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.

The ICJ genocide trial: Introductory notes

There would seem to be two issues that really matter in the dispute between Bosnia-Hercegovina and Serbia and Montenegro which is currently being heard by the International Court of Justice (ICJ). These are:

1) Did genocide occur in Bosnia-Hercegovina?, and
2) If there was genocide, was it a result of policy on the part of the Federal Republic of Yugoslavia (SRJ)?

Then there is a third question which, while it is of interest primarily to lawyers of a certain type, may determine the outcome of the proceedings, which is:

3) Does the court have the authority to try the case?

Then there is a question which is not a legal one at all, but might be the one that is most interesting to people following the case, which is:

4) What would be the political consequences of a guilty verdict?

I doubt very much that I can give definitive answers to any of these four questions, but I think I can try to give a picture of some of the issues that will have to be considered along the way to an answer. First, an observation -- the issues at stake are at bottom political issues, and judicial institutions do not necessarily provide the best forum for political issues to be resolved. However, when there is a lack of will on the part of political institutions, this may be the only forum available. In that context, I feel confident in making a prediction: no matter what the outcome, very few people will be satisfied.

Having said that, let me see whether I can shed any light on the questions, one by one. I will be posting short essays related to each of the questions in a series of four posts. A word of caution: although I do own a briefcase, I am not a lawyer. Merely a talented amateur, like Emma Peel.

While I was away

For anyone who makes the mistake of getting their news from this site, here are a few of the interesting things that happened while I was away.

There was talk that Jasmila Žbanić's award-winning film Grbavica, about violence against women during the war in Bosnia-Hercegovina, would not be shown or well received in Serbia. In fact, it was shown to a capacity audience in Sava Centar, who kicked out the far-right provocateurs and gave the director and cast a hearty ovation. Whether the film would get a similar reception in Banja Luka remains open to question, since distributors refuse to bring it there.

The convicted war criminal Milan Babić committed suicide in prison. No sane person will miss him, but his death presents problems for the prosecution in cases where his testimony would have been useful, and raises problems once again for the prison management in Scheveningen, which has failed to secure the people for whom it has responsibility before. The departure of Ali Farka Toure, in contrast, is a loss for lovers of beauty everywhere.

A court in Niš acquitted bishop Pahomije (Tomislav Gačić), who is guilty, on charges of sexual abuse of children. Prosecutors promise to bring the case to a higher court.

There was far better religious news in Bujanovac, where the local Orthodox eparchate and the local Islamic community are joining forces to, in the words of muftija Nedžmedin Saćipi, "be a true bridge between Serbia and Kosovo. The lessons we have learned obligate the Serbs, Albanians and Roma of this place to be in the service of peace, to be a model of cooperation for people of good will."

There are several other ongoing stories, including the ICJ case between Bosnia-Herecegovina and Serbia, on which I will have some comment. I'll also share some impressions of lovely Tbilisi, where I got the hat that Azra is wearing to school today.

The Earth is getting younger, and my clothing smaller

Came across this job announcement today at the Chronicle of Higher Education, from Mr Falwell's school:

Biology: Liberty University invites applications for: Faculty member with Ph.D. and compatibility with a young-earth creationist philosophy. Teaching expertise in Microbiology and supervision of undergraduate research expected. Experience in molecular genetics helpful. Send letter of interest, resume, and statement of personal Christian faith commitment to [contact info omitted].

They require the same compatibility for their position in physiology but not, interestingly enough, for their position in chemistry. I do not know whether "a young-earth creationist philosophy" is compatible with what has been called "intelligent design." But I have been looking for a forum from which to promote my theory: "Italian design," which argues that people look fantastic, but are engineered in such a way that they require constant and intensive maintenance.

Mind the gap

My travels are going to have me for a few days on what the online terminology calls a "blog hiatus" and what I call "not writing many posts." In the event that this leaves you with a burning desire for interesting reading (or if you had one to begin with), have a look at the wonderful journal published by the sociology students at the University of Zagreb, Diskrepancija. The current issue has original articles on a number of current themes, a new translation of an essay by Laclau and Mouffe, a special section critically reviewing Jeffrey Alexander's cultural theory, and reviews. There is an archive of past issues, a section in English for those who prefer it, and a photo section. For more news on sociology in Zagreb, including football match announcements, check their blog.

Burek in the wilderness

Not much posting these days, as I am just back from a visit to scenic Colgate University (yes, apparently there is a connection to the toothpaste), and am off tomorrow for a visit to lovely Georgia, which Colgate's Nancy Ries assures me is indeed the birthplace of wine.

High point of the visit to Colgate: a dinner with students catered with pite from Amy's of Utica, NY. Amy is Amira Dizdarević, who with husband Dževsad provided sirnica, krompiruša, burek and ćevapi to a group of people who wanted them very much indeed. Nobody seems to import Sarajevsko pivo that far, though.

Photo: Amira Dizdarević in her shop

Datum mobile

There are many interesting items in today's Danas. The mystery over whether Ratko Mladić has been arrested already, is in the process of being arrested, is about to be arrested, or is practicing variations of the alchemy of producing the voluntarity of a surrender has got to the point that -- the "deadline" is shifting again, this time apparently to 5 April. April, like all of the months that have passed to date, will also come and go. Continuing to match the speed of the Serbian government is ICTY. When the Milošević trial began in (yes!) February 2002, one of the questions raised was whether a conviction for genocide in that trial might have an influence over the suit pending before the International Court of Justice in which the government of Bosnia-Hercegovina charged the government of the federal Republic of Yugoslavia (which existed at the time) for genocide. Only now is it clear how big the assumption behind the question was: that a verdict would be given in one trial before one was due in the other. Arguments before ICJ begin tomorrow, and arguments before ICTY may end at some point in the future. In the meantime, a pro-indictee demonstration hosted by SRS in Belgrade is being described by BBC as a "mass pro-Mladić rally." I say bringing at most 10,000 people to Belgrade (because they aren't from there) is a sign that SRS has access to fewer buses than SPS used to have.

Headline of the day

"Trust us on Mladic," says Serbia
today.reuters.com

Version tracking for fugitives, cont'd

Or was he arrested yesterday in Romania by British SAS forces? That is what Pincom is reporting, anyway.

As the Mladić bubble deflates

For Danas, Ratko Femić gathers up a set of responses to yesterday's conflicting and apparently inaccurate reports of the arrest or impending arrest of Ratko Mladić. An unidentified "source close to the Serbian government" believes that the government "tried something but did not succeed." Another anonymous "source from the security structures" believes that Mladić will be arrested soon, but that this will not be announced for some time "because discussions will have to be carried out then with the indictee." The same source (I think) also suggests that Mladić would have to be offered a large sum of gotovina, though why he would be paid off after being arrested seems a bit unclear.

Civil defence specialist Zoran Dragišić believes that the government is attempting to find a way to make Mladić's arrest "appear to be a voluntary surrender," and thinks that the "media noise" of yesterday was a part of this strategy. Military analyst Aleksandar Radić suggests a wider strategy to "send a variety of disinformation to the public" as a means of "applying psychological pressure," but Radić also does not exclude the possibility that the psychological action might not be directed toward the indictee, but toward testing the response of public opinion.

Nobody, of course, is persuaded by the denials coming from the government and from the ICTY prosecutors: these seem to be regarded either as signals that the opposite of what is being said is true, or as parts of a strategy to direct attention away from ongoing activities. And although nobody can say with any certainty how many people thought that Mladić had in fact been arrested when the news came out, one thing is clear: there were no protests, no support rallies, no rushed telegrams, and no campaigns to mobilise feelings of wounded innocence. The practitioners of violence who controlled the media persuaded themselves well that they have popular support. They do not.

Update: Oh, why not inflate the bubble a little again. The not-as-amusing-as-Kurir tabloid Glas javnosti is speculating that (take your pick) Mladić was either 1) already arrested on Cer, and authorities have not yet figured out how to get him to Scheveningen, 2) already arrested in Belgrade, several hours ahead of the point at which he had agreed to surrender, and that authorities are trying to persuade him to publicly fake a voluntary surrender, or 3) already arrested on Cer, sent to Belgrade, packed off to Tuzla, and delivered to the Hague. Vladeta Janković commented to the (unidentified, hm) journalist for Glas, "What are you thinking?" The article does not help to answer Mr Janković's question much.

Jugonostalgija

Index has a nice reminder from the earlier career of the newscaster Goran Milić, from when he hosted the evening news on the briefly active Yutel network. The recollection:

Radi se o isječku iz Yutelovih vijesti emitiranih 1991. godine, kad je Jugoslavija bila pred raspadom. Snimka prikazuje Milića kako književnim srpskim jezikom čita vijest o reakcijama iz svijeta na događanja u SFRJ.

Milićeve riječi praćene su grafikama uz pripadajuće naslove, od kojih jedan eksplicite kaže: "EEZ izražava zabrinutost zbog sranja u Jugoslaviji".

"Pardon, ovo je štamparska greška, treba da piše "stanja u Jugoslaviji". Mada, moram da kažem da ovo što je napisano nije baš sasvim pogrešno. Izvinjavamo se a vi sami prosudite da li je bilo namerno." - objašnjava Milić na kraju ove zabavne video snimke.

The article contains a link to the video of the broadcast (WMV, 38 seconds).

Nobody knows the Ratko they haven't seen

Ratko Mladić may have been arrested in Belgrade. Or he may not have been. Or maybe there is an action to arrest him going on in Bosnia, perhaps near Tuzla. Or perhaps not. Maybe we will know something by the end of the day. Or maybe we will not.

Update: For a not particularly representative sample of responses to the news (which may be false) that the suspect was raspamećen, it's always fun to follow the comments on B92.

Update: Still no reliable signs that the report is true. In the meantime, however, Mirko Marjanović died.

Another update: Nezavisne novine is reporting that the recent stories are untrue, but that PM Koštunica has issued a warrant for Mladić's arrest. Is the implication that there was no legal basis for his arrest up until now?

Morning update: Still nothing solid. The government and ICTY are either denying everything or saying nothing, media are tending to converge around the story that he has been "located but not arrested" on Cer, and Toma Nikolić chose the moment to remind everyone that he is a necrophiliac.

Dealing with the past, contd.

The BBC is reporting that Mittal Steel, the world's largest steelmaker, is abandoning plans to set up a memorial at the Omarska mine it recently bought, after the plans met with opposition from locals.

Omarska, a concentration camp during the 1992-95 war in Bosnia, was the site of some of the most horrific crimes committed by the Bosnian Serbs in their drive to "cleanse" the territories they had occupied of non-Serbs.

Mittal only agreed to erect the memorial after robust lobbying from activists of all ethnic backgrounds. It has evidently concluded that the goodwill of locals is more important than what people across Bosnia (or indeed abroad) might think.

Unfortunately, the attitude of people in Omarska is fairly typical for the mindset that still prevails in Republika Srpska. A vox pop on last night's main evening news on Bosnian TV included someone from Banja Luka who qualified the topic of Grbavica, a Bosnian movie on wartime rape that just won the Golden Bear at the Berlin film festival, as "tendentious." (Yes, the topic, not the specific treatment it gets in the movie. Even mentioning it is tendentious, apparently.)

Django Reinhardt and Stephane Grappelli

The site Boing Boing labels itself a directory of wonderful things, and this is a wonderful thing: Django Reinhardt and Stephane Grappelli relaxing a bit with their instruments while the rest of the musicians play cards, then the whole band plays "J'Attenndrai." 'Tis a QuickTime file, size 12 MB. Visit WFMU for more musical delights.

Qualification

I am not really quite sure what to make of this news item. Apparently the examination for job candidates at the Croatian Ministry of Foreign Affairs includes, among its 300 questions, items asking people what sort of sexual practices they prefer. This may simply be an effort to avoid potential scandals in advance, or there may be a more elaborate plan. No indication is given as to what kinds of sexual preferences best qualify a person for the job, but it would seem that the best qualification for diplomats would be to incline toward compromising positions.

Turbofolk, jobs and dreams

Among the features at the Zagreb Dox Festival of Documentary Film will be Posao snova (The job of your dreams), a documentary on the folk music industry (turbo, sevdah, novokomp) by Danijela Majstorović. The film focuses on the experience of women in the industry, as the director explains:

"Relations of power, domination and patriarchal ideology can be seen best in the Bosnian entertainment industry. Entertainment and pop culture represent a microcosm of the society, especially now, since so many people identify with people from the small screen. Although I am very critical of folk culture myself [...] my film offers a bit of a different reading of the entertainment scene. «Posao snova» has multilevelled messages and it is not simply a critique of entertainment, but a finding about the situation in which a majority of women find themselves in contemporary Bosnia and Hercegovina, but also in Serbia, and maybe in a more subtle way in Croatia."

The film does cover the manipulative aspects of the industry, the objectification, the dominating "managers," and so on. But it does not stop there: with the participation of Lepa Brena, Hanka Paldum and other luminaries, the film also discusses the expressive and liberatory potential of commercial entertainment. Or as Brena puts it, "they could all think of me as meat, but that meat had some brains!" Prepare for the first film treatment that takes on the phenomenon in a way that respects its complexity at the Tuškanac cinema in Zagreb, at 5 PM on 25 February.

Meanwhile in the Bahamas

If you like awards competitions, the voting has begun for the Satin Pajama Awards at A Fistful of Euros. I've enjoyed using their list of nominated weblogs to discover some interesting new sites that I had not known about before. This site has been nominated in two categories: best weblog (not getting that one, I know) and best Southeast European weblog (who knows). Win or lose, it is an honor to be in the company of the SEE competitors: Argumente (business and strategy from Romania), Illyrian Gazette (not just showbusiness ethnopolitics, but also occasional hot Slovenian action), the newest incarnation of Draxblog (the SEE blog institution, plus film reviews), and Csikszereda musings (with a bit about Miercurea Ciuc, at no extra cost). But go and have a look at the nominees in every category, there is a lot of good reading around, for every taste from the technical to the personal.

Ko ne voli Bagasoru....

Đurđevdan nije, a ipak nismo gadovi.

Not the only one who shakes his head

So: on Friday, the Šešelj-in-waiting Tomislav Nikolić declared that if Kosovo were to be granted independence, Serbia should declare it to be "occupied territory," and should seek to recover it "by any means possible." But that is not all he declared. He also claimed that he had made an agreement with prime minister Vojislav Koštunica to just that effect in the event that a decision on independence were to come down. This would of course go beyond a case of Mr Nikolić saying publicly the sort of thing one expects him by now to say publicly, and spill over into Mr Koštunica owning up to what one expects that he thinks privately. So naturally, Mr Koštunica issued a swift denial, right? Wrong, actually. By Sunday night, neither he nor any government representative had given any confirmation or denial. The closest anybody came was Slobodan Antonić, an intellectual supporter of Mr Koštunica, who told Danas that "Vojislav Koštunica, as is well known, has the custom of nodding his head and occasionally saying yes, which his interlocutors interpret as agreement, but afterward find out that that was not really the case." So we are happy to have been able to clear that one up.

PS: While Mr Koštunica may be as enigmatic as the Buddha, he is not as long-suffering as Jesus Christ. That role belongs -- of course! -- to Silvio Berlusconi.

Who lets these folks near implements that could affect the lives of other people?

Just because everybody else is ridiculing the bumbling Dark Lord Cheney for failing to distinguish an elderly gentleman from a small and tasty bird doesn't mean that I have to join in. Doesn't mean I have to avoid joining in either.

Update: Ignore the news reports that describe Mr Cheney as an avid and dedicated hunter. Thanks to Pharyngula, we find that what he prefers is "an increasingly popular and deplorable form of hunting, in which birds are pen-reared and released to be shot in large numbers by patrons. The ethics of these hunts are called into question by rank-and-file sportsmen, who hunt animals in their native habitat and do not shoot confined or pen-raised animals that cannot escape." This is not hunting at all. As Harry Hutton points out with regard to another pseudosport, "You could create a similar afternoon’s amusement by poking a caged rat for a couple of hours, then blowing its head off with a pistol."