Genocide is redundant: the long and the short of it according to law professor

Radovan Karadzic

Referring to ICTY’s Radovan Karadzic trial and the June 28 acquittal of one charge of genocide pertaining to crimes committed by Serbs across several municipalities between March and December 1992 in Bosnia and Herzegovina, Timothy W. Walters, associate professor at Indiana University Maurer School of Law seems to believe that by trying in courts for genocide, “the crime of crimes”, the individual crimes committed under the umbrella of genocide (mass murder, torture, rape, destruction, ethnic cleansing, persecution, hate …) don’t really get their deserved attention and their gravity becomes lost in the label of genocide.

He seems to hold that genocide is complicated, not provable and redundant. The world should do away with the concept of genocide, he promotes.

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”.

While Walters’ write-up tosses about legal requirements of criminal courts, in pursuit of convictions for genocide he downplays the critically important motive and intent of the crime. He does that to the point of cynicism when it comes to presentations in court of moral and political roots holding the key to genocidal motive and intent. He seems to hold that the history of Greater Serbia movement is unimportant, gives way to individual interpretations that have no place in a criminal court and has no place in the ICTY trials for genocide.

Motives play a very large part in the committing of any crimes and in the crime of genocide those motives are, I would argue, as large and as repugnant as its constituent crimes themselves. While motives are not an actual part of the crime committed they are the driving force of crimes and, therefore cannot be disregarded in a court of criminal justice.

Motive is the cause, the reason in the background of person’s life that moves him or her to certain actions.

Intent, on the other hand, is differentiated from motive in that it is synonymous with mens rea (guilty mind) – a specific mental process to commit a crime.

It would seem that Walters ascribes the existence of subjective interpretation of Greater Serbia ideology without giving this subjective interpretation the objective weight it has in courts of criminal law of the civilised world. The statutory framework in most of the civilised world charges the jury or judges with the responsibility of deciding whether the person charged with a crime did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Certainly, in the case of Serb madness in Croatia and Bosnia and Herzegovina (1990’s) there was no difference in the politically driven intent or motives than what these were in the genocidal intents of the Nazis (WWII), the Pol-Pot regime (1970’s), in Rwanda (1990’s) … the population of Croatia and Bosnia and Herzegovina was much smaller comparatively, but the effect of the motive and intent being put in action was the same. It was genocide.

Certainly the intent of the Serb aggression was to materialise Greater Serbia ideology across the territories of Croatia and Bosnia and Herzegovina through heinous crimes.

Walters seems to overlook the fact that the ideology of Greater Serbia indisputably shaped beliefs of an overwhelming number of Serb nationals throughout the region of former Yugoslavia and beyond.  The ideology of Greater Serbia strongly includes the pursuits where in any area or pockets of territory outside Serbia, which Serbs populate with a majority, must be Serbian territory. These beliefs and intents, in simple terms, were the main ingredient of Serb aggression in Croatia and Bosnia and Herzegovina with the merciless acts of mass murders, torture, rape, persecution, ethnic cleansing of non-Serb population…

Walters to my mind is alarmingly wrong when he claims that individual crimes committed lose out under the label of genocide. I beg to differ: people are no sheep; they understand and see all the crimes that constitute the concept of genocide. If one removes the word and concept of genocide then the perpetrators of those crimes that constitute genocide win in the end. They become known as just criminals and they are, in the mind of humanity, much worse than that – they commit heinous crimes in order to give life to a political ideology.  Surely, even Walters can see that, despite his attempts to marginalise the gravity of Greater Serbia ideology in the Balkan War of 1990’s?

But maybe not. Maybe Walters condones the ideology of Greater Serbia? That could perhaps be sensed in his New York Times article in 2007 in which he suggests that Kosovo should be partitioned and the part of it where Serbs live in majority should be sectioned off and attached to Serbia. Ina Vukic, Prof. (Prof); B.A., M.A.Ps. (Syd)

Related posts: Carnage in Brisevo & Acquitting Radovan Karadzic of one charge of genocide

Comments

  1. Well, the ICTY are certainly leaning in his direction, I’m afraid.

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  2. Too much political interference in the ICTY, and quite frankly the Serb propaganda and defense strategy has worked brilliantly to blunt the court.

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  3. As a mother, my heart goes out to all of those long suffering mother’s of Croatia, Bosnia and Herzegovina who are still grieving at this very moment the loss of son’s, daughter’s and husbands, during Karadzic’s reign of terror during the 1990’s. For them to hear the decision of acquittal by the ICTY regarding one count of genocide must be horrendous!

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