1 June 2011 — After 16 years on the run, the former Bosnian Serb commander Ratko Mladic was captured in Serbia last week. Extradition was quick: he was handed to the Yugoslav war-crimes tribunal in The Hague on May 31st to stand trial.
His arrest is good news for the relatives of those killed at Srebrenica; for international justice, which may be slow but has a long memory; for Serbia, which has taken a leap towards integration with Europe; and for the European Union, which, despite its economic and political troubles, has shown its potential to transform even intractable Balkan disputes.
The Balkans, said Winston Churchill, “produce more history than they can consume”. They may also produce more history than all of us can digest, at least the European Union. Balkan countries struggle with many handicaps. They must not just manage the thorough reforms that other ex-communist countries have undergone. In some cases they must embark on state-building, too. Moreover, they must contend with an ethnic patchwork in which peoples and borders can never align, and a legacy of atavistic bloodshed dating to the break-up of the Ottoman empire.
The politics of genocide can be heartbreaking. The best example is the mass killing (2 million people by most counts) by the Khmer Rouge. Before last year, when four suspects were indicted for genocide, most murders by the Khmer Rouge were not seen as genocidal in the legal sense, because killers and victims belonged to the same ethnic and religious group. Among the many crimes of Pol Pot’s regime, only the killings of minorities like ethnic Vietnamese, or Muslims, fall neatly into the category of genocide.
So to the general public, confusion. Most will say “Listen, I may not be a lawyer, but I know genocide when I see it.” But while the reality of genocide may be easy to grasp at a gut level, its definition is complex. Prosecutors, judges, historians and politicians have made huge efforts in recent years to describe the boundaries of genocide: when mere mass murder stops and the ultimate human crime starts. Yet the term is far more than a tool of historical or moral analysis. Its use brings momentous political and legal consequences—and is therefore bound to be highly contested
Just look at the bureaucratic debates in Washington in 1994 when the massacres in Rwanda emerged. As detailed in the movie “Hotel Rwanda”, an official review paper by the Pentagon urged caution in using the G-word: “Be careful …Genocide finding could commit [the government] to actually do something.”
The killing of up to 8,000 Muslim men and boys near Srebrenica in Bosnia, in 1995, has been widely described as a genocidal act; that is why its alleged mastermind, Ratko Mladic, was extradited to The Hague last week. Yet even in that context, the word genocide has been challenged; prominent figures, who do not doubt the vileness of the war, raise questions about the proper legal category.
The questions: should we use “genocide” to describe the whole military campaign by the Bosnian Serbs (or those of other war parties)? Do we single out one episode in the war as genocidal? Was there a general bid to exterminate or there was not? What are “crimes against humanity”—defined as killing and other inhumane acts when committed as “part of a widespread or systematic attack …against any civilian population.” These were, after all, the precise charges against the Nazis convicted at Nuremberg.
The starting point for any definition of genocide is clear and fairly familiar. The United Nations in 1948 adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which describes “the deliberate and systematic destruction, in whole or in part, of an ethnical, racial, religious or national group.” That formula is incorporated in the statutes of the Hague-based International Criminal Court, which since 2002 has stood ready to try terrible atrocities if national courts fail. In scores of countries the convention is also part of domestic law.
The convention’s provisions are remarkable for what they do and do not cover. They exclude—at the insistence of the Soviet Union, for obvious reasons—the mass killing of “class” or political enemies. But they include as genocidal any measures to limit births within a group, and the transfer of children of one group to another. China’s one-child policy would not count—because it applies to ethnic Chinese—unless it were brutally enforced on, say, Tibetans. Armenian nationalists enraged Mikhail Gorbachev, the then Soviet leader, by protesting over the adoption of orphans by Russians after the 1988 earthquake there. But they had law on their side.
The special courts considering Rwanda and the Balkans have expanded the jurisprudence of both genocide and crimes against humanity. The Rwanda one has stressed that the genocide charge requires proof of a plan; and that the victims were killed solely for membership of a group.
Scholars like William Schabas who heads the International Association of Genocide Scholars sees two trends in the definition of genocide.
First, judges and legal scholars have been cautious: the ICC judges, he points out, took a lot of persuading to issue an arrest warrant for genocide against Sudan’s president, Omar al-Bashir. Even the fact that they finally issued it does not mean they are persuaded that the G-word can stick.
Second, social scientists and historians have widened the use of the word, to include, say, the destruction of cultures and languages, or the decimation of tribes. Indigenous peoples, for example, have died in big numbers because they were vulnerable to the diseases borne by colonizers. The effect is genocidal, whether or not there was a plan.
And so the battle between historians and judges and lawyers. The latter must be precise because their opinions have precise effects: for historians, a perpetual testing and redefining of categories comes naturally. But that does not make the historian’s work easy or free of heartbreaking consequences: witness the endless row over the mass killings of Armenians.
But legal distinctions can be perverse. Adam Smith in his excellent book “After Genocide” details how noble humanitarian intentions have been crippled by these legal distinctions and have been insulated from local culture, community, and politics often causing perverse unintended consequences. He is an international lawyer and has worked in The Hague, the Balkans, and Africa as well as for the United Nations and the World Bank. He sees the international criminal court system as consistently running the risk of creating rather than deterring crimes, while holding the distinction that few victims or perpetrators believe it provides fairness, equity, or justice. For many in Rwanda, the former-Yugoslavia, Sierra Leone, and elsewhere this is the reality of the justice that the international community has provided for them. He does a comprehensive examination of a very complex, politicized world of international criminal justice from the ground up – from the perspective of those victims and survivors in whose name justice is being provided. He thinks a solution is placing the victims, survivors, and perpetrators at center stage and entrusting the challenging, potentially destabilizing work of war-crimes justice to the states affected by the crimes.
Note: this post has focused on the legal and political elements of genocide. But there is a fascinating e-discovery element to these war crimes proceedings, how the United Nations faces the need to manage the accumulation, organization, and access to evidence relating to war crimes. The UN team that is responsible for gathering and handling the information to be used in such trials faces the challenge of making millions of documents in many formats and many languages available to prosecutors, defense attorneys, judges, and other court stakeholders. This war crimes evidence originates in multiple formats from disparate sources, for example — TV program tapes, radio broadcasts, news and military photographs, home movies, home photos, recorded telephone communications, and other rich media formats in addition to masses of paper documents and the standard electronic text of emails and other natively electronic documents. And their vendor of choice: ZyLAB. Project Counsel has been involved in many of these aspects of the war crimes trials from the staffing side (providing attorneys, using the e-discovery software, etc.) to coverage of the trials themselves through our media division Luminative Media. We’ll detail that in a subsequent post).