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Surmounting the myopic focus ongenocide: the case of the war in Bosniaand HerzegovinaChristian Axboe NielsenPublished online: 20 Feb 2013.

To cite this article: Christian Axboe Nielsen (2013) Surmounting the myopic focus on genocide:the case of the war in Bosnia and Herzegovina, Journal of Genocide Research, 15:1, 21-39, DOI:10.1080/14623528.2012.759397

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Surmounting the myopic focus ongenocide: the case of the war in Bosniaand Herzegovina

CHRISTIAN AXBOE NIELSEN

This article surveys the use of the term ‘genocide’ before, during and after the war in Bosniaand Herzegovina from 1992 to 1995. The article argues that although ‘genocide’ remains animportant legal and analytical concept, an excessive focus on this term represents a misguidedand counterproductive approach to the analysis of mass violence. Discussions revolvingaround 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 militaryinterventions and to internal Bosnian political struggles than to a scholarly agenda. Theongoing obsession with the label of ‘genocide’ has distortive effects on internationalcriminal justice, because anything less than a genocide conviction is counted as a ‘failure.’Recent scholarly accusations that international legal findings of crimes other than genocideconstitute ‘genocide denial’ are particularly troubling. In Bosnia, the disproportionateattention on genocide helps to perpetuate the zero-sum approach that has informedBosniak–Serb political negotiations since the end of the war, and more recently the issueof ‘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 ongenocide.

Introduction

Few conflicts in recent history have received the amount of scholarly attentiondevoted to the war in Bosnia and Herzegovina from April 1992 to December1995. Academic research on the war has been supplemented significantly by thework of the United Nations International Criminal Tribunal for the Former Yugo-slavia (ICTY). At the same time, the very classification of the war in Bosnia hasgenerated considerable controversy, both in the region and among scholars.1 Thisarticle focuses on the contested use of the term ‘genocide’, where the range ofopinions in the literature has ranged from arguments that no genocide was com-mitted in the war to efforts to classify the entire war as a campaign of genocideby the Bosnian Serbs against the Bosnian Muslim (Bosniak) population of thecountry.2 In terms of international law, the ICTY has to date determined thatonly the massacres that occurred after the fall of the Srebrenica enclave in July

Journal of Genocide Research, 2013Vol. 15, No. 1, 21–39, http://dx.doi.org/10.1080/14623528.2012.759397

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1995 meet the necessary legal criteria for genocide. This purportedly restrictiveapplication of genocide has provoked significant controversy among scholars inthe fields of genocide studies, international law and Balkan area specialists.3

In a bid to surmount the staid confines of the ‘genocide or not’ dichotomy, thisarticle argues that the focus on ‘genocide’ in Bosnia in the war from 1992 to 1995represents a misguided and counterproductive approach to the analysis of massviolence. Without wishing in any way to repudiate or reject the relevance of ‘gen-ocide’, this article shows the unintended political and legal consequences of thefixation on the term to the exclusion of other crimes. The ongoing obsessionwith the label of ‘genocide’ carries with it detrimental costs that militateagainst political reconciliation, distort the prosecution of war crimes and crimesagainst humanity, and at times threaten considered scholarly inquiry.4 I alsoargue that an inordinate focus on a binary ‘genocide or not’ classification of con-flicts is unhelpful for the important debates surrounding international interventionsin 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 Yugo-slavia and Bosnia were already in the 1980s the sites of polemical historiographicaland political debates surrounding the use of the term ‘genocide’. This in some waycreated a situation in which the labelling of subsequent outbreaks of mass violenceas ‘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 socialistYugoslavia. 5 Although it debuted in official use in Yugoslavia in 1949, a yearafter the adoption of the United Nations Convention on the Prevention and Punish-ment of the Crime of Genocide, the term only entered into the domestic historio-graphy with its introduction by the Serb historian Vladimir Dedijer in the early1970s.6 Later, in 1983, Dedijer established a commission within the SerbianAcademy of Sciences and Arts (SANU) for the collection of material on genocideagainst the Serbs and other Yugoslav peoples. The subsequent popularization andpoliticization of the term coincided with tectonic shifts in Yugoslav historiogra-phy.7 Particularly on the part of Serb historians and other intellectuals, discussionsof genocide against the Serbs were engaged as part of a reassessment of postwarYugoslav history. The second half of the 1980s and the early 1990s witnessed averitable avalanche of works on genocide, including an acrimonious Serbo–Croat Historikerstreit focusing in particular on the number of victims killed atthe Jasenovac concentration camp.8 In these works, genocidal intent wasimplicitly derived from the fact of large-scale killings, with little or no explorationof whether the legal requirements for genocide obtained.

This proliferation of scholarly production on ‘genocide’ in the Second WorldWar did not occur in a vacuum. In the second half of the 1980s, intellectuals, poli-ticians, and the mass media conjured the fear of renewed violence and

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victimization. The most well-known intellectual summary of these complaints wasthe leaked 1986 draft ‘memorandum’ of the SANU, which notably alleged that a‘physical, political, legal and cultural genocide’ was being committed against theSerbs in Kosovo.9

Considerable documentation links Serb nationalists’ fear of a current orimpending genocide against the Serbs in Yugoslavia to subsequent steps toform political entities that would unite and defend Serbs.10 Particularly inCroatia and Bosnia, Serb nationalist leaders used the collective memories ofpast genocide(s) against Serbs as well as the allegedly impending risk of a newgenocide as a rallying call.11 In Croatia, Croat demands for independence fedfears among the Serb minority of a return to the fascist Independent State ofCroatia that existed from 1941 to 1945. A prominent Serb historian andmember of the SANU, Vasilije Krestic, (in)famously posited the ‘genocidalnature’ of the Croats, a theory that justified the Serb insurgency in Croatia in1990–91.12 Conversely, the malicious and revisionist attempts by FranjoTudman and other nationalist Croats to deny, minimize, or explain away the gen-ocidal policies in the Second World War against the Serbs only increased the mag-netic attraction of the genocide narrative among nationalist Serbs.13

In Bosnia, Radovan Karadzic referred to the genocide of the Second World Warin his opening speech at the founding of the Serb Democratic Party in July 1990.14

The fear of past and impending genocides also featured in speeches made at theinaugural session of the Bosnian Serb’s self-styled assembly in October 1991.15

In a number of subsequent cases at the ICTY, Serbs who were found guilty ofwar crimes and crimes against humanity admitted to or were found by the courtto have manipulated such fears, or to have been themselves motivated in theiractions by a fear of a recurrence of genocide against Serbs.16 For example, theKrajisnik trial chamber concluded that ‘the threat of genocide against Serbs wasa constant refrain in the rhetoric of Bosnian–Serb officialdom in 1992’.17

The Serb nationalist affinity for using the term ‘genocide’ is only one side of thestory. Comparatively unknown, by contrast, has been the role of the term ‘geno-cide’ in the shaping of Bosnian Muslim (Bosniak) identity. Xavier Bougarel hasuncovered how Dedijer and other scholars involved in the popularization of thenarrative of genocide against the Serbs also contributed to the emergence of arelated narrative among Bosnian Muslims.18 In his last book, Genocide againstthe Muslims, Dedijer implicitly propagated the notion that every one of the offi-cially recognized nations in Yugoslavia had suffered at least one genocide—akind of ‘brotherhood and unity’ of genocide.19

In the eyes of prominent Bosnian Muslim intellectuals, genocide had been com-mitted against Bosnian Muslims not only during the Second World War, but alsotowards the end of Ottoman rule and during the establishment of the Kingdom ofSerbs, Croats and Slovenes. In the period from its founding until the outbreak ofthe war, the Bosnian Muslim Party of Democratic Action (SDA) sponsored pub-lications, commemorations, and a conference on ‘genocide against the Muslims inYugoslavia’.20 In this sense, the political interest in ‘genocide’ among BosnianMuslims began to mirror developments among Serb politicians and intellectuals.21

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Finally, the term ‘genocide’ appeared even in the pre-war rhetoric of BosnianCroat leaders. Given the involvement of Bosnian Croats in the fascist Ustasamovement (and the affinities of at least some Bosnian Croat leaders for this move-ment in the 1990s), this was perhaps the least likely place for this discourse to rearits head. Yet in their bid to emphasize the necessity of a separate Croat politicalentity in Bosnia (or union with Croatia) in 1991, Croat nationalist protagonistsspoke of ‘forces in favour of a non-existent sovereign [Bosnia], in which the Croa-tian people would be condemned to genocide and elimination from history’.22 Inother words, already before the maelstrom of violence engulfed Bosnia and Her-zegovina in 1992, all three constituent nations in the republic had deployed narra-tives of genocide and victimization. Through these narratives, leaders of all thethree nationalist parties that had achieved victory at the first multiparty electionsin November 1990 presented stark accounts of a brutal history in which thenation’s existence had faced repeated existential threats. Only by aligning withone’s own nationalist party and obeying its leadership could ‘genocide’ beavoided.

The use of ‘genocide’ and the war in Bosnia

This political and rhetorical environment resulted in the overdetermined use of theterm ‘genocide’ in subsequent reporting, analysis, and public debates about massviolence in Bosnia and Herzegovina.23 Once the war commenced, a pronouncedtendency to label attacks against one’s own group as genocidal was evident.Indicative of this trend was Smail Cekic’s book Aggression against Bosnia andGenocide against the Bosniaks, 1991–1993, in which he argued that the warwas merely the latest installment in a genocide ‘lasting over three centuries’.24

Given the horrific outbreaks of violence that occurred in Bosnia and Herzegovinabeginning in 1992, such labelling took place in an understandably traumatic pol-itical and polemical atmosphere, often divorced from any methodology actuallylinked to the legal definition of genocide. The scenes of emaciated and terrifiedmen confined to detention camps in north-western Bosnia and Herzegovina,first discovered by Western reporters in the summer of 1992, indelibly remindedthe international public of images last seen in Europe during the Holocaust.25 Norwere the concerns about genocide—or fear of an impending escalation of the con-flict to genocide—confined to victims and journalists. The report of the UN Com-mission of Experts stated that ‘it is unquestionable that the events in Opstina[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 thatthese events constitute genocide’.26

In the context of criminal prosecutions, genocide charges were brought alreadyby May 1992 by the Bosnian government against members of the Bosnian Serbleadership.27 On the Bosnian Serb side, genocide charges were often filed bylocal prosecutors in cases of Serb civilian casualties.28 (Extraordinarily, in thecase of the massacre of Bosnian Muslim civilians by Bosnian Serb police officers

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at Koricanske stijene in August 1992, the Bosnian Serb army itself spoke of a‘genocide’ being committed.29) In March 1993, as the war raged in Bosnia, theBosnian state government filed suit against the Federal Republic of Yugoslavia(Serbia and Montenegro) at the International Court of Justice (ICJ), chargingthe Federal Republic of Yugoslavia with complicity in the commission of geno-cide in Bosnia.30 The legal position taken in this suit, asserting that genocide com-menced simultaneously with the war in April 1992, became the accepted narrativeamong Bosnian Muslims. While not denying mass violence, Nikolas Rajkovic hasargued provocatively that the lawsuit gave the Bosnian government an ‘incentiveto allege genocide at each opportunity for the purposes of legal and political expe-diency’.31 Conversely, the pending ICJ case and the issue of state liability for gen-ocide reinforced Serbia’s obstinate approach to cooperation with the ICTY.32

Throughout the war, the focus on genocide was to some extent informed by thecontext of policy debates in which the question of international military interven-tion in the war often seemed to hinge on a determination of whether genocide wasbeing committed or not.33 The assumption was that the ‘international community’would only pay attention if genocide was occurring, and that it was obliged tointervene militarily if genocide were being perpetrated.34 By implicitly and attimes explicitly equating the qualification of the violence as ‘less than genocide’with opposition to intervention, the debate was to a considerable extent a politicalrather than a legal discussion. Partly as a result, it was relatively difficult to ident-ify people who supported robust military intervention but who also believed that agenocide was not already in progress. Ultimately, decisive international militaryintervention did not occur until 1995, after Sarajevo had been besieged for overthree 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 theICTY. Yet it should be recalled that NATO’s decisive military intervention didnot even occur directly in reaction to Srebrenica, but only after renewed shellingincidents 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 tire-less work of the Research and Documentation Centre in Sarajevo and the Demo-graphic Unit of the Office of the Prosecutor (OTP) at the ICTY, we now know thatthe war claimed an estimated 104,732 lives, or 2.4 per cent of the pre-war popu-lation of Bosnia and Herzegovina.35 A majority of these deaths, 68,101 or 65 percent, were Bosnian Muslim victims. This death toll lies significantly below theestimates during and after the war of as many as 200,000 or even 300,000victims. Yet this is in and of itself hardly relevant, as the legal definition of geno-cide does not include any quantitative threshold. Rather, any legal determinationof whether genocide took place must focus on the question of whether those per-petrating crimes harboured the requisite special intent (dolus specialis) that

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distinguishes genocide from crimes against humanity or war crimes. That is, didthe perpetrators of mass violence against Bosnian Muslims consciously intendto destroy them, in whole or in part, as members of that nation?

The ICTY OTP did file indictments charging genocide for the year 1992 againstnumerous Serbs, but has so far been unable to secure any convictions on thatcount.36 To date, convictions have been achieved at the ICTY on many othercounts for 1992 such as extermination, persecution, murder, deportation, and inhu-mane acts.37 Despite the absence of genocide convictions, it can therefore hardlybe said that the ICTY has offered impunity to perpetrators of the serious violationsof international humanitarian law that occurred prior to July 1995.

In explaining acquittals on genocide, trial and appeal chambers at the ICTYhave tended to focus on the results of the conglomeration of violent acts colloqui-ally referred to as ‘ethnic cleansing’, noting that the net objective of this was toassert military and political control over an ethnically homogenized territoryrather than to eliminate the Bosnian Muslim population physically. Forexample, the majority of those Bosnian Muslims who were illegally detainedand incarcerated in horrendous conditions during the summer of 1992 were ulti-mately deported. In most cases, killings served the instrumental purpose of creat-ing 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, theseacts achieved the primary goal of creating ethnically pure municipalities thatwould henceforth be exclusively under Serb control. In Krajisnik, the most impor-tant Bosnian Serb leadership case to reach a conclusion to date, the Trial Chambercarefully noted that some of the crimes committed ‘meet the requirements of theactus reus for genocide’.38 However, in considering the overall context includingthe statements of the accused and his associates, ‘the Chamber can make no con-clusive finding that any acts were committed with the intent to destroy, in part, theBosnian–Muslim or Bosnian–Croat ethnic group, as such’.39

Critics of the ICTY argue that Bosnian Serb civilian and military leaders madetheir genocidal intent clear already in 1991, and then repeatedly after the warbegan. In particular, it is undisputed that Radovan Karadzic as early as October1991 made references to the possible ‘disappearance’ of the Bosnian Muslims ifthey continued to push for an independent Bosnia. And at a key session of theBosnian Serb assembly on 12 May 1992, six strategic goals were adopted, oneof which was the physical separation of the Serbs from the Bosnian Muslimsand the Croats.40 Referring to the implementation of this goal, General RatkoMladic stated ‘that would be genocide’.41 A Bosnian criminologist, Edina Becire-vic, correctly notes that Mladic’s words were uttered not as an admonishment orrejection of the assembly’s goal, but rather as a tactical consideration.42 From thenascent Bosnian Serb military’s perspective, the violence used to achieve the goalsshould not risk reaching the level of genocide, as that would potentially generateinternational military intervention. Becirevic criticizes the reading that the judgesgave to Mladic’s words in the Krajisnik judgment, in effect accusing them ofallowing themselves to be deceived by his ruse. The Trial Chamber wrote: ‘Butthere was an alternative to genocide. Mladic advised Bosnian Serb leadership

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on how to achieve controversial military objectives quietly, cynically, ruthlessly,while staying below the radar of international attention’.43 Yet this is precisely thepoint: if someone decides that the forced separation of ethnic groups can beachieved through means other than genocide, then it is logically possible thatthose goals will indeed be sought achieved through other means. That does notdenote an absence of criminal conduct. As the judgments in Krajisnik and numer-ous other ICTY cases have shown, these other means were highly malignant andresulted in the widespread and systematic commission of a whole range of warcrimes and crimes against humanity.

Nevertheless, some scholars have vocally asserted that the small number ofindictments for genocide, and the even smaller number of genocide convictions,constitute a miscarriage of international criminal justice.44 Marko Attila Hoarehas argued that not only the ICTY but also the ICJ have failed to aggressively pro-secute genocide and its perpetrators. Bypassing substantive legal analysis of thestatutory definition of genocide, Hoare writes that ‘by defining genocide so nar-rowly that the phenomenon almost disappears altogether, and employingvarious logical and conceptual absurdities, the ICJ struck a crushing blowagainst genocide prevention’.45 Hoare’s argument is predicated on the notionthat a conviction for any crime other than genocide is tantamount to an acquittalof the accused.

Edina Becirevic has gone even further in her criticism of the ICTY. Using anextremely broad definition of genocide, she argues that genocide was committedby the Federal Republic of Yugoslavia and by the Bosnian Serbs throughout thewar.46 Becirevic alleges that the international community has specificallysought to constrain convictions on genocide at the ICTY to Srebrenica so as toavoid highlighting the moral responsibility of the international community tointervene at an earlier stage. This resembles a conspiracy theory in which a mono-lithic international community closes ranks to cover up its earlier failures. Such anargument reveals a very simplistic and distorted understanding of the workings ofthe ICTY, an institution which from the outset and very often thereafter had col-lisions with the Secretariat of the United Nations and UN member states, as well aswith other international organizations.47

Most harmfully and erroneously, though, both Becirevic and Hoare view inter-national criminal courts as issuing verdicts ‘which either deny or confirm geno-cide’.48 In doing so, they reveal a fundamentally flawed understanding of howcriminal law functions. In international criminal courts, judges must issue a judg-ment on what, if any crimes were committed, and thereafter assess the criminalliability of the defendants for these crimes. In a case in which the defendant ischarged with genocide and other criminal charges, the trial chamber may decidethat 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 amurder case before the court ‘only’ allows for a conviction on a charge of seconddegree murder or manslaughter, as the legally required intent for a charge of firstdegree (premeditated) murder did not obtain. This situation should not submit thejury or the judge to charges of ‘murder denial,’ any more than a failure to convict

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on genocide justifies equating the ICJ with ‘genocide deniers’. It is perfectlyreasonable and acceptable to parse the reasoning of judges and analyze nuancesand dissents in their opinions. By contrast, it is unacceptable to place judgesand esteemed jurists in the odious ranks of Holocaust deniers because one dis-agrees with their findings. A worrying example of a public campaign that hassought to label a prominent scholar as a genocide denier is the ‘Srebrenica Geno-cide Blog’, whose views are also echoed on the website of the Institute for theResearch of Genocide in Canada.49

If convictions on genocide are the singular criterion of success for an inter-national criminal tribunal, then it must be said that the ICTY has not been verysuccessful. The problems with that argument begin with the fact that neither theICTY nor any other international criminal court or tribunal has been establishedsolely to try genocide. It is also easy to stand on the sidelines and claim that a gen-ocide conviction should have been secured. Yet, as Richard Ashby Wilson notes,‘genocide as a crime possesses unique legal aspects that are not always evident inthe myriad usages by journalists, politicians, and human rights organizations’.50

Few of the scholars who have criticized the ICTY’s ‘narrow’ use of genocidehave extensive experience investigating or prosecuting international crimes, andthey therefore lack a practical understanding of the work and requirementsinherent in proving criminal charges at court. By contrast, judges at internationalcriminal courts and tribunals must adhere to the statutory definition of genocide.And as Marko Milanovic argues, ‘an international court. . . should not adopt eitheran 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 GenocideConvention and the jurisprudence of international tribunals’.51 Finally, despite thewidespread tendency to define genocide as ‘the crime of crimes’, the establish-ment of any hierarchy of criminality risks turning the criminal indictment pro-cedure into a parlour game.52

As regards the ICJ judgment on Bosnia and Herzegovina’s genocide case, theCourt found that Serbia had provided extensive material assistance to the BosnianSerb forces and that Serbia had failed to prevent the genocide at Srebrenica and toarrest and extradite Ratko Mladic, the commander of the Bosnian Serb Army, whowas indicted by the ICTY for genocide and other crimes.53 However, Serbia wasfound not to have instigated or participated directly in the genocide. Like theICTY, the ICJ ruled that only the crimes committed in Srebrenica in July 1995could be termed genocide. The ICJ did not state that ‘genocide ceases to be gen-ocide just because the killings are in the service of a higher goal’, as Hoare para-phrased it.54 Rather, like the ICTY, the ICJ held that genocidal intent is not provenmerely because killings are carried out in the service of a repugnant ideologicalagenda.

Reactions to the ICJ ruling were numerous and fierce, reflecting the status of thecase as ‘a political and cultural object immersed in the politics and controversy ofBosnia’s war’.55 Even the esteemed legal scholar and former president of theICTY Antonio Cassese called the result a ‘judicial massacre’ that set an ‘unrealis-tically high standard of proof for finding Serbia to have been legally complicit in

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genocide’.56 Cassese did not take issue with the ICJ’s confirmation of the ICTY’srulings on the extent of genocide during the war, but he could have noted that theICJ also confirmed the ICTY’s factual findings with respect to the absence of agenocidal master plan on the part of the leaderships of the Serbs in Bosnia andin Serbia proper. Nevertheless, the assumption in many critiques of the ICTYand the ICJ has been that a thorough review of all the documentation on thewar in Bosnia would reveal that genocide had been committed not only by theBosnian Serbs but also by the leadership of Serbia (at the time within theFederal Republic of Yugoslavia). The unfortunate conditions of confidentialityimposed upon the collection of Federal Yugoslav Supreme Defence Councilrecords disclosed by Serbia to the ICTY fed a widespread assumption in Bosniathat the ICJ had wilfully ignored the proverbial ‘smoking gun’ that would haverevealed the existence of such a plan.

In his recent work, Extremely violent societies, Christian Gerlach criticizes gen-ocide studies for a ‘ten[dency] to construct a monolithic actor out of people (offi-cials and others) that to me seem to have very contradictory intentions’.57 Thisexplains 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 ontothe Serb political elite a uniform and chronic desire to achieve the unificationof all territories containing Serbs into a ‘Great Serbia’ dominated by Serbs. Ana-logous in some respects to Daniel Goldhagen’s controversial thesis of German‘eliminationist antisemitism’, this project was alleged to have culminated in athoroughly genocidal campaign against Bosnian Muslims (and Croats) startingin the spring of 1992.58

Yet considerable evidence introduced in court cases at the ICTY, includingmuch of the material that is publicly available in the transcripts of the FederalYugoslav Supreme Defence Council, belie this thesis. Within the vast conglom-eration of actors that were included in various ‘joint criminal enterprises’ in theparlance of the OTP, there was significant heterogeneity and a very considerableamount of tactical disagreement about some of the methods of war, but solid stra-tegic agreement that Croatian and Bosnian independence should be challengedwith violent resistance.59 While the regime of Slobodan Milosevic certainly bank-rolled 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, substantialdocumentation shows that Milosevic frequently castigated and ridiculed theBosnian Serbs for their extreme methods.60 In November 1994, words like‘idiots’ and ‘a sphere of the unreal’ were being used in Belgrade to describe theBosnian Serb military and political leadership.61 And even while Bosnian Serbswere engaged in widespread crimes against Bosnian Muslims with essential assist-ance from Belgrade, the Federal Republic of Yugoslavia left Sandzak relativelyuntouched—a major region of its own state in which Muslims were a majority.62

Thus, at a March 1993 session of the Federal Yugoslav Supreme Defence Council,Montenegrin President Momir Bulatovic stated of the Bosnian Serb leadershipthat ‘we have to help them, but at the same time we have to realize that it is diffi-cult to cooperate with someone who, as the President of the Government of the

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Republika Srpska, advises [us] to ethnically cleanse the Sandzak and to kill theMuslims there’.63 At a minimum, this stance creates problems for those whowish to impute genocidal intent towards Muslims to the Milosevic regime. Thatsaid, the untimely death of Milosevic means that the ICTY will never definitivelypronounce on the scope of his personal criminal responsibility for genocide,though some additional light may be shed on this in other pending ICTY cases.64

The consequences of the ‘genocide’ debate in Bosnia

Outside the courtroom, the disproportionate emphasis on ‘genocide’ in the war inBosnia has had numerous unfortunate consequences. By placing such a premiumon the use of ‘genocide’, and insisting on it to the exclusion of other serious crimessuch as crimes against humanity and war crimes, the advocates of the genocidelabel implicitly put themselves in the position of marginalizing ‘lesser’ crimesto the point where these become an irrelevant afterthought. Paradoxically, thisstance puts these advocates perilously close to those Serb nationalists who inopposing the inclusion of ‘genocide’ in the 2010 Serbian parliamentary declara-tion on Srebrenica believe they have achieved victory. After all, many extremenationalists reason, if their nation did not commit genocide, it must not bemorally bad.

The emphasis on ‘genocide’ also reinforces the perpetual political impasse inBosnia. Since the end of the war, some Bosniak politicians and clergy have exhib-ited an unfortunate tendency to exploit the status of Bosniaks as victims, and inparticular as victims of genocide, for political gain. The use of ‘genocide’ mustbe understood in the context of the chronic political disputes linked to the politicalstructure of Bosnia. In dividing Bosnia into two entities, the Serb RepublikaSrpska (RS) and the Bosniak and Muslim Federation, the Dayton PeaceAccords have perpetuated the zero-sum mentality of the war.65 In their dissatisfac-tion with Dayton and their desire to create a stronger, centralized state someBosniak politicians have directed particular ire towards the Republika Srpska,which they view as a ‘genocidal creation’ (genocidna tvorevina). Bosniak eliteshence 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 con-trast, RS President Milorad Dodik rejects any measures of centralization and hasfrequently voiced his opinion that Bosnia is an ‘artificial creation’ (vjestacka tvor-evina) that is doomed to fail. In his comments, Dodik has increasingly obligedBosniak critics by engaging in nationalist rhetoric and questioning the status ofSrebrenica as a genocide—and to some extent by permitting those around himto argue that the Serbs were themselves the victims of ‘genocide’ or at leastunder the threat of extermination during the war.66 In this manner, ‘genocide’exists as a particularly divisive shorthand signifier, one that often speaks moreof the views of the particular person on ‘Dayton Bosnia’ than of any substantiveanalysis of the nature of the preceding war.

In the summer of 2011, the apparent failure of the Bosnian state to appeal the2007 ICJ ruling led to recriminations by Bosniaks that the state was capitulating to

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the allegedly narrow, ‘Srebrenica only’ interpretation of genocide. As notedabove, this judgment, while regarded as an important confirmation of the genocideat Srebrenica and hence as a hindrance to denial of that genocide, was nonethelessviewed as an ‘incomplete judgment’.67

The instrumentalization of ‘genocide’ can also be observed in attempts tomobilize Muslims both inside and outside Bosnia in order to form a strongBosniak front. Although the turn towards Bosnjastvo (Bosniak-ness) has occurredto some extent among Muslims in Croatia, the main contested area has been theSandzak region of Serbia. In June 2011, Bosniak intellectuals and clergy led bythe controversial Mufti Muamer Zukorlic of Sandzak founded a Bosniak Academyof Sciences and Arts, or BANU.68 Although the BANU’s founders declared theirintentions to cooperate with other similar institutions in the region and to supportthe multicultural nature of ‘Bosnia, Sandzak and the broader region,’ the initiativewas widely criticized as ethnically exclusivist and as lacking intellectual credi-bility.69 Tellingly, the founders of the BANU immediately deployed the word ‘gen-ocide’ when confronted by criticism of the initiative from Serbia.

[The criticism] is expected because on the basis of the long Bosniak experience, it is clearthat everything that is linked to Bosniaks is systematically extinguished, persecuted and dis-credited by governing Serbian structures. The pinnacle of this is of course the systematickilling 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 spiri-tual and mental genocide against Bosniaks and their national values.70

Although the politicization of ‘genocide’ is primarily evident in the chronic sta-lemate between Bosnian Serbs and the Bosniaks, ‘genocide’ has also morerecently been used as a rhetorical weapon in political disputes among Bosniaks.‘Genocide’ has been deployed to attack those Bosniaks who deviate from theparty line (in the SDA, for example), who seek political compromise atthe state level with the RS, or who question the political interventions of theIslamic clergy. Such persons are accused of appeasement and of acquiescing in‘genocide denial’. Thus, the aforementioned rebuttal of criticism from the foun-ders of the BANU added that ‘the arguments and positions of the Belgrade auth-orities and those supporters of genocide against the Bosniaks. . . are completelyidentical to some Bosniak intellectuals in Sarajevo who are afraid of Islam, theIslamic Community [and] the Reis-ul-Ulema’.71 The controversy surroundingthe BANU coincided with a campaign by the Islamic Community against thoseBosniaks perceived as being ‘Islamophobes’. On 18 August 2011, the IslamicCommunity issued its first report on Islamophobia, and included quotationsfrom many prominent Bosniak journalists who were labelled as Islamophobes.72

Reacting to the report, one moderate Bosniak journalist pointed out that whileintolerance against Islam certainly existed, it was simply unacceptable that theIslamic Community ‘in this way attempts to make impossible all criticism ofthe work of its officials and organs’.73 Another journalist pondered fleeing from‘Bosniakistan’ if the Islamic Community continued to insist that he coulddecide who ‘we’ were.74

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In Bosnia today, the ‘genocide’ issue has a worrying tendency to turn evencompletely unrelated issues into zero-sum polemics. In spring 2011, EmirSuljagic, the social democratic cantonal minister of education in Sarajevo,decided to prevent the grade given for religious education from being factoredinto the grade point average of students in the canton. Suljagic undertook thisstep in order to avoid discrimination against those students opting out of religiousinstruction.75 Reis-ul-Ulema Mustafa Ceric greeted Suljagic’s decision with a dra-matic accusation that Suljagic was defaming Bosniak victims in the war and alsopaving the way for a new genocide against the Bosniaks.76 This vituperative reac-tion was all the more shocking given that Suljagic is a prominent Srebrenica sur-vivor. In February 2012, Suljagic resigned from his ministerial post, citingpersistent threats to him and his family and an atmosphere of ‘public lynching’.77

Conclusion

There can be no doubt that ‘genocide’ remains an important and valid analyticaland legal category. However, those scholars and advocates who push for everbroader definitions of ‘genocide’ must ask what is actually gained by such a prac-tice In the context of international criminal prosecution, it seems implausible thata higher incidence of genocide convictions would result in greater deterrence. AsGareth 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 ofany kind are being committed’.78 (And the degree to which international criminaljustice as such results in deterrence is certainly open to question.79) Genocide con-victions may offer more consolation or ‘closure’ to the victim community.However, it seems clear that such convictions have great symbolic and politicalimplications that are often more central to demands for the use of ‘genocide’. Itis these very implications that can have undesirable indirect consequences, par-ticularly when they encourage the development of simplistic readings of conflictsin which the victims were only victims, while the ‘others’ were only perpetra-tors.80 Such understandings can mitigate against long-term reconciliation, or con-tribute to the creation of political environments in which the previously victimizedgroup believes itself fundamentally incapable of perpetrating violence uponothers.81

The myopic focus on genocide is also unhelpful in that it feeds the erroneousassumption that the international community would intervene if only we allcould agree that a genocide was in progress (or imminent).82 Undoubtedly, bothin Bosnia and Rwanda it was the case that semantic games were played aroundthe (non)-use of ‘genocide’ with a view to justifying non-intervention. I wouldargue, however, that these tactics merely obscured the larger structural reasonsthat explain the lack of intervention. Paradoxically, the willingness of the BushAdministration to label events in Darfur as genocidal did not result in robust inter-vention to end the violence, and it may well have had distortive effects on attemptsby the International Criminal Court to investigate and prosecute crimes there.83

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Would it not be better to have discussions about the proper criteria for militaryintervention in cases of mass violence that did not hinge on whether somethingwas or was not genocide? Although such discussions would probably notresolve the underlying political, military and ideological debates surroundingsuch interventions, they would at least draw back the curtain on the charadethat state actors engage in when they claim that they would perhaps intervene ifgenocide rather than ‘mere’ mass violence were found to be occurring.

Another, perhaps unspeakable, element of our fascination with genocide is thata protracted episode of mass violence would somehow seem to make more senseto us if it was the product of an evil master plan directed from above by identifiableleaders with clear chains of command. The existence of such a plan would greatlyassist the work of international criminal prosecutors, and may therefore alsoexplain some of their proclivity for alleging grand joint criminal enterprises, butthe judgements of the ICTY speak of a significantly more complex picture.Equally ineffable, perhaps, is the reality in which those investigations and trialsthat focus on charges of genocide not only attract the most resources and mostambitious prosecutors, but also a disproportionate share of international mediaattention. ‘Mere’ war crimes and crimes against humanity pale by comparison.Yet an undue focus on genocide charges leads in the worst case to flawed inves-tigations and prosecutorial strategies that distract from proving ‘lesser’ charges ofcrimes against humanity and war crimes. Proper international criminal investi-gations and prosecutions must be driven by charges backed by robust evidenceand careful analysis, not by a desire to generate prestige or publicity throughunfounded 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 withinthe definition of other international crimes’.84

In conclusion, a myopic obsession with ‘genocide’ helps neither victims norinternational criminal justice, and it risks obscuring rather than clarifying past his-torical events. Instead, it only furthers what Elissa Helms has called an ‘arms race’of victimhood.85 In practically pursuing the ideals of both international criminaljustice and greater understanding of extreme campaigns or episodes of mass vio-lence, we should strive for nuanced and accurate renderings of past injusticesrather than for maximalist conclusions that purport to see genocide anywheremass violence occurs.

This is not genocide denial, but rather the careful writing of history. In his bookon the ‘Bloodlands’ of Europe, where Nazi Germany, the Soviet Union, and theirallies spent decades engaged in utterly destructive ideological projects, TimothySnyder eschews the term ‘genocide,’ while at the same time never denying thatit occurred.86 He does so because he dislikes the vacuity of the interminablebinary ‘genocide or not’ debates. He also notes that ‘competitive martyrology’prolongs rather than solves historical disputes.87 In the post-conflict stage, geno-cide should not also not confer any kind of permanent status, and certainly notimpunity to prosecution for one’s own crimes. The more recent case ofRwanda, for example, offers ample proof that a regime representing a group

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that was the victim of genocide can unfortunately exploit this status not only to thwartinvestigations of perpetrators in the main victim group, but also in order to blunt cri-ticism of it own malignant activities in the Democratic Republic of Congo.88

Scholarly and legal debates about the allegedly restrictive readings of the Gen-ocide Convention, and the onerous burdens that such readings impose upon a pro-secutor wishing to prove dolus specialis in the context of a genocide charge, arewell worth having. And careful reconsiderations of the nature of violence in a warsuch as that in Bosnia are of course also welcome—in this sense Edina Becirevicdoes to some extent succeed in making a passionate case for a wider occurrence ofgenocide.89 But a polemical atmosphere in which the ICTY—the most productiveinternational criminal court in history—is tarnished with the brush of failure andwhere its findings that extensive crimes of humanity and war crimes rather thangenocide were committed during the greater part of the war in Bosnia and Herze-govina are labelled as ‘genocide denial’, does massive disservice to careful scho-larly and legal inquiry.

Finally, from the perspective of Balkan and Yugoslav history, it would be ben-eficial if the circle of perpetration and victimhood could be broken. After theFirst World War, much of the Serb political elite successfully used the enormoussuffering of the Serbs during that war to push successfully for the establishmentof a highly flawed political system. It would be tragic if Bosniaks today wouldemulate Serb nationalism by trying to assert themselves politically in Bosniathrough a simplistic historical narrative of victimization and resulting entitlement.Such a narrative can only thwart attempts at creating a stable Bosnia based ondemocracy and civil society instead of on narrow, ethnically defined interests.Much better, instead, to focus on continued investigations and prosecutions of per-petrators of war crimes, crimes against humanity, and genocide, regardless of theethnicity of both perpetrators and victims. Doing so in no way trivializes ordenies the disproportionate level of atrocities during the war in Bosnia. Rather, itremains an important aspect of healing society and ending impunity. It wouldalso ideally help to extricate us from a memorialization of victims in which multi-faceted lives and identities are forever reduced to the perpetrator’s reductionist andpathological view. Instead of permitting the perpetrator to have the final word in thesense of having killed someone because he or she was a Bosnian Muslim, we shouldin the end strive to recover the essential and inalienable humanity of the victim.

Acknowledgements

I am very grateful for the insightful and helpful comments of Jasna Dragovic-Soso, Elissa Helms, Guenael Mettraux, Xavier Bougarel, Zlatko Jovanovic andthe editors and peer reviewers of this journal.

Notes and References

1 Another controversy on the classification of the war in Bosnia and Herzegovina surrounds the question ofwhether it was a civil war or an international armed conflict. Although many journalists and a significant

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portion of Serb scholars persist in calling the conflict a civil war, the judgments of the ICTY and the Inter-national Court of Justice (ICJ) have proved conclusively that the conflict was, from a legal point of view,international in character.

2 As the appellation ‘Bosniak’ was officially adopted only during the war, this article refers to ‘BosnianMuslims’ when dealing with periods before and during the 1992–95 war. Although debates exist aboutthe character and extent of the conflict between Bosnian Croats and Bosnian Muslims in 1993–94, thisarticle, like the debate on genocide in Bosnia, focuses on the Bosnian Serbs’ war with the BosnianMuslims, which was the primary conflict.

3 For an earlier overview of some aspects of this controversy, see Paul B. Miller, ‘Contested memories: theBosnian genocide in Serb and Muslim minds’, Journal of Genocide Research, Vol. 8, No. 3, 2006,pp. 311–324, and Ger Duijzings, ‘Commemorating Srebrenica: histories of violence and the politics ofmemory in Eastern Bosnia’, in Xavier Bougarel, Elissa Helms and Ger Duijzings (eds.), The NewBosnian mosaic: identities, memories and moral claims in a post-war society (Aldershot: Ashgate, 2007),pp. 141–166.

4 In this sense, the debate is reminiscent of other scholarly arguments where Jurgen Zimmerer lamented that ‘byuncritically accepting this terminology, genocide studies again confuses scholarship with politics, which hasunfortunately all too often been the case in the past’: Jurgen Zimmerer, ‘Genocidal terrorism? A plea for con-ceptual clarity’, Journal of Genocide Research, Vol. 8, No. 4, 2006, p. 379.

5 This summary draws on Xavier Bougarel’s definitive history of the use of the term ‘genocide’ in Yugoslavia.Xavier Bougarel, ‘Du code penal au memorandum: les usages du terme genocide dans la Yougoslavie com-muniste’, in Isabelle Delpla and Magali Bessone (eds.), Peines de guerre: la justice penale international etl’ex-Yougoslavie (Paris: Editions EHESS, 2010), pp. 67–84.

6 Genocide was adopted for the first time in the Yugoslav criminal code in 1951.7 Ivo Banac, ‘Historiography of the countries of Eastern Europe: Yugoslavia’, The American Historical Review,

Vol. 97, No. 4, 1992, pp. 1084–1104.8 I borrow the Historikerstreit label from Tomislav Dulic. On the historiography, see Damir Mirkovic, ‘Victims

and perpetrators in the Yugoslav genocide, 1941–1945: some preliminary observations’, Holocaust and Gen-ocide Studies, Vol. 7, No. 3, 1993, pp. 317–332. The three most prominent monographs featuring in thedebate were Bogoljub Kocovic, Zrtve Drugog svjetskog rata u Jugoslaviji (London: Nase delo, 1985), Vla-dimir Zerjavic, Gubici stanovnistva Jugoslavije u Drugom svjetskom ratu (Zagreb: Jugoslavensko viktimo-losko drustvo, 1989) and Milan Bulajic, Ustaski zlocini genocida i sudenje Andriji Artukovicu, 4 vols.(Belgrade: Rad, 1988–89).

9 Cited in Bougarel, ‘Du code penal’, p. 76.10 Srdan Bogosavljevic, ‘Nerasvjetleni genocid’, in Nebojsa Popov (ed.), Srpska strana rata, 2nd edn. (Bel-

grade: Samizdat B92, 2002), p. 190.11 Bette Denich, ‘Dismembering Yugoslavia: nationalist ideologies and the symbolic revival of genocide’,

American Ethnologist, Vol. 21, No. 4, 1994, pp. 367–390.12 Banac, ‘Historiography’, p. 1101. See also Dobrica Cosic, ‘Da li je nasa sudbina vecito ponavljanja istog’,

Duga, 16–29 September 1989.13 Denich, ‘Dismembering Yugoslavia’, pp. 376–378. See also Marko Attila Hoare, ‘Genocide in the former

Yugoslavia from the 1940s to the 1990s’, Helen Bamber Centre Working Paper Series No. 4, 2007,pp. 12–13.

14 Patrick J. Treanor, ‘The Bosnian Serb leadership, 1990–1992’, Prosecution Expert Report, cited in ICTY,Prosecutor v. Momcilo Krajisnik (IT-00-39-T), Judgement, 27 September 2006, p. 16.

15 Stenographic Records of First Session of the Assembly of the Serb Nation in Bosnia and Herzegovina, 24October 1991, ICTY, Prosecutor v. Momcilo Krajisnik, Prosecution Exhibit 65, Tab 53.

16 See, for example, video of guilty plea of Biljana Plavsic, available at: http://www.icty.org/sid/221; see alsoICTY, Prosecutor v. Tadic (IT-94-1), paragraphs 62, 83, 180.

17 ICTY, Prosecutor v. Krajisnik, Trial Judgment, paragraph 922.18 Bougarel, ‘Du code penal’, pp. 81–83.19 In the foreword to the volume on genocide against the Bosnian Muslims, Dedijer noted that he had written a

book on genocide against the Slovene nation, and also revealed that he was working on two publicationsfocusing on genocide against the Macedonian nation and genocide against the Serbs and Croats inRomania. Vladimir Dedijer and Antun Miletic, Genocid nad Muslimanima, 1941–1945: Zbornik dokumenatai svjedocenja (Sarajevo: Svjetlost, 1990), pp. vii–xxiii.

20 Bougarel, ‘Du code penal’, p. 82. See also Mustafa Imamovic and Rusmir Mahmutcehajic, The genocideagainst the Bosnian Muslims (Sarajevo: E. Mulac and R. Mahmutcehajic, 1992). See also Mustafa Imamovic,Pregled istorije genocida nad Muslimanima u jugoslovenskim zemljama (Sarajevo: Glasnik Rijaseta Islamskezajednice u SFRJ, 1991) and Smail Cekic, Agresija na Bosnu i genocid nad Bosnjacima, 1991–1993 (1993).

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21 Bougarel, ‘Du code penal’, p. 82.22 Conclusion of the meeting of the Travnik and Herzegovina regional communities, 12 November 1991, quoted

in William B. Tomljanovich, ‘The governing bodies and organs of Herceg-Bosna and their functioning(1991–1994)’, Prosecution Expert Report, ICTY, Prosecution v. Prlic et al. (IT-04-74-T).

23 ‘Genocide’ was also used by various parties to describe mass violence in the conflict in Croatia (1991–95)and in Kosovo (1998–99). For Croatia, see the cases filed by both Croatia and Serbia against each other atthe ICJ. For Kosovo, see Peter Ronayne, ‘Genocide in Kosovo’, Human Rights Review, Vol. 5, No. 4,pp. 57–71.

24 Smail Cekic, Agresija na Bosnu i genocid nad Bosnjacima: 1991–1993 (Sarajevo: Ljiljan, 1994), p. 9. Thefirst work cited by Cekic was the book of Dedijer and Miletic on ‘genocide’ against the Muslims. NusretE. Agic wrote in 1995 of the ‘tenth large [sic] genocide against my Bosniak nation’. Nusret E. Agic, Zivistitovi (Sarajevo: Biblioteka Bosna na Drini, 1995), p. 148.

25 Roy Gutman, A witness to genocide: the first inside account of the horrors of ‘ethnic cleansing’ in Bosnia(Shaftesbury: Element, 1993).

26 1992 Final Report of the UN Commission of Experts Established Pursuant to Security Council Resolution 780(1992), IV, A. 9., available at: http://www.his.com/~twarrick/commxyu1.htm. In contrast to many lay com-mentators on the war, the members of the Commission of Experts were of course well aware of the legal com-ponents of genocide and included a chapter on ‘applicable law’. In a 1994 report, Human Rights Watch/Helsinki simultaneously spoke of a ‘genocide underway’ and of ‘crimes [that] may also amount to genocide’.Human Rights Watch/Helsinki, ‘War crimes in Bosnia-Hercegovina: UN cease-fire won’t help Banja Luka’,June 1994.

27 Munir Alibabic – Munja, Bosna u kandzama KOS-a (Sarajevo: Behar, 1996), p. 68.28 I make this observation based on a review of Bosnian Serb prosecutorial documents collected by the ICTY.29 ICTY, Prosecutor v. Momcilo Krajisnik, Trial Judgment, paragraph 494.30 The proceedings are summarized in the 26 February 2007 ICJ judgment in the Bosnian Genocide case, avail-

able at: http://www.icj-cij.org/docket/files/91/13685.pdf. For an overview of the case, see Marko Milanovic,‘State responsibility for genocide’, European Journal of International Law, Vol. 17, No. 3, 2006, pp. 553–604; Vojin Dimitrijevic and Marko Milanovic, ‘The strange story of the Bosnian Genocide case’, LeidenJournal of International Law, Vol. 21, No. 1, 2008, pp. 65–94.

31 Nikolas Rajkovic, ‘On “bad law” and “good politics”: the politics of the ICJ Genocide case and its interpret-ation’, Leiden Journal of International Law, Vol. 21, No. 4, 2008, p. 891. I would like to stress that there aresignificant portions of Rajkovic’s other arguments with which I strongly disagree. On the use of ‘genocide’ inthe context of quests for self-determination, see Brian Grodsky, ‘When two ambiguities collide: the use ofgenocide in self-determination drives’, Journal of Genocide Research, Vol. 14, No. 1, 2012, pp. 1–27.

32 Jasna Dragovic-Soso, ‘Apologising for Srebrenica: The declaration of the Serbian parliament, the EuropeanUnion and the politics of compromise’, East European Politics, Vol. 28, No. 3, 2012 (forthcoming).

33 Samantha Power, ‘A problem from hell’: America and the age of genocide (New York: Basic Books, 2002),pp. 247–328. See also Brian Grodsky, ‘The legal duty to “prevent”: after the onset of “genocide”’, Journal ofGenocide Research, Vol. 14, No. 1, 2012, pp. 79–98.

34 Human Rights Watch, War crimes in Bosnia–Hercegovina, Volume 1 (New York: Human Rights Watch,1992), pp. 1–2.

35 This total is a minimum figure. ICTY, ‘Bosnia and Herzegovina: death toll’, http://www.icty.org/sid/10591.For a full treatment of this topic, see Ewa Tabeau (ed.), Conflict in numbers: casualties of the 1990s wars inthe former Yugoslavia (1991–1999) (Belgrade: Helsinki Committee for Human Rights in Serbia, 2009) andJan Zwierzchowski and Ewa Tabeau, ‘The 1992– 95 war in Bosnia and Herzegovina: census-based multiplesystem estimation of casualties’ undercount’, Households in Conflict Network and German Institute for Econ-omic Research, February 1, 2010.

36 Genocide charges for 1992 remain pending in the cases of Radovan Karadzic and Ratko Mladic.37 I focus here predominantly on the Bosnian Serb cases at the ICTY as these are the most germane for this topic.

The ICTY has in its prosecutions of Bosnian Serbs focused on 1992 and 1995 (Srebrenica).38 ICTY, Prosecutor v. Krajisnik, paragraph 867.39 ICTY, Prosecutor v. Krajisnik, paragraph 869.40 ICTY, Prosecutor v. Krajisnik, paragraph 994.41 ICTY, Prosecutor v. Krajisnik, paragraph 975.42 Edina Becirevic, ‘The issue of genocidal intent and denial of genocide: a case study of Bosnia and Herzego-

vina’, East European Politics and Societies, Vol. 24, No. 4, 2010, pp. 484–485.43 ICTY, Prosecutor v. Krajisnik, paragraph 975. There is of course, ample room for discussion, and a detailed

study of ICTY jurisprudence on genocide is lacking. Various trial and appeals chambers have often taken dis-parate positions. For example, the judgment in Krstic can arguably be read as providing a finding of genocide

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in a similar case to where the trial chamber in Krajisnik did not. Prosecutor v Radislav Krstic (IT-98-33-A),ICTY Trial Chamber Judgment, 2 August 2001 and Appeals Chamber Judgment 19 April 2004. See also thecareful reading of genocidal intent in the trial chamber judgment in Prosecutor v. Popovic et al. (IT-05-88).

44 The present critique focuses on scholars who advance the thesis that the ICTY has failed in not classifying theentire war in Bosnia as a genocide against the Bosniaks. For the polar opposite view, with which I also dis-agree, see Robert M. Hayden, ‘“Genocide denial” laws as secular heresy: a critical analysis with reference toBosnia’, Slavic Review, Vol. 67, No. 2, 2006, pp. 384–407.

45 Marko Attila Hoare, ‘Bosnia-Hercegovina and international justice: past failures and future solutions’, EastEuropean Politics and Societies 24, No. 2, 2010, p. 191; see also Marko Attila Hoare, ‘The International Courtof Justice and the decriminalisation of genocide’, Bosnia Report, 9 March 2007, available at: http://bosnia.org.uk/news/news_body.cfm?newsid=2255.

46 Edina Becirevic, Na Drini genocid: Istrazivanje organiziranog zlocina u istocnoj Bosni (Sarajevo: Buybook,2009). For a condensed version of her argument in English, see Becirevic, ‘The issue of genocidal intent’.

47 On early difficulties faced by the ICTY, see Cees Banning and Petra de Koning, Balkan aan de Noordzee(Rotterdam: Prometheus, 2005) and John Hagan, Justice in the Balkans: prosecuting war crimes in theHague tribunal (Chicago: University of Chicago Press, 2003).

48 Becirevic, ‘The Issue of Genocidal Intent’, p. 1.49 Srebrenica Genocide Blog, http://srebrenica-genocide.blogspot.com; Institute for the Research of Genocide,

http://www.instituteforgenocide.ca.50 Richard Ashby Wilson, Writing history in international criminal trials (New York: Cambridge University

Press, 2011), p. 89.51 On this point, see Marko Milanovic, ‘State responsibility for genocide’. Both Hoare and Becirevic cite the

European Court of Justice’s ruling in the case of Nikola Jorgic, who was tried in Germany for genocide.Hoare, ‘Bosnia–Hercegovina’ p. 192; Becirevic, ‘The issue of genocidal intent’, p. 483. However, theECHR merely ruled that the German court’s more expansive understanding of genocide had not resultedin a violation of his fundamental rights. The ECHR issued no opinion as to whether it endorsed the expansiveGerman definition of genocide or the restrictive usage in international courts. Case of Jorgic vs. Germany,European Court of Human Rights, Fifth Section, Application no. 74613/01, Strasbourg, 12 July 2007,Final Version 12 October 2007, paragraph 113.

52 Even William A. Schabas, who has been criticized for adopting an overly restrictive interpretation of geno-cide uses this phrase in the title of his seminal volume on genocide. William A. Schabas, Genocide in inter-national law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009). The phrase hasalso been used at international criminal courts, both at the ICTR (Prosecutor v. Kambanda [ICTR 97-23-S],Judgment and Sentence, 4 September 1998, paragraph 16) and the ICTY (Prosecutor v. Jelisic [IT-95-10],Appeals judgement, partially dissenting opinion of Judge Wald, paragraph 2; Prosecutor v. Stakic[IT-97-24], Judgement, paragraph 502).

53 ICJ Judgment, Application of the convention on the prevention and punishment of the crime of genocide(Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007.

54 Hoare, ‘Bosnia–Hercegovina’, p. 196.55 Rajkovic, ‘The politics of the ICJ Genocide case’, p. 889.56 Antonio Cassese, ‘A judicial massacre’, The Guardian, 27 February 2007. Cassese’s disagreement with the

ICJ appears almost ironic given that others have accused him of enforcing an overly narrow definition of gen-ocidal intent (under the influence of the writings of William Schabas).

57 Christian Gerlach, Extremely violent societies: mass violence in the twentieth century (Cambridge: Cam-bridge University Press, 2010), p. 7.

58 Oddly, in light of his own reductionist reading of Serb political and military leaders in Bosnia and the FederalRepublic of Yugoslavia, Hoare argues that the ICJ came close to adopting a Goldhagen-type reading of gen-ocidal intent. Hoare, ‘Bosnia–Hercegovina’, 195.

59 It would be worthwhile to compare the legal doctrine of joint criminal enterprise to intentionalism in Holo-caust historiography.

60 Marko Prelec ‘Justice, truth and peace at the Hague bourse’, in Timothy Waters (ed.), The Milosevic trial –An autopsy (Oxford: Oxford University Press, forthcoming).

61 See for example ‘Ratne sednice Vrhovnog saveta odbrane (34)’, e-Novine, 12 October 2011, available at:http://www.e-novine.com/feljton/51641-Miloevi-Krajinik-budala-Amfilohije-ubre.html.

62 The most brutal episodes of violence against Bosnian Muslims in Sandzak, the Sjeverin and Strpci massacresin 1992 and 1993, were both orchestrated by the Bosnian Serb Milan Lukic, who was indicted by the ICTY tolife imprisonment. Although the Serbian State Security service knew about these massacres and about Lukic’swidespread crimes in Bosnia, nothing was done to prosecute him. In general, however, the difference in theattitude of the authorities of the Federal Republic of Yugoslavia towards Bosnian Muslims and Muslim Slavs

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in Serbia and Montenegro appear to have a considerable amount in common with the vastly different attitudesthat, for example, Hungary displayed during the Holocaust towards Jews from occupied territories as com-pared to Jews from the interwar territory of the Kingdom of Hungary. Randolph Braham, The politics of gen-ocide: the Holocaust in Hungary, rev. and enl. ed., 2 vols. (New York: Columbia University Press, 1994).

63 Transcript of Federal Yugoslav Supreme Defence Council session of 12 March 1993, p. 26.64 The Milosevic Trial Chamber’s Decision on [the] Motion for Judgement of Acquittal of 16 June 2004 left the

door tantalizingly open for findings on Milosevic’s role in genocide in Bosnia, and for a finding of genocide incertain municipalities in 1992, but it should be kept in mind that the legal test for this decision was set at a verylow threshold. For a discussion of the Decision, see Christian Axboe Nielsen, ‘Can We Salvage a History ofthe Former Yugoslav Conflicts from the Milosevic Trial?’, in Waters (ed.), The Milosevic trial (Oxford:Oxford University Press, forthcoming). The verdict in the trial of Momcilo Perisic did not take a more expan-sive view of Serbian involvement in genocide, but several other trials at the ICTY may still shed light on thismatter.

65 Tonny Brems Knudsen and Christian Axboe Nielsen, ‘International trusteeship and democratic peacebuild-ing: The EU in the Balkans’, in Steven Blockmans, Jan Wouters and Tom Ruys (eds.), The EuropeanUnion and peacebuilding: policy and legal aspects (The Hague: TMC Asser Press, 2010), pp. 416–427.See also Roland Kostic, ‘Ambivalent peace: External nation-building, threatened identity and reconciliationin Bosnia-Herzegovina’ (PhD diss., Uppsala University, 2007).

66 In recent years, RS authorities cooperated closely with the ICTY. However, Dodik has been particularly vocalin his attacks on the Bosnian State Court, which he accuses of being anti-Serb. Dodik seems essentially motiv-ated by his opposition to all centralized institutions and by his interest in keeping the State Court from inves-tigating allegations of widespread corruption in the RS. Contrast also Dodik’s reluctant acceptance of the ICJverdict in 2007 with his rejection of the Srebrenica genocide verdict in 2011. ‘Dodik predlaze da se u Sreb-renici osnuje institut za genocid’, Dnevni Avaz, 6 March 2007; Gordana Katana, ‘Zbog Jasenovca se dogodilaSrebrenica’, Oslobodenje, 25 May 2011.

67 Hilmo Neimarlija, ‘Nezavrsena presuda’, Novi Muallim, No. 30, 29 June 2007, available at: http://www.rijaset.ba/images/stories/muallimovifiajlovi/genocid/H.%20NEIMARLIJA.pdf.

68 Islamic Community in Bosnia and Herzegovina, ‘Osnovana BANU’, 10 June 2011, available at: http://www.rijaset.ba/index.php?option=com_content&view=article&id=11217:osnovana-banu&catid=254:mina-vijesti-kat&Itemid=185. Zukorlic has in recent years asserted himself as a strong leader of the Bosniak com-munity in Sandzak, a move that has been bitterly opposed by other Bosniak politicians. This has led torepeated heated confrontations and physical altercations in Novi Pazar, the main city in Sandzak.

69 Biljana Bakovic, ‘I BANU u sluzbi Zukorliceve ambicije’, Politika, 13 June 2011; Vildana Selimbegovic,‘Regionalni Bosnjaci’, Oslobodenje, 12 June 2011. Although the establishment of the BANU predictablyevoked the wrath of Serb nationalists, the initiative was also generally viewed with dismays by liberals inthe region. Many of them believed that such academies, regardless of ethnic affiliation, had played a verynegative role in the events of the 1980s and 1990s. See Safeta Bisevac, ‘SANU, VANU, BANU. . .’, B92,15 June 2011.

70 Islamic Community in Bosnia and Herzegovina, ‘BANU izmedu mrznje, zavisti i licemjerja’, 12 June 2011.71 Islamic Community in Bosnia and Herzegovina, ‘BANU’, 12 June 2011.72 Islamic Community in Bosnia and Herzegovina, ‘Promocija izvjestaja o islamofobiji’, 18 August 2011, avail-

able at: http://www.rijaset.ba/index.php?option=com_content&view=article&id=11614:promocija-izvjetaja-o-islamofobiji&catid=253:aktuelnosti-kat&Itemid=184.

73 Esad Hecimovic, ‘Islamofobija i Sarajevo’, Oslobodenje, 18 August 2011; Vildana Selimbegovic, ‘Kako sampostala islamofob’, Oslobodenje, 22 August 2011. The Islamic Community rejected that it was branding allcriticism of it as Islamophobic. Islamic Community in Bosnia and Herzegovina, ‘Da li je kritika islamofo-bija?’, 24 August 2011, available at: http://www.rijaset.ba/index.php?option=com_content&view=article&id=11664:da-li-je-kritika-islamofobija&catid=282:ekrem-tucakovic&Itemid=302.

74 Muharem Bazdulj, ‘Bijeg iz Bosnjakistana’, Oslobodenje, 18 August 2011.75 Zarka Radoja, ‘Zaustavljena diskriminacija djece’, E-novine, 23 May 2011, available at: http://www.e-

novine.com/region/region-bosna/47678-Suljagi-Zaustavljena-diskriminacija-djece.html.76 ‘Mustafa Ceric najavio revoluciju po ulicama BiH’, 17 May 2011, Source.ba, available at: http://www.source.

ba/clanak/417578654605/vijesti/Mustafa%20Ceric%20najavio%20revoluciju%20po%20ulicama%20BiH/?ref=vezani. Nationalist clergy from the Serbian Orthodox Church and the Roman Catholic Church supportedCeric’s attack on the resolution, proving once again that nationalist leaders in Bosnia tend to unite when con-fronted by non-nationalist moderates.

77 M. Lingo, ‘Suljagic podnio neopozivu ostavku’, Nezavisne novine, 10 February 2012.78 Gareth Evans, ‘Crimes against humanity: overcoming indifference’, Journal of Genocide Research, Vol. 8,

No. 3, 2006, pp. 329–331.

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79 For an optimistic view, see Payam Akhavan, ‘Beyond impunity: can international criminal justice preventfuture atrocities?’, The American Journal of International Law, Vol. 95, No. 1, 2001, pp. 7–31. For amore sceptical perspective, see Mirjan Damaska, ‘What is the point of international criminal justice?’,Chicago–Kent Law Review, Vol. 83, No. 1, 2008, pp. 329–368.

80 For a an eloquent statement of this in the context of the Armenian genocide, see Donald Bloxham, The greatgame of genocide: imperialism, nationalism, and the destruction of the ottoman Armenians (Oxford: OxfordUniversity Press, 2005), p. 231.

81 Mahmood Mahdani, When victims become killers: colonialism, nativism and the genocide in Rwanda (Prin-ceton: Princeton University Press, 2001). For a particularly egregious example of the thesis that victimhood ofgenocide excludes (future) perpetrator status—a common thesis among Serb nationalists—see ‘Srbija je biladobra prema Jevrejima kad je bilo tesko’, Politika, 10 February 2008.

82 Thus Gregory Stanton has argued that ‘if we only respond when Bill Schabas and other minimalists thinkcrimes against humanity have reached the genocidal level, we will fail to adopt preventive anti-genocidal pro-grams and will never be prepared with plans for action in time to prevent genocide’. Email of Gregory Stantonto International Association of Genocide Scholars listserv, 6 June 2011.

83 Andrew Cayley, ‘The Prosecutor’s strategy in seeking the arrest of Sudanese President Al Bashir on chargesof genocide’, Journal of International Criminal Justice, Vol. 6, No. 5, 2008, pp. 829–840. See also Alex deWaal, ‘Reflections on the difficulties of defining Darfur’s crisis as genocide’, Harvard Human Rights Journal,Vol. 20, 2007, pp. 25–34.

84 Robert Cryer et al., An introduction to international criminal law and procedure, 2nd edn. (Oxford: OxfordUniversity Press, 2010), p. 203.

85 Elissa Helms, ‘“Bosnian Girl”: nationalism and innocence through images of women’, in Daniel Suber andSlobodan Karamanic (eds.), Retracing Images: visual culture after Yugoslavia (Leiden: Brill, 2012), p. 198.

86 Timothy Snyder, Bloodlands: Europe between Hitler and Stalin (New York: Basic Books, 2010),pp. 412–413.

87 Snyder, Bloodlands, p. 405.88 Victor Peskin, ‘Beyond victor’s justice? The challenge of prosecuting the winners at the international criminal

tribunals for the former Yugoslavia and Rwanda’, Journal of Human Rights, Vol. 4, No. 2, 2005,pp. 213–231.

89 I refer here in particular to Becirevic’s consideration of the sieges against Sarajevo and the UN ‘safe havens’. Ialso agree with Becirevic’s comment that the absence of a genocide conviction in a given criminal trial ‘onlymeans that the judges in a particular case could not corroborate [the] specific genocidal intent of the individualon trial’. But I strongly disagree with her dismissal of the ICTY’s judgments. Becirevic, ‘The issue ofgenocidal intent’, p. 17.

Notes on contributor

Christian Axboe Nielsen is Associate Professor of southeast European studies atAarhus University. He has previously worked as a research officer and analyst forthe International Criminal Tribunal for the Former Yugoslavia and the Inter-national Criminal Court and has appeared as a prosecution expert witness innumerous trials, most recently at the trial of Radovan Karadzic. He is the co-author with Jann K. Kleffner of A handbook on assisting international criminalinvestigations (Stockholm: Folke Bernadotte Academy and Swedish NationalDefence College, 2011) and is the author of ‘Can we salvage a history of theformer Yugoslav conflicts from the Milosevic Trial?’, in Timothy Waters (ed.),The Milosevic Trial: an autopsy (Oxford: Oxford University Press, forthcoming).

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