Why Genocide Is Difficult to Prosecute
Marquand, Robert, The Christian Science Monitor
As public consciousness of the grim situation in Darfur grows, the difficulty of prosecuting what is often popularly called genocide is becoming clearer.
For years, the term genocide was used to describe the ultimate crime. But that crime was rarely - if ever - charged, since international courts were too weak.
Now, the mechanics of international justice are modestly rising to confront man's inhumanity to man: take, for example, the International Criminal Court and the Yugoslavia and Rwanda Tribunals here at The Hague.
Yet at the same time, the political sensitivity surrounding a genocide charge, which requires nations to intervene under international law, is creating friction. The cases of Rwanda, Bosnia, and now Darfur demonstrate this.
Sunday, protesters in 35 nations and more than 280 US cities marched against what a UN mission calls "apocalyptic" scenes still emerging from the Darfur war, now spreading from Sudan to Chad. Protest groups, including Amnesty International, called on Britain and the US to help create a peacekeeping force.
So is Darfur a genocide? A US Holocaust Memorial Museum committee and Colin Powell have said it is. So do at least two human rights reports. One French expert, Marc Lavergne, calls it "worse than a genocide" since mass killings are not done out of racial hatred, but because Darfurians are simply "in the way" of Sudan's plans to control land.
Yet many Sudanese experts and an International Criminal Court (ICC) don't term it genocide. They say it doesn't fit the 1948 Geneva Convention definition to win a case. This requires absolute proof of "mental intent" to kill or displace based on national, ethnic, or religious identity. Hence, an ICC prosecutor this winter did not charge a Sudanese interior minister and a rebel Janjaweed militia leader with "genocide," but crimes against humanity.
'An explicit call to action'
The word genocide raises deep legal and moral conundrums in a globalizing world, experts say: The term has gained popular usage in a media age to describe mass atrocities, as in Darfur, Rwanda, Bosnia. Yet prosecutors and world courts are ever more cautious about leveling the charge, even when it may apply - since it raises a requirement to intervene.
"Genocide is an explicit call to action under the 1948 treaty, a call to prevent and punish," says Diane Orentlicher at American University in Washington. Recent court rulings show that "if you wait until there is a legal certainty to prove genocide, you have waited too long," she adds.
That's where politics enter. A party or state charged with genocide will likely be isolated and stigmatized in the global community, perhaps even making the situation worse. This is disputed on Darfur. Some Darfur activists feel Sudan hasn't been charged with genocide because that would make it impossible for governments to deal with Khartoum.
The politics of genocide rose in a ruling on Bosnia this February. The International Court of Justice (ICJ) at The Hague did not find Serbia guilty of genocide in the ethnic cleansing of Bosnian Muslims in the early 1990s. Rather, it found Serbia culpable in not preventing genocide in the Srebrenica massacre, and awarded no damages.
The ruling outraged scholars like Ruth Wedgwood of Johns Hopkins University who told the Monitor it "appeared to be a posthumous acquittal of [then President] Slobodan Milosevic for genocide. The court didn't look at a pattern of crimes in Bosnia, but selectively picked its evidence."
Early this month it came to light that ICJ judges did not read and did not seek to investigate a huge range of materials from Belgrade that were used as evidence by the UN-sanctioned Yugoslavia Tribunal, just down the street in this city.
New York Times reporter Marlise Simons wrote that the ICJ ruling "raised some eyebrows because aspects of Serbian military involvement are already known from records of earlier [Tribunal] trials. …