July 01, 2016

Justice by Number: The International Law of Genocide and Its Implications

By Adam R. Pearlman

Unlike the categorical crimes with which it is often mentioned—war crimes and crimes against humanity—genocide stands alone. It is not merely a way of holding accountable those responsible for mass atrocities; neither is it predicated upon transgressions against “the law or customs of war.” Instead, genocide entails the specific intent to destroy entire groups of people because of their nationality, ethnicity, race, or religion. The Genocide Convention accordingly defines the offense in terms of actions against identifiable groups—killing their members, causing them serious bodily or mental harm, inflicting “conditions of life” to bring about their physical destruction, preventing births of new members, and forcibly transferring their children—“with the intent to destroy, in whole or in part, [that group], as such.”1

In 2016, events related to genocidal acts have punctuated developments in international law and foreign affairs. On March 17, U.S. Secretary of State John Kerry formally declared that the terrorist group known alternatively as ISIS, ISIL, and IS is presently committing genocide against “groups in areas under its control, including Yezidis, Christians, and Shia Muslims.”2 Although neither his declaration, nor the unanimously passed “sense of Congress” resolution that preceded it,3 carries independent legal weight, Secretary Kerry’s decision marked the first instance since 2004 that the United States has directly called a mass atrocity a genocide, and may set the stage for eventual legal action.

A week later, on March 24, the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down its most recent conviction for the crime, finding Radovan Karadžic´, former president of the autonomous Republika Srpska region of Bosnia-Herzogovina, guilty of genocide for his role in the Srebrenica massacre in July 1995.4 More than two decades after the actions leading to his conviction, which included leadership roles in an operation that killed at least 5,115 Bosnian Muslim males over a three-day period, Karadžic´ was sentenced to 40 years in prison.

This article briefly explores the international law of genocide and, using the example of evidence gleaned from mass graves, explains how prosecutions for that and other mass atrocities can sometimes be in tension with humanitarian goals.

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