It’s hard to prove genocide

mns/world/10108276.html
03/02/2007 09:14 PM | By David Kaye
Los Angeles Times-Washington Post News Service

Does the international law against genocide have force today? Or is it
that genocide, a powerful political and rhetorical tool, is nearly
impossible to prove in court?

Those weighty questions are hanging over The Hague after two legal
actions recently. In one, the International Court of Justice found
insufficient evidence to hold Serbia responsible for genocide in
Bosnia-Herzegovina in the early 1990s. In another, the International
Criminal Court refrained from characterising the atrocities committed
in Sudan’s Darfur region as genocide.

The term "genocide", coined during the Nazi Holocaust of the Jews, was
given its legal definition by the Genocide Convention of 1948. The
treaty defines genocide as certain atrocities – for instance, killing
or causing serious bodily or mental harm – committed with the
"specific intent" to destroy a particular group.

Bosnia claimed that Serbia committed genocide against Bosnian Muslims
during the bloody disintegration of Yugoslavia between 1991 and
1995. Yet the International Court of Justice rejected most of Bosnia’s
contentions. With one exception – the 1995 massacres at Srebrenica
that left more than 7,000 Muslim men and boys dead – the court found
insufficient evidence of the intent to destroy the Muslim community.

With this opinion, the court has made it nearly impossible to hold a
state accountable for genocide because it required each specific crime
to be committed with genocidal intent. The court could have inferred
Serbia’s intent from the larger pattern, but instead it applied a high
standard much like that used to determine an individual’s guilt or
innocence.

At the same time, however, the court reaffirmed that states, not just
individuals, can be held responsible for acts of genocide. It
pointedly found that Serbia, in not preventing the Srebrenica
massacres, failed to meet its obligation under international law to
prevent genocide. But one cannot escape the conclusion that proving
responsibility for genocide is now an impossible task.

No accusations

Across town, Luis Moreno-Ocampo seems to have gotten that
message. He’s the chief prosecutor of the International Criminal Court
– a tribunal (which the United States does not support) devoted to
trying individuals rather than resolving claims of states. On Tuesday,
Moreno-Ocampo issued his assessment of Sudanese atrocities in Darfur –
and did not include any accusations of genocide.

Instead, Moreno-Ocampo alleges that a Sudanese government official and
a janjaweed militia commander bear responsibility for war crimes and
crimes against humanity, including brutal attacks against civilians in
Darfur. He has made a smart choice; better to prosecute these
perpetrators on provable grounds than try to make a symbolic statement
about genocide and risk losing the case. Taking these developments
together, one has to wonder whether genocide can be proved in a court
of law. It rarely has been prosecuted and even more rarely been a
basis for conviction. Some might even be inclined to do away with the
term altogether.

But that would be shortsighted. The Serbia-Bosnia decision and the
Darfur allegations should be seen for what they are: specific
approaches that are part of a wider effort to halt atrocities against
civilians. The Genocide Convention is not only a tool for
international courts. It still should spur nations to intervene to
prevent genocide.

More important, governments should get beyond the semantics. No matter
what we call them, we know horrible atrocities when we see them. Such
crimes, on their own, should be met with political, humanitarian and,
when necessary, forceful responses.

The people of Bosnia and Darfur should be able to look to other
nations for support. Clearly, they cannot rely on courts alone.

David Kaye, a visiting professor at Whittier Law School in California,
was a legal adviser to the US Embassy in The Hague.