President Donald Trump spent the Easter weekend issuing a belligerent stream of threats to destroy Iranian civilian infrastructure. He set a deadline of 8 p.m. Eastern time on Tuesday night for the Iranian government to reopen the Strait of Hormuz or U.S. airstrikes would destroy the country’s power plants and bridges. On Tuesday morning, his language took an even darker turn towards genocidal rhetoric.
“A whole civilization will die tonight, never to be brought back again,” he wrote on his personal social-media website. “I don’t want that to happen, but it probably will. However, now that we have Complete and Total Regime Change, where different, smarter, and less radicalized minds prevail, maybe something revolutionarily wonderful can happen, WHO KNOWS? We will find out tonight, one of the most important moments in the long and complex history of the World. 47 years of extortion, corruption, and death, will finally end. God Bless the Great People of Iran!”
Trump administration officials have already faced serious allegations of war crimes for their military operations in Latin America and Iran. In an article for our March issue that went to press before the Iran war began, I reported on Trump’s legal peril under international law at length. But the president’s latest post opens up him and members of his administration to something completely new: potential criminal charges for genocide.
Genocide has been considered a violation of international law for almost 80 years. Since then, genocide-related prosecutions have typically occurred through bespoke international tribunals like the ones created for the Yugoslav wars, the Khmer Rouge, and the Rwandan genocide. The International Criminal Court in The Hague has also had jurisdiction to prosecute genocide-related crimes since its establishment in 2002.
A federal law passed in 2002 on the eve of the Iraq War forbids the U.S. government from extraditing U.S. citizens to the International Criminal Court or cooperating with its investigations in any meaningful way. The law is colloquially known as the Hague Invasion Act because it gives free-standing congressional authorization for military operations to “use all means necessary and appropriate to bring about the release” of any U.S. soldier or official in ICC custody. It is meant to deter international-law investigations into U.S. military operations.
International tribunals are not necessary to prosecute Americans who commit genocide, however. The Genocide Convention Implementation Act of 1987 criminalizes the act of genocide “whether in time of peace or in time of war” under federal law. Unlike ordinary crimes, genocide is carried out “with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group.” Notably, there is no statute of limitations to this offense, meaning that anyone who participates in the offense could face prosecution at any point for the rest of their life.
The 1987 law applies to anyone who kills, injures, permanently impairs or permanently impairs of those specific groups. One particularly provision that is relevant to Trump’s threats applies to any efforts to “subjec[t] the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part.” Normally it might be difficult to prove a genocidal intent for a specific military strike. Trump’s threat to use U.S. military power to ensure that a “whole civilization will die tonight” removes that obstacle. He could only be clearer and less ambiguous if he wrote, “I will commit genocide tonight.”
Trump’s threats to target Iranian civilian infrastructure, if carried out, may already amount to war crimes and crimes against humanity. While the U.S. does not claim universal jurisdiction over acts of genocide, Trump’s potential actions would likely meet that threshold. The Justice Department’s Criminal Resource Manual, an internal tool for federal prosecutors, noted that the federal government has jurisdiction over genocide prosecutions if the offense is “committed within the United States” or when “the offender is a national of the United States.”
As an act, genocide is an ancient offense that can be found throughout human history. As a specific concept and criminal offense, genocide dates back to the post-World War II era. The concept gained attention after Nazi Germany murdered millions of people, including more than 6 million European Jews in the Holocaust, before and during the war.
Raphael Lemkin, a Jewish lawyer who lost dozens of family members to Nazi murders, coined the term genocide before the war’s end to describe a crime that previously had no name. “It seemed incredible and intolerable that such crimes which long antedated Hitler—they go back to Rome’s destruction of Carthage, and in recent history to the extermination of the Armenians [after World War I]—should go unpunished,” he wrote.
World War II’s horrors prompted world leaders to seek new ways to constrain humanity’s worst deeds. In 1948, the United Nations adopted what became known as the Genocide Convention to criminalize it under international law. More than 150 countries signed and ratified the treaty since then. While the Truman administration signed the treaty in 1948, the Senate did not vote at the time on whether to ratify it, meaning that it did not apply to the United States.
Final ratification would not come until fifty years later and only thanks to the dedicated efforts of William Proxmire, a Democratic senator from Wisconsin. Proxmire had a reputation as a maverick who would sometimes mount quixotic campaigns for his personal causes. One of those causes was ratification of the Genocide Convention. For 19 years, he gave a brief floor speech almost every day that the Senate was in session to encourage his colleagues to ratify the treaty.
Forty years after the Genocide Convention was signed—and more than 3,300 floor speeches by Proxmire later—his fellow senators finally acted. The Senate approved the treaty in February 1986 by a vote of 86 to 11, easily crossing the Constitution’s required two-thirds margin. Two years later, President Ronald Reagan signed legislation that incorporated the Genocide Convention into federal criminal law, who said that the law “represents a strong and clear statement by the United States that it will punish acts of genocide with the force of law and the righteousness of justice.”
Anyone who commits such an offense faces the death penalty or life imprisonment if convicted. The original Proxmire Act did not allow for capital punishment since many House and Senate Democrats at the time refused to vote for a law that would allow it. Congress changed course six years later with the omnibus Clinton crime bill in 1994 that specifically authorized the death penalty for genocide “where death results.” Under federal law, Americans can also be prosecuted for attempted genocide and conspiracy to commit genocide.
Federal prosecutors have not charged any defendant with genocide since the Proxmire Act’s enactment. Prosecutions under the federal implementation acts of international treaties are generally rare, which means they are often legally and constitutionally untested. In 2006, for example, federal prosecutors in Pennsylvania charged a woman who had tried to injure her husband’s mistress by smearing dangerous chemicals on her doorknob with violating the Chemical Weapons Implementation Act of 1998.
Some critics derided that case as an overzealous prosecution that could have been resolved more easily under Pennsylvania’s ordinary assault statutes. When the case reached the Supreme Court in 2014, the defendant also argued that it would be unconstitutional for Congress to undermine federalism by ratifying treaties that allowed it to prosecute crimes ordinarily left to the states. The justices ultimately avoided a ruling on that question by holding that the defendant’s actions simply didn’t fall within the statute’s scope at all, leaving the CWIA intact.
If Trump were to follow through on his threats that Iranian civilization will “die tonight,” either by destroying enough of its civilian infrastructure to indirectly kill large numbers of Iranians, or by using nuclear weapons against Iranian cities, he could theoretically be prosecuted by a future Democratic administration for genocide. So too could anyone in the military’s chain of command who helped carry out Trump’s orders to erase a civilization so that it could “never […] be brought back again.”
Trump might feel confident that the Supreme Court’s ruling two years ago in Trump v. United States would shield him from legal consequences. In the 2024 case, the high court held that presidents have absolute immunity for any action committed within their core constitutional powers. Some observers took this to mean that the president could not be criminally prosecuted when acting as commander-in-chief. Justice Sonia Sotomayor, for example, warned that the court had given presidents immunity for ordering the military to assassinate political rivals.
But the immunity ruling should pose no barrier to prosecuting Trump if he follows through on his threat on Tuesday night. First, and perhaps most importantly, “presidential immunity” is not a real thing. Chief Justice John Roberts and the other conservative justices made it up out of thin air. It has no basis in the Constitution, the common law, or two-and-a-half centuries of American political tradition. Trump v. United States was plainly wrong the day it was decided, and it deserves no respect or adherence from any other figure in the American constitutional order.
Second, even if one were to concede that presidential immunity exists, there is no reason to think that it would extend to Trump’s actions. “The president is not above the law,” Roberts wrote. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.” Committing genocide is neither a “core presidential power” nor a “responsibility of the executive branch under the Constitution.” While Trump is the commander-in-chief, the president’s authority over the military is hardly exclusive. Congress retains the Article I power to “make rules for the government and regulation of the land and naval forces,” among numerous other safeguards.
As Trump’s Tuesday night deadline nears, he and other administration officials face a stark choice. If they follow through on Trump’s threat, they would be opening themselves up to permanent and indefinite criminal liability for the rest of their lives. Any future presidential administration could charge them with conspiring to commit genocide for carrying out or assisting the president’s illegal orders. They would be unable to travel to Europe or other democratic nations without risking arrest and prosecution under international law. They may even face extradition to The Hague if Congress were to ever repeal the 2002 law and join the ICC—something that even a presidential pardon could not protect. Word to the wise: Anyone who bets that Trump can protect them from consequences forever will eventually lose.
