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It is determined when the elements of a crime are satisfied.
A murderer has committed murder even if they are never arrested by law enforcement. Shoplifting has still occurred even if the thief is never prosecuted. Israel is committing genocide even if the ICC and ICJ (which are overwhelmingly funded by the United States and the West) never obtain a conviction.
Great, so we can either call killing 35,000 Palestinians and 900,000+ Arabs genocide, or agree it’s not by law. Semantics doesn’t change what happened in 2002, just like it doesn’t change what’s happening in Gaza now. Wrong is wrong, and saying Bush wouldn’t do this is wildly ignorant.
Bush didn't do this. War crimes may have been committed at Guantanamo Bay and Abu Ghraib relating to torture and unlawful treatment of prisoners. And murder certainly occurred via Blackwater's massacres. But no targeted extermination of Iraqis as a group occurred.
During the Iraq War under the George W. Bush administration, there were significant allegations and documented instances of war crimes, particularly concerning the treatment of prisoners and the use of torture. However, the term "genocide" is specific and typically refers to acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. There is no consensus or legal finding that genocide occurred during the Iraq War under these definitions.
Regarding war crimes:
Treatment of Prisoners and Torture The most notorious example was the abuse and torture of detainees at Abu Ghraib prison, which came to light in 2004. Photographs showing U.S. military personnel abusing and humiliating Iraqi prisoners sparked global outrage. Investigations revealed that the abuses included physical and sexual abuse, torture, rape, sodomy, and murder. These acts were violations of the Geneva Conventions, which protect detainees from inhumane treatment.
Legal Consequences: Some soldiers involved in the Abu Ghraib scandal were court-martialed, convicted, and sentenced to varying terms. However, higher-ranking officials and policymakers were largely not held accountable, leading to widespread criticism and allegations of impunity.
The broader context of the Iraq War includes other allegations of war crimes, such as the use of disproportionate force and illegal weapons.
However, genocide has a precise definition.
The crime of genocide is defined under international law by specific elements that must be present for an act to be legally recognized as genocide. These elements are outlined primarily in the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and are further refined in the Rome Statute of the International Criminal Court (1998). Here are the critical elements:
Intent to Destroy: The perpetrator must have intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. This is known as the "special intent" or "dolus specialis".
Protected Groups: The targeted group must be identifiable and protected under the Convention, specifically as a national, ethnical, racial, or religious group.
Prohibited Acts: The Convention specifies the following acts, when committed with intent to destroy a protected group:
The Rome Statute also includes the forcible transfer of a group as an act of genocide when it is intended to destroy the group’s identity.
These elements combine to form the legal framework that courts and international bodies use to determine whether acts constitute genocide, focusing heavily on the perpetrator's intent alongside the nature of the acts committed.