{"id":117,"date":"2017-05-16T14:56:30","date_gmt":"2017-05-16T18:56:30","guid":{"rendered":"https:\/\/www.nlg.org\/nlg-review\/?post_type=article&p=117"},"modified":"2017-05-18T16:21:49","modified_gmt":"2017-05-18T20:21:49","slug":"addressing-the-icty-after-prosecutor-v-radovan-karadzic","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/nlg-review\/article\/addressing-the-icty-after-prosecutor-v-radovan-karadzic\/","title":{"rendered":"Addressing the ICTY after Prosecutor v. Radovan Karadzic"},"content":{"rendered":"

By Alan W. Clarke & David Gespass<\/strong><\/p>\n

Introduction<\/strong><\/p>\n

A quarter century after mass atrocity crimes raged throughout Bosnia and Herzegovina (BiH),2 a sputtering International Criminal Tribunal for the Former Yugoslavia (ICTY) has belatedly convicted Radovan Karad\u017ei\u0107\u2014\u201cthe Butcher of Bosnia\u201d3 and former President of the breakaway Republika Srpska. Sentenced to 40 years imprisonment,5 his crimes6 include some of the most vicious and blameworthy known to international criminal law:<\/p>\n

    \n
  1. Crimes against humanity, including extermination, persecution, and murder;<\/li>\n
  2. War crimes, including grave violations of international humanitarian law and;<\/li>\n
  3. Genocide, \u201cthe crime of crimes.\u201d7<\/li>\n<\/ol>\n

    The Balkan wars of those years roiled Europe and spawned the term \u201cethnic cleansing,\u201d though the practice had had a long and sordid history.8 There were almost daily allegations of war crimes by and against the various national groups. Among the most serious were those against three princi\u00adpal Serb leaders, Slobodan Milo\u0161evi\u0107, who was president of Serbia, Ratko Mladi\u0107, a Serb general, and Karad\u017ei\u0107. Milo\u0161evi\u0107 died in custody before his trial was completed and Mladi\u0107\u2019s case is pending. Karad\u017ei\u0107 was convicted of genocide for the slaughter of thousands of Bosniak Muslim men from adolescence to old age at Srebrenica. He was not convicted of genocide for events in several smaller municipalities which were of the same character, but on a smaller scale. We will focus here on the genocide acquittals and the danger of the precedent they set.<\/p>\n

    Deciding what is, and what is not, genocide raises prickly questions. On the one hand, if the definition is too narrow it can provide a degree of impunity for perpetrators of this most inhuman of atrocity crimes.9 On the other, too broad a definition would threaten to trivialize the offense. The popular understanding of genocide provides the rough parameters of a definition but, in today\u2019s world at least, the ultimate decision will be left, for better or worse, to judges. If international criminal courts are to have any credibility, the defense lawyers representing those accused of war crimes and crimes against humanity must be talented and thorough. Anything less than an aggressive defense that insures the rights of a defendant accused of particularly heinous crimes inevitably breeds distrust in the outcome.10\u00a0 Lawyers worth their salt will look for every possible way to show their clients\u2019 actions, even if murderous or otherwise criminal, did not amount to genocide. Because of this rigorous testing within the crucible of a vigorously contested trial, the definition of \u201cgenocide\u201d must be sufficiently precise to yield convictions where the conduct in question is both reasonably provable and sufficiently heinous.<\/p>\n

    While the lay public may think Justice Potter Stewart\u2019s definition of pornography (\u201c. . . perhaps I could never succeed in intelligibly [defining hard-core pornography]. But I know it when I see it .\u2026\u201d),11 would suffice, that is not adequate for defining any crime, let alone one so serious as genocide. It is, therefore, important to review decisions that do so\u2014to applaud their insights and to criticize their shortcomings\u2014in an ongoing effort to find the correct balance between impunity and over-inclusion.<\/p>\n

    An appropriate source to start this inquiry is Raphael Lemkin, who coined the term in 1943. The next year, he published Axis Rule in Occupied Europe.<\/em>12<\/em> In that book, reference was made to \u201cgenocide\u201d for the first time in print. He expounded on the need for the term and its implications in a magazine article two years later.13 It is worth considering Lemkin\u2019s argument as to why the term was needed and what it meant, for guidance as to what it means\u2014and should mean.<\/p>\n

    Lemkin finds that \u201cmass murder\u201d is inadequate because \u201cit does not connote the motivation of the crime, especially when the motivation is based upon racial, national or religious considerations.\u201d14 On the other hand, he argues that using terms suggesting national dominance by a stronger nation over a weaker one (e.g. \u201cGermanization\u201d back then, \u201cethnic cleansing\u201d in the Balkans) is \u201cinadequate, since it does not connote biological destruction.\u201d15 This has been codified in the Convention Against Genocide.16 The key provision in Article II is that there be specific \u201cintent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.\u201d17 Such intent must be manifested by killing or causing serious bodily or mental harm to members of the group, imposing conditions of life calculated to result in destruction of the group, in whole or in part, imposing measures to prevent births within the group or transferring children to another group.18<\/p>\n

    Notably, Lemkin believed that genocide should include cultural, as well as physical, destruction. A nation or ethnicity can be destroyed if any evidence of its peculiar cultural identity\u2014religion, cuisine, music, art, etc.\u2014is wiped out. Despite his best efforts, however, cultural genocide has not been included in the definition, even though an individual\u2019s entitlement and, by extension, a society\u2019s, to their particular culture are recognized as human rights.19\u00a0 Nevertheless, this concept was not included in the Convention on the Prevention and Punishment of the Crime of Genocide, which defined it as committing<\/p>\n

    any of the following acts . . . with intent to destroy, in whole or in part, a na\u00adtional, ethnical, racial or religious group, as such:<\/p>\n

    (a) Killing members of the group;<\/p>\n

    (b) Causing serious bodily or mental harm to members of the group;<\/p>\n

    (c) Deliberately inflicting on the group conditions of life calculated to\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 bring about its physical destruction in whole or in part;<\/p>\n

    (d) Imposing measures intended to prevent births within the group;<\/p>\n

    (e) Forcibly transferring children of the group to another group.\u201d20<\/p>\n

    In particular, \u201cin whole or in part\u201d is unsettled in its application and is inherently ambiguous. In general, the language has been interpreted to mean in whole or in substantial part. Even with that modification, vagaries poten\u00adtially remain. Must the intent be to eliminate the group universally, or can it be limited to a particular location? If so, could that location be as small as a neighborhood or must it be something larger? If larger, does it have to be the size of a country or can it be something smaller?21 One can say that answers to these questions should be based on what is reasonable, but some precision is necessary. At the same time, too much precision has its own problems.<\/p>\n

    Consider this analogy. The Supreme Court has long held that government officials who are sued are entitled to \u201cqualified immunity\u201d from suit unless they have violated a plaintiff\u2019s clearly established constitutional right.22 A right is clearly established if prior court rulings have determined it to be so. The Eleventh Circuit held that to mean that a prior case with almost identical facts must have so held. In Hope v. Pelzer,<\/em> Alabama prison officials were sued for handcuffing inmates who refused to work while chained to hitching posts for extended periods. Because there was no such conduct previously litigated, the Eleventh Circuit found the officials immune.23 The Supreme Court reversed, holding that all that was required was that prior case law give an official \u201cfair warning\u201d that the alleged conduct is unconstitutional.24 Defining genocide presents a similar quandary. Too much precision can protect egregious behavior. Too little leaves the matter to an individual trier of fact to decide.<\/p>\n

    There must be some degree of subjectivity involved in the decision, but such subjectivity must be within prescribed boundaries. Otherwise, one could reasonably argue that, for example, Dylann Roof\u2019s infamous murder of nine African-American churchgoers in Charleston, South Carolina25 was genocide because it was done with the intent of starting a race war, even though there was no reasonable likelihood it would accomplish that end. Numbers also matter. For example, the deaths of a few members of a small ethnic group could constitute genocide when the same number of deaths of a large national group would not. These are difficult questions that must be discussed, litigated, and resolved over time.<\/p>\n

    With respect to the Karad\u017ei\u0107 <\/em>decision, we are concerned with the subtle interplay between the elements of actus reus<\/em> and the mens rea<\/em>. While they remain analytically distinct, by creating an overly stringent mens rea require\u00adment the Karad\u017ei\u0107<\/em> Court not only created a specific intent burden of proof that is too high, but also\u2014at least arguably\u2014on that had the effect of too tightly circumscribing the notion that genocide can focus on a substantial part of a protected group. Given that the municipalities in question had far fewer victims than was the case at Srebrenica, there is a danger that the find\u00ading of no genocide there could be interpreted to also limit the \u201cin substantial part\u201d requirement of the actus reus<\/em> to larger groups such as that found at Srebrenica. Members of Republika Srpska army killed at least 7,000 Muslim men there in 1994.26<\/p>\n

    While the Convention\u2019s definition of genocide is not exactly that advocated by Lemkin, his initial definition provides a useful context for analyzing any particular court ruling. It can also help courts develop an effective approach for genocide prosecutions. Futhermore, the Karad\u017ei\u0107 <\/em>case provides a good example of why this analysis is necessary. Even though he was acquitted of genocide in some particular instances, given his age, the 40-year sentence effectively meant life. There is no strong incentive, under the circumstances, for the prosecution aggressively contest the the acquittals. Even if it chose to do so, it would necessarily work harder at defending the outcome and upholding the convictions Karad\u017ei\u0107 is appealing.<\/p>\n

    Courts confront the tension between addressing the specific case before them and its more generalized and universal precedential value. It is, therefore, incumbent upon others, able to consider the more general implications of a decision that may not be subjected to great scrutiny in the appellate process, to comment upon the more general effects of the particular decision.<\/p>\n

    We are in an early phase of development of international criminal law, which as yet has a relatively small body of precedent. Its evolution began with the Nuremberg and Tokyo tribunals, and little was added until the ICTY was established in 1993. The International Criminal Tribunal for Rwanda was established in 1995 and was the first such tribunal to deliver verdicts against those accused of genocide. The International Criminal Court began its work in 2002 and has been stunted by the refusal of the United States to subject itself to its jurisdiction. Similarly, the extraordinary chambers of the courts of Cambodia, and the various hybrid international courts, are of recent vintage.<\/p>\n

    Because of the dearth of precedent, the significance of any one decision by an international criminal court today is amplified, as errors made now can, if not corrected, become the law for generations. Similarly, if courts now get things right and correct mistakes quickly, the cause of international justice\u2014an absolute prerequisite to, though by no means a guarantor of, international peace\u2014will be served to a far greater degree than errors in individual cases fifty years hence. Now is the time that precedent, for good or ill, will be established. Getting it right now will enhance immeasurably humanity\u2019s prospects for the future.<\/p>\n

    With the end of the cold war, the ICTY became the first international criminal tribunal since World War II.27 The Karad\u017ei\u0107 conviction constitutes one of the last, and because of his power, rank and influence, most important, decisions handed down by the court. Karad\u017ei\u0107 played a role in nearly every aspect of the war and was involved in hundreds of atrocities.28 This then provides a fitting opportunity to review29 some of the ICTY\u2019s successes and failures.<\/p>\n

    International criminal law has progressed since the Nuremberg trials; mass atrocities are, at least occasionally and sporadically, punished. The scope for impunity is narrowing. However, these achievements have not evolved as far as human rights advocates might have wished. The failures of international cosmopolitanism are not limited to the obvious failures with respect to more powerful nations such as the impunity with which the Bush administration prosecuted an illegal war while creating a torture culture.30 However, those have been well-addressed elsewhere31 and need not detain us here. One hopes that the perspective, \u201cthat human rights shall be regarded as more sacred than property interests\u201d32 will come to apply equally to all international legal regimes. That evolution remains a distant hope.<\/p>\n

    Karad\u017ei\u0107 and the genocide concept<\/strong><\/p>\n

    There have been many criticisms of the Genocide Convention for leaving massive gaps in coverage.33 These lacunae have only partially been filled in by the expansion of international customary law. The most important of these gaps\u2014mass killings in peacetime of groups not protected by the Convention\u2014has been partially addressed. The crime against humanity of extermination, under international customary law, now covers mass killings of all kinds committed in peacetime as well as in war.34 Before that evolution in the law, no matter how many were killed during peacetime (or internal conflict not meeting the definition of an \u201cinternational conflict\u201d)35 the atrocity was not criminal under international law unless it fit the narrow definition of genocide. Other major gaps in the law of genocide include the exclusion from coverage of political groups which is only partially addressed by the expansion of crimes against humanity under customary law36 and the elimination of cultural genocide.37<\/p>\n

    No court, much less one as new and untested as the ICTY, can cure all legislative drafting defects. However, courts can and do shape the direction of the law, for good or ill, through construction and interpretation. In that regard, the ICTY had an avenue for advancing the law in one important way by determining how widespread the killing and destruction must be before condemning it as \u201cgenocide.\u201d Unfortunately, the court stopped halfway in the progressive advancement of genocide jurisprudence.38<\/p>\n

    The words \u201cas such\u201d in the definition of genocide39 were intended to focus on the destruction of a protected group rather than that of the individual. The Convention focuses on the group\u2019s destruction \u201cas such,\u201d that is, as a defined group and not simply as a collection of individuals. The massacre of individuals, (or other acts such as torture, infliction of conditions of life, prevention of births, etc.), no matter how heinous, does not become genocide unless those acts are also accompanied by the specific intent to destroy in whole or in part one of the protected groups viz. \u201cnational, ethnical, racial or religious.\u201d The requirement that genocidal intent include the intentional destruction of a protected group \u201cin whole or part\u201d leaves to future interpretation just what constitutes a \u201cpart.\u201d Courts have thus added the modifier \u201csubstantial\u201d which helps only slightly. What then is the destruction of a protected group in \u201csubstantial part\u201d and where is the threshold? The search for answers has generated considerable scholarly debate.<\/p>\n

    The ICTY had previously held that there was no minimum threshold for the number of victims killed.40 Indeed, one killing if done with the requisite intent and with at least some plausible means of destroying a protected group in whole or in part should, at least in theory, suffice. That ruling does not help because the death of only one person can qualify as genocide if, and only if, at least one genocidaire intended (with plausible capability) to destroy a substantial part of a protected group. The ICTY advanced our notion of \u201csubstantial part\u201d with the Krstic <\/em>case, which held that 7\u20138 thousand males killed at Srebrenica from a population of 40,000 when combined with \u201cethnic cleansings\u201d and other indicia of genocidal intent, was correctly understood to qualify as genocide.41 In so holding, the court clarified that,<\/p>\n

    The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.\u201d . . .\u201d If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.42<\/p>\n

    And,<\/p>\n

    The historical examples of genocide also suggest that the area of the perpetra\u00adtors\u2019 activity and control, as well as the possible extent of their reach, should be considered.\u200a.\u200a.\u200a. The intent to destroy formed by a perpetrator will always be limited by the opportunity presented to him.43<\/p>\n

    Thus, we learn that the genocide need not involve all of a protected group, that the reach of the genocidaire is crucial, that even smaller numbers may qualify if the protected group is yet smaller than that of those killed and raped in Srebrenica. The Court thus implicitly rejected those scholars who would have required that the courts employ a quantitative or numeric crite\u00adrion limiting genocide to the intent to destroy on an industrial scale.44 There is an important difference between the numeric test and the percentage test. Both can be seen as valid ways of determining whether a protected group has been destroyed in substantial part. But, as David Nersessian points out, \u201cthe intent to kill three members of a tiny aboriginal tribe of a dozen people (25 percent) probably is sufficient under the percentage test.\u201d45<\/p>\n

    If this is the correct reading of the Krstic<\/em> case, the implied use of a percentage test was a salutary, if modest, advance in our understanding. For example, it could well mean that the destruction of a small but distinct indigenous nation within, say, the Amazon rain forest would constitute genocide. ISIL\u2019s destruction of the Yazidi has been called a potential genocide and that characterization was almost surely influenced by the ICTY\u2019s understanding of Srebrenica.46<\/p>\n

    The International Court of Justice has also held the Srebrenica massacre to constitute genocide.47 Tying Karad\u017ei\u0107 to Srebrenica then, while not easy, was merely a matter of proof, presenting few new doctrinal problems. The more problematic issue in indicting Karad\u017ei\u0107 revolved around his complicity in the atrocities in the other smaller municipalities. Could they constitute genocide or were they limited to crimes against humanity and crimes under international humanitarian law? While the crime against humanity of extermination may be in law an equally serious offence, at least in lay eyes it seems less so.48 We conclude that the ICTY, despite whatever were its other virtues, muffed the opportunity to expand the scope of genocide to make the law more congruent with the common lay understanding.<\/p>\n

    The Trial Chamber in 2012 confirmed ten or eleven counts including the Srebrenica genocide but dropped the genocide count for the seven other municipalities. The ICTY, however, had upheld similar genocide charges arising out of the seven municipalities in the Milo\u0161ovi\u0107 <\/em>case before he died, but of course this was not a final judgment. Reversing on appeal, the Appeals Chamber found two errors in the Trial Chamber\u2019s reasoning:<\/p>\n

      \n
    1. It failed to take evidence of the actus reus<\/em> \u201cat its highest;\u201d and<\/li>\n
    2. With respect to specific intent to destroy a protected group in whole or in part, it also failed to recognize the evidence must be taken \u201cat its highest\u201d on a \u201c98bis\u201d motion (essentially, in common law terms, a mo\u00adtion to dismiss).49<\/li>\n<\/ol>\n

      This last failing seems particularly egregious in light of the evidence that, in meetings with Karad\u017ei\u0107, \u201cit had been decided that one third of Muslims would be killed, one third would be converted to the Orthodox religion and a third will leave on their own\u2019 and thus all Muslims would disappear from Bosnia.\u201d50 To most people, that feels like an expression of genocidal intent. The issue\u2019s importance relates to the scope of how the genocide convention should be construed which, \u201cpits restrictivists, who seek to tightly tether any application of the crime to the text of the Genocide Convention, against expansionists, who advocate for a broader understanding of the crime of genocide.\u201d51<\/p>\n

      The Trial Chamber tried Karad\u017ei\u0107 for genocide arising out of both the Srebrenica massacre and the seven additional municipalities. It found him guilty of the crime against humanity of extermination, which has as an element the intent to persecute or discriminate. And, it found he committed the actus reus<\/em>52 for genocide in \u201ckilling members of the group\u201d and in \u201ccausing serious bodily or mental harm to members of the group.\u201d53 But, it balked at finding genocidal intent beyond a reasonable doubt as to either of these genocidal acts. Moreover, it failed to find that Karad\u017ei\u0107 and his co-perpetrators subjected his Muslim victims to conditions of life calculated to bring about the physical destruction of the Bosnian Muslims or Bosnian Croats in these municipalities.54 Thus, although he and his co-perpetrators, committed acts of genocide, and discriminatorily exterminated otherwise protected classes (Muslims and Croats), he was found not guilty of genocide.<\/p>\n

      Throughout this nearly 3000-page opinion, the court continually em\u00adphasized statements by the accused and his co-perpetrators indicating their motive was to remove Muslims from the areas desired by the Serbs. There are two problems with this. First, it seems to conflate motive (the reason for doing something) with intent (the conscious decision to do something).55 Given Srebrenica and the above statement, it appears that the intent<\/em> was to destroy the Muslims in substantial part and that the motive<\/em> for doing so was to ethni\u00adcally cleanse the area for Serb habitation and domination. Moreover, while the intent to persecute as part of the crime of extermination is different from the intent to destroy a protected group in whole or in part\u2014that difference seems to evaporate here where the persecutory impulse to exterminate was identical to the intent to destroy the group in substantial (one-third) part. Put another way, his intent was to discriminate against Muslims by exterminating them. To distinguish that from the intent to destroy the Muslims or Croats in whole or in part as a protected group seems to be a distinction so fine that it borders on the metaphysical.<\/p>\n

      Why does this matter? The court after all did find that the actus reus<\/em> of genocide occurred in the municipalities thus setting the precedent for applying the concept to smaller scale genocides where the genocidal intent is clear.56 However, in the court\u2019s eyes this was not genocide. For most people, these distinctions will not matter. The lay public will see the bottom line as \u201cnot genocide.\u201d At most, the better informed of the public will perhaps wonder at the Alice-in-Wonderland \u201clegal\u201d reasoning that makes such massacres \u201cnot genocide.\u201d But by confusing motive with intent, the decision may well make proof of genocidal intent much harder than it need be. Specific intent, whether in a run-of-the-mine murder case or in genocide litigation, is difficult enough to prove\u2014 as well it should be\u2014without adding such confusion.<\/p>\n

      More importantly, the court here has set a bar to finding genocidal intent so high that it may be impossible to meet. Finally, the lay understanding of genocide is important\u2014at least at the level of prevention. As David Luban plainly demonstrated, when the concept of genocide is unduly restricted it gives political actors, including the United States, the political cover to fail to do anything constructive in stopping genocides and proto genocides57 or, we might add, it gives such actors license to engage in their own genocidal acts without consequence. The court had the opportunity to bring genocide law a little closer to the lay concept\u2014and the concept that the words of the convention clearly signify\u2014and it failed. That failure has consequences far beyond the particulars of this case. If punishment of genocide is to rise to the hopes given it by the world after the disasters of World War II, it needs to be broadly enough construed to push modern nation states into the position of feeling lay, as well as juridical and diplomatic, pressure to conform their actions to the common understanding. While the ICTY could not rewrite the Genocide Convention it could have interpreted the Convention to cover the smaller and less visible groups in the seven municipalities in BiH. That, in turn, would have made it harder to deny genocide in the early stages or in some of the smaller but no less nasty cases. It would have made it harder to ignore and would have put pressure on all of us to do something more than wring our hands at the next would be genocidaire.<\/p>\n

      We conclude where we began. International criminal law is far more developed, mostly for the better, by the jurisprudence of the ICTY. However, in conflating motive with the specific intent to destroy a protected group in whole or in part, the Karad\u017ei\u0107<\/em> case sets a precedent that makes it harder than necessary to prove the mens rea element of genocide. The Trial Chamber\u2019s confusion in this regard is regrettable not only with respect to appropriately punishing genocidaires, but it will also make it easier for nations to evade their responsibility to intervene to stop genocide.<\/p>\n

      The efforts of the court and the detailed opinion are to be applauded precisely because they provide critics the tools with which to analyze and develop the law of genocide at this crucial time. It would be remarkable if every finding and every conclusion in the court\u2019s voluminous (or, perhaps more precisely, multi-voluminous) opinion were beyond reproach. It is an indication of the seriousness with which the court approached its task that it made such detailed findings. Our criticism here reflects our belief that we must take the opinion as seriously as did the court by finding things with which to disagree. The law of genocide, as we noted initially, is in the early stages of its development. Even small mistakes, if not corrected, can have implications for decades. Better to get it right now. We trust our contribution will be one of many to come, before the law is set in stone.<\/p>\n

      _______________________________<\/p>\n

      NOTES<\/p>\n

        \n
      1. Prosecutor v. Karad\u017ei\u0107, Case No. IT-95-5\/18-T, Public Redacted Version of Judgment (Int\u2019l Crim. Trib. for the Former Yugoslavia Mar. 24, 2016).<\/li>\n
      2. The crimes included within this case occurred from October 1991 to November 1995.<\/li>\n
      3. So called by the western media. See, e.g.,<\/em> Agency Staff, Butcher of Bosnia, Radovan Karadzic, Sentenced to 40 Years Prison in Genocide Case,<\/em> Manchester Evening News (Mar. 25, 2016, 6:00), http:\/\/www.manchestereveningnews.co.uk\/news\/uk-news\/butcher-bosnia-radovan-karadzic-sentenced-11095204.<\/li>\n
      4. Prosecutor v. Karad\u017ei\u0107, Case No. IT-95-5\/18-T, Public Redacted Version of Judgment (Int\u2019l Crim. Trib. for the Former Yugoslavia Mar. 24, 2016).<\/li>\n
      5. Karad\u017ei\u0107<\/em>, Case No. IT-95-5\/18-T at \u00b66072.<\/li>\n
      6. Id.<\/em> at \u00b66071.<\/li>\n
      7. Prosecutor v. Radislav Kristi\u0107, Case No. IT-98-33-A, Appeals Chamber Judgment, \u00b6 36 (Int\u2019l Crim. Trib. for the Former Yugoslavia Apr. 19, 2004), http:\/\/www.icty.org\/x\/cases\/krstic\/acjug\/en\/krs-aj040419e.pdf (\u201cAmong the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinc\u00adtion. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity.\u201d).<\/li>\n
      8. See, e.g<\/em>., Ethnic Cleansing<\/em>, The Phrase Finder, http:\/\/www.phrases.org.uk\/mean\u00adings\/129100.html (last visited Apr. 21, 2017); see also<\/em> Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing<\/em>, Foreign Affairs, Summer 1993.<\/li>\n
      9. Genocide is a species of international criminal law that includes crimes against humanity and grave breaches of the Genocide Conventions. It is similar to the crime against humanity of extermination. However, as will be explained more fully below, it adds the notion of protected categories of victims and uses a difficult to prove mens rea<\/em> element of specific intent, whereas the crime of extermination only requires knowledge and is not limited to a protected class of victims.<\/li>\n
      10. Such distrust is already a concern just because of who defendants are. The International Criminal Court has, thus far, prosecuted only Africans. The International Criminal Tribunal for the Former Yugoslavia (ICTY), whose opinion we are analyzing and critiquing here, has not prosecuted any Americans despite, for example, the bombing of the Chinese embassy in Belgrade.<\/li>\n
      11. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)<\/li>\n
      12. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Lawbook Exchange, Ltd. 2014) (1944).<\/li>\n
      13. Raphael Lemkin, Genocide<\/em>, 15 Am. Scholar 227 (1946).<\/li>\n
      14. Id.<\/em><\/li>\n
      15. Id.<\/em><\/li>\n
      16. Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260A (III) (Jan. 12, 1951), available at<\/em> http:\/\/www.ohchr.org\/EN\/ProfessionalInterest\/Pages\/CrimeOfGenocide.aspx [hereinafter Convention on Genocide].<\/li>\n
      17. Id. <\/em>at art. II.<\/li>\n
      18. Id.<\/em><\/li>\n
      19. See<\/em> Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), Art. 15, (Jan. 3, 1976), available at<\/em> http:\/\/www.ohchr.org\/EN\/ProfessionalInterest\/Pages\/CESCR.aspx; id.<\/em> at art. 18; id.<\/em> at art. 27.<\/li>\n
      20. Convention on Genocide, supra<\/em> note 15, at art. II.<\/li>\n
      21. The ICTY partially answered these questions when it held that the Srebrenica massacres constituted genocide. The ICTY\u2019s holding in this regard was upheld by the International Court of Justice in Bosn. & v. Serb., 2007 ICJ, No. 921, at \u00b6296 (Feb. 26). See<\/em> infra<\/em> notes 30-36 and accompanying text.<\/li>\n
      22. Harlow v. Fitzgerald, 457 U.S. 800 (1987).<\/li>\n
      23. Hope v. Pelzer, 240 F. 3d 975 (11th Cir. 2001).<\/li>\n
      24. Hope v. Pelzer, 536 U.S. 730 (2002).<\/li>\n
      25. See, e.g.,<\/em> Alan Blinder & Kevin Sack, Dylann Roof Found Guilty in Charleston Church Massacre<\/em>, N.Y. Times (Dec. 15, 2016) https:\/\/www.nytimes.com\/2016\/12\/15\/us\/dylann-roof-trial.html?_r=0.<\/li>\n
      26. While important and closely related, this issue is beyond the scope of our present argument, which we limit to the question of whether the court utilized an overly stringent mens rea<\/em> element.<\/li>\n
      27. UN Security Council Resolution 827 May 25, 1993 at, https:\/\/documents-dds-ny.un.org\/doc\/UNDOC\/GEN\/N93\/306\/28\/IMG\/N9330628.pdf?OpenElement.<\/li>\n
      28. The Trial Chamber\u2019s complex opinion of 2,590 pages stands as a testament to the ex\u00adtensiveness of his activities in BiH and his engagement in nearly every major criminal atrocity produced by that war.<\/li>\n
      29. We do not intend this as a comprehensive assessment of the case or the court; rather it is the authors\u2019 idiosyncratic perspective that informs this short essay.<\/li>\n
      30. See, e.g.,<\/em> Alan W. Clarke, Rendition to Torture (2012).<\/li>\n
      31. See, e.g., <\/em>Nat\u2019l L. Guild Rev, Vol. 66, No. 1 (Spring 2009)<\/li>\n
      32. Preamble to the National Lawyers Guild Constitution, available at<\/em> https:\/\/www.nlg.org\/wp-content\/uploads\/2016\/03\/NLG-Constitution-December-2012.pdf.<\/li>\n
      33. See, e.g<\/em>., David R. Nersessian, Genocide and Political Groups (2010); David Luban, Calling Genocide by its Rightful Name: Lemkin\u2019s Word, Darfur and the UN Report,<\/em> 7 Chi. J. Int\u2019l. L. 303 (2006).<\/li>\n
      34. Prosecutor v. Tadi\u0107 Case No. IT-94-1-A,<\/strong> (Judgment) \u00b678, 140 & 141.<\/li>\n
      35. Id.<\/em> at \u00b6\u00b6 88-97.<\/li>\n
      36. Nersessian, supra<\/em> note 32.<\/li>\n
      37. Criticisms of the elimination of cultural genocide from the Convention go back to the very beginning. Raphael Lemkin sought to include it, saying, \u201cI defended it successfully through two drafts. It meant the destruction of the cultural pattern of a group, such as the language, the traditions, the monuments, archives, libraries, churches. In brief: the shrines of the soul of a nation. But there was not enough support for this idea in the Committee. . . . So with a heavy heart I decided not to press for it.\u201d Paper by John Docker on Raphael Lemkin\u2019s History of Genocide and Colonialism<\/em> for the United States Holocaust Memorial Museum, Center for Advanced Holocaust Studies 3 (Feb. 26 2004), available at<\/em> https:\/\/www.ushmm.org\/m\/pdfs\/20040316-docker-lemkin.pdf.<\/li>\n
      38. Convention on Genocide, supra<\/em> note 15, at art. II.<\/li>\n
      39. See<\/em> supra <\/em>note 9.<\/li>\n
      40. Prosecutor v. Karad\u017ei\u0107, Case No. IT-95-5\/18-AR98bis.1, Appeals Chamber Judgment, \u00b6 23 (Int\u2019l Crim. Trib. for the Former Yugoslavia Jul. 11, 2013), http:\/\/www.icty.org\/x\/cases\/karadzic\/acjug\/en\/130711_judgement_rule98bis.pdf.<\/li>\n
      41. Prosecutor v. Krsti\u0107<\/em>, ICTY A. Ch. 19.4.2004.<\/li>\n
      42. Id.<\/em> at \u00b612.<\/li>\n
      43. Id.<\/em> \u00b613.<\/li>\n
      44. See, e.g<\/em>., Prosecutor v. Jelisi\u0107, Case No. IT-95-10-A, Appeals Chamber Judgment, (Int\u2019l Crim. Trib. for the Former Yugoslavia July 5, 2001) (Wald, J., dissenting) (stating some learned commentators on genocide stress that the currency of this \u201ccrime of all crimes\u201d should not be diminished by use in other than large scale state-sponsored campaigns to destroy minority groups, even if the detailed definition of genocide in our Statute would allow broader coverage\u201d while arguing for a remand of the case on the genocide acquittal) Id.<\/em> at para. 2.<\/li>\n
      45. Nersessian, supra<\/em> note 32, at 42.<\/li>\n
      46. Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in Light of Abuses Committed by the So-called Islamic State in Iraq and the Levant and Associated Groups (Mar. 13, 2015), available at<\/em> http:\/\/www.ohchr.org\/EN\/HRBodies\/HRC\/RegularSessions\/Session28\/Documents\/A_HRC_28_18_AUV.doc.<\/li>\n
      47. Bosn. & v. Serb., 2007 ICJ, No. 921, (Feb. 26); Radislav Kristi\u0107<\/em>, Case No. IT-98-33-A at \u00b6 12.<\/li>\n
      48. See, e.g.,<\/em> Luban, supra<\/em> note 32.<\/li>\n
      49. As the Appeals Chamber put it in paragraph 100, \u201cpursuant to Rule 98 bis <\/em>of the Rules, the Prosecution\u2019s evidence is assumed to be credible and is taken at its highest and that a judgment of acquittal shall be entered only if there is \u2018no evidence capable of supporting a conviction.\u2019 In the context of this appeal, the Appeals Chamber considers that the evidence on the record, taken at its highest, could indicate that Karadzic possessed genocidal intent. Other evidence on the record indicates that other alleged members of the ICE <\/em>also possessed such intent. The Appeals Chamber considers that this evidence, assessed in conjunction with evidence regarding the scale and nature of the alleged genocidal and other culpable acts, is sufficiently compelling in its totality that no reasonable trial chamber could have concluded, in the context of Rule 98 his <\/em>of the Rules, that there was no evidence capable of demonstrating that Karadzic and other alleged lCE <\/em>members possessed genocidal intent\u201d (citations omitted).<\/li>\n
      50. Karad\u017ei\u0107<\/em>, Case No. IT-95-5\/18-AR98bis.1 at \u00b6 97.<\/li>\n
      51. Tatiana E. Sainati, Toward a Comparative Approach to the Crime of Genocide<\/em>, 62 Duke L.J. 161, 166 (2012).<\/li>\n
      52. Karad\u017ei\u0107 case summary at 19.<\/li>\n
      53. Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, supra, note XXXat (4)(a) and 4(b).<\/li>\n
      54. Case summary at 19.<\/li>\n
      55. See<\/em> Jelisi\u0107<\/em>, Case No. IT-95-10-A at \u00b649. While motive and intent are certainly interrelated, they remain distinct. For example, New York\u2019s standard jury instructions say: \u201cIntent means conscious objective or purpose. Thus, a person commits a criminal act with intent when that person\u2019s conscious objective or purpose is to engage in the act which the law forbids or to bring about an unlawful result. Motive, on the other hand, is the reason why a person chooses to engage in criminal conduct.\u201d<\/li>\n
      56. See <\/em>Nessersian, supra<\/em> note 32.<\/li>\n
      57. Luban, supra<\/em> note 32.<\/li>\n<\/ol>\n

        _______________________<\/strong><\/p>\n

        Alan W. Clarke is a professor of Integrated Studies at Utah Valley University in Orem, Utah and a contributing editor to National Lawyers Guild Review. His most recent book is Rendition to Torture, published by Rutgers University Press in 2012. David Gespass is an attorney in private practice in Birmingham, Alabama and a long-time member of our editorial board. He is a past president of the National Lawyers Guild and is chair of the board of CAIR Alabama.\u200b<\/p>\n","protected":false},"excerpt":{"rendered":"

        By Alan W. Clarke & David Gespass Introduction A quarter century after mass atrocity crimes raged throughout Bosnia and Herzegovina (BiH),2 a sputtering International Criminal Tribunal for the Former Yugoslavia (ICTY) has belatedly convicted Radovan Karad\u017ei\u0107\u2014\u201cthe Butcher of Bosnia\u201d3 and former President of the breakaway Republika Srpska. Sentenced to 40 years imprisonment,5 his crimes6 include […]<\/p>\n","protected":false},"author":32,"featured_media":0,"menu_order":109,"comment_status":"closed","ping_status":"closed","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"categories":[],"tags":[],"issuem_issue":[51],"class_list":["post-117","article","type-article","status-publish","format-standard","hentry","issuem_issue-nlg-review-vol-73-no-4-winter-2016","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t