SPIEGEL: The Karadzic case deals with the issue of responsibility for mass killings, which are being referred to as genocide. However, international law experts are divided over whether the Srebrenica massacre can be defined as genocide.
Flügge: I don't want to discuss this specific case. More generally, however, I do ask myself whether we even need the term genocide to characterize such crimes. Why do we have to draw this distinction in the first place? Does it make it more or less unjust when a group of people is killed, not for national, ethnic, racist or religious reasons, as regulated in our statute, but merely because these people all happened to be in a certain location? This was often the case during Stalin's battle against the so-called Kulaks in Ukraine.
SPIEGEL: That wouldn't have fallen under the elements of the offense of genocide.
Flügge: Which is why I believe that we should consider devising a new definition of the crime. Perhaps the term mass murder would eliminate some of the difficulties we face in arriving at legal definitions. It would also work in Cambodia, where Cambodians killed large numbers of Cambodians. What do you call that? Suicidal genocide? Sociocide? Strictly speaking, the term genocide only fits to the Holocaust.
These statements are controversial, and have provoked angry responses, especially from Bosnia and Herzegovina. But they are hardly shocking, and constitute a useful reflection on the use of the term and its utility under international law. He is certainly not alone to express such ideas. Others, such as Prof. David Scheffer, have said as much, proposing that there should be an overarching concept known as ‘atrocity crimes’. The Albright-Cohen task force, whose report was discussed in this blog last December, took a similar approach. Rather than abandon the term genocide, it preferred to use it as an umbrella term to cover all serious international crimes, including war crimes and crimes against humanity. But the result is the same.
Debating whether or not a crime is genocide certainly has legal significance when matters like the application of the 1948 Convention are concerned. It is decisive to the jurisdiction of the International Court of Justice However, Judge Flügge has a point when the work of the International Criminal Tribunal for the former Yugoslavia, which can prosecute genocide, crimes against humanity and war crimes, and which has held that there is no hierarchy between the crimes, is concerned.
What about the crime of extermination for this purpose: Article 7(1)(b). Under the Elements of Crimes, it has some of the same elements as genocide, but not the specific intent requirement.
ReplyDeleteI have advocated as many other prominent scholars that the definition of genocide need to be redefined to include political and socio-economic groups. The definition under the Genocide Convention was a political compromise to enable some international political players to sign and later ratify the agreement. Another legal hurdle is dolus specialis a standard that is legally ambiguous.
ReplyDeleteDear Prof. William Schabas, Ph.D,
ReplyDeletehere is an update on Judge Christoph Flugge who made headlines denying the Srebrenica genocide. He has been removed from the Karadzic case at the request of the Congress of North American Bosniaks. For more info, see my blog.
Justice served.