NEVER AGAIN TO GENOCIDE TRIALS
Today’s Zaman
July 31 2012
Turkey
HEIDELBERG — Rarely does one read such hopeful news: In late June,
the International Criminal Tribunal for the former Yugoslavia (ICTY)
acquitted former Bosnian Serb leader Radovan Karadžic of genocide.
That might sound like a bad thing: Karadžic, 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. Karadžic’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 Karadžic 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. But 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. But,
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 Karadžic decision show how inflated the
perceived stakes are. Some say that acquitting him denies his victims’
suffering — as if only genocide mattered. But it is only because
acknowledgement of suffering has become identified so dogmatically
with one crime that anything else seems inadequate.
The problem extends beyond Bosnia. Asking “Was it genocide?” does
little to illuminate what was done to which Armenians by which
Ottomans during World War I. Today, Turks willing to discuss or even
apologize for the massacres refuse to confess to the “supreme crime,”
but Armenians can accept no other label. Any group whose suffering
is not called “genocide” feels like a second-class victim.
This is morally perverse. It is not more wrong to kill people because
of their ethnicity than it is to kill them because of their political
beliefs, gender, or for the sheer pleasure of watching them die. Yet
this is precisely what elevating genocide presupposes.
The political cost is high. Genocide’s status eases the pressure to
intervene in crises that are “only murderous.” Yet crying genocide too
liberally quickly cheapens its value, entangling efforts to respond
to ongoing exterminations in debates about their precise legal nature.
Despite these problems, prosecuting genocide might be worthwhile if
it were the only way to hold mass murderers accountable. But it is not.
Buried beneath the headlines about Karadžic’s acquittal are those
other charges: He will be tried for the same acts, but classified as
crimes against humanity and war crimes. If the prosecution produces
enough evidence, Karadžic will be sentenced for the same shelling
and sniping, the same killings and rape. All that will be lost is
the opportunity to label those acts “genocide.”
This is the real reason to drop “the crime of crimes”: its redundancy.
There is no act of genocide that is not also another crime. Genocide
is a crime of characterization, an interpretation. Rather than parse
killers’ motives, we better affirm our own values by denying that
any reasons could ever justify such acts.
Genocide is a socially meaningful way to describe a species of
annihilation; it is the legal category that we must question. We need
international crimes that are minimally characterized — commonsensical
analogues of domestic crimes — with as little room for interpretation
as possible. In court, we need not know why men slaughter to condemn
them for it.
So let us end genocide as we know it — by stopping genocides, but
also by abandoning the crime of genocide. Let us call its constituent
evils by their ancient names. That will do for Karadžic, when judgment
comes: He is still on trial, and we can still name his crimes.
*Timothy William Waters , a professor at Indiana University Maurer
School of Law and a Humboldt Fellow at the Max Planck Institute for
Comparative Public Law and International Law, worked at the ICTY on
the trial of Slobodan Miloševic, on which he is editing a forthcoming
book. © Project Syndicate 2012