018 for the [[Cambodian genocide]].{{sfn|Kiernan|2023|p=2}}

Although it is widely recognized that punishment of the perpetrators cannot be of an order with their crimes, the trials often serve other purposes such as attempting to shape public perception of the past.{{sfn|Stone|2013|p=150}}