Why genocide is difficult to prosecute
Protesters in 35 nations and more than 280 US cities rallied Sunday for protecting those being killed in the Darfur war.
As public consciousness of the grim situation in Darfur grows, the difficulty of prosecuting what is often popularly called genocide is becoming clearer.Skip to next paragraph
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For years, the term genocide was used to describe the ultimate crime. But that crime was rarely – if ever – charged, since international courts were too weak.
Now, the mechanics of international justice are modestly rising to confront man's inhumanity to man: take, for example, the International Criminal Court and the Yugoslavia and Rwanda Tribunals here at The Hague.
Yet at the same time, the political sensitivity surrounding a genocide charge, which requires nations to intervene under international law, is creating friction. The cases of Rwanda, Bosnia, and now Darfur demonstrate this.
Sunday, protesters in 35 nations and more than 280 US cities marched against what a UN mission calls "apocalyptic" scenes still emerging from the Darfur war, now spreading from Sudan to Chad. Protest groups, including Amnesty International, called on Britain and the US to help create a peacekeeping force.
So is Darfur a genocide? A US Holocaust Memorial Museum committee and Colin Powell have said it is. So do at least two human rights reports. One French expert, Marc Lavergne, calls it "worse than a genocide" since mass killings are not done out of racial hatred, but because Darfurians are simply "in the way" of Sudan's plans to control land.
Yet many Sudanese experts and an International Criminal Court (ICC) don't term it genocide. They say it doesn't fit the 1948 Geneva Convention definition to win a case. This requires absolute proof of "mental intent" to kill or displace based on national, ethnic, or religious identity. Hence, an ICC prosecutor this winter did not charge a Sudanese interior minister and a rebel Janjaweed militia leader with "genocide," but crimes against humanity.
'An explicit call to action'
The word genocide raises deep legal and moral conundrums in a globalizing world, experts say: The term has gained popular usage in a media age to describe mass atrocities, as in Darfur, Rwanda, Bosnia. Yet prosecutors and world courts are ever more cautious about leveling the charge, even when it may apply – since it raises a requirement to intervene.
"Genocide is an explicit call to action under the 1948 treaty, a call to prevent and punish," says Diane Orentlicher at American University in Washington. Recent court rulings show that "if you wait until there is a legal certainty to prove genocide, you have waited too long," she adds.
That's where politics enter. A party or state charged with genocide will likely be isolated and stigmatized in the global community, perhaps even making the situation worse. This is disputed on Darfur. Some Darfur activists feel Sudan hasn't been charged with genocide because that would make it impossible for governments to deal with Khartoum.
The politics of genocide rose in a ruling on Bosnia this February. The International Court of Justice (ICJ) at The Hague did not find Serbia guilty of genocide in the ethnic cleansing of Bosnian Muslims in the early 1990s. Rather, it found Serbia culpable in not preventing genocide in the Srebrenica massacre, and awarded no damages.
The ruling outraged scholars like Ruth Wedgwood of Johns Hopkins University who told the Monitor it "appeared to be a posthumous acquittal of [then President] Slobodan Milosevic for genocide. The court didn't look at a pattern of crimes in Bosnia, but selectively picked its evidence."
Early this month it came to light that ICJ judges did not read and did not seek to investigate a huge range of materials from Belgrade that were used as evidence by the UN-sanctioned Yugoslavia Tribunal, just down the street in this city.
New York Times reporter Marlise Simons wrote that the ICJ ruling "raised some eyebrows because aspects of Serbian military involvement are already known from records of earlier [Tribunal] trials.... In late 1993, for instance, more than 1,800 officers and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb Army, and were deployed, paid, promoted, or retired by Belgrade [and] given dual identities" through a secret office known as the 30th Personnel Center of the General Staff."
ICJ defenders say it is a civil not a criminal court, and that its purpose is to settle disputes between nations to keep amity and peace intact. Critics say the ruling seemed more about conciliation than justice.
"A lot has changed in the past 12 years; the EU is anxious to normalize relations with Serbia," says an American jurist with ties to The Hague, who requested anonymity. "I'm sure there are political pressures. The court probably didn't want to send Serbia back to the 1990s, isolate it, make it a pariah state in perpetuity.... When it came to the legal standard required to prove genocide, the court shrank."
The use of deliberate systematic measures (as killing, bodily or mental injury, unlivable conditions, prevention of births) calculated to bring about the extermination of a racial, political, or cultural group or to destroy the language, religion, or culture of a group.
Source: Webster's Third New International Dictionary