Mon, Jul 30, 2012 - Page 9 News List

Genocide trials struggle as term hard to pin down

By Timothy William Waters

Rarely does one read such hopeful news: late last month, the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted former Bosnian Serb leader Radovan Karadzic of genocide. That might sound like a bad thing: Karadzic, who once warned Bosnia’s Muslims that war would lead them down the road to hell, surely deserves to be sentenced for the acts of which he was just acquitted — murder, siege and slaughter almost beyond naming — but for genocide? Better not.

In fact, we would be better off getting rid of genocide as a crime altogether. The legal concept of genocide is so incoherent, so harmful to the purposes that international law serves, that it would be better if we had never invented it. Karadzic’s acquittal — precisely because he is still on trial on other counts related to the same atrocities — is an opportunity to move toward the sensible goal of retiring it.

This was not just any acquittal. The ICTY decided that, after a two-year trial, the prosecution had not presented enough evidence for any judge to find Karadzic guilty of genocide early in the Bosnian War (he faces a separate count for the July 1995 massacre at Srebrenica, and the prosecution is appealing the acquittal). The court has been consistent: With just a few trials left, it has issued no convictions for genocide apart from Srebrenica.

The broader charge was always risky, but, for many advocates, it is an article of faith that genocide was Bosnia-wide. Still, the problem with genocide is not narrow judging, but that the crime itself is doubly irredeemable: It is defective in its definition and troubling in its moral and political effects.

Genocide requires “special intent.” A genocidaire must intend both to commit a defined crime and to destroy the victim’s group. In domestic law, the motive behind a crime is usually irrelevant — and for good reason. People have complex reasons for acting illegally. War — a collective enterprise in which killing your enemies can be legal — increases that complexity.

Trying to prove genocidal intent has drawn prosecutors into thickets of interpretation — such as giving lessons on the history of Greater Serbia — that distract from trials’ forensic core and encourage their politicization, as defendants “hijack” proceedings with their own justificatory glosses. However, the alternative — relaxing evidentiary standards — would undermine values such as legality and reasonable doubt, which are essential to a fair trial. Genocide’s stringent requirements mean that it is — and should be — difficult to convict a defendant.

That is consistent with our intuition that genocide is unique. However, while granting supreme status to the “crime of crimes” may seem morally attractive, the gravitational effect of genocide distorts international law and politics.

Genocide makes other crimes seem less important. When Goran Jelisic — a camp guard in Bosnia who called himself “the Serb Adolf” — was acquitted of genocide in 1999, one might have concluded from the prosecution’s stunned reaction that Jelisic had walked free. In fact, he confessed to 31 other counts covering the same underlying acts and was sentenced to 40 years in prison.

Likewise, reactions to the Karadzic decision show how inflated the perceived stakes are. Some say that acquitting him denies his victims’ suffering — as if only genocide mattered. However, it is only because acknowledgment of suffering has become identified so dogmatically with one crime that anything else seems inadequate.

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