By Marieke Zoodsma -
Almost 25 years ago, the countries that once formed Yugoslavia were disrupted by heavy violence. The consequences of this bloody war, as I also wrote in my previous article on missing persons in Bosnia and Herzegovina, are still alive and present today. The judgment ruled in the Croatia vs. Serbia case by the International Court of Justice (ICJ) in The Hague this week was one of these echoes of the Balkan wars, except this might be seen as the final closure of one bitter chapter. The crucial and leading question that led this chapter to endure for a quarter of a decade; did either one of the parties commit acts of genocide?
For Croatia, who filed the suit at the ICJ in 1999, genocide had been committed during the three months bombing by Yugoslav forces of the town of Vukovar in 1991. Serbia, considered to be the legal successor of the Federal Republic of Yugoslavia, filed a counter-claim of genocide in 2006 for the crimes that were committed during ‘Operation Storm’ in 1995 – an operation led by the Croatian army to re-take the territory that had been lost to the Serb forces in 1991. The fifteen judges of the ICJ this week rejected both claims of genocide, thereby ending one of the most bitterly contested disputes left by the Balkan wars. Not only does this judgment open up the way to more peaceful relations between the two countries (as Serbian president Nikolić repeated in the media), it also eliminates the question of the compensation of damages, and spares the European Union the humiliation of having one member state (Croatia) and an applicant member (Serbia) state being found guilty of genocide.
The main argument for genocide to be rejected was that “the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group” was missing in both claims. This leads us to the definition of genocide, which has been controversial ever since its inception through the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. According to Article 2 of the Genocide Convention:
“… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group”
There are several striking aspects to be found in this definition of genocide that can be seen as problematic. What exactly is meant by ‘in whole or in part’, at what point is such a proportion of a group destroyed that it can be seen as ‘in part’? Also, the distinction between victim categories are rather limited by leaving out other historically targeted groups such as political or economic groups. And who is the genocidal perpetrator, the agent of destruction? Can this be one person, a group or should it be a regime? But what has often been called one of the core issues with the UN definition of genocide is its inclusion of the word ‘intent’. How does one prove ‘intent’? How does one connect a ‘genocidal intent’ to the actual events that happened on the ground? As seen in the ICJ-ruling of this week, or in others before that at the ICC (International Criminal Court) and ICTY ( International Criminal Tribunal for the former Yugoslavia ), proving intent turned out to be one of the most challenging aspects of this definition, for scientists as well as jurists in a court of law.
There is no doubt that terrible crimes have happened during the Yugoslav wars, and the ICJ judgment emphasizes that crimes against humanity did occur. However, the assumption of explicit prior intentionality as the criteria for genocide is often difficult to reconstruct or to connect to specific behaviour. Although a campaign of annihilation might be evident, intent might not be publicly declared and therefore difficult to demonstrate where no proof of thoughts exist. The only expression of a guilty state of mind would be a confession, public statements or speeches. Such expressions are rare to almost non-existent, not even for acknowledged genocides such as the Holocaust or the Rwandan genocide. The court ruling in the Croatia vs. Serbia case was therefore not very surprising, especially since no Serb or Croat has ever been charged with genocide in each other’s territory. In its decision, the court wrote, “What is generally called ‘ethnic cleansing‘ does not in itself constitute a form of genocide. Genocide presupposes the intent physically to destroy, in whole or in part, a human group as such, and not merely a desire to expel it from a specific territory.”
So where does this leave us? The obvious conclusion is that the generally used definition of genocide creates more ambiguity than it resolves. Social scientists have been trying to escape the ‘conceptual muddle’ created by the inclusion of genocidal intent in the definition of genocide by using different definitions, by excluding the word altogether or by substituting it for a different term. In the world of international criminal law, however, ‘intent’ is included in the definition of genocide that is incorporated in the statutes of the international courts, thus making it impossible to avoid the problems created by it. As Natasha Kurt, lecturer at King’s College London, rightly states; “Ultimately this case shows the politically motivated nature of the claims and counterclaims by both Serbia and Croatia, which cannot be upheld legally”.
The ambiguity of genocide has made it an attractive and thereby misused and misunderstood concept. It is considered the crime of all crimes, the denotation of absolute evil, and has therefore been applied to – justifiable or not – very different situations of mass violence. But genocide does not only consist of the killing sites where the murders were carried out. Genocide is not just an event, it is a long and enduring process – a continuum of destruction – involving many agencies, actors, and institutions. The intentionality of such actors and institutions to commit genocidal acts is, as is seen in cases before the ICJ and ICTY, highly unlikely to be proven in court. Perhaps it is thus time to depart from the narrow definition drawn in the Genocide Convention and start exploring, as social scientists have done, a broader, less political or morally challenged, definition to define the crime of genocide.