Timothy William Waters: Never Again to Genocide Trials

HEIDELBERG – Rarely does one read such hopeful news: in late June, the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted former Bosnian Serb leader Radovan Karadžić of genocide. That might sound like a bad thing: Karadžić, who once warned Bosnia’s Muslims that war would lead them down the road to hell, surely deserves to be sentenced for the acts of which he was just acquitted – murder, siege, and slaughter almost beyond naming. But for genocide? Better not.

In fact, we would be better off getting rid of genocide as a crime altogether. The legal concept of genocide is so incoherent, so harmful to the purposes that international law serves, that it would be better if we had never invented it. Karadžić’s acquittal – precisely because he is still on trial on other counts related to the same atrocities – is an opportunity to move toward the sensible goal of retiring it.
This was not just any acquittal. The ICTY decided that, after a two-year trial, the prosecution had not presented enough evidence for any judge to find Karadžić guilty of genocide early in the Bosnian War (he faces a separate count for the July 1995 massacre at Srebrenica, and the prosecution is appealing the acquittal). The court has been consistent: with just a few trials left, it has issued no convictions for genocide apart from Srebrenica.

The broader charge was always risky, but, for many advocates, it is an article of faith that genocide was Bosnia-wide. Still, the problem with genocide is not narrow judging, but that the crime itself is doubly irredeemable: it is defective in its definition and troubling in its moral and political effects.

Genocide requires “special intent.” A genocidaire must intend both to commit a defined crime and to destroy the victim’s group. In domestic law, the motive behind a crime is usually irrelevant – and for good reason. People have complex reasons for acting illegally. War – a collective enterprise in which killing your enemies can be legal – increases that complexity.

Trying to prove genocidal intent has drawn prosecutors into thickets of interpretation – such as giving lessons on the history of Greater Serbia – that distract from trials’ forensic core and encourage their politicization, as defendants “hijack” proceedings with their own justificatory glosses. But the alternative – relaxing evidentiary standards – would undermine values such as legality and reasonable doubt, which are essential to a fair trial. Genocide’s stringent requirements mean that it is – and should be – difficult to convict a defendant.

That is consistent with our intuition that genocide is unique. But, while granting supreme status to the “crime of crimes” may seem morally attractive, the gravitational effect of genocide distorts international law and politics.

Genocide makes other crimes seem less important. When Goran Jelisić – a camp guard in Bosnia who called himself “the Serb Adolf” – was acquitted of genocide in 1999, one might have concluded from the prosecution’s stunned reaction that Jelisić had walked free. In fact, he confessed to 31 other counts covering the same underlying acts, and was sentenced to 40 years in prison.

Likewise, reactions to the Karadžić decision show how inflated the perceived stakes are. Some say that acquitting him denies his victims’ suffering – as if only genocide mattered. But it is only because acknowledgement of suffering has become identified so dogmatically with one crime that anything else seems inadequate.

The problem extends beyond Bosnia. Asking “Was it genocide?” does little to illuminate what was done to which Armenians by which Ottomans during World War I. Today, Turks willing to discuss or even apologize for the massacres refuse to confess to the “supreme crime,” but Armenians can accept no other label. Any group whose suffering is not called “genocide” feels like a second-class victim.

This is morally perverse. It is not more wrong to kill people because of their ethnicity than it is to kill them because of their political beliefs, gender, or for the sheer pleasure of watching them die. Yet this is precisely what elevating genocide presupposes.

The political cost is high. Genocide’s status eases the pressure to intervene in crises that are “only murderous.” Yet crying genocide too liberally quickly cheapens its value, entangling efforts to respond to ongoing exterminations in debates about their precise legal nature.

Despite these problems, prosecuting genocide might be worthwhile if it were the only way to hold mass murderers accountable. But it is not. Buried beneath the headlines about Karadžić’s acquittal are those other charges: he will be tried for the same acts, but classified as crimes against humanity and war crimes. If the prosecution produces enough evidence, Karadžić will be sentenced for the same shelling and sniping, the same killings and rape. All that will be lost is the opportunity to label those acts “genocide.”

This is the real reason to drop “the crime of crimes”: its redundancy. There is no act of genocide that is not also another crime. Genocide is a crime of characterization, an interpretation. Rather than parse killers’ motives, we better affirm our own values by denying that any reasons could ever justify such acts.

Genocide is a socially meaningful way to describe a species of annihilation; it is the legal category that we must question. We need international crimes that are minimally characterized – commonsensical analogues of domestic crimes – with as little room for interpretation as possible. In court, we need not know why men slaughter to condemn them for it.

So let us end genocide as we know it – by stopping genocides, but also by abandoning the crime of genocide. Let us call its constituent evils by their ancient names. That will do for Karadžić, when judgment comes: he is still on trial, and we can still name his crimes.

Timothy William Waters, an associate professor at Indiana University Maurer School of Law, is a Humboldt Fellow at the Max Planck Institute in Heidelberg.