Wednesday, 1 June 2011

Controversy about Judge Flugge's Remarks on Genocide

One of the three judges of the International Criminal Tribunal for the former Yugoslavia who has been designated to hear the Mladic case, Christoph Flügge, is being challenged because of remarks that he made about the legal definition of genocide. For example, here is the story in the Irish Times, entitled 'Judge in Mladic case in row over "genocide"'.
For the record, here is what he actually said, according to the English version of his interview in Der Spiegel some years ago. I reported on this in my blog at the time.

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.
Note that with respect to Srebrenica, Judge Flügge said 'I don't want to discuss the specific case.' I think that the suggestion that he has made some unacceptable pronouncement on the merits of the case is not accurate. There is no reason for his impartiality to be put in doubt here.
However, in a more general sense, he is reflecting on the scope of the term genocide, and this is perfectly legitimate. As a leading international jurist, we would expect no less of him. Note, also, his remarks about Cambodia, which are effectively confirmed by the record of the Extraordinary Chambers of the Courts of Cambodia. There, the killing of Cambodians by Cambodians has not been charged as genocide, despite the colloquial reference to the 'Cambodian genocide' over the decades. It is true that there are now a few charges of genocide in the Cambodian proceedings, but they relate to ethnic minorities and not to the Khmer majority itself, which was the victim of the bulk of the Khmer Rouge atrocities. So on this point, Judge Flügge is spot on.
I note that Geoffrey Robertson has called for Mladic to be tried on one count, of crimes against humanity.
I don't expect that to happen. We already have several of what might be called vicarious determinations that Mladic perpetrated genocide in Srebrenica. Although Mladic himself has not been judged yet, his name figures in the conviction of General Krstic for aiding and abetting genocide. For Krstic to be convicted of aiding and abetting genocide, there had to be a finding that he had aided and abetted someone. Here is how the Appeals Chamber (para. 83) described the involvement of General Krstic:
the case against Radislav Krstic was one based on circumstantial evidence, and the finding of the Trial Chamber was largely based upon a combination of circumstantial facts. In convicting Krstic as a participant in a joint criminal enterprise to commit genocide, the Trial Chamber relied upon evidence establishing his knowledge of the intention on the part of General Mladic and other members of the VRS Main Staff to execute the Bosnian Muslims of Srebrenica, his knowledge of the use of personnel and resources of the Drina Corps to carry out that intention given his command position, and upon evidence that Radislav Krstic supervised the participation of his subordinates in carrying out those executions.
The Appeals Chamber reversed the conviction of Krstic for actually perpetrating genocide because it said there were doubts as to whether he shared Mladic's intent to commit genocide.
The conclusions of the International Court of Justice in the 2007 judgment in Bosnia v. Serbia are to the same effect. There are many references in the judgment to General Mladic, whose responsibility for the Srebrenica masssacre - which the Court labelled genocide - does not appear to be questioned.
So despite the wisdom of Geoff Robertson's suggestion, it does not seem possible for the Tribunal to proceed against Mladic on anything but a charge of genocide. Mladic will have personal defences of course - insanity, voluntary intoxication, mistake of fact - but otherwise there is an enormous body of legal findings to the effect that genocide was perpetrated at Srebrenica and that he was in charge.
I have always found this jurisprudence to be a bit incoherent. On the one hand, the judgments of the Yugoslavia Tribunal and the International Court of Justice reject the general proposition that the war in Bosnia and Herzegovina was genocidal in nature. There have been no convictions of genocide - despite several efforts by the Prosecutor - with respect to anything except the Srebrenica massacre, which occurred in the space of a few days in July 1995. The narrative that emerges is that the Bosnian Serbs were not genocidal except for this brief period. It doesn't make a great deal of sense to me.
Genocide requires evidence of an intent to destroy an ethnic group in whole or in part. We continue to debate whether the policy of a state or state-like entity is an element of the crime, but there is no quarrel about the fact that it is a very important and compelling fact to establish. If the Bosnian Serbs were not genocidal until 12 July 1995, why did they suddenly become so for a few days? I wish the judges at the Tribunal and the Court had gone to greater lengths to explain this anomaly.
Be that as it may, with the judgments of the International Criminal Tribunal for the former Yugoslavia, in Krstic and Popovic, and the decision of the International Court of Justice, the conclusion that genocide was perpetrated at Srebrenica seems irreversible. To return to Judge Flügge, it does not seem plausible that he would use his position as a member of the Trial Chamber to attempt to question this.
For what appears to be the final trial at the Yugoslavia Tribunal, we have three fine judges and a fine prosecutor. There are excellent defence counsel from whom to make a selection. It should be a trial of high quality. That many of the factual issues have already been determined in earlier decisions does not undermine the fairness at all. It is simply a consequence of the fact that Mladic did not get before the Tribunal earlier. And that is his own fault. He could have surrendered in 1995, when the first indictment was issued.

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