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"Genocide Denial" Laws as Secular Heresy: A Critical Analysis with Reference to BosniaAuthor(s): Robert M. HaydenSource: Slavic Review, Vol. 67, No. 2 (Summer, 2008), pp. 384-407Published by:Stable URL: http://www.jstor.org/stable/27652849.
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DISCUSSION
"Genocide Denial" Laws as Secular
Heresy:
A
Critical
Analysis
with Reference
to
Bosnia
Robert
M.
Hayden
In
early February
2007,
the
British
newspaper
the
Daily
Telegraph
reported
that
Germany
would
propose
to
the
European
Parliament
legislation
requiring
that
"each member
state
shall take the
measures
necessary
to
ensure
that the
following
intentional
conduct
is
punishable:
'publicly
condoning,
denying
or
grossly trivialising
of crimes
of
genocide,
crimes
against
humanity
and
war
crimes.'"1 The Ottawa Citizen
reported
imme
diately
thereafter that
under such
legislation,
Canadian
retired
Major
General
Lewis MacKenzie
would
face
charges
for
questioning
the
num
bers
killed
at
Srebrenica
in
1995.
According
to
the
paper,
MacKenzie
ac
knowledges
that thousands
were
killed but denies that
the
acts
constituted
genocide.2
This German proposal for criminalizing speech about historical
events
raises
many
troubling
issues,
and
no
less
a
genocide
scholar
than
Deborah
Lipstadt,
who
won
a
legal
case
against
David
Irving
on
the issue
of Holo
caust
denial,
came
out
firmly against
it.3
The
proposed
law is
clearly
con
trary
to
what
Amnesty
International,
in
a
1985 criticism
of the
prosecution
of various
nationalists
and other dissidents
in
what
was
then
Yugoslavia,
described
as
"the
non-violent
exercise of
internationally recognized
hu
man
rights,
in
particular
the
right
to
freedom
of
expression."4
The
legisla
tion has
been
criticized
on
such
grounds,
and
passage
delayed.5
But this
proposed European
Union
(EU)
legislation
about
genocide
denial is
only
one of a number of such laws in Europe, some of which are in force and
have been used
to
convict
people
of
verbal crimes.
A
Turkish
politician,
for
example,
was
convicted
in
Switzerland
in
March
2007
for
denying
that
the
mass
killings
of
Armenians
in
1915
constituted
genocide,
even
though
I
am
grateful
for
the
comments
of
Jennifer
Cash,
Bill
Chase,
Noam
Chomsky, Ilya
Pri
zel,
Mark
Steinberg,
and
especially
for those of
several
anonymous
reviewers
for Slavic
Review.
1.
"EU Plans
Far-Reaching
'Genocide Denial'
Law,"
Daily Telegraph,
2
February
2007.
2.
Ottawa
Citizen,
2
February
2007.
3.
Daily
Telegraph,
2
February
2007.
4.
Amnesty
International,
Yugoslavia:
Prisoners
of
Conscience
(London,
1985),
9-10.
5.
The
blog
of
Deborah
Lipstadt, "History
on
Trial,"
covered the
issue:
see
entries
for
29
May
2007
("EU
Legislation
on
Genocide
Denial: Still
in
Flux")
and
23
April
2007
("EU
Law
to
Outlaw
Genocide Denial
Defeated"),
though
the latter
pronouncement
was,
as
Lipstadt
admitted
on
29
May
2007,
premature.
See
lipstadt.blogspot.com
(last
consulted
22
February
2008).
Slavic Review
67',
no.
2
(Summer
2008)
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"Genocide Denial" Laws
as
Secular
Heresy
385
he had
acknowledged
that
massacres
took
place.6
Others have been
con
victed
in
Austria and France for
denying
the
reality
of the Holocaust.
In
Europe,
such cases are
governed
overall
by
the
European
Conven
tion
on
Human
Rights,
Article
10(1)
of
which
provides
that
"Everyone
has
the
right
to
freedom
of
expression.
This
right
shall
include
freedom
to
hold
opinions
and
to
receive and
impart
information and ideas without
interference
by public authority
and
regardless
of frontiers." This
right,
however,
is
qualified
by
Article
10(2),
which
states
that "The exercise of
these
freedoms,
since it carries with it duties and
responsibilities,
may
be
subject
to
such
formalities, conditions,
restrictions
or
penalties
as are
pre
scribed
by
law
and
are
necessary
in
a
democratic
society,
in
the
interests
of national
security,
territorial
integrity
or
public safety,
for the
preven
tion of disorder
or
crime,
for the
protection
of
health
or
morals."
Further,
Article
17
provides
that
"Nothing
in
this Convention
may
be
interpreted
as
implying
for
any
State,
group
or
person any
right
to
engage
in
any
ac
tivity
or
perform
any
act
aimed
at
the
destruction
of
any
of the
rights
and
freedoms
set
forth herein
or
at
their limitation
to
a
greater
extent
than
is
provided
for
in
the Convention." Taken
together,
Articles
10(2)
and
17
provide
mechanisms for
imposing
restrictions
on
the
rights
otherwise
guaranteed by
Article
10(1).
A
provision
in
the
proposed
legislation saying
that
"member
states
may
choose
to
punish only
conduct
which
is
either
carried
out
in
a
manner
likely
to
disturb
public
order
or
which is
threatening,
abusive
or
insult
ing"
is
hardly reassuring,
since it would
actually
increase
the
vagueness
and
uncertainty
that
Amnesty
International
complained
of in
1985: that
the "verbal delict" sections of socialist
Yugoslavia's
criminal
law
rested
on
"the
vague
formulation
of
legal provisions
which
enables them
to
be
ap
plied
so as
to
penalize people
for the
non-violent exercise
of
their
human
rights."7
By
the
language
of the
proposed
EU
legislation,
states
would
be
empowered
to
criminalize
nonviolent,
verbal actions that
are
not
likely
to
disturb
public
order and
are
not
"threatening,
abusive,
or
insulting";
in
deed, they actually are called on to do so, but given the option to be more
limited
in
their
approach.
This call
to
criminalize verbal
acts
that do
not
disturb
public
order
and
are
not
threatening,
abusive,
or
insulting
makes the
proposed "genocide
denial"
legislation
closely
resemble
two
other
regimes
of
criminalization of
speech
in
modern
Europe.
As
already
mentioned
in
regard
to
Yugoslavia,
the
states
of
what
was
then
"actually existing
socialism" had similar
prohi
bitions
on
speech
critical
of
key
elements
of
the socialist
order,
and this
article
points
out
some
of the
similarities
in
the
language
used
to
justify
genocide
denial laws
and
those
criminalizing
some
verbal actions under
state socialism. Further, both of these efforts to criminalize
speech
rest on
6. "Turkish Politician Fined
over
Genocide
Denial,"
9 March
2007,
at
www.swissinfo
.org/eng
(last
consulted
22
February
2008).
7.
Council
of the
European
Union,
2794th
Council
meeting, Justice
and Home
Af
fairs,
Luxembourg,
19-20
April
2007,
"Council Framework
Decision
on
Combating
Rac
ism and
Xenophobia,"
Council of the
European
Union Press Release
8364/07
(Presse
77)
(EN).
Emphasis
added.
Amnesty
International,
Yugoslavia,
10.
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386
Slavic
Review
justifications
similar
to
those
used
to
justify
treating
heresy
as
a
criminal
offence,
punishable
by
state courts
rather than
just religious
ones,
in Brit
ain and the United States from the late
eighteenth
until the
early
twenti
eth centuries.
It is
due
to
these
similarities
that
I
analyze
"genocide
denial"
laws
as
efforts
to
punish
secular
heresy.
Though
the
concept
of
heresy
is
derived
originally
from
religious
dis
course,
the
term
has
wider
meaning,
as
"a
doctrine,
opinion
or
set
of
opinions
at
variance with established
or
generally
received views
or
doc
trines."8
I
see
criminalization
of such unorthodox
views
as an
attempt
to
protect
deeply
held doctrines
that
are
widely regarded
as so
important
that
challenging
them
should be
a
punishable
offense.
The
whole
point
of
criminalizing
the
presentation
of
a
point
of
view
is
to
prevent anyone
from
considering
that
some
elements of it
might
be
true,
and
so
defin
ing
all
forms of criticism
as
illegitimate
may
be the clearest indication
that the ban
involves
heresy.
Were
a
heretical
challenge
to
be
true,
the
impugned
belief
system
would have
to
fall,
and thus the
possibility
that
a
heresy
might
be
true
is
incompatible
with the
very
concept
itself.
Reli
gious
heresy
cannot
logically
be reduced
to
an
empirical question,
since
God's
truth is
not
testable
empirically.
Genocide denial claims could
often
be
treated,
at
least
in
principle,
as
empirical questions,
but
criminalizing
the
denial
of
genocide
is
aimed
at
preventing
empirical investigation
that
would
counter
the officialized truth; that is, after all, the very
essence
of
the
crime.
A
striking
feature of the
concept
of
genocide
denial
is that
it
is
being
invoked
to
justify
infringement
of
the fundamental
right
to
freedom
of
expression
in
societies that
otherwise claim
to
make human
rights
cen
tral
to
their
ideology.
Since this
infringement
can
be made
even
in
cases
when there is
no
threat
to
public
order,
it
is
not
comparable
to
the classic
example
of
justifiable infringement
of free
speech
in
the United
States,
that freedom of
speech
does
not
cover
"falsely
calling
fire
in
a
theatre,"
or
the
creation
of
a
"clear
and
present
danger"
to
public
order.9
The
same
capacity to justify violation of what would otherwise be fundamental prin
ciples
of
legitimate
social
or
political
action
was,
until the twentieth
cen
tury,
exhibited
by
the
concept
of
heresy,
since it
was
punished
as a
secular
crime,
not
a
religious
one,
in
self-consciously
secular,
modern
states.
One
is
reminded of
Kenneth
Burke's "God
terms,"
those
key
concepts
that
can
be invoked
as
ultimate values
that
stop
further
discussion and
that need
not
be
deistic:
money,
for
example,
as a
God
term
for
economists.10
If
God
terms
need
not
be
deistic,
neither
must
heresy.
These
are
not
abstract
issues,
but rather
ones
that
can
have real
con
sequences,
not
only
for deniers of the
reality
of the
Holocaust,
Turkish
politicians
who
deny
that the 1915 massacres of Armenians constituted
genocide,
and Canadian
generals
unwise
enough
to
speak
about their
experiences
in
peacemaking
missions in
the
Balkans,
but also for
scholars
8.
Webster's
Twentieth-Century
Dictionary,
unabridged,
2d
ed.
9.
Schenck
v.
United
States,
249
U.S.
47
(1919).
10.
Kenneth
Burke,
A
Grammar
of
Motives
(1945;
Berkeley,
1969).
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"Genocide DeniaV Laws
as
Secular
Heresy
387
and others
who
take
seriously
the
need
to
understand
the
facts,
causes,
and
meanings
of
instances
of
mass
killings
that
are,
arguably,
genocide,
because the nature of
"genocide
denial" laws is to
prevent,
or at least dis
courage
strongly,
the
argument
from
taking place.
In
order
to
show the
potentially
oppressive
nature
of
these
laws,
this article
makes
a
sustained
critical
analysis
of the
findings
of
the International Criminal Tribunal
for
the
Former
Yugoslavia
(ICTY)
in
the
case
of
General
Radislav
Krstic that
the
mass
killings
of
Bosniaks
by
Bosnian Serb forces
in
Srebrenica in
July
1995 constituted
genocide.
Since the
proposed
EU
legislation
calls for
criminalizing
the
denial
of
genocide
when
specific
acts
have
been
recog
nized
as
such
by
a
competent
international
court,
if that
legislation
passes,
denying
the
applicability
of the
term
to
Srebrenica
seems,
prima
facie,
to
constitute
a
criminal
act.
It
is
thus with
some
discomfort that
I do
exactly
that,
by
questioning
the
ICTY
decision.
It is
my
contention
that the
finding
that the Srebren
ica
massacre
constituted
genocide
distorts the
definition of
the
term
by
making
it
so
broad that
it
loses the
possibility
of uniform
application.
If
this
contention
is
true,
however,
the
concept
of
criminalizing "genocide
denial"
not
only
becomes
contrary
to
principles
of free
speech
and
intel
lectual
inquiry
but
also manifests the
same
problem
that
Amnesty
Inter
national identified
in
its
reports twenty
years ago
on
the
vagueness
of the
"verbal crimes"
provisions
of
the criminal
laws
of
the former
Yugoslavia,
which made
it
possible
for
them
to
be
applied
for
politically
motivated
reasons
to
punish
the
legitimate
exercise
of
human
rights
and freedoms.
An
Inherently
Provocative
Case
Study:
The
Issue
of
"Genocide"
in
Bosnia
It is
probably
unavoidable that
this
case
study
be
provocative.
Bosnia
was
unquestionably
the
site of
major
crimes
in
violation of
international
hu
manitarian
law,
and
Srebrenica the site of the
single
largest
mass
killing
in Europe since the 1940s. As such, they have become emblematic of the
need
felt
by
many
to
develop
new means
of
punishing
such crimes.
To
question
whether
"genocide"
took
place
must
therefore be
provocative
to
those who
truly
believe that that
supposed
fact
cannot
be
questioned.
But
it is
precisely
such
a
seemingly
well-settled situation that is
needed
to
show the
fallacy
of
attempting
to
make
any
judicial
decision immune from
challenge.
The
inherently
provocative
nature
of the
case
study
makes discussion
of
it
difficult,
however.
Indeed,
one
referee
for
this
journal
bluntly
as
serted
that the
first
version
of
this
paper
constituted
"genocide
denial"
and was "brilliant and vicious," without addressing any of my arguments.
Not
exactly
a
scholarly critique,
but indicative of the
problem
one
faces
in
even
discussing
these issues.
The
word
genocide,
a
term
stemming
from
the Holocaust and
invoking
its
unquestionably
well-documented
horrors,
connotes
exceptional
evil,
more
than
other
war
crimes and
mass
killings.
To
those
who
firmly
believe that
genocide
has
occurred,
questioning
that
belief
is
an
immoral,
perhaps
even
a
"vicious,"
act.
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388
Slavic
Review
It
is
necessary
to
state
up
front that
my
challenge
is
not
to
the
facts
of
the
mass
killings
at
Srebrenica
as
determined
by
the
ICTY,
or
to
the crimi
nality
of
those
acts,
but rather
to
labeling
them
as
"genocide."
In
arguing
what
will
be
a
controversial
case,
this
article
first discusses
the
magnitude
of
the
mass
killing
at
Srebrenica,
accepting
the
figures
put
forth
by
the
ICTYs
experts
in
scientific
articles and
a
study
directed
from
Sarajevo
that
has
been
supported
by
several
European
states.
There
is
no
question
that
the
killings
at
Srebrenica
were
criminal and their
perpetrators
were
guilty
of
a
number of serious crimes
punishable by
the
ICTY:
extermination,
persecution,
murder,
and
inhumane
treatment,
to
name
other
crimes
of
which General Krstic
was
convicted. The issue
is
simply
the
applicability
of
the
term
genocide.
A
Necessarily
Provocative
Analytical
Framework:
Secular
Heresy
My
invocation
of
the
term
heresy
to
cover
genocide
denial
laws,
equating
for this
purpose
beliefs
in
concepts
such
as
human
rights
with
those
in
the
tenets
of
deistic
religions,
also
seems
to
be
provocative.
Yet
as
stated
above
with reference
to
Kenneth Burke's "God
terms" and
the
diction
ary
definition of
heresy
and
in
more
detail
below,
what
is
comparable
between
religious
heresy,
genocide
denial
prohibitions,
and the
"verbal
delicts" of criticizing state socialism is that they
are
all concerned with
protecting
beliefs
considered
essential
to
the
just ordering
of
society.
I
belabor this
point
because
despite
these
arguments
and
references,
and
indeed
without
discussing
or even
noting
them,
one
reviewer of
an ear
lier
version
questioned
the
applicability
of
"arguing
from
medieval
heresy
and
dogma," despite
my
explicit
argument
that
I
was
not
doing
that,
and
another
asserted
that
by
invoking
the
concept
of
heresy
I
ignore
that
the
genocide
denial laws
had
"serious
arguments
in
their
favor and
serious
people
behind
those
arguments." Although
this
is
no
doubt
true,
it is
ir
relevant:
many
of those who
banned
religious
heresy
and
criticisms
of
the
premises of state socialism were serious people making serious arguments.
Or
at
least,
they
thought
that
they
were.
The
point
is
that
those
who would
criminalize
genocide
denial,
like
those
who criminalized
criticisms
of
state
socialism and those who
criminalized the
promulgation
of
religious
her
esy,
used
very
similar
reasoning,
and
even
similar
wording,
to
justify
their
actions.
I
use
the
term
heresy
not
as
a
metaphor
but rather
as
an
analytical
term:
this
is
the
larger
concept
that
encompasses
efforts
to
criminalize
speech
that
questions
basic
tenets
of
an
ideological
or
belief
system,
such
as
inter
nal criticisms of
state
socialism,
or
denial
of
the
applicability
of the
term
genocide
for some mass crimes, in a
system
that
purports
to make central
the
protection
of human
rights.
If this is
"provocative,"
as
reviewers
have
complained,
the
provocation
seems
necessary
to
force
consideration
of
the similarities between these
efforts
at
criminalizing speech
on
political
grounds.
The
comparison
may
well
cause
discomfort
to
those who
think
that
efforts
to
protect
secular belief
systems
are
not
subject
to
the
same
forms of
criticism
as
deistic
ones,
but that
is
an
assumption
that
this article
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"Genocide
Denial"
Laws
as
Secular
Heresy
389
is
meant
to
bring
into
question
with
the
concept
of "secular
heresy,"
to
which
we now
turn.
Heresy
in
a
Secular
Europe
As
a
category
of
criminal
act,
heresy
is
generally
linked
to
religion,
espe
cially
Christianity.11
Yet for hundreds
of
years,
in
English
and
American
law,
at
least,
while
heresy
has
been defined
in
terms
of
denying
some
of
the essential
doctrines
of
Christianity,
its
criminalization
has
been
justi
fied,
not
on
theological grounds,
but
rather
on
the
need
to
protect
public
order
and
the
bases
of
morality.
Thus
in
the classic
eighteenth-century
statement
of
English
law,
Sir
William
Blackstone
made
it clear
that
while
the
decision
to
punish
apostasy
and
heresy
as
denials
of
religion
should
remain
exclusively
in the
realm
of
ecclesiastical
courts,
criminal
penalties
by
the
state
of
up
to
three
years
imprisonment
were
justified
because
the
acts
threaten
to
"destroy
all
moral
obligation,"
those
principles
of
cor
rect
action
upon
which
society
ultimately
relies,
because
almost
everyone
believes
in
them.12
American and
British
cases
from the nineteenth
and
early
twentieth
centuries
took
the
same
position
and extended
it
by
say
ing
that
punishment
for
verbally
denying
Christianity
was
justified
on
the
grounds
that
it
offended
the
beliefs
of
the
majority
of
the
people
and
thus
threatened the public peace.13 By 1883,
the law
in
England
was
that
verbal
denials
of the
tenets
of
Christianity
could
only
be
punished
as
crimes
if
there
was
malicious intent
to
insult others.14
These
grounds
for
permitting
heresy
to
be
punished
are
secular,
since
what
is
at
stake
is
not
the
truth
of
any
specific
Christian doctrine but the
risk that denial
of
these truths
may
spark
violence
since the
vast
majority
of
the
population
believe
Christianity
to
be
the
one
true
religion.
Thus
heresy
is
punishable
because the
belief
system
it
challenges
is
pronounced
central
to
the maintenance
of
social
order.
We
may
recall
that
speech
and
writings
that
"endanger
the
social
or
der" were prohibited under state socialism in eastern Europe and that
prosecutions
on
such
grounds
were
cited
by organizations
such
as
Am
nesty
International
as
violations
of
human
rights.
In
the
specific
case
of
socialist
Yugoslavia,
Article
114 of
the
federal criminal
code
prohibited
acts "intended
to
curtail
or
overthrow
the
authority
of the
working
class
and
working people
. . .
breaking
up
the brotherhood
and
unity
or
de
stroying
the
equality
of
the
nations
and
nationalities
of
Yugoslavia."15
A
large
part
of the
justification
provided
by
the
Yugoslav
government
at
the
time
was
that
they
were
punishing
"hate
speech."
Amnesty
International
noted
in its
1985
report
that
repression
of
speech
was most
severe
in Bos
11. See
generally
Leonard
W.
Levy,
Blasphemy:
Verbal
Offense
against
the
Sacred,
From
Moses
to
Salman
Rushdie
(New
York,
1993).
12.
William
Blackstone,
Commentaries
on
the Laws
of
England,
9th ed.
(London, 1783),
bk.
4,
chap.
4,
p.
44.
13.
Levy,
Blasphemy,
413.
14.
Ibid.,
486-87.
15.
Quoted
in
Amnesty
International,
Yugoslavia,
34.
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7/24/2019 Genocide Denial Laws as Heresy
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390
Slavic
Review
nia
and
Herzegovina
and
also
that the
government
"frequently
referred
to
the
bloodshed
of
that
period
[that
is,
World
War
IPs
"bitter
communal
fighting"]
as a
justification
for
repressive
measures."16
But
Amnesty
Inter
national
clearly
did
not
accept
that
argument,
since it
adopted
fourteen
"prisoners
of
conscience"
from
among
those
so
persecuted.
It
is,
however,
very
much
the
same
kind of
reasoning
that lies behind
recent
attempts
to
criminalize
"genocide
denial." The
proposed legisla
tion is
justified
as an
attempt
to
prohibit
racism
and
xenophobia.
A
similar
regulation
on
"Cybercrimes,"
providing
for
"the
criminalisation
of
acts
of
a
racist and
xenophobic
nature
committed
through
computer
systems,"
provides
a
clear
statement
of the
centrality
of the
ideology
underlying
the
rules:
that
"acts
of
a
racist
and
xenophobic
nature
constitute
a
violation
of
human
rights
and
a
threat
to
the
rule
of
law and
democratic
stability."
Thus,
even
though
this
regulation
recognizes
that "freedom
of
expres
sion
constitutes
one
of
the
essential
foundations of
a
democratic
society,
and
is
one
of
the
basic
conditions
for
its
progress
and
for
the
develop
ment
of
every
human
being,"
application
of
this
core
democratic value
must
be
denied
when
communication
involves
"racist
and
xenophobic
propaganda."17
A
principle
that
must
fall
upon
the
invocation
of another
one
is infe
rior
to
the
latter,
so
this
phrasing
means
that
achieving
the
goal
of
fighting
racism
and xenophobia is superior to protecting the mechanisms usu
ally
regarded
as
necessary
for
maintaining
a
democratic
society.
Clearly,
then,
criminalization
of
genocide
denial
sanctifies
the beliefs
challenged
by
racism
and
xenophobia
as
the
true
core
values
ensuring
the
stability
of
the
social
order of
modern
Europe.
I
say
"sanctifies"
because while these
values
are
secular,
in
the
sense
of
not
being grounded
directly
in the
es
tablished
religious
orders
of
Europe, they
function
as
core
moral values
in
the
same
way
that the
religious
doctrines
of
the
period
did
when
heresy
was
criminalized
on
nonreligious
grounds.
Of
course,
it is
not
necessary
to
define
"religion"
solely
in terms
of
belief in
a
supernatural
power,
and
Emile Durkheim's view of religion as society celebrating itself seems ap
plicable
here.18
Genocide
denial
differs from
other
proscribed
"hate
speech"
in
that
it
is
defined
as
a
criminal
offense
in
all
contexts,
while
other
verbal hate
crimes
are
defined
in
terms
of
contexts
that
are
especially dangerous.
Ac
tually,
in
adopting
the
Cybercrimes
convention the
Council
of
Europe
had
earlier
called
for
criminalization
of
certain
forms of
speech,
and
specifi
cally
of
genocide
denial,
without
attracting
the
controversy
of
the
EU
pro
posal.
The
electronic
speech
to
be
criminalized
by
the Council of
Europe
includes
"Dissemination of
racist
and
xenophobic
material
through
com
puter
systems"
(Article
3)
with "racist and
xenophobic
material" defined
as
"any
written
material,
any
image
or
any
other
representation
of
ideas
16.
Ibid.,
27-28.
17. Council of
Europe,
"Additional
Protocol
to
the
Convention
on
Cybercrime,
concerning
the
Criminalisation of Acts of
a
Racist
and
Xenophobic
Nature
Committed
through
Computer Systems,"
28
January
2003
at
http://conventions.coe.int/Treaty/
(last
consulted
22
February
2008).
18.
Ibid.
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Denial" Laws
as
Secular
Heresy
391
or
theories,
which
advocates,
promotes
or
incites
hatred,
discrimination
or
violence,
against
any
individual
or
group
of
individuals,
based
on
race,
colour,
descent or national or ethnic
origin,
as well as
religion
if used
as
a
pretext
for
any
of these
factors"
(Article
2).
Also
to
be criminalized
is the
making
of
a
"racist
and
xenophobic
motivated
threat"
(Article
4),
or a
"racist and
xenophobic
motivated insult"
(Article
5).
Prohibiting
"threats,"
"insults,"
and
"promoting,"
"advocating,"
and
"inciting"
hatred
or
violence
may
be
seen
as
a
rational
means
of
preventing
violent social
conflict.
"Genocide denial"
(Article
6),
though,
seems
of
a
different
nature,
since
it
criminalizes
"distributing
or
otherwise
making
available,
through
a
computer system
to
the
public,
material
which
denies,
grossly
minimises,
approves
or
justifies
acts
constituting genocide
or
crimes
against
human
ity."
These
actions?denying, minimizing,
approving,
and
justifying?are
not
linked
to
circumstances
in
which the
action
might
spark
an
immediate
threat
to
social
peace.
Instead
they
are
to
be
criminalized
even
in
contexts
in
which
there is
no
danger
that
they
could
serve
to
advocate,
incite,
or
promote
violence,
or
threaten
anybody,
and
they
are
not
phrased
in
terms
of
hatred
or
racism.
The
draft
EU
proposal,
in
specifying
that
states
"may
choose
to
punish only
conduct
which is either
carried
out
in
a manner
likely
to
disturb
public
order
or
which
is
threatening,
abusive
or
insulting"
(emphasis
added),
is
instructive:
they
may
also
choose
to
punish
speech
that
is
not
threatening, abusive,
or
insulting
or a
threat
to
public
order.
Major
human
rights organizations
seem
caught
in
a
dilemma,
sup
porting,
in
principle,
freedom
of
speech
but
also
supporting
prosecution
of
"hate
speech."
Amnesty
International
continues
to
express
concerns
about
the
potential
of
some
kinds
of
genocide
denial
legislation
to
violate
the
right
of
free
speech.
In
October
2006,
Amnesty
International
issued
a
statement
criticizing
the
adoption
by
the
French National
Assembly
of
a
bill that
would
make it
a
crime
to
contest
that
the
massacres
of
Armenians
in
Turkey
in
1915
constituted
a
genocide,
since
"the
proposed
law
has
the
effect
of
criminalising
those who
question
whether the Armenian
mas
sacres constituted a genocide?a matter of legal opinion?rather than
whether
or
not
the
killings
occurred?a
matter
of
fact."19 On
the
other
hand,
Amnesty
International's web
site
shows
no
expression
of
concern
that Switzerland did
exactly
that
in
February
2007,
convicting
a
Turkish
man
for
denying
that the
1915
massacres
constituted
"genocide"
even
though
he
acknowledged
that
massacres
took
place.20
A
month after
that conviction another
press
release
on
"Racism
and Discrimination
as
Europe's Key
Human
Rights
Problems"
called
for
EU member
states to
"provide
effective
protection
against.
. .
hate
speech
across
the
EU,
while
safeguarding
freedom
of
expression."21
Human Rights Watch, for its part, has expressed some concern about
19.
Amnesty
International,
Public
Statement: "France:
Amnesty
International
Urges
France
to
Protect
Freedom of
Expression,"
AI
Index:
EUR
21/009/2006
(Public),
18
Oc
tober
2006.
20.
"Turkish Politician Fined
over
Genocide
Denial,"
9
March
2007.
21.
Amnesty
International EU
Office Press
Release,
"Racism and
Discrimination
?
Europe's
Key
Human
Rights
Problem,"
AI
Index: IOR
61/010/2007
(Public),
21
March
2007.
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Slavic Review
the
dangers
of
criminalizing
"hate
speech"
and
"genocide
denial,"
yet
seems
to
be
willing
in
the
end
(probably
unlike
King
Solomon
though
he
was
not,
ultimately,
put
to
the
test)
actually
to
split
the
baby:
"Genocide
deniers should
be
marginalized,
and
even
subject
to
other
forms of
sanc
tion
where
they
cause
real
harm,
but
they
should
not
be
subject
to
incar
ceration
except
where their actions
amount to
incitement
to
violence."22
The
mechanisms of
"marginalization"
or
of
"other
forms
of
sanction"
re
main
unspecified,
as
does the
concept
of
"real
harm,"
raising
problems
of
vagueness.
The
difficulty
faced
by
both
Amnesty
International
and
Human
Rights
Watch
is
in
keeping
with
the
unremarked
incongruity
that
an
organization
called
Amnesty
International
is
running
a
"campaign"
to
prosecute people
accused of
genocide
and "crimes
against
humanity,
war
crimes,
torture,
extra-judicial
executions
and
disappearances"
and
specifically
to
support
international
tribunals
such
as
the
ICTY.
If
an
organization
that
defines
itself
as
being
"concerned
solely
with
the
impartial
protection
of human
rights"
supports
prosecutors,
it
should
not
be
surprising
that
it
is
willing
to
accept
a
ban
on
any
criticism
of the
philosophical
underpinnings
of the
prosecutions.23
Liability
for
genocide
denial makes
sense
if
one
accepts
that
genocide,
as
the
ultimate
manifestation
of
racism and
xenophobia,
actually
is the
greatest challenge to the moral principles currently said to define Euro
pean
civilization.
By
this
reasoning,
the
possibility
of
genocide
makes
rac
ist and
xenophobic
speech
threatening
to
"the
rule
of
law
and
democratic
stability,"
rather
than
being
of
purely personal
concern to
the
recipient,
and
possibly
threatening
to
the
peace
of
only
a
local
community.
It
is,
af
ter
all,
this threat
to
the
general
social
order that
justifies
the
suppression
of what
would
otherwise
be
essential
democratic
rights.
But if the
risk of
genocide
occurring
is
remote,
the
threat
to
the democratic
order
is
as
well,
and
so
the
justification
for
censoring
hate
speech
becomes
much
less
compelling.
It is
for this
reason,
I
think,
that
the
occasional
finding
that
"genocide"
has occurred is
actually
a necessary condition for justifying the
suppression
of
"hate
speech."
"Genocide
denial"
is
thus
not
criminalized
because
it
actually
threatens
public
order,
but
because it
threatens
the
presumption
that
hate
speech endangers
the
general
moral
and
social
order.
This
is
not to
say
that
genocide
has
not
taken
place
or
cannot
take
place,
but
only
to
explain
why
the
question
of
genocide
is
so
sacred
that
not
only
is its
denial
punishable,
but,
as
with
other
forms
of
heresy,
it
is
by
definition
impossible
to
defend
against
the
charge
by
referring
to
facts
that
would
support
the
challenge
to
the
established
doctrine,
since the
very
attempt
to do so would itself constitute the crime of
genocide
denial.
Yet this exercise
in
thought
control
is
not
likely
to
help
us
understand
the
22.
Human
Rights
Watch,
"Genocide
Denial: Incitement
or
Hate
Speech?"
World
Report
2007
at
www.hrw.org/wr2k7/essays/shrinking/4.htm
(last
consulted
22
February
2008).
23.
web.amnesty.org/en/international-justice
(last
consulted
22
February
2008).
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393
causes
of
mass
killings
in
the modern world.
In
fact,
the
contrary
is
true.
By
ruling
out
forms
of
empirical investigation
of
some
of the
worst
cases
of mass
killing
in recent
history,
the criminalization of
"genocide
denial"
can
only
impede
our
understanding
of
the
nature
of the crimes.
Courts,
Facts,
and
Meaning
Lest the last
sentence
seem
extreme,
the
European
Court of
Human
Rights
has
stated,
with
specific
regard
to
genocide
denial,
that there is
a
"category
of
clearly
established
historical
facts?such
as
the
Holocaust?
whose
negation
or
revision would
be
removed
from the
protection
of
Ar
ticle
10
by
Article
17."24 The
question
would
then
become
how
a
"histori
cal
fact"
should become
"clearly
established." Genocide denial
legislation
proposed by
the Council
of
Europe,
written
specifically
to
conform
with
the
provisions
of
this
European
Court
of Human
Rights
decision,
seems
to
answer
this
in
a
rational
and
indeed
indisputable
way:
"acts
constitut
ing
genocide
or
crimes
against
humanity,
as
defined
by
international
law
and
recognized
as
such
by
final
and
binding
decisions
of
the
International
Military
Tribunal,
established
by
the
London
Agreement
of
8
August
1945
[the
Nuremberg
Tribunal],
or
of
any
other
international
court
established
by
relevant international
instruments."25
Decisions
of
the ICTY and
the
International Court of Justice (ICJ) would clearly qualify.
Justice
Robert
Jackson
of the
U.S.
Supreme
Court
once
quipped
that
he and his
colleagues
"are
not
final because
we
are
infallible,
but
we are
infallible
only
because
we are
final."
And while
courts
do indeed
make
final
dispositions
in
regard
to
the
matters
in front of
them,
the adversarial
process
used
in
courts
is
notoriously
unsuited
for
making
reliable determi
nations of fact. Were it
otherwise,
scientific
progress
would be
conducted
via adversarial
proceedings
rather than
through
the
constant
process
of
testing
ideas. International
tribunals
may
be final because there is
no
ap
peal
from
them,
but this
does
not
mean
that their
decisions
are
any
more
reliable or accurate than those of any other court.
Differences in evidence
presented,
the
varying
skills of
advocates,
and
the
predilections
of
judges inevitably
lead
to
differing
decisions.
As
shown
below,
different
courts,
and
even
different benches of the
same
court,
may
give
contradictory
decisions
on
whether
"genocide"
took
place,
so
that
a
single
authoritative
opinion
may
be hard
to
isolate.
Yet
even
if
there
is
a
single opinion,
there is
no
guarantee
that it is based
on
complete
or
reli
able
evidence.
It
has
long
been
a
stable
of the
literature
in
law
and social
science that
the formal
equality
between
parties
in
legal proceedings
is
often
a
fiction,
and that
some
litigants
enjoy
substantial
advantages
over
their adversaries.26 In
particular,
parties
involved in a number of cases
dealing
with the
same
sets
of issues
("repeat
players")
have
substantial,
sys
24.
Case
ofLehideux
and
Isorni
v.
France,
European
Court of
Human
Rights,
Judgment,
23
September
1998
(55/1997/839/1045),
para.
47.
25.
Council
of
Europe,
"Additional
Protocol."
26.
Marc
Galanter,
"Why
the
'Haves' Come Out
Ahead:
Speculations
on
the
Limits of
Legal Change,"
Law and
Society
Review
9,
no.
1
(Autumn
1974):
95.
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Review
temic
advantages
over
opponents
whose sole interest is
in
the
single
case
litigated
between them
("one-shotters").
In
the
ICTY,
the
prosecutor
is
a
repeat
player
par
excellence,
having
command
over
far
greater
resources
of
money,
personnel,
and
political
connections than
do
defense
attorneys.
Few of
the
latter
have
participated
in
more
than
one
case,
and
defense
at
torneys
are
in
any
event
less
likely
than the
prosecution
to
have
a
strategy
connecting
the
disparate
cases
and
in
fact
are
probably
ethically
barred
from
doing
so.
For
example,
while
prosecutors
can
and
do
negotiate
with
"small
fish"
to
get
their
testimony
against "big
fish,"
a
defense
attorney
who would sacrifice
the interests
of
one
client in
favor of those
of
another
would
be
acting
unethically.
Prosecutors
can
bring strings
of coordinated
cases
all
aimed
at
establishing
that
point, against single-shot
defendants
and
their
lawyers
who
may
have neither
the
personal
interest
nor
the
insti
tutional
or
economic
capacity
to counter
them.
For
this
reason,
a
finding
of
"genocide"
in
a
particular
case
may
well reflect
only
the
ability
of
the
prosecution
to
bring superior
resources
to
bear
in
the
proceedings
and
to
manipulate
cases
strategically
in
ways
not
open
to
defense
attorneys.
The ultimate flaw
in
proclaiming
a
court
decision
to
be
final, however,
is
that the
question
of
whether
"genocide"
took
place
is
not
one
of
fact but
of
the
meaning assigned
to
a
set
of
facts
taken
to
have been
proved.
The
fundamental difference
between these
two
enterprises
is
that
a
question
of fact can in principle be determined on the basis of empirical evidence
(for
example,
how
many
were
killed
at
Srebrenica?),
while
the
assignment
of
meaning
to
facts thus
established
can
have
no
empirical
referent
(for
example,
how
many
must
be
killed,
under
what
circumstances,
for
"geno
cide"
to
be
said
to
have
occurred).
Tzvetan
Todorov
puts
the
matter
well:
"facts
can
be
right
or
wrong,
but
meanings
are
constructed
by
the
writing
subject,
and
may
change.
A
given interpretation
may
be
untenable,
that
is,
it
may
be
refuted,
but
there is
no
absolute
degree
of
truthfulness
at
the
other
end
of the
scale."27
Genocide denial laws
treat
questions
of
mean
ing
as
questions
of
fact,
a
logical
error
that is
also
an
attempt
to
freeze
history.
This is an
impossible
task, at least without total control over the
production
and
dissemination
of
social
memory.
A
critical discussion of
the
findings
of
genocide
in
Bosnia
provides
a case
study
to
support
the
above
arguments.
The
Factual Context:
Numbers of
Dead in
Bosnia,
1992-95,
and
at
Srebrenica,
July
1995
Almost
as
soon
as
the
war
began
in
Bosnia,
in
1992,
high
numbers of dead
were
reported.
At
a
hearing
of the
U.S.
Commission
on
Security
and
Co
operation
in
Europe
(CSCE)
on "War Crimes and the Humanitarian Crisis
in
the former
Yugoslavia"
on
25
January
1993,
Congressman Christopher
Smith
noted
that
a
few
weeks
earlier,
Bosnian
President
Alija
Izetbegovic
27.
Tzvetan
Todorov,
Hope
and
Memory:
Lessons
from
the
Twentieth
Century,
trans.
David
Bellos
(Princeton,
2003),
123;
see
also
Tzvetan
Todorov,
"Fictions
and
Truths,"
Morals
and
History
(Minneapolis,
1995).
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395
had stated that
more
than
200,000
had
been
killed
and
that
70,000
were
being
held
in
detention
camps.28
At
a
CSCE
hearing
on
4
February
1993,
Bosnian
Foreign
Minister Haris
Silajdzic repeated
the
200,000
figure,
and
that
figure
was
widely accepted
thereafter.
At
a
hearing
of
the
U.S.
House
International Relations Committee
on
18 October
1995,
Secretary
of
De
fense William
Perry
said that
more
than
200,000
people
had been
killed;
but
at
a
hearing
before the
U.S.
Senate
Armed
Services
Committee
on
7
June
1995,
Perry
had
stated
that,
in
1992,
there
were
about
130,000
ci
vilian
casualties in Bosnia.
Richard
Holbrooke,
on
the
other
hand,
in
an
interview
on
the tenth
anniversary
of the
Dayton Agreements,
raised
the
figure
to
300,000
dead.29
News
accounts
tended
to
keep
to
the
200,000
figure,
used
as
recently
as
18 December
2005
in
the
New
York
Times.30
Estimates
of
casualties
made
by
researchers
during
the
war
varied
widely. Figures
from institutions
or
individual
researchers within Bosnia
and
Croatia
ranged
from
a
low
of
156,824
to
a
high
of
329,000.
Those
from
outside Bosnia
were
somewhat
lower,
ranging
from
25,000
to
60,000
by
former
State
Department
officer
George
Kenney
to
200,000
by
Chicago
law
professor
Cherif Bassiouni.31
After the
war,
demographers
Ewa
Tabeau
and
Jakub
Bijak,
working
as
experts
for
the
Office
of the Prosecutor
in
the
ICTY,
drew
on
a
variety
of
sources
to
arrive
at
an
estimated
total
of
102,621
war-related
casual
ties in Bosnia-Herzegovina from 1992 to 1995.32 Of known casualties (as
opposed
to
estimates),
68.6
percent
were
Muslims
(officially
called Bos
niaks after
1994),
18.8
percent
Serbs,
and 8.3
percent
Croats,
with
47,360
estimated
to
be
military
casualties,
and
55,261
civilian.
They
noted,
how
ever,
that their
figures
from
Republika
Srpska
were
the
least
complete
and
reliable.
Mirsad
Tokaca,
the director of
a
nongovermental
research
center
supported
by
a
number
of
western
governments,
responded
to
the initial
release
of
Tabeau and
Bijak's findings
in
an
interview
in
the main Sara
jevo daily, Oslobodjenje,
that
was
headlined
"The
total number
of victims
in
B&H was less than 150,000
"33
The exclamation
point
provides
evidence
of
how
much
this lowered
number
challenged
accepted
wisdom.
In
a
Reu
ters
interview
the
next
day,
Tokaca
said,
"we
can
now
say
with
almost ab
solute
certainty
that the number is
going
to
be
more
than
100,000
but
definitely
less
than
150,000."34
Tokaca
has continued
to
revise
the
total
28.
Transcripts
of
hearings
of the
CSCE
may
be
accessed
at
www.csce.gov
(last
con
sulted
22
February
2008),
where
they
are
organized
by
issue
and
by
country,
then listed
chronologically
within
each
category.
29.
On U.S. Public
Broadcasting System,
The
Charlie
Rose
Show,
23
November
2005.
30.
Bill
Marsh,
"The
Civilian
Toll of
War,"
New York
Times,
18
December
2005.
31.
These
studies
are
summarized and
evaluated
by
Ewa Tabeau and
Jakub Bijak,
"War
Related
Deaths
in
the
1992-95
Armed
Conflicts
in Bosnia
and
Herzegovina:
A
Cri
tique
of Previous
Estimates
and Recent
Results,"
European
Journal of
Population
21,
nos.
2-3
(2005):
187-215.
32.
Ibid.
33.
Oslobodjenje,
9
December
2004.
34.
Report
carried
on
Justwatch
listserv,
10
December
2004.
Also available
at
www.
bosnia.org.uk/news/news_body.cfm?newsid=1985
(last
consulted
22
February
2008).
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Slavic
Review
downwards
as
the
project
has neared
completion:
in
December
2005
the
BBC
reported
that,
although
the
project
would
not
be
completed
until
March
2006,
final
figures
would be
about
102,000
and that
using
the
data
processed
to
date,
67.87
percent
of
the casualties
were
Bosnian
Muslims,
25.81
percent
Serbs,
and
5.39
percent
Croats. Of the
Muslim
casualties,
50
percent
were
military,
50
percent
civilian,
a
ratio that
holds for the
far
fewer
Croat
casualties
as
well.
Serb
casualties
were
overwhelmingly
mili
tary:
21,399,
to
1,978
Serb
civilians.35
Thus the
two most
recent
studies of the
1992-95
war
agree
that there
were
about
102,000
casualties.
They
differ
mainly
in that
Tokaca's
study
shows
more
Serb
military
casualties
and
fewer
Serb
civilian
casualties
than
does
Tabeau
and
Bijak's study.
Rather
ironically, George Kenney's figure
of
60,000
through
1994
was
thus
apparently
closer
to
the
true
figure
than
any
of the
more
widely
accepted
numbers,
an
ironic
result because
Ken
ney
was
called
a
"revisionist"
at
the
time.
It is
striking
that the ratio
of mili
tary
to
civilian
victims
was
actually
very
high
for
a war
in
twentieth-century
Europe.
Most modern
conflicts
produce
far
more
civilian
casualties
than
military
ones.
The
single
greatest
incident
of
mass
killing during
the
war
occurred
in
July
1995
when the
Bosnian Serb
Army
took control
of
the "safe area" of
Srebrenica
in
eastern
Bosnia. The
judgment
of
the
Trial Chamber of the
ICTY in the case of General Krstic states concisely what happened next:
Within
a
few
days,
approximately
25,000
Bosnian
Muslims,
most
of them
women,
children and
elderly
people
who
were
living
in the
area,
were
uprooted
and,
in
an
atmosphere
of
terror,
loaded
onto
overcrowded
buses
by
the Bosnian
Serb forces and
transported
across
the
confronta
tion
lines into Bosnian
Muslim-held
territory.
The
military-aged
Bosnian
Muslim
men
of
Srebrenica, however,
were
consigned
to
a
separate
fate.
As
thousands of
them
attempted
to
flee the
area,
they
were
taken
pris
oner,
detained
in
brutal
conditions
and
then
executed.
More
than
7,000
people
were never seen
again.36
Demographic
experts
employed
by
the Office of
the
Prosecutor of the
ICTY
have
estimated that
at
least
7,475
persons
were
killed
in
this
action,
including
one-third
of
all
Muslim
men
enumerated in the
April
1991
cen
sus
of
Srebrenica. Less than
1
percent
of
the
victims
were
women,
and 89.9
percent
were
men
between the
ages
of sixteen
and
sixty.37
While
some
of
these
men
were
killed
in
military
action,
thousands
were
executed. The
result
of the
operation
was
to
drive almost
all Muslims
from
Srebrenica,
which
was
almost
73
percent
Muslim
before
the
war;
only
a
few
hundred
have
since
returned.
35.
BBC
Worldwide
Monitoring,
17 December
2005;
carried
on
Justwatch
listserv,
17
December
2005.
See also
Emir
Suljagic,
interview
with Mirsad
Tokaca,
"Genocide
Is
Not
a
Matter of
Numbers,"
Bosnian
Institute
News
and
Analysis,
19
January
2006,
at
www
.bosnia.org.uk/news.news-body.cfm?newsid=2139
(last
consulted
22
February
2008).
36.
Prosecutor
v.
Radislav
Krstic,
ICTYTrial
Chamber I
Judgment,
2
August
2001
(here
after
Krstic
trial
judgment),
para.
1.
37.
All
figures
are
from
Helge
Brunborg,
Torkild Hovde
Lyngstad,
and
Henrik
Urdal,
"Accounting
for
Genocide: How
Many
Were Killed in
Srebrenica?"
European Journal
of
Population
19,
no.
3
(2003):
229-48.
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Heresy
397
The
criminality
of
many
of these actions is clear. What
may
be
ques
tioned, however,
is whether
applying
the
term
genocide
to
this action is
ap
propriate.
Because the ICTY
proclaimed
the mass
killing
at Srebrenica a
genocide
in
the trial of
General
Krstic,
a
discussion of this
question
must
focus,
first,
on
the
tribunal's
reasoning, specifically
on
the
judgments
of
both the
Trial Chamber
and
the
Appeals
Chamber
in
this
case.38
At the
time
those
crimes
were
committed,
General
Krstic,
a
general-major
in
the
Army
of the
Republika
Srpska,
was
chief
of
staff/deputy
commander,
then
commander,
of the
Drina
Corps
of
that
army,
the
corps
that committed
the
crimes
at
Srebrenica.
The Trial Chamber Decision in the Krstic Case
Genocide is defined
as
specific
"acts committed with intent
to
destroy,
in
whole
or
in
part,
a
national, ethnical,
racial
or
religious
group,
as
such,"
including killing
members of the
group
or
causing
serious
bodily
or men
tal
harm
to
them;
the
goal
of
bringing
about the
"physical
destruction
in
whole
or
in
part"
is
important
as
well.39
It
was
undeniable that the Bos
nian
Serb
Army
had killed members of the
group
and caused
bodily
and
mental harm
to
those who
survived.
The
only
question
was
that of intent:
"whether
the
offences
were
committed with
the
intent
to
destroy,
in
whole
or
in part,
a
national, ethnical, racial
or
religious group,
as
such."40
In
regard
to
Srbrenica,
this
definition
is
more
problematical
than
non-lawyers might
realize. The
original
1946
United Nations' General
As
sembly
resolution defined
genocide
as
"a denial of the
right
of
existence
of entire
human
groups,"
and
it
was
said
at
that time
that
the
victim of
genocide
was
not
the individuals
killed but the
group.41
But
what
counts
as
"the
group"
in
this case? The
prosecution
was
inconsistent,
referring
at
various
times
to
the
Bosnian
Muslims,
the
Bosnian
Muslims of
Srebrenica,
and
the
Bosnian
Muslims
of
eastern
Bosnia.
The Trial Chamber
agreed
with
the defense
that the
proper group
was
the
Bosnian
Muslims,
leaving
the question of whether the destruction of a part of that group would
qualify
as
genocide.42
Having
made this
determination, however,
the Trial Chamber then
contradicted
itself
by saying
that
the
killing
of all members
of the
part
of
a
group
located
within
a
small
geographical
area
. . .
would
qualify
as
genocide
if carried
out
with
the
intent
to
destroy
the
part
of the
group
as
such located
in this small
geo
graphical
area.
Indeed,
the
physical
destruction
may
target
only
a
part
of
the
geographically
limited
part
of the
larger
group
because the
perpetra
38. The ICTY has
two
levels,
or
chambers. The Trial
Chamber
hears
cases
and makes
the
initial
decision;
these
decisions
may
be
appealed
to
the
Appeals
Chamber,
which
makes
a
final
judgment.
39.
Krstic trial
judgment,
para.
540.
Although
the Krstic
court
uses
the definition
found
in
the ICTYs
founding
statute,
this is drawn
directly
from
the relevant United Na
tions
treaty
definitions.
40.
Ibid.,
para.
544.
41.
Ibid.,
para.
552.
42.
Ibid.,
para.
560.
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398 Slavic
Review
tors
of
the
genocide
regard
the intended
destruction
as
sufficient
to
an
nihilate
the
group
as a
distinct
entity
in
the
geographic
area at
issue.43
Yet
even
annihilation
of
a
small local
group
seems
unlikely
to
threaten
the
larger "group
as
such,"
already
defined
as
the Bosnian
Muslims,
that
is,
the
group
itself
(rather
than
the
individuals
that
comprise
it),
which
is
the
party
to
be
protected
from
genocide.
Further,
the
Bosnian
Serb
Army
did
not
try
to
kill all
members of the
group,
as
mentioned
by
the
court
in
its
reasoning,
but rather
only
males between
the
ages
of sixteen
and
sixty;
although
they
were
treated
appallingly,
women,
small
children,
and
old
people
were
transported
out
of
Srebrenica.
In this
connection,
the
Trial Chamber
referred
to
"the
catastrophic impact
that the
disappear
ance of two or three generations of men would have on the survival of
a
traditionally patriarchal society,"
thus
incorporating
into
its
reasoning
stereotypes
about Bosnian
society.44
Strangely,
the
Trial Chamber
also
re