A Crime By Any Other Name

Pol Pot's Khmer Rouge regime is responsible for killing between 1.7 to 3 million people; but did they commit genocide?

At first glance, that question might seem a bit rhetorical or perhaps even offensive; what other crime, or indeed word, can capture the killing of 20% of Cambodia's population? Yet, for all of its undeniable brutality, the killings by the Khmer Rouge might not legally be considered genocide.

In popular discourse, genocide is an emotional, and sometimes politically charged word that has become synonymous with the 'ultimate evil,' the 'crime of crimes.' Under this understanding of genocide, there is no doubt that the Khmer Rouge committed genocide.

Yet, genocide has a specific legal meaning. It is the intent to destroy in whole or in part; members of a racial, ethnic, religious or national group. In the case of Cambodia, with a few noted exceptions, victims were persecuted and singled out on the basis of their political viewpoints (or perceived viewpoints) and socio-economic standing. Groups that are not mentioned under the Genocide Convention. Under a strict legal interpretation of genocide, the Khmer Rouge is certainly responsible for mass crimes against humanity; but might not be guilty of genocide.

With members of the Khmer Rouge being tried for crimes during the regime; questions of the legal definition of genocide and its relevance to Cambodia are not just the subject of academic and legal debates; but have real world consequences with far reaching implications for how genocide is defined and understood; both in legal and popular terms.

The Cambodia case outlines the inherent limitations in the genocide convention and its narrow definition of 'group'; and there is strong argument to be made that the definition should be expanded upon to include (but not limited too) political, social, economic and sexual groups as well. Indeed, political groups were originally under consideration to be a protected group; but under protest from the Soviet Union, it was removed, leaving the protected groups to the ones mentioned above.

But changing the genocide convention and expanding upon it does not seem to be a rather likely option. Perhaps there needs to be a new understanding of genocide, crimes against humanity and our response to such crimes. Instead of having genocide be equated solely with the 'ultimate evil'; perhaps we should understand genocide as being a specific type of 'evil'. And that mass crimes against humanity, such as Stalin's Gulag System or Pol Pot's "Killing Fields" are just as worthy of our outrage and intervention as genocide.

ENOUGH

An organization focusing on preventing mass atrocities and genocide in Africa.

Genocide Acquittal Provokes Legal Debate

Dr Robert Cryer, an expert on international criminal law from the University of Nottingham, is also concerned that undue emphasis is placed on genocide.

In relation to the ICJ ruling, he said, “It’s important to remember that just because an atrocity may not meet the strict definition of genocide, that doesn’t make it acceptable.”

Read the full article here

Defining genocide and the law

The opinion piece of Martin Shaw in The Guardian.


These debates are nothing new, during the Milosevic case, there were similar debates over whether the Prosecution had proven Milosevic's legal guilt for genocide; and whether the bar to legally prove genocide was impossible to meet.

Walking the tightrope

Although dealing with different evidence, different "defendants" (individuals vs. state government) and different courts; the ICJ mixed verdict very much mirrors that of the ICTY's verdicts; which found that only Srebrenica constituted an act of genocide.

With regard to the Jelsic case dealing with atrocities committed in Brcko, the trial chamber found:
"With regard to the first option, the Trial Chamber was not satisfied that a global genocide, that is a genocide in the whole Brcko region, had been demonstrated beyond a reasonable doubt. It nevertheless underlined that this finding in no way negated that such a genocide might have taken place in this region, but only that it had not been established to the satisfaction of the court."

While the trial chamber at the Stakic chamber found that:
"Despite the scale of the atrocities, after a careful analysis of the facts and the state of mind of the actors, the Trial Chamber was unable to infer the necessary dolus specialis for genocide, this dolus specialis - or specific intent to destroy, in whole or in part, a group as such - being the core element of the crime. Thus, the Trial Chamber was not able to come to the conclusion, based on the evidence in this case, that Dr. Stakic or other actors had the necessary specific intent."

And of course, the Krajisnik verdict this past fall was a similar verdict; with the trial chamber confirming that that acts of genocide occured but that there was not the intent to commit genocide, hence his acquittal.

The findings of the ICTY with regards to the entire Bosnia region throughout the entire war, seems to be saying, that genocide occured, but that there was no specific intent for it to occur; or that genocide might of, or probably did occur, but it wasn't proven beyond a resonable doubt. I cannot comment on these verdicts from a legal perspective and I make no qualms about their soundness of their decisions but from a personal personal perspective these verdicts lead to many more questions than answers.


Meanwhile the blogging and internet news world is filled with some interesting comments on the ICJ's mixed verdict. Yakima Gulag gazett contains some interesting comments on the middle of the road verdict, which said that Serbia is not guilty of genocide; but is guilty of failing to prevent genocide.

Meanwhile, Jakob Finci, president of the Jewish community in Bosnia, told BIRN that:
"The verdict says genocide wasn't orchestrated from Serbia but committed by a number of individuals controlled by the government,”
"As such, the verdict has made the delicate situation in the region even more complicated, he went on.“It makes one wonder what exactly the ICJ tried to say in its final statement,” he continued. “On the one hand, it seems that the court wanted to acknowledge that genocide did take place while on the other, it apparently sought and found an option not to blame Serbia for it and pin it on individuals tried and convicted by ICTY,” he added.“The verdict has failed to resolve any of the controversial issue Bosnia and Herzegovina has encountered since 1996; on the contrary, it has made all our problems even more complex,” Finci concluded.

Reaffirmation of genocide

A bit lost in the shuffle is the ICJ's reaffirmation of the ICTY's decisions in numerous cases that genocide occured at Srebrenica. I would like to say that such a ruling would finally shut up those who claim that genocide did not occur in Srebrenica, but I have been around too long to be that naive.

As the President noted reading the verdict summary:

Judge Higgins said: “The acts committed at Srebrenica . . . were committed with the specific intent to destroy in part the group of the Muslims of Bosnia-Herzegovina as such, and accordingly. . . these were acts of genocide committed by Bosnian Serb forces. The court has found that [Serbia] could, and should, have acted to prevent the genocide, but did not.”

Unfortunately, Mr. Dodik has apparently failed to recieve a copy of the ICJ's verdict, or of the ICTYs verdicts as well, as he apparently still believes that genocide did not occur at Srebrenica.

A "genocidal" people

A number of people on the political fringes have tried to show that a guilty verdict against Serbia would mean that Serbia is a “genocidal nation” and that the average Serb will have to bear a cross as being labeled part of a “genocidal people.”
While such phrasing does make for good headlines and appealing sound bites, not to mention, good political slogans to use on the latest campaigns; that view completely misses the point of the trial and the verdict. The trial was never about branding the Serbian people with the red letter “g” for genocidaire. The trial was about whether the Serbian government, through its organs and personnel committed genocide. Even if the verdict affirmed all of Bosnia’s claims; it still would not have labeled the Serbian people as being genocidal. As Andras Riedlmayer explains here, in a way the the ICJ trial is not too different in concept from the trials of citizens suing towns or city halls for discrimination. An affirmation that one was discriminated against, does not render every single person in that town guilty of discrimination; but the specific people and city government institutions that are responsible for said act of discrimination. Nevertheless that view is perhaps too nuanced and rational for some nationalist politicians who need to see everything in such over generalized and dramatic terms in order to cause enough worry and fear amongst the average person that usually leads to such nationalist politician being elected in the first place.

Reactions to the ICJ Verdict

Of course by now the verdict is in, and I’m sure everyone has an opinion, whether they’ve read the judgment or not, of the decision. And certainly there have already seemed to be many interesting commentary and critiques on various legal aspects of the mixed verdict.
Yet, one aspect that has stood out to me is the reaction of both Bosniak victim groups and ultra nationalist Serbian groups. The reactions of anger and jubilation are perhaps understandable and not surprising respectively; and I’m certainly not denying anyone, especially victims, their right to their feelings and opinions on this very important subject. However, what concerns me, is not the opinions or the emotional responses to the verdict; what concerns me is that both of the polarized reactions seemingly stem from the same wrong interpretation of the ICJ verdict to mean that the victims did not suffer to the degree that they did; or that both parties are equally guilty of atrocities.

The ICJ must apply strict burden of proof to the findings, and not look at everything from merely an historical or general point of view. Take for example, the finding that only Srebrenica was legally found to be an act of genocide. With regard to the entire Bosnia region; the ICJ decided, much like the Krajisnik judgment did that; that “acts of genocide” occurred; but that the Plaintiff failed to prove the essential “intent to destroy in whole or in part”; aspect of the crime, which is need to secure a genocide conviction. The ICJ ruling itself noted that it looked at the issue of genocide from a very strict legal standpoint, and not from a more inclusive interpretation of genocide. A legal finding that Serbia is not guilty of genocide, or that genocide was not legally proven to have occurred over the entire region should not be interpreted to say that the Serbian government under Milosevic is innocent of complicity in serious war crimes and crimes against humanity that occurred in Bosnia (the trial only dealt with genocide, not with other, extremely serious war crimes). Most importantly, the findings by the ICJ that genocide for example did not occur in Zvornik for example; should in no way be interpreted as to say that the people of Zvornik were not subjected to appalling crimes, systematically organized and carried out, simply because of their ethnicity. In fact, although the ICJ verdict only deals with the issue of genocide; there are several key phrases about other war crimes committed during the conflict. These findings have been somewhat been neglected from analyses, and they bear repeating:

It finds that it is established by overwhelming evidence that massive killings
in specific areas and detention camps throughout the territory of Bosnia and
Herzegovina were perpetrated during the conflict. Furthermore, the
evidence presented shows that the victims were in large majority members of the
protected group, which suggests that they may have been systematically targeted
by the killings.”

"the Court considers that it has been established by fully conclusive evidence
that members of the protected group were systematically victims of massive
mistreatment, beatings, rape and torture causing serious bodily and mental harm,
during the conflict and, in particular, in the detention camps
The court makes similar findings with regard to cultural destruction. These findings also mirror the Krajisnik verdict, which while, as everyone knows, acquitted Mr. Krajisnik of genocide; convicted him of extremely serious crime against humanity crime of extermination, among with many others. The findings in the Krajisnik case also lay out the systematic nature of the war crimes committed against the Bosniak (especially) and Bosnian Croat victims; as well as the fact that these crimes were not merely the “natural” occurrence that happens in civil war, but was highly organized and planned by the RS government under Karadzic. While it is understandable that everyone’s focus is on the genocide issue; that has unfortunately allowed other, extremely serious issues to slip under the radar.

More disturbing however, is that the some of the victims feel, or even worse have been implicitly or explicitly told, perhaps even by people who believe that they are representing their interest; is that the ICJ verdict is a commentary on their victimhood. It is absolutely not. The ICJ ruling is a legal verdict as to the evidence submitted in court. But even so, the ICJ verdict does recognize the enormous suffering of the victims. The legal finding that there was no genocide in Omarska is in no way a statement that the victims of Omarska did not suffer immeasurably. Just like for example, the finding that Srebrenica met the legal standard of genocide in no way brands every Bosnian Serb a “genocidaire” or takes anything away from innocent Serb victims of the war; the legal finding that genocide did not occur in Omarska, in no way insinuates either legally or morally, that the crimes committed by the parties were equal, and that everyone is equally guilty of war crimes and atrocities; or that they were not victims of very heinous and highly organized war crimes. Both the ICJ and ICTY rulings have poked gapping holes in the moral equivalency theory, while at the same time acknowledging the various war crimes that took place during the war.


Beyond just victim groups, I’m also concern that the ultra nationalist groups have wrongfully interpreted the verdict much the same way, that the victims did not suffer to the degree that they did or that everyone is equally guilty of war crimes. I’ve already shown snippets of the ICJ’s ruling with defeat that view; nevertheless I’m concerned that some will see the verdict as cause for celebration. Personally, I don’t think that there is any aspect of this verdict that can cause anyone to celebrate. While the judgment found that the Serbian government is not directly responsible, nor complicit in genocide that occurred; it also found that the Serbian government, because of political, financial and military links to the Bosnian Serb government had a unique influence on the Bosnian Serb government, and that they could of and should of used it to prevent genocide from occurring in Srebrenica, but did not. To me such a verdict is more a cause for direct action to bring Mladic to the Hague and serious inquiry and reflection over the role of the Serbian government to not prevent genocide rather than a cause for celebration. The reaffirmation that the crime of genocide occurred at Srebrenica, by itself should be cause for reflection, not celebration at the verdict that Serbian government is not responsible for the genocide.

Again, my “concern” is certainly not with those who have critiques of the verdicts, or who have personal opinions, whatever they may be, of the verdict or of the issues brought up; my own personal view for example, is that the 1992-1995 war was genocidal in nature; but of course history has a different burden of proof than a court of law. My concern lies with those who will see this verdict not as a legal finding based specifically on the evidence submitted in court as to whether the Serbian government is guilty of genocide; but on whether the victims suffered and to what degree they suffered. And that is something that can never be measured.

An interview with Taner Akcam

Reading this insightful interview with Taner Akcam, I was struck by the similarities between the overtly pervasiveness of genocide denial in Turkey, amongst both the government and the population at large; and the genocide denial that still occurs in the Americas over the genocide of the native populations from the time of the Conquistadors to the 20th Century forcible transfer of the Native American children from their tribal lands into institutions.

In both situations, the nation-state that arose is linked to the genocide of the minority population. The democratic Turkish republic was established by the same political party that oversaw the genocide. In the United States, "manifest destiny" which is synonymous with US physical expansion, as well as political and economic expansion, came at the expense of the Native American tribes living on the land; who were either killed; driven into exile or culturally annihilated by being forced to assimilate into the larger dominant Protestant-Anglo culture.

As an American, knowing that some officials in my government committed genocide (even if it was "my " government from decades, even centuries before my birth) is not easy; and I'm sure that there are probably many Americans (and perhaps Europeans as well) who contend, despite the evidence to the contrary that the native populations of the Americas were not subjected to a genocide. Just as there are many Turks who contend there was no genocide of the Armenians.

Nevertheless, denying these atrocities, or at the very least; not willing to study them, serves not only to victimize the victims all over again; but in the end, it hurts the entire society at large. Recognizing the genocide against the native populations in the United States, and the Americas at large does not make me "anti-American" nor, does recognition by someone in Turkey of the genocide perpetrated against the Armenians make him a "traitor" or "anti Turk." In fact, truth be told, that person probably is much more patriotic, in the purist sense of the word; that the nationalists who respond with denial in an attempt to "protect the country."

Furthermore, an important aspect of understanding the genocide is not only understanding the perpetrators and the victims; but those who stood up against the horrors. In Turkey, as Akcam explains in his interview, there were those who who tried to stand up against the government and protested the massacres of their Armenian friends and neighbors. Surely, they too deserve to be recognized; as it seems to me, that they embody a truer sense of patriotism than the thugs who violently attack those seeking to tell the truth ever could.

Editorial: Trading Genocide for Independence

Remember years ago when the Balkans were covered in "Wanted" posters featuring Karadzic and Mladic's mugs on them?
Yeah, well, it seems as if the one time "Most Wanted Men in the World" will continue to evade capture; as the EU has become much more lax over demands that Mladic be sent to the Hague; in exchange for Serbia not blocking Kosovo's "independence."
Editorial