Genocide

Genocide is the intentional destruction of a people,^[a] either in whole or in part.

Genocide has occurred throughout human history, even during prehistoric times. The Political Instability Task Force estimated that 43 genocides occurred between 1956 and 2016, resulting in about 50 million deaths.^[3] The UNHCR estimated that a further 50 million had been displaced by such episodes of violence up to 2008.^[3]

Raphael Lemkin originally defined genocide as "the destruction of a nation or of an ethnic group" by means such as "the disintegration of [its] political and social institutions, of [its] culture, language, national feelings, religion, and [its] economic existence".^[4] During the struggle to ratify the Genocide Convention, powerful countries restricted Lemkin's definition to exclude their own actions from being classified as genocide, ultimately limiting it to any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".^[5]

The colloquial understanding of genocide is heavily influenced by the Holocaust as its archetype and is conceived as innocent victims targeted for their ethnic identity rather than for any political reason.^[1] Genocide is widely considered to be the epitome of human evil^[6] and often referred to as the "crime of crimes",^[7][8][9] consequently, events are often denounced as genocide.^[10]

Polish-Jewish lawyer Raphael Lemkin coined the term genocide between 1941 and 1943.^[11][12] Lemkin's coinage combined the Greek word γένος (genos, "race, people") with the Latin suffix -caedo ("act of killing").^[13][14] He submitted the manuscript for his book Axis Rule in Occupied Europe to the publisher in early 1942, and it was published in 1944 as the Holocaust was coming to light outside Europe.^[11] Lemkin's proposal was more ambitious than simply outlawing this type of mass slaughter. He also thought that the law against genocide could promote more tolerant and pluralistic societies.^[14]

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".^[4] These were not separate crimes but different aspects of the same genocidal process.^[15] Lemkin's definition of nation was sufficiently broad to apply to nearly any type of human collectivity, even one based on a trivial characteristic.^[16] He saw genocide as an inherently colonial process, and in his later writings analyzed what he described as the colonial genocides occurring within European overseas territories as well as the Soviet and Nazi empires.^[14] 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 enumerated in the Genocide Convention.^[14] 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.^[17] The 1946 judgement against Arthur Greiser issued by a Polish court was the first legal verdict that mentioned the term, using Lemkin's original definition.^[18]

According to the 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 illegal war of aggression. The powers prosecuting the trial were unwilling to restrict a government's actions against its own citizens.^[20] In order to criminalize peacetime genocide, Lemkin brought his proposal to criminalize genocide to the newly established United Nations in 1946. He approached the African delegations first in an attempt to build a coalition of smaller states and former colonies that had themselves recently experienced genocide. Lemkin hoped that at this point the major powers—the United States, United Kingdom, and Soviet Union—would step in and take credit for passing the convention.^[20]

Opposition to the convention was greater than Lemkin expected due to various countries, and not just great powers, concerned 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 geopolitical rivals' actions but not their own. The result gutted Lemkin's original intentions; he privately considered it a failure.^[21] Over the course of these revisions, Lemkin's anti-colonial conception of genocide was transformed into one acceptable to colonial powers.^[22] Among the violence freed from the stigma of genocide included the same actions targeting political groups, which the Soviet Union is particularly blamed for blocking.^[23][24] 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.^[25] Also excluded from the definition of genocide is the death of large numbers of civilians as collateral damage of military activity such as aerial bombing, even when they make up a significant portion of a nation's population.^[26] Additionally omitted was forced migration of populations—which had been recently carried out by the Soviet Union and its satellites, condoned by the Western Allies, against millions of Germans from central and Eastern Europe.^[27]

On 9 December 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG);^[28] it came into effect on 12 January 1951 after 20 countries ratified it without reservations.^[29] 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 (ICC).^[30] Genocide is defined as:

Genocidal acts like murder, forcible transfer of children and forced sterilization are crimes themselves. What makes those crimes genocide is that they are committed with what has been called the "special intent".^[31] The special intent, in the terminology of genocide, is similar to the common law concept of specific intent. Antonio Cassese described it as "an aggravated criminal intent that must exist in addition to the criminal intent accompanying the underlying offense".^[32] Article II of the CPPCG defines the purpose of committing the acts: "to destroy in whole or in part, a national, ethnical, racial or religious group, as such". The specific intent is a core factor distinguishing genocide from other international crimes, such as war crimes or crimes against humanity.^[33]

There is an unresolved "intend debate" over whether specific intent needs to be proven to convict for genocide, or whether a knowledge-based standard should be enough to convict for genocide.^[34] Some scholars argue that a knowledge standard would make it easier to obtain convictions. They have argued that intent is too difficult to prove. Those who hold this view believe that causing mass deaths should be enough without any need for a legal requirement to charge a culpable agent for acting with intent.^[35]

Some of the existing international tribunal cases like Akayesu and Jelisić have rejected the knowledge standard.^[36] The acquittal of Jelisić under the more onerous standard was controversial, and one scholar opined that Nazis would have been allowed to go free under the ICTY's ruling.^[37] When Radislav Krstić became the first Serb convicted by the ICTY under the purpose standard, the Krstić court explained that its decision did not rule out a knowledge standard under customary international law.^[36]

The phrase "in whole or in part" has been subject to much discussion by scholars of international humanitarian law.^[38]

The drafters of the CPPCG chose not to include political or social groups among the protected groups. Instead, they opted to focus on "stable" identities, attributes that are historically understood as being born into and unable or unlikely to change over time. This definition conflicts with modern conceptions of race as a social construct rather than innate fact and the practice of changing religion, etc.^[39]

International criminal courts have typically applied a mix of objective and subjective markers for determining whether or not a targeted population is a distinct group. Differences in language, physical appearance, religion, and cultural practices are objective criteria that may show that the groups are distinct. However, in circumstances such as the Rwandan genocide, Hutus and Tutsis were often physically indistinguishable.^[40]

In such a situation where a definitive answer based on objective markers is not clear, courts have turned to the subjective standard that "if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group".^[41] Stigmatization of the group by the perpetrators through legal measures, such as withholding citizenship, requiring the group to be identified, or isolating them from the whole could show that the perpetrators viewed the victims as a protected group.

Since the Convention came into effect in January 1951 about 80 United Nations member states have passed legislation that incorporates the provisions of CPPCG into their municipal law.^[42] Many of these laws vary to a lesser or greater extent from the Genocide Convention.^[43]

During the Cold War, genocide remained at the level of rhetoric because both superpowers (the United States and the Soviet Union) felt vulnerable to accusations of genocide, and were therefore unwilling to press charges against the other party.^[44] Despite political pressure to charge "Soviet genocide", the United States government refused to ratify the convention fearing countercharges of racial segregation against African Americans.^[45] The first conviction for genocide in an international court was in 1998 for a perpetrator of the Rwandan genocide. The first head of state to be convicted of genocide was in 2018 for the Cambodian genocide.^[12]

Prosecutions for genocide do not obviously satisfy any of the purposes that criminal prosecution is supposed to serve. Retribution is impossible because any punishment proportionate to the crime would require collective punishment, which violates the principle of individual guilt.^[46] The most plausible rationale for prosecuting genocide perpetrators is that it could prevent future genocides, but very few perpetrators are ever brought to trial and evidence of a deterrent effect is lacking.^[47] However, genocide prosecutions might still serve the goal of upholding the power of international law.^[48]

The definition of genocide generates controversy whenever a new case arises and debate erupts as to whether or not it qualifies as a genocide. Sociologist Martin Shaw writes, “Few ideas are as important in public debate, but in few cases are the meaning and scope of a key idea less clearly agreed.”^[49] Some scholars and activists use the Genocide Convention definition.^[22] Others prefer even narrower definitions that indicate genocide is rare in human history, reducing genocide to mass killing^[50] or distinguishing it from other types of violence by the innocence^[51] helplessness, or defencelessness of its victims, to distinguish it from warfare.^[52]

Isolated or short-lived phenomena that resemble genocide can be termed genocidal violence.^[53]

Cultural genocide or ethnocide—actions targeted at the reproduction of a group's language, culture, or way of life^[54]—was part of Raphael Lemkin's original concept, and its proponents in the 1940s argued that it, along with physical genocide, were two mechanisms aiming at the same goal: destruction of the targeted group. Because cultural genocide clearly applied to some colonial and assimilationist policies, several states with overseas colonies threatened to refuse to ratify the convention unless it was excluded.^[55] Most genocide scholars believe that both cultural genocide and structural violence should be included in the definition of genocide, if committed with intent to destroy the targeted group.^[56] Although included by Lemkin's original conception and some scholars, political groups were also excluded from the Genocide Convention. The result of this exclusion was that perpetrators of genocide could redefine their targets as being a political or military enemy, thus excluding them from consideration.^[57] Perpetrators often take advantage of the legal special intent requirement to claim that they merely sought the removal of the group from a given territory, instead of destruction as such.^[58]

The concept of genocide has come in for sustained criticism, with some scholars proposing to jettison the concept in favor of alternatives they consider more empirically valid or objectively beneficial.^{[citation needed]} Most civilian killings in the twentieth century were not from genocide, which only applies to select cases.^[59][60]

Narrower definitions of genocide have excluded many concepts themselves described by alternative terms. Ethnic cleansing—the forced expulsion of a population from a given territory—has achieved widespread currency, although many scholars recognize that it frequently overlaps with genocide, even where Lemkin's definition is not used.^[61] Other terms have proliferated, such as Rudolph Rummel's democide, for the killing of people by a government. Words like ethnocide, gendercide, politicide, classicide, and urbicide were coined for the destruction of particular types of groupings (ethnic groups, genders, political groups, social classes, and residents of a particular locality).^[62]

Historian A. Dirk Moses argues that because of its position as the "crime of crimes", the concept of genocide "blinds us to other types of humanly caused civilian death, like bombing cities and the 'collateral damage' of missile and drone strikes, blockades, and sanctions".^[63] Instead, Moses proposes to criminalize "permanent security" - an unobtainable goal of absolute security that if pursued, inevitably leads to anticipatory attacks that harm civilians.^[64]

According to Esther Brito, the way in which states commit genocide has evolved in the 21st century and genocidal campaigns have attempted to circumvent international systems designed to prevent, mitigate, and prosecute genocide by adjusting the duration, intensity, and methodology of the genocide. Brito states that modern genocides often happen on a much longer time scale than traditional ones – taking years or decades – and that instead of traditional methods of beatings and executions less directly fatal tactics are used but with the same effect. Brito described the contemporary plights of the Rohingya and Uyghurs as examples of this newer form of genocide.^{[65][better source needed]}

Although genocide is often conceived of as a large-scale hate crime motivated by racism instead of political reasons,^[1] the Genocide Convention does not require any particular motive for the action. Motives for genocide have also included theft, land grabbing, and revenge.^[5] Most genocides occur during wartime, and distinguishing genocide or genocidal war from non - genocidal warfare can be difficult.^[66] Likewise, distinguishing genocide from violent and coercive forms of rule that do not aim at the destruction of populations can be challenging.^[67] Although the organizer of genocide is often assumed to be a centralized totalitarian government, in many genocides paramilitaries and other decentralized perpetrators are involved.^[68]

Other authors have focused on the structural conditions leading up to genocide and the psychological and social processes that create an evolution toward genocide. Ervin Staub showed that economic deterioration and political confusion and disorganization were starting points of increasing discrimination and violence in many instances of genocides and mass killing. They lead to scapegoating a group and ideologies that identified that group as an enemy. A history of devaluation of the group that becomes the victim, past violence against the group that becomes the perpetrator leading to psychological wounds, authoritarian cultures and political systems, and the passivity of internal and external witnesses (bystanders) all contribute to the probability that the violence develops into genocide.^[69] Intense conflict between groups that is unresolved, becomes intractable and violent can also lead to genocide.^[70]

During settler genocides, there is often an initial violent struggle for land and resources on an imperial frontier which escalates to extermination. Later on, the survivors face ongoing genocide in the form of "a wide range of eliminatory practices such as cultural suppression, expulsion, segregation, child confiscation, assimilation, and of course, continued violence".^[71] According to Mohamed Adhikari, the two main drivers of settler genocide is, in the long run, the pursuit of profit on the global commodity market and in the short run, indigenous resistance that triggered settler retaliation.^[72] The pursuit of economic activities such as mining, ranching, and agriculture is so destructive to indigenous societies that the elimination of indigenous people is quicker when settlers are more integrated into global markets and have a higher expectation of profit.^[73] While the lack of law enforcement on the frontier ensured impunity for settler violence, the closing of the frontier enabled settlers to consolidate their gains using the legal system.^[74]

Although in a strict legal sense, genocide is not more severe than other atrocity crimes—crimes against humanity or war crimes—it is often perceived as the "crime of crimes" and grabs attention more effectively than other violations of international law.^[75] Consequently, victims of atrocities often label their suffering genocide as an attempt to gain attention to their plight and attract foreign intervention.^[76]