The ICJ genocide trial, 1: Did genocide occur?

There are several competing definitions of genocide in the academic literature. The term originates with the work of the lawyer Raphael Lemkin, who had the Nazi genocide specifically in mind when he developed the concept. He intended, however, both to account for similar historical experiences of which he was aware (the Armenian genocide, for example), and to produce a concept exhaustive enough to serve as a basis for prevention (Lemkin includes in his work sections on "cultural genocide," "religious genocide" and "moral genocide," for example). His broad definition sees genocide as directed toward:

"disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups" (R. Lemkin, "Genocide," in A.L. Hinton [ed.], Genocide: An Anthropological Reader. Oxford and Malden: Blackwell, 2002, p. 27).

One of the results of Lemkin's engagement was the passage by the United Nations of the Convention on the Prevention and Punishment of the Crime of Genocide (popularly, the "Genocide Convention") in 1948. After considerable debate, the UN General Assembly opted for a definition which would exclude the categories of "cultural," "religious" and "moral" genocide, and which concentrated on physical destruction of people instead. The UN definition also narrowed the potential categories of victims, excluding, for example, political groups. The relevant part of the definition is in Article 2:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(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.

The UN definition is the topic of a good deal of legitimate controversy, mostly because of what it excludes -- but it is the only legal definition that exists in international law, and so it is the one that has to be used. Large scale killings which fall outside of the definition can be treated a number of ways. Some researchers have proposed definitions like "democide" and "politicide," which might be useful analytically but are not legal terms. One legal term which may apply to serious cases outside the scope of the Genocide Convention is "crimes against humanity," which the Nuremberg Charter (1945) defined as including "murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations." The most current definition of "crimes against humanity" is in the Rome Statute of the International Criminal Court, where Article 7 paragraph 1 enumerates:

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

I have not included paragraphs 2 and 3, which clarify terms in paragraph 1, but you can find those yourselves by following the link. One legitimate question that might be asked could be whether the distinction between "crimes against humanity" and "genocide" is all that important, since there is considerable overlap between the two. I am inclined to think that the distinction is on the one hand symbolic, like the difference between labelling a crime "really really bad" and "really really really bad," and that on the other hand it is related to political issues, as there is a greater moral claim associated with the status of being a victim of genocide. But I have no doubt that a great number of lawyers and human rights activists will disagree with me on this point (which they are certainly welcome to do).

All of this may seem like a huge digression, but it comes down to this: no reasonable person denies that a lot of murdering was carried out in Bosnia-Hercegovina, and that a majority of the victims were from one ethnic group. What is in dispute is whether this can be legally defined as genocide, or as something else.

The debate is going to turn in large measure on interpretations of legal terms. In particular, it will turn on the question of whether there was an "intent to destroy" a group, and on how big a "part" has to be to meet the standard of "in whole or in part." The requirement of "intent" means that the plaintiffs have to show that destruction was a matter of policy, while the defendants will argue that destruction was a consequence of a particularly nasty war. Numbers or scale may not be so important: the first criminal conviction to be handed down by an international tribunal on charges of genocide (in 1998) was against a Rwandan mayor, Jean-Paul Akayesu. Convictions against national officials came later. The precedent would seem to suggest that destruction on a national or international scale, as occurred in the Nazi genocide, is not necessary in order for a finding of genocide to be made.

For an idea of why this matters, it might be useful to recall a famous example of evasion: this exchange took place between journalist Alan Elsner and State Department spokeswoman Christine Shelly during the Rwandan genocide on 10 June 1994:

Q How would you describe the events taking place in Rwanda?

MS. SHELLY: Based on the evidence we have seen from observations on the ground, we have every reason to believe that acts of genocide have occurred in Rwanda.

Q What's the difference between "acts of genocide" and "genocide?"

MS. SHELLY: As you know, there is a legal definition of this. There has been a lot of discussion about how the definition applies under the definition of "genocide" contained in the 1948 convention. If you're looking at that for your determination about genocide, clearly, not all of the killings that have taken place in Rwanda are killings to which you might apply that label.

Some of the difficulties over actually arriving at a definition of "genocide" and formulations on genocide are the reasons why -- particularly, in late May, the U.N. Human Rights Commission, with the very strong support by the United States, appointed a Special Rapporteur for Rwanda, specifically to compile the information on possible violations of human rights and on acts which constitute breaches of international humanitarian law and crimes against humanity, including acts of genocide.

His preliminary report, which is due later this month, will provide the additional information about the human rights violations -- the types, and presumably how they might be characterized -- and that is something that we have to wait for.

As to the distinctions between the words, we're trying to call. What we have seen so far, as best as we can, and based, again, on the evidence, we have every reason to believe that acts of genocide have occurred.

Q How many acts of genocide does it take to make genocide?

MS. SHELLY: Alan, that's just not a question that I'm in a position to answer.

Q Well, is it true that you have specific guidance not to use the word "genocide" in isolation but always to preface it with these words "acts of"?

MS. SHELLY: I have guidance which I try to use as best as I can. There are formulations that we are using that we are trying to be consistent of our use of. I don't have an absolute categorical prescription against something, but I have the definitions. I have phraseology which has been carefully examined and arrived at as best as we can apply to exactly the situation and the actions which have taken place.

Thomas Franck of the BiH legal team has put the argument that the events amount to genocide in terms of a thesis that the type and scale of crimes, as well as the similarity of several events to one another, are evidence that what occurred was not a set of isolated incidents but a part of a strategic plan (for which there exists indirect evidence -- more on this in the following post). It is not yet clear how SCG representatives will argue against the applicability of the Genocide Convention. So far they are off to a weak start, arguing that the numbers and descriptions in the complaint by BiH are exaggerated. If they want to confront the arguments presented by the plaintiffs so far, they will have to present a position on the questions of organization and intent.