Genocide Denial Laws as Heresy

7/24/2019 Genocide Denial Laws as Heresy

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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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2/25

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)

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/25

"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.



4/25

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).



5/25

"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.



6/25

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



7/25

"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.



8/25

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.



9/25

"Genocide

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.



10/25

392

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).



11/25

"Genocide

Denial" Laws

as

Secular

Heresy

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.



12/25

394

Slavic

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).



13/25

"Genocide Denial"

Laws

as

Secular

Heresy

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).



14/25

396

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.



15/25

"Genocide Denial" Laws

as

Secular

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.



16/25

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

Documents

Genocide Denial Laws as Heresy