Friday, December 01, 2006

The "G-word"

The "G-word" is how Samantha Power refers to 'genocide'-and it that context she refers to the hesitancy and reluctancy of officials to use the term "genocide"-often in many cases where that word fits the situation at hand.

The term genocide is emotional term, but it is also a historical and legal term as well. It is one of the very few words that was purposely and carefully created; and the word's history as a legal term is long and complex as well.

The legal term genocide is defined as one of five acts committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. It requires that the prosecution proves beyond a resonable doubt that genocide occurred and that accused intended to commit genocide.

With the Krajisnik verdict, the trial chamber found that elements of genocide were present, the accused did not have the intent commit genocide, hence his acquittal on that charge.

The acquittal of Krajisnik has provoked a varied emotional reaction from across the political/ethno-religious spectrum in Bosnia. Recently the IWPR hosted a roundtable debate over the Krajisnik verdict and the legal aspects of the genocide charge.

According to one who partook in the discussion:
"What concerns me a bit is the focus on genocide takes us away from the judgement and also in a way denigrates or doesn't give the proper attention to the findings of crimes against humanity, which I think this judgement very, very importantly underlines," said Tolbert.

He argued that just because crimes did not meet the “"very specific legal definition” of genocide, did not mean that the crimes were not “very, very serious, or perhaps every bit as serious as genocide”.

Reading quotes and blurbs about the verdict, I can certainly see his first point. Almost all of the articles focused exclusively on the genocide finding (which was understandable, especially considering many viewed this case as a sort of "litmus" test regarding the entire issue of legally proving genocide in Bosnia). But the fallout from that is that too many people, pundits, from across Bosnia missed the importance of Krajisnik being convicted of mass crimes against humanity. There was also an underlying impression again from all across the political spectrum, that not finding that Krajisnik legally guilty of genocide somehow reduced the suffering of the victims, or the criminal nature of the offenses Krajisnik was convicted of and the RS government he was a part of.

That is why I think it is important that there are discussions on the legal aspect of genocide; as I think there are many overlooked and misinterpreted elements.
For example, one of the most common misconceptions is that genocide requires the biolgogical destruction, or the attempted biological destruction of an entire people, as was the case in the Holocaust and Rwanda. But as the Srebrenica verdict showed, there can be a legal finding of genocide, without having the attempt to biologically destroy an entire people. And again, it important to note the strict legal standards needed to be met in order to find someone guilty of genocide in a court of law.

With regard to the second point, it is also interesting to note that with regards to the ICTY tribunal, that although the "Srebrenica" cases was the only case to meet the strict legal standard of genocide, the longest sentences given by the court were for cases unrelated to the Srebrenica massacre. Milomir Stakic was given a life sentence by the trial chamber for his role in masterminding the concentration camps in the Prijedor region (it was reduced to 40 years on appeal). While just last week Stanislav Galic recieved a life sentence from the appeals chamber for his role in the siege on Sarajevo, the first time a life sentence has been handed down to an ICTY defendant. So in other words, a finding of guilt with regard to genocide, has no effect on the severity (or lack there of) of the sentence given to the defendants. Of course, there are certainly other elements involved, including aggravating and mitigating circumstances for each specific case; and the defendant's specific role, acts in masterminding and instigating or taking part in, the offense, and of course there is no set standard for sentencing, so two trial chambers could come up with different sentence lengths for the same offense, based on how they interpreted the evidence. But nonetheless it shows that just a conviction of genocide has no relation to the length of sentence recieved.

An article on the roundtable can be found here. The transcript will be posted soon.

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