Why genocide is difficult to prosecute

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."

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

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."

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