War crimes, aggression and crimes against humanity are terms of the international law by which we define most serious human rights violations and which as such remain engraved in the collective memory. However, none of these terms attract so much attention as the word genocide. No matter how many times this term is repeated, it still provokes attention, reaction and debate. Proclaimed as the most severe of all the crimes, the term genocide is under critics since the moment it was defined as a war crime.
Tendency to exterminate some populations is not new phenomenon. Scientists think that some events dating from the Bronze Age can relate to this phenomenon, and we can claim with certainty that not a century has passed since the establishment of Rome without attempting to eradicate one group from another somewhere on the globe.
Considering this, the Holocaust is neither the first nor the last crime with this intention, but the uniqueness of scope (or comprehensiveness) of this crime and omnipresence of the intention of extermination of the European Jews by Nazi Germany, during the 30s and the 40s of the last century, lead to defining and forbidding the intent and implementation of mass extermination by the international community through international law.
The author of this word is considered to be Raphael Lemkin, a Polish lawyer. He made this term from the Greek word „genos“ (race, people, tribe) and the Latin suffix „cide“ (lat. caedere – to kill). The term was first used and defined in his book “Axis Rule in Occupied Europe”. Despite Lemkin’s efforts, the new concept of genocide was not represented on trials of the Nazi leaders who survived in Nurnberg because genocide had not yet been incorporated into international law. Dissatisfied, Lemkin directed his efforts toward the newly formed United Nations, hoping that they will adopt the legal instrument for preventing genocide.
It happened when the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Under this Convention, genocide refers to any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; (specific people); c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) m ) Imposing measures intended to prevent births within the group ( of people); e) Forcibly transferring children of the group to another group.
Genocide Convention was adopted by the General Assembly of the United Nations the day after the Universal Declaration of Human Rights. Like other international treaties, it has become a binding legal instrument after being ratified by a sufficient number of states. To date, 142 UN member states have done it, which means that more than 50 states have not. To be clear, non-signing of this Convention does not mean that states are exempt from the consequences in the event of genocide, because they are bounded by the other legal mechanisms.
During the very debate on the Adoption of the Convention, critical tones were heard. Today, 70 years after the adoption of the Convention, and numerous examples of mass crimes, we know that those tones were not without basis.
What causes the debate, partially misunderstanding as well, is the critics of the objective scope of this Convention to, as stated, prevent and punish these processes, categorize groups of victims, but also to focus exclusively on individual criminal liability. The debate on deficiencies of the genocide definition has not abated since the adoption of the Convention. There is the fact that according to international law, crimes that occurred before its adoption, including Holocaust and atrocities against Armenians, cannot be proceeded under the Convention. It means that the international legal system recognizes only two acts of genocide – in Rwanda and former Yugoslavia (Srebrenica).
Apart from these strict legal positions, it is universally accepted that Holocaust represents the substantial example of genocide, which Germany also confirms. Also, it was almost universally accepted that the mass extermination of Armenians at the beginning of the 20th century from the Ottoman Empire represents genocide, which Turkey does not approve. Mass murders committed by the Khmer Rouge in Cambodia during the 1970s are considered genocide by a large part of the expert public, but there is still disagreement over whether many Khmer Rouge victims were targeted because of their political or social status, thus placing them outside the UN definition of genocide. It should be noted that the Genocide Convention does not prescribe political groups as victims, which is the legacy of the Soviet Union intervention during its drafting.
Various definitions and understandings of genocide opened debates amongst historians on series of crimes throughout human history – from the destruction of Carthage and the conquest of Gaul, then Western European colonialism, expansion of Russia and China, crimes committed during shaping the national countries, Holodomor (Ukrainian famine), the World War II, the Cold War, in post-colonial age in Africa, Latin America and Southeast Asia.
While the international institutions try to research whether there was genocide in Darfur (Sudan), Syria and China (Uighur) and historians are debating on the applicability of the current definition of genocide to past events, this term has become overrepresented in everyday assessments. The critics of too broad, but at the same time, incomplete definition of genocide in the Convention, conflicting understanding of the gravity of the crime and populist historical narrative led to a devaluation of the very term. With intention to win the competition “whose others’ crimes are more severe”, every war crime and mass human rights violation became genocide.
This is where we come to the essence: what makes genocide the crime of a different category from all the other crimes against humanity is that it implies an intention to completely exterminate chosen group. Hence, genocide is the most difficult crime against humanity, and as such causes a series of related war crimes and the most serious consequences. The fact that certain genocides caused quantitatively fewer victims or did not contain the brutality of some other crimes in individual cases, does not minimize the gravity of the perpetrators’ intention to exterminate a specific group from a certain territory. Above noted characteristics make genocide extremely hard to prove, and sometimes, these also provoke confusion amongst the general public. Defining one crime as genocide is not intended to diminish other crimes, but to simply distinguish it as the crime with the gravest intentions and consequences. In the contemporary world, the range and brutality of a crime are categories important to the courts, but genocidal intentions cause the most severe suffering and burdensome legacy.
We also face the problem of disavowal of the institution which proclaimed genocide and genocide denial as a crime. Questioning the validity of an institution, i.e. International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of the Srebrenica genocide, also means contestation of the generally accepted and internationally required legal precedent which arose from the international community’s aspiration to prosecute the most severe crimes against humanity. It would be inconceivable that a decade after the end of the Nuremberg Trials, German lawyers challenged the establishment of this tribunal. Contestations of the ICTY is opposed to the positive international norm and fight against crime which is contrary to spirit and goals of the United Nations and disapproved by the civilized world, but also to the positive legal heritage which the court left. This primarily refers to the shaping of legal norms for rape and systematic rape as a war crime. The ICTY did not aim to “create conditions for reconciliation” and to leave us to “find the way to understanding and full respect”, but to prosecute as many responsible ones for the crimes, such as the Tribunal in Nuremberg. What individual nations or regions will do with the Tribunal’s legacy is for them to decide. If there is an attitude that ICTY disproportionally accused some people, and it may be logical because those participated in all the conflicts of the 90s, the other option is within local courts. Also, if the ICTY failed to convict the responsible ones for some crimes, it does not mean they did not happen. There are series of crimes that occurred during World War II for which no one was accused, but we know that they happened and whose intention caused them.
Genocide denial also implies denial of the intention and all factors that caused the crime. This means denial of all ideological and nationalist ground preparations that indoctrinated hatred into one nation to the extent that caused it to believe that another nation should justifiably be exterminated. The Minister of Justice, Human and Minority Rights who is not aware of introducing such ideology in the society, or more realistically, who introduces such ideology in Montenegrin society by manipulation, must be urgently dismissed.
Denying the crime, not facing the own act of extreme violence, degenerative ideology and hiding behind manipulative and fuelled thesis “what about what they did to us”, does not break the cycle of violence, but prepares the ground for a new round.
Every future intention of reconciliation or some political commissions for the truth, just prolongs the agony caused by the division of society. It has been clear to everyone for a decade that any commission should be in service of establishing facts, not their politician interpretations, and which, due to the specifics of events, must be regional.
If individuals who represent a particular nation decide to deny the crime or its essence, in this case – genocide, they block the possibility of reconciliation. Returning to the parallels with the events of the first half of the 20th century – contestation of their crimes from World War I and creating consciousness of the unjust international community, led the Germans to Nurnberg.
Every citizen who does not comprehend the importance of social catharsis, recognition of Srebrenica genocide and rejection of ideology which caused it, investigation of all war crimes and accusation of the responsible ones, let him/her just compare where is Rwanda is today, and where are we and the region.
Miloš Vukanović, historian and Advisor at the Centre for Civic Education (CCE)
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