Surmounting the Myopic Focus on Genocide: The Case of the War in Bosnia and Herzegovina

Christian Axboe Nielsen. Journal of Genocide Research. Volume 15, Issue 1. March 2013.

Introduction

This article surveys the use of the term ‘genocide’ before, during and after the war in Bosnia and Herzegovina from 1992 to 1995. The article argues that although ‘genocide’ remains an important legal and analytical concept, an excessive focus on this term represents a misguided and counterproductive approach to the analysis of mass violence. Discussions revolving around a ‘genocide or not’ dichotomy do not further our understanding of the Bosnian war, and are in their essence more connected to desires for past and future international military interventions and to internal Bosnian political struggles than to a scholarly agenda. The ongoing obsession with the label of ‘genocide’ has distortive effects on international criminal justice, because anything less than a genocide conviction is counted as a ‘failure.’ Recent scholarly accusations that international legal findings of crimes other than genocide constitute ‘genocide denial’ are particularly troubling. In Bosnia, the disproportionate attention on genocide helps to perpetuate the zero-sum approach that has informed Bosniak-Serb political negotiations since the end of the war, and more recently the issue of ‘genocide’ has also aggravated relations within the Bosniak community. Ultimately, therefore, it may be more productive to move beyond what has become a myopic focus on genocide.

Few conflicts in recent history have received the amount of scholarly attention devoted to the war in Bosnia and Herzegovina from April 1992 to December 1995. Academic research on the war has been supplemented significantly by the work of the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY). At the same time, the very classification of the war in Bosnia has generated considerable controversy, both in the region and among scholars. This article focuses on the contested use of the term ‘genocide’, where the range of opinions in the literature has ranged from arguments that no genocide was committed in the war to efforts to classify the entire war as a campaign of genocide by the Bosnian Serbs against the Bosnian Muslim (Bosniak) population of the country. In terms of international law, the ICTY has to date determined that only the massacres that occurred after the fall of the Srebrenica enclave in July 1995 meet the necessary legal criteria for genocide. This purportedly restrictive application of genocide has provoked significant controversy among scholars in the fields of genocide studies, international law and Balkan area specialists.

In a bid to surmount the staid confines of the ‘genocide or not’ dichotomy, this article argues that the focus on ‘genocide’ in Bosnia in the war from 1992 to 1995 represents a misguided and counterproductive approach to the analysis of mass violence. Without wishing in any way to repudiate or reject the relevance of ‘genocide’, this article shows the unintended political and legal consequences of the fixation on the term to the exclusion of other crimes. The ongoing obsession with the label of ‘genocide’ carries with it detrimental costs that militate against political reconciliation, distort the prosecution of war crimes and crimes against humanity, and at times threaten considered scholarly inquiry. I also argue that an inordinate focus on a binary ‘genocide or not’ classification of conflicts is unhelpful for the important debates surrounding international interventions in armed conflicts.

In order to situate and explain the specific Bosnian context of this debate, this article starts with a brief survey of the historiography. This will show that Yugoslavia and Bosnia were already in the 1980s the sites of polemical historiographical and political debates surrounding the use of the term ‘genocide’. This in some way created a situation in which the labelling of subsequent outbreaks of mass violence as ‘genocide’ was overdetermined, and where the badge of ‘victim of genocide’ came to be regarded as an essential component of national identity.

Historical Background

The term ‘genocide’ occupied a special place in the historiography of socialist Yugoslavia. Although it debuted in official use in Yugoslavia in 1949, a year after the adoption of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, the term only entered into the domestic historiography with its introduction by the Serb historian Vladimir Dedijer in the early 1970s. Later, in 1983, Dedijer established a commission within the Serbian Academy of Sciences and Arts (SANU) for the collection of material on genocide against the Serbs and other Yugoslav peoples. The subsequent popularization and politicization of the term coincided with tectonic shifts in Yugoslav historiography. Particularly on the part of Serb historians and other intellectuals, discussions of genocide against the Serbs were engaged as part of a reassessment of postwar Yugoslav history. The second half of the 1980s and the early 1990s witnessed a veritable avalanche of works on genocide, including an acrimonious Serbo-Croat Historikerstreit focusing in particular on the number of victims killed at the Jasenovac concentration camp. In these works, genocidal intent was implicitly derived from the fact of large-scale killings, with little or no exploration of whether the legal requirements for genocide obtained.

This proliferation of scholarly production on ‘genocide’ in the Second World War did not occur in a vacuum. In the second half of the 1980s, intellectuals, politicians, and the mass media conjured the fear of renewed violence and victimization. The most well-known intellectual summary of these complaints was the leaked 1986 draft ‘memorandum’ of the SANU, which notably alleged that a ‘physical, political, legal and cultural genocide’ was being committed against the Serbs in Kosovo.

Considerable documentation links Serb nationalists’ fear of a current or impending genocide against the Serbs in Yugoslavia to subsequent steps to form political entities that would unite and defend Serbs. Particularly in Croatia and Bosnia, Serb nationalist leaders used the collective memories of past genocide(s) against Serbs as well as the allegedly impending risk of a new genocide as a rallying call. In Croatia, Croat demands for independence fed fears among the Serb minority of a return to the fascist Independent State of Croatia that existed from 1941 to 1945. A prominent Serb historian and member of the SANU, Vasilije Krestić, (in)famously posited the ‘genocidal nature’ of the Croats, a theory that justified the Serb insurgency in Croatia in 1990-91. Conversely, the malicious and revisionist attempts by Franjo Tuđman and other nationalist Croats to deny, minimize, or explain away the genocidal policies in the Second World War against the Serbs only increased the magnetic attraction of the genocide narrative among nationalist Serbs.

In Bosnia, Radovan Karadžić referred to the genocide of the Second World War in his opening speech at the founding of the Serb Democratic Party in July 1990. The fear of past and impending genocides also featured in speeches made at the inaugural session of the Bosnian Serb’s self-styled assembly in October 1991. In a number of subsequent cases at the ICTY, Serbs who were found guilty of war crimes and crimes against humanity admitted to or were found by the court to have manipulated such fears, or to have been themselves motivated in their actions by a fear of a recurrence of genocide against Serbs. For example, the Krajišnik trial chamber concluded that ‘the threat of genocide against Serbs was a constant refrain in the rhetoric of Bosnian-Serb officialdom in 1992’.

The Serb nationalist affinity for using the term ‘genocide’ is only one side of the story. Comparatively unknown, by contrast, has been the role of the term ‘genocide’ in the shaping of Bosnian Muslim (Bosniak) identity. Xavier Bougarel has uncovered how Dedijer and other scholars involved in the popularization of the narrative of genocide against the Serbs also contributed to the emergence of a related narrative among Bosnian Muslims. In his last book, Genocide against the Muslims, Dedijer implicitly propagated the notion that every one of the officially recognized nations in Yugoslavia had suffered at least one genocide—a kind of ‘brotherhood and unity’ of genocide.

In the eyes of prominent Bosnian Muslim intellectuals, genocide had been committed against Bosnian Muslims not only during the Second World War, but also towards the end of Ottoman rule and during the establishment of the Kingdom of Serbs, Croats and Slovenes. In the period from its founding until the outbreak of the war, the Bosnian Muslim Party of Democratic Action (SDA) sponsored publications, commemorations, and a conference on ‘genocide against the Muslims in Yugoslavia’. In this sense, the political interest in ‘genocide’ among Bosnian Muslims began to mirror developments among Serb politicians and intellectuals.

Finally, the term ‘genocide’ appeared even in the pre-war rhetoric of Bosnian Croat leaders. Given the involvement of Bosnian Croats in the fascist Ustaša movement (and the affinities of at least some Bosnian Croat leaders for this movement in the 1990s), this was perhaps the least likely place for this discourse to rear its head. Yet in their bid to emphasize the necessity of a separate Croat political entity in Bosnia (or union with Croatia) in 1991, Croat nationalist protagonists spoke of ‘forces in favour of a non-existent sovereign [Bosnia], in which the Croatian people would be condemned to genocide and elimination from history’. In other words, already before the maelstrom of violence engulfed Bosnia and Herzegovina in 1992, all three constituent nations in the republic had deployed narratives of genocide and victimization. Through these narratives, leaders of all the three nationalist parties that had achieved victory at the first multiparty elections in November 1990 presented stark accounts of a brutal history in which the nation’s existence had faced repeated existential threats. Only by aligning with one’s own nationalist party and obeying its leadership could ‘genocide’ be avoided.

The Use of ‘Genocide’ and the War in Bosnia

This political and rhetorical environment resulted in the overdetermined use of the term ‘genocide’ in subsequent reporting, analysis, and public debates about mass violence in Bosnia and Herzegovina. Once the war commenced, a pronounced tendency to label attacks against one’s own group as genocidal was evident. Indicative of this trend was Smail Čekić’s book Aggression against Bosnia and Genocide against the Bosniaks, 1991-1993, in which he argued that the war was merely the latest installment in a genocide ‘lasting over three centuries’. Given the horrific outbreaks of violence that occurred in Bosnia and Herzegovina beginning in 1992, such labelling took place in an understandably traumatic political and polemical atmosphere, often divorced from any methodology actually linked to the legal definition of genocide. The scenes of emaciated and terrified men confined to detention camps in north-western Bosnia and Herzegovina, first discovered by Western reporters in the summer of 1992, indelibly reminded the international public of images last seen in Europe during the Holocaust. Nor were the concerns about genocide—or fear of an impending escalation of the conflict to genocide—confined to victims and journalists. The report of the UN Commission of Experts stated that ‘it is unquestionable that the events in Opština [Municipality] Prijedor since 30 April 1992 qualify as crimes against humanity. Furthermore, it is likely to be confirmed in court under due process of law that these events constitute genocide’.

In the context of criminal prosecutions, genocide charges were brought already by May 1992 by the Bosnian government against members of the Bosnian Serb leadership. On the Bosnian Serb side, genocide charges were often filed by local prosecutors in cases of Serb civilian casualties. (Extraordinarily, in the case of the massacre of Bosnian Muslim civilians by Bosnian Serb police officers at Koričanske stijene in August 1992, the Bosnian Serb army itself spoke of a ‘genocide’ being committed.) In March 1993, as the war raged in Bosnia, the Bosnian state government filed suit against the Federal Republic of Yugoslavia (Serbia and Montenegro) at the International Court of Justice (ICJ), charging the Federal Republic of Yugoslavia with complicity in the commission of genocide in Bosnia. The legal position taken in this suit, asserting that genocide commenced simultaneously with the war in April 1992, became the accepted narrative among Bosnian Muslims. While not denying mass violence, Nikolas Rajković has argued provocatively that the lawsuit gave the Bosnian government an ‘incentive to allege genocide at each opportunity for the purposes of legal and political expediency’. Conversely, the pending ICJ case and the issue of state liability for genocide reinforced Serbia’s obstinate approach to cooperation with the ICTY.

Throughout the war, the focus on genocide was to some extent informed by the context of policy debates in which the question of international military intervention in the war often seemed to hinge on a determination of whether genocide was being committed or not. The assumption was that the ‘international community’ would only pay attention if genocide was occurring, and that it was obliged to intervene militarily if genocide were being perpetrated. By implicitly and at times explicitly equating the qualification of the violence as ‘less than genocide’ with opposition to intervention, the debate was to a considerable extent a political rather than a legal discussion. Partly as a result, it was relatively difficult to identify people who supported robust military intervention but who also believed that a genocide was not already in progress. Ultimately, decisive international military intervention did not occur until 1995, after Sarajevo had been besieged for over three years and after the massacre of thousands of men and boys in Srebrenica. This latter crime was, of course, subsequently found to be genocide by the ICTY. Yet it should be recalled that NATO’s decisive military intervention did not even occur directly in reaction to Srebrenica, but only after renewed shelling incidents in Sarajevo claimed civilian victims in August 1995.

Genocide and International Criminal Justice

To answer the question of what crimes were committed during the war in Bosnia, we must turn to the record established by the ICTY. Thanks primarily to the tireless work of the Research and Documentation Centre in Sarajevo and the Demographic Unit of the Office of the Prosecutor (OTP) at the ICTY, we now know that the war claimed an estimated 104,732 lives, or 2.4 per cent of the pre-war population of Bosnia and Herzegovina. A majority of these deaths, 68,101 or 65 per cent, were Bosnian Muslim victims. This death toll lies significantly below the estimates during and after the war of as many as 200,000 or even 300,000 victims. Yet this is in and of itself hardly relevant, as the legal definition of genocide does not include any quantitative threshold. Rather, any legal determination of whether genocide took place must focus on the question of whether those perpetrating crimes harboured the requisite special intent (dolus specialis) that distinguishes genocide from crimes against humanity or war crimes. That is, did the perpetrators of mass violence against Bosnian Muslims consciously intend to destroy them, in whole or in part, as members of that nation?

The ICTY OTP did file indictments charging genocide for the year 1992 against numerous Serbs, but has so far been unable to secure any convictions on that count. To date, convictions have been achieved at the ICTY on many other counts for 1992 such as extermination, persecution, murder, deportation, and inhumane acts. Despite the absence of genocide convictions, it can therefore hardly be said that the ICTY has offered impunity to perpetrators of the serious violations of international humanitarian law that occurred prior to July 1995.

In explaining acquittals on genocide, trial and appeal chambers at the ICTY have tended to focus on the results of the conglomeration of violent acts colloquially referred to as ‘ethnic cleansing’, noting that the net objective of this was to assert military and political control over an ethnically homogenized territory rather than to eliminate the Bosnian Muslim population physically. For example, the majority of those Bosnian Muslims who were illegally detained and incarcerated in horrendous conditions during the summer of 1992 were ultimately deported. In most cases, killings served the instrumental purpose of creating a pervasive climate of terror that would prompt Bosnian Muslims (and Croats) to flee their homes. As far as the Bosnian Serb leadership was concerned, these acts achieved the primary goal of creating ethnically pure municipalities that would henceforth be exclusively under Serb control. In Krajišnik, the most important Bosnian Serb leadership case to reach a conclusion to date, the Trial Chamber carefully noted that some of the crimes committed ‘meet the requirements of the actus reus for genocide’. However, in considering the overall context including the statements of the accused and his associates, ‘the Chamber can make no conclusive finding that any acts were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such’.

Critics of the ICTY argue that Bosnian Serb civilian and military leaders made their genocidal intent clear already in 1991, and then repeatedly after the war began. In particular, it is undisputed that Radovan Karadžić as early as October 1991 made references to the possible ‘disappearance’ of the Bosnian Muslims if they continued to push for an independent Bosnia. And at a key session of the Bosnian Serb assembly on 12 May 1992, six strategic goals were adopted, one of which was the physical separation of the Serbs from the Bosnian Muslims and the Croats. Referring to the implementation of this goal, General Ratko Mladić stated ‘that would be genocide’. A Bosnian criminologist, Edina Bećirević, correctly notes that Mladić’s words were uttered not as an admonishment or rejection of the assembly’s goal, but rather as a tactical consideration. From the nascent Bosnian Serb military’s perspective, the violence used to achieve the goals should not risk reaching the level of genocide, as that would potentially generate international military intervention. Bećirević criticizes the reading that the judges gave to Mladić’s words in the Krajišnik judgment, in effect accusing them of allowing themselves to be deceived by his ruse. The Trial Chamber wrote: ‘But there was an alternative to genocide. Mladić advised Bosnian Serb leadership on how to achieve controversial military objectives quietly, cynically, ruthlessly, while staying below the radar of international attention’. Yet this is precisely the point: if someone decides that the forced separation of ethnic groups can be achieved through means other than genocide, then it is logically possible that those goals will indeed be sought achieved through other means. That does not denote an absence of criminal conduct. As the judgments in Krajišnik and numerous other ICTY cases have shown, these other means were highly malignant and resulted in the widespread and systematic commission of a whole range of war crimes and crimes against humanity.

Nevertheless, some scholars have vocally asserted that the small number of indictments for genocide, and the even smaller number of genocide convictions, constitute a miscarriage of international criminal justice. Marko Attila Hoare has argued that not only the ICTY but also the ICJ have failed to aggressively prosecute genocide and its perpetrators. Bypassing substantive legal analysis of the statutory definition of genocide, Hoare writes that ‘by defining genocide so narrowly that the phenomenon almost disappears altogether, and employing various logical and conceptual absurdities, the ICJ struck a crushing blow against genocide prevention’. Hoare’s argument is predicated on the notion that a conviction for any crime other than genocide is tantamount to an acquittal of the accused.

Edina Bećirević has gone even further in her criticism of the ICTY. Using an extremely broad definition of genocide, she argues that genocide was committed by the Federal Republic of Yugoslavia and by the Bosnian Serbs throughout the war. Bećirević alleges that the international community has specifically sought to constrain convictions on genocide at the ICTY to Srebrenica so as to avoid highlighting the moral responsibility of the international community to intervene at an earlier stage. This resembles a conspiracy theory in which a monolithic international community closes ranks to cover up its earlier failures. Such an argument reveals a very simplistic and distorted understanding of the workings of the ICTY, an institution which from the outset and very often thereafter had collisions with the Secretariat of the United Nations and UN member states, as well as with other international organizations.

Most harmfully and erroneously, though, both Bećirević and Hoare view international criminal courts as issuing verdicts ‘which either deny or confirm genocide’. In doing so, they reveal a fundamentally flawed understanding of how criminal law functions. In international criminal courts, judges must issue a judgment on what, if any crimes were committed, and thereafter assess the criminal liability of the defendants for these crimes. In a case in which the defendant is charged with genocide and other criminal charges, the trial chamber may decide that while genocide did not occur, other international crimes did. Put in a different, domestic jurisdictional context, a judge or jury may decide that the evidence in a murder case before the court ‘only’ allows for a conviction on a charge of second degree murder or manslaughter, as the legally required intent for a charge of first degree (premeditated) murder did not obtain. This situation should not submit the jury or the judge to charges of ‘murder denial,’ any more than a failure to convict on genocide justifies equating the ICJ with ‘genocide deniers’. It is perfectly reasonable and acceptable to parse the reasoning of judges and analyze nuances and dissents in their opinions. By contrast, it is unacceptable to place judges and esteemed jurists in the odious ranks of Holocaust deniers because one disagrees with their findings. A worrying example of a public campaign that has sought to label a prominent scholar as a genocide denier is the ‘Srebrenica Genocide Blog’, whose views are also echoed on the website of the Institute for the Research of Genocide in Canada.

If convictions on genocide are the singular criterion of success for an international criminal tribunal, then it must be said that the ICTY has not been very successful. The problems with that argument begin with the fact that neither the ICTY nor any other international criminal court or tribunal has been established solely to try genocide. It is also easy to stand on the sidelines and claim that a genocide conviction should have been secured. Yet, as Richard Ashby Wilson notes, ‘genocide as a crime possesses unique legal aspects that are not always evident in the myriad usages by journalists, politicians, and human rights organizations’. Few of the scholars who have criticized the ICTY’s ‘narrow’ use of genocide have extensive experience investigating or prosecuting international crimes, and they therefore lack a practical understanding of the work and requirements inherent in proving criminal charges at court. By contrast, judges at international criminal courts and tribunals must adhere to the statutory definition of genocide. And as Marko Milanović argues, ‘an international court… should not adopt either an expansive or a restrictive definition of genocide, but the legally correct one, which is in conformity both with the text and the preparatory work of the Genocide Convention and the jurisprudence of international tribunals’. Finally, despite the widespread tendency to define genocide as ‘the crime of crimes’, the establishment of any hierarchy of criminality risks turning the criminal indictment procedure into a parlour game.

As regards the ICJ judgment on Bosnia and Herzegovina’s genocide case, the Court found that Serbia had provided extensive material assistance to the Bosnian Serb forces and that Serbia had failed to prevent the genocide at Srebrenica and to arrest and extradite Ratko Mladić, the commander of the Bosnian Serb Army, who was indicted by the ICTY for genocide and other crimes. However, Serbia was found not to have instigated or participated directly in the genocide. Like the ICTY, the ICJ ruled that only the crimes committed in Srebrenica in July 1995 could be termed genocide. The ICJ did not state that ‘genocide ceases to be genocide just because the killings are in the service of a higher goal’, as Hoare paraphrased it. Rather, like the ICTY, the ICJ held that genocidal intent is not proven merely because killings are carried out in the service of a repugnant ideological agenda.

Reactions to the ICJ ruling were numerous and fierce, reflecting the status of the case as ‘a political and cultural object immersed in the politics and controversy of Bosnia’s war’. Even the esteemed legal scholar and former president of the ICTY Antonio Cassese called the result a ‘judicial massacre’ that set an ‘unrealistically high standard of proof for finding Serbia to have been legally complicit in genocide’. Cassese did not take issue with the ICJ’s confirmation of the ICTY’s rulings on the extent of genocide during the war, but he could have noted that the ICJ also confirmed the ICTY’s factual findings with respect to the absence of a genocidal master plan on the part of the leaderships of the Serbs in Bosnia and in Serbia proper. Nevertheless, the assumption in many critiques of the ICTY and the ICJ has been that a thorough review of all the documentation on the war in Bosnia would reveal that genocide had been committed not only by the Bosnian Serbs but also by the leadership of Serbia (at the time within the Federal Republic of Yugoslavia). The unfortunate conditions of confidentiality imposed upon the collection of Federal Yugoslav Supreme Defence Council records disclosed by Serbia to the ICTY fed a widespread assumption in Bosnia that the ICJ had wilfully ignored the proverbial ‘smoking gun’ that would have revealed the existence of such a plan.

In his recent work, Extremely violent societies, Christian Gerlach criticizes genocide studies for a ‘ten[dency] to construct a monolithic actor out of people (officials and others) that to me seem to have very contradictory intentions’. This explains in part the attraction that some in the OTP at the ICTY felt for the ‘Great Serbia’ thesis: a grand and simple historical narrative that imputed onto the Serb political elite a uniform and chronic desire to achieve the unification of all territories containing Serbs into a ‘Great Serbia’ dominated by Serbs. Analogous in some respects to Daniel Goldhagen’s controversial thesis of German ‘eliminationist antisemitism’, this project was alleged to have culminated in a thoroughly genocidal campaign against Bosnian Muslims (and Croats) starting in the spring of 1992.

Yet considerable evidence introduced in court cases at the ICTY, including much of the material that is publicly available in the transcripts of the Federal Yugoslav Supreme Defence Council, belie this thesis. Within the vast conglomeration of actors that were included in various ‘joint criminal enterprises’ in the parlance of the OTP, there was significant heterogeneity and a very considerable amount of tactical disagreement about some of the methods of war, but solid strategic agreement that Croatian and Bosnian independence should be challenged with violent resistance. While the regime of Slobodan Milošević certainly bankrolled the Bosnian Serb regime and its armed forces for the duration of the war, and supported the creation and expansion of a Bosnian Serb state, substantial documentation shows that Milošević frequently castigated and ridiculed the Bosnian Serbs for their extreme methods. In November 1994, words like ‘idiots’ and ‘a sphere of the unreal’ were being used in Belgrade to describe the Bosnian Serb military and political leadership. And even while Bosnian Serbs were engaged in widespread crimes against Bosnian Muslims with essential assistance from Belgrade, the Federal Republic of Yugoslavia left Sandžak relatively untouched—a major region of its own state in which Muslims were a majority. Thus, at a March 1993 session of the Federal Yugoslav Supreme Defence Council, Montenegrin President Momir Bulatović stated of the Bosnian Serb leadership that ‘we have to help them, but at the same time we have to realize that it is difficult to cooperate with someone who, as the President of the Government of the Republika Srpska, advises [us] to ethnically cleanse the Sandžak and to kill the Muslims there’. At a minimum, this stance creates problems for those who wish to impute genocidal intent towards Muslims to the Milošević regime. That said, the untimely death of Milošević means that the ICTY will never definitively pronounce on the scope of his personal criminal responsibility for genocide, though some additional light may be shed on this in other pending ICTY cases.

The Consequences of the ‘Genocide’ Debate in Bosnia

Outside the courtroom, the disproportionate emphasis on ‘genocide’ in the war in Bosnia has had numerous unfortunate consequences. By placing such a premium on the use of ‘genocide’, and insisting on it to the exclusion of other serious crimes such as crimes against humanity and war crimes, the advocates of the genocide label implicitly put themselves in the position of marginalizing ‘lesser’ crimes to the point where these become an irrelevant afterthought. Paradoxically, this stance puts these advocates perilously close to those Serb nationalists who in opposing the inclusion of ‘genocide’ in the 2010 Serbian parliamentary declaration on Srebrenica believe they have achieved victory. After all, many extreme nationalists reason, if their nation did not commit genocide, it must not be morally bad.

The emphasis on ‘genocide’ also reinforces the perpetual political impasse in Bosnia. Since the end of the war, some Bosniak politicians and clergy have exhibited an unfortunate tendency to exploit the status of Bosniaks as victims, and in particular as victims of genocide, for political gain. The use of ‘genocide’ must be understood in the context of the chronic political disputes linked to the political structure of Bosnia. In dividing Bosnia into two entities, the Serb Republika Srpska (RS) and the Bosniak and Muslim Federation, the Dayton Peace Accords have perpetuated the zero-sum mentality of the war. In their dissatisfaction with Dayton and their desire to create a stronger, centralized state some Bosniak politicians have directed particular ire towards the Republika Srpska, which they view as a ‘genocidal creation’ (genocidna tvorevina). Bosniak elites hence tend to believe that the recognition of the entire war as a ‘genocide’ would logically result in the eventual weakening or dismantling of the RS. By contrast, RS President Milorad Dodik rejects any measures of centralization and has frequently voiced his opinion that Bosnia is an ‘artificial creation’ (vještačka tvorevina) that is doomed to fail. In his comments, Dodik has increasingly obliged Bosniak critics by engaging in nationalist rhetoric and questioning the status of Srebrenica as a genocide—and to some extent by permitting those around him to argue that the Serbs were themselves the victims of ‘genocide’ or at least under the threat of extermination during the war. In this manner, ‘genocide’ exists as a particularly divisive shorthand signifier, one that often speaks more of the views of the particular person on ‘Dayton Bosnia’ than of any substantive analysis of the nature of the preceding war.

In the summer of 2011, the apparent failure of the Bosnian state to appeal the 2007 ICJ ruling led to recriminations by Bosniaks that the state was capitulating to the allegedly narrow, ‘Srebrenica only’ interpretation of genocide. As noted above, this judgment, while regarded as an important confirmation of the genocide at Srebrenica and hence as a hindrance to denial of that genocide, was nonetheless viewed as an ‘incomplete judgment’.

The instrumentalization of ‘genocide’ can also be observed in attempts to mobilize Muslims both inside and outside Bosnia in order to form a strong Bosniak front. Although the turn towards Bošnjaštvo (Bosniak-ness) has occurred to some extent among Muslims in Croatia, the main contested area has been the Sandžak region of Serbia. In June 2011, Bosniak intellectuals and clergy led by the controversial Mufti Muamer Zukorlić of Sandžak founded a Bosniak Academy of Sciences and Arts, or BANU. Although the BANU’s founders declared their intentions to cooperate with other similar institutions in the region and to support the multicultural nature of ‘Bosnia, Sandžak and the broader region,’ the initiative was widely criticized as ethnically exclusivist and as lacking intellectual credibility. Tellingly, the founders of the BANU immediately deployed the word ‘genocide’ when confronted by criticism of the initiative from Serbia.

[The criticism] is expected because on the basis of the long Bosniak experience, it is clear that everything that is linked to Bosniaks is systematically extinguished, persecuted and discredited by governing Serbian structures. The pinnacle of this is of course the systematic killing and oppression which the international community has qualified as genocide. During the war there was physical genocide, and today there is an attempt to carry out a spiritual and mental genocide against Bosniaks and their national values.

Although the politicization of ‘genocide’ is primarily evident in the chronic stalemate between Bosnian Serbs and the Bosniaks, ‘genocide’ has also more recently been used as a rhetorical weapon in political disputes among Bosniaks. ‘Genocide’ has been deployed to attack those Bosniaks who deviate from the party line (in the SDA, for example), who seek political compromise at the state level with the RS, or who question the political interventions of the Islamic clergy. Such persons are accused of appeasement and of acquiescing in ‘genocide denial’. Thus, the aforementioned rebuttal of criticism from the founders of the BANU added that ‘the arguments and positions of the Belgrade authorities and those supporters of genocide against the Bosniaks… are completely identical to some Bosniak intellectuals in Sarajevo who are afraid of Islam, the Islamic Community [and] the Reis-ul-Ulema’. The controversy surrounding the BANU coincided with a campaign by the Islamic Community against those Bosniaks perceived as being ‘Islamophobes’. On 18 August 2011, the Islamic Community issued its first report on Islamophobia, and included quotations from many prominent Bosniak journalists who were labelled as Islamophobes. Reacting to the report, one moderate Bosniak journalist pointed out that while intolerance against Islam certainly existed, it was simply unacceptable that the Islamic Community ‘in this way attempts to make impossible all criticism of the work of its officials and organs’. Another journalist pondered fleeing from ‘Bosniakistan’ if the Islamic Community continued to insist that he could decide who ‘we’ were.

In Bosnia today, the ‘genocide’ issue has a worrying tendency to turn even completely unrelated issues into zero-sum polemics. In spring 2011, Emir Suljagić, the social democratic cantonal minister of education in Sarajevo, decided to prevent the grade given for religious education from being factored into the grade point average of students in the canton. Suljagić undertook this step in order to avoid discrimination against those students opting out of religious instruction. Reis-ul-Ulema Mustafa Cerić greeted Suljagić’s decision with a dramatic accusation that Suljagić was defaming Bosniak victims in the war and also paving the way for a new genocide against the Bosniaks. This vituperative reaction was all the more shocking given that Suljagić is a prominent Srebrenica survivor. In February 2012, Suljagić resigned from his ministerial post, citing persistent threats to him and his family and an atmosphere of ‘public lynching’.

Conclusion

There can be no doubt that ‘genocide’ remains an important and valid analytical and legal category. However, those scholars and advocates who push for ever broader definitions of ‘genocide’ must ask what is actually gained by such a practice In the context of international criminal prosecution, it seems implausible that a higher incidence of genocide convictions would result in greater deterrence. As Gareth Evans has pointed out, there are risks in an expansive use of genocide, as ‘we find the lawyers’ issue of “genocide or not genocide” becoming the issue, when the real issue is the need to act to protect people when atrocity crimes of any kind are being committed’. (And the degree to which international criminal justice as such results in deterrence is certainly open to question.) Genocide convictions may offer more consolation or ‘closure’ to the victim community. However, it seems clear that such convictions have great symbolic and political implications that are often more central to demands for the use of ‘genocide’. It is these very implications that can have undesirable indirect consequences, particularly when they encourage the development of simplistic readings of conflicts in which the victims were only victims, while the ‘others’ were only perpetrators. Such understandings can mitigate against long-term reconciliation, or contribute to the creation of political environments in which the previously victimized group believes itself fundamentally incapable of perpetrating violence upon others.

The myopic focus on genocide is also unhelpful in that it feeds the erroneous assumption that the international community would intervene if only we all could agree that a genocide was in progress (or imminent). Undoubtedly, both in Bosnia and Rwanda it was the case that semantic games were played around the (non)-use of ‘genocide’ with a view to justifying non-intervention. I would argue, however, that these tactics merely obscured the larger structural reasons that explain the lack of intervention. Paradoxically, the willingness of the Bush Administration to label events in Darfur as genocidal did not result in robust intervention to end the violence, and it may well have had distortive effects on attempts by the International Criminal Court to investigate and prosecute crimes there. Would it not be better to have discussions about the proper criteria for military intervention in cases of mass violence that did not hinge on whether something was or was not genocide? Although such discussions would probably not resolve the underlying political, military and ideological debates surrounding such interventions, they would at least draw back the curtain on the charade that state actors engage in when they claim that they would perhaps intervene if genocide rather than ‘mere’ mass violence were found to be occurring.

Another, perhaps unspeakable, element of our fascination with genocide is that a protracted episode of mass violence would somehow seem to make more sense to us if it was the product of an evil master plan directed from above by identifiable leaders with clear chains of command. The existence of such a plan would greatly assist the work of international criminal prosecutors, and may therefore also explain some of their proclivity for alleging grand joint criminal enterprises, but the judgements of the ICTY speak of a significantly more complex picture. Equally ineffable, perhaps, is the reality in which those investigations and trials that focus on charges of genocide not only attract the most resources and most ambitious prosecutors, but also a disproportionate share of international media attention. ‘Mere’ war crimes and crimes against humanity pale by comparison. Yet an undue focus on genocide charges leads in the worst case to flawed investigations and prosecutorial strategies that distract from proving ‘lesser’ charges of crimes against humanity and war crimes. Proper international criminal investigations and prosecutions must be driven by charges backed by robust evidence and careful analysis, not by a desire to generate prestige or publicity through unfounded charges of genocide. If these point to ‘lesser’ charges than genocide, then so be it. In the end, ‘a decision that a particular atrocity is not “genocide” does not of course remove the moral or legal guilt for conduct that falls within the definition of other international crimes’.

In conclusion, a myopic obsession with ‘genocide’ helps neither victims nor international criminal justice, and it risks obscuring rather than clarifying past historical events. Instead, it only furthers what Elissa Helms has called an ‘arms race’ of victimhood. In practically pursuing the ideals of both international criminal justice and greater understanding of extreme campaigns or episodes of mass violence, we should strive for nuanced and accurate renderings of past injustices rather than for maximalist conclusions that purport to see genocide anywhere mass violence occurs.

This is not genocide denial, but rather the careful writing of history. In his book on the ‘Bloodlands’ of Europe, where Nazi Germany, the Soviet Union, and their allies spent decades engaged in utterly destructive ideological projects, Timothy Snyder eschews the term ‘genocide,’ while at the same time never denying that it occurred. He does so because he dislikes the vacuity of the interminable binary ‘genocide or not’ debates. He also notes that ‘competitive martyrology’ prolongs rather than solves historical disputes. In the post-conflict stage, genocide should not also not confer any kind of permanent status, and certainly not impunity to prosecution for one’s own crimes. The more recent case of Rwanda, for example, offers ample proof that a regime representing a group that was the victim of genocide can unfortunately exploit this status not only to thwart investigations of perpetrators in the main victim group, but also in order to blunt criticism of it own malignant activities in the Democratic Republic of Congo.

Scholarly and legal debates about the allegedly restrictive readings of the Genocide Convention, and the onerous burdens that such readings impose upon a prosecutor wishing to prove dolus specialis in the context of a genocide charge, are well worth having. And careful reconsiderations of the nature of violence in a war such as that in Bosnia are of course also welcome—in this sense Edina Bećirević does to some extent succeed in making a passionate case for a wider occurrence of genocide. But a polemical atmosphere in which the ICTY—the most productive international criminal court in history—is tarnished with the brush of failure and where its findings that extensive crimes of humanity and war crimes rather than genocide were committed during the greater part of the war in Bosnia and Herzegovina are labelled as ‘genocide denial’, does massive disservice to careful scholarly and legal inquiry.

Finally, from the perspective of Balkan and Yugoslav history, it would be beneficial if the circle of perpetration and victimhood could be broken. After the First World War, much of the Serb political elite successfully used the enormous suffering of the Serbs during that war to push successfully for the establishment of a highly flawed political system. It would be tragic if Bosniaks today would emulate Serb nationalism by trying to assert themselves politically in Bosnia through a simplistic historical narrative of victimization and resulting entitlement. Such a narrative can only thwart attempts at creating a stable Bosnia based on democracy and civil society instead of on narrow, ethnically defined interests. Much better, instead, to focus on continued investigations and prosecutions of perpetrators of war crimes, crimes against humanity, and genocide, regardless of the ethnicity of both perpetrators and victims. Doing so in no way trivializes or denies the disproportionate level of atrocities during the war in Bosnia. Rather, it remains an important aspect of healing society and ending impunity. It would also ideally help to extricate us from a memorialization of victims in which multifaceted lives and identities are forever reduced to the perpetrator’s reductionist and pathological view. Instead of permitting the perpetrator to have the final word in the sense of having killed someone because he or she was a Bosnian Muslim, we should in the end strive to recover the essential and inalienable humanity of the victim.