What is Genocide? The Ultimate Crime, Explained
Mothers of Srebrenica victims react after a UN tribunal in The Hague, Netherlands sentenced former Bosnian Serb leader Radovan Karadzic to life in prison for genocide, crimes against humanity, and violating the laws and customs of war, in Sarajevo, Bosnia and Herzegovina on March 20, 2019. (Photo by Adem Mehmedovic/Anadolu Agency/Getty Images)
In July 1995, Bosnian Serb troops entered the small mountain town of Srebrenica. Gen. Ratko Mladić, the leader of the Bosnian Serb forces during the three-year war in Bosnia, handed out chocolates to children outside of an international peacekeeping base. He promised them they would be safe. Then, in a days-long killing spree, troops under his command executed more than 7,000 Muslim men and boys.
It was the worst massacre in Europe since the Holocaust. But was it genocide?
FRONTLINE’s documentary The Trial of Ratko Mladić followed the general’s five-year court case in The Hague, which included a genocide charge for the 1995 massacre. In 2017, Mladić was found guilty of genocide in Srebrenica. And this month, a UN appeals court upheld the 2016 genocide conviction of Radovan Karadžić, the former leader of the Bosnian Serbs, and increased his sentence to life for his role in Srebrenica.
Both rulings reverberated throughout Serbia and Bosnia, where people remain divided along ethnic lines — convicted war criminals are still hailed as heroes and many Serbs still contest Srebrenica’s designation as genocide.
In November 2018, Serbian Prime Minister Ana Brnabić said during a television interview that what happened in Srebrenica was a “terrible crime,” but insisted that it was not genocide. Last month, Republika Srpska — the autonomous Serb entity in Bosnia — established a government commission to probe war crimes in Srebrenica, which many Bosnian Muslims feared was a push to rewrite the past.
The Serbs’ skepticism surrounding the Srebrenica genocide is not a denial that mass killings occurred: the dominant narrative among nationalist Serbs is that war crimes were justified to defend against the Muslims. Rather, the debate underscores the complex definition of genocide — and just how anxious countries are to avoid the label.
“We’re talking about extremely political issues,” said Kevin Hughes, a former legal adviser to the prosecutor’s office at the International Criminal Tribunal for the former Yugoslavia (ICTY), which handled Mladić’s case. “Countries are extremely reticent to be labeled as having in any way, shape or form participated in a genocide.”
Not only does it leave an indelible stain on a nation’s history, but there are also financial consequences. Germany has been doling out payments to Holocaust survivors for decades, and increased its budget to $564 million in 2019. It can also interfere with a country’s attempts to rehabilitate its standing in the world. The current administration in Serbia is eager to join the European Union, but in order to do so, it must contend with its genocidal past by prosecuting war crimes cases and taking meaningful steps towards reconciliation.
Since it was codified in the 1948 UN Genocide Convention, only three events have been ruled a genocide by international courts: Srebrenica, the 1975 to 1979 massacre of Vietnamese and Chams in Cambodia, and the 1994 slaughter of Tutsis in Rwanda.
That’s in part because genocide is so difficult to prove in court.
“You don’t see, most of the time, these fact patterns where every single person is killed,” Hughes said. “Instead, you see nuances, you see divergences, and you have to explain to the court why it’s still a genocide.”
Although genocide is commonly used to refer to large scale destruction of a population, its definition under international law is much more precise: the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. This element of intent is what separates genocide from crimes against humanity.
So prosecutors can’t simply offer evidence of mass atrocities. They must also prove that the perpetrators meant to do.
“You can’t look in somebody’s head,” Hughes said. “So, you’re often looking at their words: What kind of language were they using? Were they dehumanizing the opposition group? Were they talking about things like, ‘kill them all’?”
Still, an explicit statement is not always enough. Goran Jelisić, a concentration camp guard during the war in Bosnia, called himself the Serb Adolf Hitler and bragged about killing 20 to 30 Muslims a day. In 1999, the ICTY acquitted Jelisić of genocide because he freed a small number of people, which raised doubt about whether his intention was to eliminate all Muslims. He was sentenced to 40 years on charges of crimes against humanity.
“Someone commits murder as a persecution, a crime against humanity, by killing someone because they’re Muslim,” said Dermot Groome, a senior trial attorney in the Mladić trial and a professor at Penn State Dickinson Law. “Someone kills someone who is Muslim as a crime of genocide because they want to destroy all Muslims in Bosnia.”
The legal definition of genocide also limits the kinds of groups protected under the law.
The Khmer Rouge regime in Cambodia killed two million people from 1975 to 1979, one of the worst mass atrocities of the 20th century. However, genocide charges were only brought on behalf of the Cham and Vietnamese, ethnic minority groups that represented only a fraction of the murders. Because genocide’s definition does not include political or economic groups, the regime’s extermination of over a million elite Khmers was not brought before an international court.
“That’s a hard thing for popular understanding,” said Hughes, referring to the fact that the Khmer Rouge’s slaughter of more than a million people does not constitute a genocide. “It’s not about the number of people killed, but it’s about the intent of the perpetrator when they act.”
Lawyers must also demonstrate that the perpetrators achieved a certain level of success in their genocidal intent.
For example, Mladić and Karadžić were convicted of genocide in Srebrenica because the court found that they had intent to eliminate a substantial portion of the Muslim population in Bosnia. But prosecutors could not secure genocide convictions for the massacre in Prijedor, where Bosnian Serb troops killed about 3,000 Muslims and Croats and tens of thousands were driven from their homes.
It is partly a numbers game. The ICTY found that Mladić and Karadžić had genocidal intent in Prijedor, but the scale of the destruction did not convince the court that the men wanted to exterminate a substantial portion of Muslims and Croats across Bosnia.
“Part of genocide is defining the group,” Groome said. “If the group was simply defined as the Muslims in Prijedor? No problem. But since the group is defined as the Muslims and the Croats across Bosnia, it becomes a different issue.”
Prosecutors are currently appealing the court’s decision on Prijedor. They may be able to introduce more evidence: forensic experts discovered another mass grave site in Prijedor two years ago that contained the skulls of at least 65 people.
There may also be more genocide cases coming before international courts. Currently, investigations into allegations of genocide against President Omar al-Bashir of Sudan and Khmer Rouge leaders in Cambodia are ongoing. Officials with the International Criminal Court recently landed in Bangladesh to determine whether a case can be mounted over the alleged deportation of the Rohingya from Myanmar, although it is too early to tell whether they will be seeking genocide charges.