The Kosovo Tragedy

The Human Rights Dimensions

Ken Booth, Ken Booth

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136334832
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

The 1999 conflict in Kosovo is seen as being as significant for international affairs as the pulling down of the Berlin Wall, because of the centrality of human rights in the build-up, conduct and aftermath of the war. This volume is an attempt to explore this human rights tragedy.

PART ONE:
Perspectives

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1
Genocide:
Knowing What It Is That We Want to Remember, or Forget, or Forgive

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TIM DUNNE and DANIELA KROSLAK

‘The Holocaust was born and executed in our modern rational society.’ This view, expressed by Zygmunt Bauman, has become influential in sociological accounts of the barbarism committed by the Nazis against Jews and other groups.¹ Bauman's argument steers us away from the conceit that the Holocaust was a freak accident, one that Western civilisation would never repeat. Given the genocidal violence we have witnessed in the 1990s, his critique of liberal narratives of historical progress is an important one. But his book Modernity and the Holocaust is problematic for the reason that acts of systematic slaughter against collectivities (including Jews in Europe) pre-date modernity; moreover, it is precisely modern ideas of responsibility that have given us a moral vocabulary — and an institutional context — for trying to remove the worst kind of crime from the landscape of international politics. The main focus of this essay will be the meaning given to genocide by lawyers, activists and intellectuals. In this sense, the complex causes of genocide remain outside the scope of our argument. Looking at the meaning and interpretation of genocide necessarily involves examining the controversy that has raged for the last half century between ‘restrictionists’, who want to maintain a narrow interpretation of the Genocide Convention, and writers we refer to as ‘expansivists’, who believe that the category must be adapted to conform to new patterns of violence directed at collectivities.

In contrast to Bauman's view of genocide being a peculiarly modern phenomenon, the jurist who invented the term — Raphael Lemkin — argued that it had been part of human history since antiquity. But until the moment of its inclusion in the indictment of German leaders at Nuremberg in 1945, it had been an evil practice without a name.² Part 1 of this contribution will consider the evolution of the Genocide Convention of 1948 and the term genocide. In particular it focuses upon the various debates that ensued regarding the referent group (who is to be included), the psychological state of the perpetrators (their intentions or motives), and the extent of the violence (what counts as ‘in whole or in part’).

Part 2 will show, through a discussion of the case of Kosovo, what is at stake in this debate. Prior to and during the NATO bombing of the Federal Republic of Yugoslavia (FRY), many Western journalists and state leaders accused President Milosevic's government of committing genocide. Yet a substantial body of opinion believed that although massive human rights abuses took place in Kosovo, they should not be have been labelled ‘genocide’. This dispute prompts us to question the adequacy of our moral and legal vocabulary for describing large-scale killings of groups.

Most activists and writers working in the area of ‘genocide studies’ consider the Convention on the Prevention and Punishment of the Crime of Genocide to be inadequate but recognise that a contested convention is preferable to none at all. Towards the end of the essay, we consider the various ways in which the Convention is being re-interpreted. One important site for renewed legal interpretation concerns the war crimes tribunals set up to consider accusations of genocidal crimes in relation to Rwanda and the wars in Bosnia and Kosovo. These and other legal innovations are considered in Part 3; notably the International Court of Justice's consideration of genocide in relation to alleged war crimes committed by the Federal Republic of Yugoslavia during the Bosnia conflict. We will end with an evaluation of how far the world has moved towards overcoming some of the weaknesses evident in the founding document.

THE GENOCIDE CONVENTION AND DILEMMAS OF INTERPRETATION

Raphael Lemkin, a Polish born Jew (1900–59), devoted his life to the singular cause of taking a stand against genocide.³ With the outbreak of the Second World War, he joined the Polish underground, escaping to the United States in 1941. It was in his 1944 study of Nazism that he invented the word genocide from the Greek genos (race or tribe) and the Latin cide (killing).⁴ He defined the neologism as ‘a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves’.⁵

Lemkin's lobbying helped to galvanise the UN General Assembly to pass a resolution that both recognised genocide as a crime, and charged the Economic and Social Council of the UN (ECOSOC) with responsibility for drawing up a draft convention. The text of the 1946 Resolution included the following statement:

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred, when racial, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern.⁶

The two years that elapsed between the Resolution and the Convention provide a good example of how difficult it is to translate a general principle into a legal covenant that gives effect to it. In addition to the inherent problems, to complicate matters further, outside ECOSOC relations between the great powers were deteriorating significantly.

The question of the inclusion of the category of ‘political groups’ was hotly debated within ECOSOC. The Soviet Union strongly opposed deviating from the highly restrictionist view that genocide was intimately connected with fascism. One obvious reason why their representative took this line was to avoid any accusation that Stalin's slaughter of 6,500,000 ‘kulaks’⁷ between 1930 and 1937 constituted genocide. France, on the other hand, put forward the view that while in the past, genocide had been committed against racial or religious groups, in the future it was likely to be carried out against political targets.

The omission of political groups neglects the fact that genocide against a racial or religious group is usually the result of political conflict. This point was made strongly by the Haitian representative, who argued that a government responsible for genocide ‘would always be able to allege that the extermination of any group had been dictated by political considerations, such as the necessity for quelling an insurrection or maintaining public order’.⁸ The proposal to include political groups in the Convention was eventually ruled out because of the widespread fear that this might lead to intervention in the domestic affairs of states. The example of Vietnam's intervention in Cambodia in 1979 to halt the genocide, and the widespread criticism this action received, adds weight to the view that a political conception of genocidal violence would erode the non-intervention principle.⁹ This sentiment prompted Leo Kuper, much later, to draw the bitter conclusion that ‘many nations were unwilling to renounce the right to commit political genocide against their own nationals’.¹⁰

After lengthy debates on this and other issues,¹¹ the Convention was approved by the General Assembly of the United Nations on 9 December 1948. The main articles to note for present purposes are I, II and III:¹²

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births with the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

In 1998 the Convention celebrated its fiftieth anniversary. Peoples around the world are aware of its existence, and at the last count, 130 governments had ratified the treaty.¹³ Despite the existence of a widespread consensus regarding the declaratory importance of the Convention, the genocide in Rwanda in 1994 underscored the gap that exists between the normative aspiration, that the practice must be prevented, and the cold reality of its persistence. Given the scope of this essay, it is not possible to address all the issues raised by this yawning gap between the standard and the practice; this would require an analysis of the causes of genocide as well as the adequacy of the instruments for dealing with it once an outbreak has started. Instead, we will examine how far the conceptual weaknesses in the Convention have contributed to international society's inability to respond effectively to targeted violence against collectives. Our analysis finds fault with both the restrictionists, who maintain that only Armenia, the Holocaust and Rwanda are legitimate examples of genocide, and expansivists, who attach the label to a wide range of human tragedies and even environmental disast...