The International Criminal Tribunal for the former Yugoslavia today announced the judgment in the case of the Bosnian Serb’s top military leader during the 1992 – 1995 conflict, Gen. Ratko Mladic. He was found guilty of all charges except one: the count of genocide for the overall conduct of the war, especially in municipalities of Foca, Kljuc, Kotor Varos, Prijedor, Sanski Most, and Vlasenica. On this count, Mladic was found not guilty.
Had he been convicted of this count, which is distinct from the established charges of genocide at Srebrenica alone–for which he was found guilty–it would have marked a dramatic (and unlikely) new turn for the Court. The ‘not guilty’ on the larger conduct of the war is consistent with how courts — both the ICTY and the International Court of Justice — have ruled previously. Thus is genocide tied to a particularly high level of killing, which is not necessarily inherent in the 1948 Convention, which includes a number of non-lethal elements, like conspiracy to commit genocide, causing serious bodily or mental harm, transferring children from group to another, and so forth.
The decision marks a bookend on the era of expanding the application of ‘genocide’ as a legal crime to on-going events. Starting with earnest in response to Bosnia, a diverse group of professional and public advocates, international lawyers and legal experts, and policymakers pushed to increase the understanding and policy relevance of ‘genocide’ and related legal categories, as a way to centralize focus on the decision making that devastated populations. I was among this group during the ten years I worked at the U.S. Holocaust Memorial Museum (2001 – 2011). The time period was contentious, full of disappointments and triumphs in terms of changing the narrative. We should not forget that what we now understand as the Rwandan genocide (1994) or the war in Bosnia were contemporaneously described as “tribal violence” or “ancient ethnic hatreds”– as if they were natural phenomenon.
The apex of these efforts arguably occurred in relation to violence during the conflict in the Darfur region of Sudan, especially in the years 2004 – 2005. A case could have been and was frequently made that systematic attacks against civilian sites during this conflict constituted ‘genocide’, but it was argument that ultimately ran up against some serious hurdles. Among these were an uncertain outcome from a UN investigation, an incredibly sloppy arrest warrant for Sudan’s president from the ICC prosecutor, and the pattern of the violence itself, which declined and re-organized along different lines, but did not ‘end’ with any drama. Is this genocide–which must, by its legal definition, manifest an intent to destroy a group as such? It must be noted, that the Darfur crisis occurred as many in the anti-atrocities community ignored the consequences of the 2003 US invasion into Iraq and its aftermath. The decline became clear following the NATO-led intervention in Libya, which took UN-granted license to protect as instruction to overthrow a government, and opened the door for chaos. The dismal records on Syria and Iraq bear further witness to the limits of the paradigm.
Today’s more subdued character of conversations regarding the international implications of large-scale violence against groups is evident in relation to the Rohingya from Myanmar (Burma). The questions has been largely framed in terms of whether this situation represents a “text book case of ethnic cleansing.” Ethnic cleansing isn’t a legal category, although it is among the acts included in efforts to define when a “responsibility to protect” might apply to acts perpetrated against a civilian population. A countryside evacuated of a population who all happen to be from the same group that has faced years of state-sponsored persecution?: it strikes me, and many others–including the US State Department–as unambiguous. The US position is in some ways surprising, given the Trump administration’s general disposition, but less so if one recognizes that the State Department includes a committed core of professionals who sought to institutionalize the civilian protection and anti-atrocities agenda. That they have not been able to make much progress on places at the center of US foreign policy interests is not surprising–it is in fact consistent–but they have been more effective in places of less direct importance to the dominant security agenda.
In places where violence against civilians intersects with terrorism and counterinsurgency, the legal framework for understanding threats to unarmed populations was never able to penetrate, even though mitigating harm to civilians has. To the extent that terrorism and counterinsurgency dominate, protection issues shifted from the goal of international interventions to an obligation while pursuing violence for other goals (primarily defeat of enemy forces).
The heated debates of the 1990s and into the first decade of the 2000s, no longer rivet attention, but this is not an entirely a pessimist’s tale. Some of the agenda of the 1990s has now been woven into international relations. The idea of a responsibility to protect has made in-roads and still provides a grip for activists trying to increase protection outcomes. The ICC, which has not (yet) shown much capacity to deter, nonetheless is an established institution. Prosecution is not viewed as an exception which must be rationalized; rather the decision not to prosecute is increasingly what needs to be justified. And the obscene rationalization and naturalization of violence that occurred in the early 1990s, holds little official or public sway. Nonetheless, pessimists would find much to feed their worldview today. I suggest that instead of pessimism, we should re-define the challenge for those who remain committed to reducing violence against civilians: how can this agenda further advance, but this time without the utopian hope that powerful nations of the world could constitute a united front for protection? In short, can we envision protection despite the powerful?
