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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.

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(Serb fugitives Radovan Karadzic and Gen. Ratko Mladic, architects of ethnic cleansing in Bosnia, still face genocide charges at the tribunal.)

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Tension between peace, justice

UNHCR head Louise Arbour, who as chief prosecutor at the Yugoslav tribunal charged Mr. Milosevic with genocide, told the Monitor that courts should resist politics: "At the end of the day, there's going to be tension between peace and justice. By saying that genocide is a destabilizing charge [to the country accused], you politicize the justice issue," she said. Regarding Darfur, she said, "The UN embraced a responsibility to protect citizens from genocide…. But in Darfur, [head of the ICC investigation Antonio] Cassese looked for three months with a large staff and could find no genocidal intent. He couldn't find a case."

That document, "The 2005 Report of the International Commission of Inquiry on Darfur to the UN Secretary-General," finds that the brutality in Darfur is for "purposes of counter-insurgency warfare."

Yet legal scholar Nsongurua Udombana at Central European University in Budapest, Hungary, states bluntly that the Cassesse report finds no genocide in Darfur – to avoid an obligation to act.

In a closely argued essay, "An Escape from Reason" in the Spring 2006 issue of The International Lawyer, he says Darfur is prima facie far closer to genocide than the report finds.

One conundrum: "It is impossible to determine genocide while it is actually happening," Mr. Udombana says. He adds, "By not calling it a genocide, it appears to make the issue less urgent than it actually is."

Indeed, mass killings can create new on-the-ground dynamics, he suggests: Whether or not precise causes of intent can be determined by outside investigators, still, as rapes and murders continue on their bloody way, war can breed an intent to exterminate on the grounds of group identity.

He agrees with Samantha Powers, author of "The Age of Genocide," that Darfur has spawned a dynamic in which Arabs are killing Africans, and lighter skinned and darker skinned groups are set against each other. He says a confession by a high ranking Sudanese official isn't needed to prove genocidal intent. It can be shown via a common standard of "practice and pattern" of crime.

Two motives in prosecuting

Mr. Lavergne of the National Center for Scientific Research in Paris says prosecuting mass crimes boils down to two often different motives: an effort to change behavior, or an effort to punish. In the midst of a nightmare like Darfur, he says, a genocide charge may not be the best way to change behavior, though he admits the problem is ambiguous.

He also questions if Darfur is a genocide. The extermination is not aimed at Darfurian identity: "Darfurians who live in Khartoum are not targeted," he notes.

For years "genocide" was a sanctified word, emerging from the Holocaust, and it defined mass atrocities like the Armenian genocide, or the killing fields of Pol Pot in Cambodia. But its popular use rose in the midst of the Rwanda and Bosnia wars.

French scholar Jacques Semelin, author of the book "Purify and Destroy: The Political Uses of Massacres and Genocide," notes that "In Nuremburg, the charges were crimes against humanity. Genocide didn't come into the legal framework until 1948 in Geneva."

Bosnia was an early instance of systematic mass killings in close proximity to a region, Europe, with an incorporated value system based on history that contained an assumption that such crimes would "never again" take place.

Reports of mass killings along the Drina River in 1992, with Bosnian Muslim villages purged and teachers and elders shot, created a dilemma for Europe and the US. The US State Department's initial downplaying of killings and prison camps led one mid-level US diplomat, Richard Johnson, to write "The Pin-Stripe Approach to Genocide" – an early effort to pair the term with an event that seemed to warrant it.

At the time, little notion existed of international courts as a tool to deal with mass crimes. That has changed. The Rwanda and Yugoslavia tribunals, the 1998 Treaty of Rome, the decision of the UN Security Council to empower indictments on Darfur by the ICC, the pressure on Serbia and Croatia to hand over war criminals – have created pressure on regimes to change behavior, though not a preventive one.

For John Packer of Human Rights Internet in Ottawa, the world is in an "awkward moment" between the old Westphalian system of adjudication, "based on sovereign states and designed to create peace and stability between them, and a new developing model of international law."

The ICJ ruling on Bosnia "brings this awkward moment into relief," he says. "The court was caught willfully disregarding evidence showing Serbia's culpability, to avoid being put in a difficult spot."


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