An appreciation of the limitations of legal process in passing historical judgments may well have been uppermost in the minds of the Judges of the International Court of Justice, when they were called upon, in the aftermath of cruel civil conflict, to keep the tinders of ethnic warfare alight.
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By Matthew Parish
Mass murder has always been a heinous crime, which might cause one to wonder why the law needs a separate category of criminal offence to describe it. A Jewish-Polish lawyer, Raphael Lemkin, coined the entirely new word “genocide” during the course of World War II to refer to the destruction of a group of people. His rationale for doing so was to prevent Nazi officials from running defences based upon domestic German (National Socialist) laws to accusations of involvement in the Shoah. Genocide, said Lemkin, is a crime against international law and therefore it takes precedence over domestic law. Hence the laws of Nazi Germany that mandated mass murder could not be used to excuse criminal responsibility of the participants. They would hang, in some cases in the immediate shadow of the Auschwitz-Birkenau gas chambers.
In the event, genocide was not used as a category of criminal responsibility at the Nuremberg war trials at the end of the World War II in which the most senior members of the Nazi regime were tried. Instead, broader and indistinct categories – such as the crime of waging aggressive war and crimes against humanity – were employed to convict the defendants. Yet Lemkin’s category of international crime was recognised in a 1948 Convention adopted by the UN General Assembly, which defined genocide as one of a series of acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. The qualifying acts were serious ones, such as killing members of the group or causing serious bodily or mental harm to them. Signatories to the Convention undertook to prosecute the crime of genocide. But the Convention’s principal ambiguity is that it is silent on the numbers of deaths that trigger this distinctive category of criminal responsibility. If there is intent to kill part of a group, then how many people have to die? Estimates of deaths in the Shoah vary, but by any measure it was very many millions. Is murder on such a colossal scale necessary as a prerequisite for genocide, or will some more moderate level of mass atrocity suffice?
Lemkin’s category thereafter lay fallow for decades, the inherent ambiguity in its legal definition lingering unresolved. Nevertheless the phrase “genocide” became much used by historians and by legal scholars writing in the abstract. It turned out that every major atrocity was genocide. Genocides had been perpetrated throughout history, well before the phrase had ever been used. Genocide was propagated as a tool in a new subject of the international law of war crimes. But nobody was actually prosecuted for genocide, anywhere, until the International Criminal Tribunal for Yugoslavia convicted General Radislav Krstić of the crime of genocide in 2001 for his role in the massacre by Bosnian Serbs of some 8,000 Muslim men and boys at Srebrenica in July 1995. Thus was the modern jurisprudence of genocide, as a legal rather than political or historical term, born. The International Court of Justice (ICJ), the United Nations Court established to hear disputes between states, confirmed the Srebrenica massacre to be genocide in 2007 in a lawsuit pursued by Bosnia and Herzegovina against the Republic of Serbia. But the Court continued to hold that Serbia was not culpable for genocide as an active participant.
The Bosnia/Serbia lawsuit was a political conundrum for the World Court. On the one hand, there was widespread international public revulsion at the events of the Srebrenica massacre and it might offend against global sensitivities to deny the events that had occurred there the emotive label of genocide. On the other hand, a finding of genocide would appear trite if not coupled with an obligation of financial reparations. This itself would raise multiple political quandaries. How much money is adequate compensation for genocide? How could the Republic of Serbia, a poor eastern European country, afford to pay? How could a decision requiring Serbia to pay be enforced? What would be the domestic political consequences of ordering Serbia to compensate Bosnia for genocide?
All these matters militated against the Court finding active Serbian government participation in the Srebrenica massacre. Genocide as a category of state liability is a political albatross. Although events in Srebrenica were genocide and, as a political symbol, would be classified by jurists as such, there was no legal liability as such. Serbia was found culpable for failing to prevent genocide – a proscription found within the Genocide Convention – but a determination of financial liability was not considered appropriate in the circumstances. The result gave something to both sides, so that a lawsuit with inevitably unfortunate political consequences, no matter what Solomonic decision might be made, could be quietly buried.
One cannot help thinking that much the same mentality applied to the recent ICJ judgment, handed down on 3 February 2015, in the genocide suit and counterclaim brought each against the other by Croatia and Serbia. One of the longest running cases in the history of international law, this action was commenced by Croatia in July 1999. In it, Croatia alleged that the Serbian siege of the Croatian town of Vukovar in 1991 was genocide. Serbia countered that the 1995 Croatian operation to cleanse the Krajina region of Serbs was genocide. The number of dead in these operations lay in the order of a few thousands: a far cry from the events that troubled Lemkin. Nevertheless the level of hatred that crimes in the Yugoslav wars engendered (or were caused by) presented a juridical challenge of some substance for the Judges on the Court. It raised again the complexity of genocide as a legal rather than historical concept.
As in the Bosnia vs. Serbia case, it was clear in advance what the only politically acceptable outcome to the legal dispute could be: namely that neither state is found culpable for genocide in the territory of the other. Croatia and Serbia, two neighbours, have both emerged from the Yugoslav wars and are relatively politically and economically stable. Although they are both poor and beset by corruption, their prospects are positive. One of the two countries is a member of the European Union, and the other aspires soon to be so. Their diplomatic relations are tolerably cordial. There is far too much progress to be abandoned through resurrection of allegations of war crimes, demands for reparations, punishment and the political hostility of the 1990s.
However the contortions of legal reasoning that would be necessary for the Court to arrive at a conclusion that no genocide had been committed by anybody were substantial. The principal problem with the Genocide Convention is that read literally, the murder of any two people with some racial or ethnic quality in common may qualify. The two elements sufficient to commit the offence may be murder plus an intention that part of a group is destroyed. Because there is no definition within the Convention of part of a group (and logically, nor could there be), the only boundary to the concept is that there is more than one person with a similar quality; a group, or part of a group, must be at least two people. It is unfeasible to delimit the perimeters of the concept any further. Hence once more than one person has been murdered, it becomes impossible to deny intention. Murder (generally) entails intention to kill. Killing is the same as destruction. Two people with similar qualities are part of a group. If more than one person is killed, then there was obviously an intention to destroy part of a group. Mass murder of similar people implies genocide, a fortiori.
Given the reality of mass ethnically based murder in the Yugoslav wars, in each case directed by states or their agents, how did the World Court avoid the seemingly inevitable conclusion of mutual genocide? Here the Judges stumbled. They said that although the evidence of war crimes and horrors perpetrated against civilians was incontrovertible, there was no evidence of an intention to destroy a group or part of one. It is not clear what the Court meant by this. Each side raised the argument that the other displayed a pattern of behaviour indicative of an intention to destroy them, and that the sieges, militias and attacks upon civilians could not be understood in any other way. The Court had to wriggle in rejecting these submissions: the attacks by militias were only one part of the military campaigns; civilians were not always murdered, sometimes being spared; the evidence of atrocities prepared by NGOs was not reliable (although no contrary evidence was presented); the ICTY had not prosecuted anyone for genocide; the intention to destroy part of a group, requisite for a finding of genocide, was not proven.
Of particular concern to the Court was the so-called Brioni transcript, a record of a conversation between the then Croatian President Franjo Tudjman and his General Ante Gotovina in charge of Operation Storm that expelled Serb civilians from Krajina in 1995. The Court was at pains to emphasise that the elements of the transcript suggesting an intention to destroy Serbs were taken out of context. In all cases the simple syllogism, that the persons responsible for murder and indiscriminate attacks upon civilians must have been intending to kill a group because otherwise their acts would not constitute murder, was overlooked. That logic would have compelled a conclusion of genocide that the Court was so determined to evade.
Intriguingly, in each case the Court established that the actus reus (the physical, non-intentional elements of the crime) of genocide had been made out. The acts undertaken by each side in the Croatian-Serbian conflict were, taken alone, sufficiently severe that in principle they could form the basis of criminal genocide. The horrors and sufferings of the conflict would not thereby be minimised. The ultimate finding of genocide, which would have yielded such severe political consequences, would be avoided however by saying that the requisite intent to destroy a group could not be established. The test for intent would remain deliberately obscure, as would the way the Court applied it to the facts of the case. For genocide is a political concept, and any judicial organ purporting to apply it needs plenty of flexibility.
The horrors of the Shoah were so extreme that there remains residual political force in associating contemporary political events with its memory. It is a matter of some regret that an international crime of genocide has become distorted for this purpose. Whatever the horrors of the Balkan wars, they cannot be compared with the barbarities of Nazi Germany amidst the Second World War. However heinous the acts of Serb and Croat armed forces in the Balkans in the 1990s, they do not resemble the state-sponsored mass killings of millions, and the near-eradication of Jews from Europe, that Lemkin sought to demonise.
The concept of genocide may be politically attractive for those seeking to caricature their opponents as beneath contempt in the context of the Balkan wars. This is particularly so where the ethnic confrontations those wars exposed remain a raw part of the national consciousness of the nations involved. Yet for jurists, the notion is politically toxic. It is unhelpful, because it tries to create a distinctive legal category for instances of mass murder where there is no advantage of legal principle in having one. To say that certain sorts of mass murder are worse than others, on the basis of a criterion other than the counting of bodies, is likely to be most difficult.
Lawyers should not permit themselves to be drawn into disputes in which the antagonists are seeking legal imprimatur for a political position. Lawyers are not historians and they do not have the skills necessary for historical judgments. They offer the advantage of institutional finality in the decisions they make, something that historians cannot provide. But with this must come an institutional cautiousness that deters them from passing judgments that are better the province of the historian and might have consequences more in the field of politics. An appreciation of the limitations of legal process in passing historical judgments may well have been uppermost in the minds of the Judges of the International Court of Justice, when they were called upon, in the aftermath of cruel civil conflict, to keep the tinders of ethnic warfare alight.
Matthew Parish is an international lawyer based in Geneva,Switzerland and the Managing Partner of the Gentium Law Group (www.gentiumlaw.com). He was formerly the Chief Legal Advisor to the International Supervisor of Brcko in Bosnia and Herzegovina, and is a frequent writer and commentator on Balkan affairs. He has written two books and over a hundred articles. In 2013 he was named as a Young Global Leader of the World Economic Forum and one of the three hundred most influential people in Switzerland. www.matthewparish.com