Lessons From Srebrenica: What Use is the Law?

Alexandra Lily Kather

Our developing field of genocide studies needs to emphasize efforts at prevention much more. Even if these turn out to be our flailing end-of-species efforts, for me the effort to stop genocide is what gives greatest meaning to being alive while we are.

Although its title is calling on both the prevention and punishment of the crime of genocide, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whose definition of genocide has been copied in a verbatim manner into the statutes of the International Criminal Court (ICC) and the international criminal tribunals, remains silent on specifi c guidelines on how to prevent the crime of genocide. The defi nitional scope of genocide consists of the following: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.

In order for a mass atrocity to qualify as genocide, one of the five acts (actus reus) must be committed by the perpetrator with the intent to destroy (mens rea) in whole or in part one of the protected groups. A number of shortcomings are worthwhile highlighting. Firstly, only individuals not states are addressed under the Genocide Convention. The problem with this fi nding is that genocide is such an orchestrated, systematic crime whose execution in the majority of cases requires a form of state support. Secondly, the restrictive characterisation of the protected groups, which leaves atrocities committed on cultural, social or gender grounds outside the scope of the Genocide Convention. Thirdly, the requirement ‘in whole or in part’ comes with an uncomfortable threshold of quantity that provides for moral discontent and inaccuracy. The only chance of amendment was missed during the Rome Conference in June and July of 1998. Despite academic demand at the time to further develop the defi nition of the crime of genocide; in particular the expansion of groups protected, the decrease of the threshold for ‘in part’, criminalization of preparatory acts, such as hate speech and racist organizations as well as further legal guidelines on its prevention, the proposal for amendment led to no fruitful outcome.

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  1. Sluiter, A. (2016). Remembering the Bosnian genocide: justice, memory and denial. Institute for Islamic Tradition of Bosniaks.

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