It’s too hard to prove genocide

DAVID KAYE, a visiting professor at Whittier Law School, previously served as a legal advisor to the U.S. Embassy in The Hague.

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 this week. 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 characterizing 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 Srebenica 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.

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 has rarely been prosecuted and even more rarely been a basis for conviction. Some may 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 should still 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.