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.
from the April 30, 2007 edition
Page 3 of 4
"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."
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.
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