Genocide Overlook

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 153 States (as of April 2022). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.

The definition of the crime of genocide as contained in Article II of the Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention. Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have also criminalized genocide in their domestic law; others have yet to do so.

Article II

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.

The Genocide Convention establishes in Article I that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation. The latter is less common but still possible. The same article establishes the obligation of the contracting parties to prevent and to punish the crime of genocide.

The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:

1. A mental element: the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"; and
2. A physical element, which includes the following five acts, enumerated exhaustively:
   • Killing members of the group
   • Causing serious bodily or mental harm to members of the group
   • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
   • Imposing measures intended to prevent births within the group
   • Forcibly transferring children of the group to another group

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted - not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

In the aftermath of World War II, the Balkan states of Bosnia-Herzegovina, Serbia, Montenegro, Croatia, Slovenia and Macedonia became part of the Federal People’s Republic of Yugoslavia. After the death of longtime Yugoslav leader Josip Broz Tito in 1980, growing nationalism among the different Yugoslav republics threatened to split their union apart.

This process intensified after the mid-1980s with the rise of the Serbian leader Slobodan Milosevic, who helped foment discontent between Serbians in Bosnia and Croatia and their Croatian, Bosniak and Albanian neighbors. In 1991, Slovenia, Croatia and Macedonia declared their independence.

During the war in Croatia that followed, the Serb-dominated Yugoslav army supported Serbian separatists there in brutal clashes with Croatian forces.

In Bosnia, Muslims represented the largest single population group by 1971. More Serbs and Croats emigrated over the next two decades, and in a 1991 census Bosnia’s population of some 4 million was 44 percent Bosniak, 31 percent Serb, and 17 percent Croatian.

Elections held in late 1990 resulted in a coalition government split between parties representing the three ethnicities (in rough proportion to their populations) and led by the Bosniak Alija Izetbegovic.

As tensions built inside and outside the country, the Bosnian Serb leader Radovan Karadzic and his Serbian Democratic Party withdrew from government and set up their own “Serbian National Assembly.” On March 3, 1992, after a referendum vote (which Karadzic’s party blocked in many Serb-populated areas), President Izetbegovic proclaimed Bosnia’s independence.

Far from seeking independence for Bosnia, Bosnian Serbs wanted to be part of a dominant Serbian state in the Balkans—the “Greater Serbia” that Serbian separatists had long envisioned.

In early May 1992, two days after the United States and the European Community (the precursor to the European Union) recognized Bosnia’s independence, Bosnian Serb forces with the backing of Milosevic and the Serb-dominated Yugoslav army launched their offensive with a bombardment of Bosnia’s capital, Sarajevo.

They attacked Bosniak-dominated towns in eastern Bosnia, including Zvornik, Foca, and Visegrad, forcibly expelling Bosniak civilians from the region in a brutal process that later was identified as “ethnic cleansing.” (Ethnic cleansing differs from genocide in that its primary goal is the expulsion of a group of people from a geographical area and not the actual physical destruction of that group, even though the same methods—including murder, rape, torture and forcible displacement—may be used.)

Though Bosnian government forces tried to defend the territory, sometimes with the help of the Croatian army, Bosnian Serb forces were in control of nearly three-quarters of the country by the end of 1993, and Karadzic’s party had set up their own Republika Srpska in the east. Most of the Bosnian Croats had left the country, while a significant Bosniak population remained only in smaller towns.

Several peace proposals between a Croatian-Bosniak federation and Bosnian Serbs failed when the Serbs refused to give up any territory. The United Nations refused to intervene in the conflict in Bosnia, but a campaign spearheaded by its High Commissioner for Refugees provided humanitarian aid to its many displaced, malnourished and injured victims.

By the summer of 1995, three towns in eastern Bosnia—Srebrenica, Zepa and Gorazde—remained under control of the Bosnian government. The U.N. had declared these enclaves “safe havens” in 1993, to be disarmed and protected by international peacekeeping forces.

On July 11, 1995, however, Bosnian Serb forces advanced on Srebrenica, overwhelming a battalion of Dutch peacekeeping forces stationed there. Serbian forces subsequently separated the Bosniak civilians at Srebrenica, putting the women and girls on buses and sending them to Bosnian-held territory.

Some of the women were raped or sexually assaulted, while the men and boys who remained behind were killed immediately or bussed to mass killing sites. Estimates of Bosniaks killed by Serb forces at Srebrenica range from around 7,000 to more than 8,000.

After Bosnian Serb forces captured Zepa that same month and exploded a bomb in a crowded Sarajevo market, the international community began to respond more forcefully to the ongoing conflict and its ever-growing civilian death toll.

In August 1995, after the Serbs refused to comply with a U.N. ultimatum, the North Atlantic Treaty Organization (NATO) joined efforts with Bosnian and Croatian forces for three weeks of bombing Bosnian Serb positions and a ground offensive.

With Serbia’s economy crippled by U.N. trade sanctions and its military forces under assault in Bosnia after three years of warfare, Milosevic agreed to enter negotiations that October. The U.S.-sponsored peace talks in Dayton, Ohio, in November 1995 (which included Izetbegovic, Milosevic and Croatian President Franjo Tudjman) resulted in the creation of a federalized Bosnia divided between a Croat-Bosniak federation and a Serb republic.

Though the international community did little to prevent the systematic atrocities committed against Bosniaks and Croats in Bosnia while they were occurring, it did actively seek justice against those who committed them.

In May 1993, the U.N. Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, Netherlands. It was the first international tribunal since the Nuremberg Trials in 1945-46, and the first to prosecute genocide, among other war crimes.

Radovan Karadzic and the Bosnian Serb military commander, General Ratko Mladic, were among those indicted by the ICTY for genocide and other crimes against humanity.

The ICTY would eventually indict 161 individuals of crimes committed during conflict in the former Yugoslavia. Brought before the tribunal in 2002 on charges of genocide, crimes against humanity and war crimes, Milosevic served as his own defense lawyer; his poor health led to long delays in the trial until he was found dead in his prison cell in 2006.

In 2007, the International Court of Justice issued its ruling in a historic civil lawsuit brought by Bosnia against Serbia. Though the court called the massacre at Srebrenica genocide and said that Serbia “could and should” have prevented it and punished those who committed it, it stopped short of declaring Serbia guilty of the genocide itself.

After a trial lasting more than four years and involving the testimony of nearly 600 witnesses, the ICTY found Mladic, who had been dubbed the “Butcher of Bosnia,” guilty of genocide and other crimes against humanity in November 2017. The tribunal sentenced the 74-year-old former general to life in prison. Coming on the heels of Karadzic’s conviction for war crimes the previous year, Mladic’s long-delayed conviction marked the last major prosecution by the ICTY.