The Bitter Fight Over the Meaning of ‘Genocide’

On Feb. 26, 2007, Smail Čekić stormed out of the Peace Palace, the seat of the International Court of Justice, carrying the decision the judges had just handed down. The case that concluded that day, Bosnia v. Serbia, was to determine whether Serbia had violated the Genocide Convention during the Bosnian War, when Bosnian Serb forces killed an estimated 100,000 civilians. Čekić, then the director of Sarajevo University’s Institute for Research of Crimes Against Humanity and International Law and a Bosnian victim of the war, had hoped the court, which is based in The Hague, would punish his compatriots’ deaths and acknowledge them as victims of genocide. Instead, the court declined to classify a vast majority of the Bosnian deaths as genocidal. For Čekić and other survivors, the ruling was a betrayal: They felt that the court had refused to recognize the true nature of the violence. Newspapers reported that Serbia had been found not guilty of genocide; a celebration was planned at the Serbian Embassy. Standing outside the I.C.J., the top court of the United Nations, Čekić tore the text of the judgment to pieces.

That day, the court ruled that over the course of the war, Serbia committed genocide only in one instance. During the 1995 Srebrenica massacre, Bosnian Serb fighters took roughly 8,000 Bosnian Muslim men and boys to predetermined sites before killing them and throwing their bodies into mass graves. In a vast landscape of murder that, as the judges acknowledged, included horrors like the systematic torture, rape and beatings of Bosnians in detention camps and the expulsion of thousands of non-Serbs, this episode alone appeared sufficiently genocidal to the judges. Only there did the perpetrators explicitly display the dolus specialis, or specific intent, “to destroy, in whole or in part, the group as such” required for a killing to be considered an instance of genocide. Killings elsewhere in Bosnia may have been war crimes or crimes against humanity — acts that were equally grave — but the decision argued that wherever there were any other plausible reasons for why the killings took place, the court could not rule that genocide definitively occurred. In a dissenting opinion, Judge Awn Shawkat Al-Khasawneh of Jordan chastised his colleagues for failing to appreciate the “definitional complexity” of genocide by interpreting the intent requirement so narrowly.

Marko Milanović, now a scholar of international law, was working as a clerk at the I.C.J. that day in 2007. He watched on TV as Čekić tore up the verdict in anger. For him, the episode heralded a rupture that by then was already underway. The moral force of the word “genocide” and the public understanding of the word had become fully detached from its relatively narrow legal meaning. Ever since the Polish lawyer Raphael Lemkin coined the word in 1944, by combining the Greek word genos, meaning “race or tribe,” with the Latin cide, or “killing,” it has been pulled taut between languages — Greek and Latin, legal and moral.

In his book from that year, “Axis Rule in Occupied Europe,” Lemkin explains that he saw the word as describing “an old practice in its modern development.” In his view, genocide encompassed a broad array of crimes committed with the intent to destroy a national, religious, racial or ethnic group. A secular Jew who believed that every people carried its own distinct spirit, Lemkin argued that genocide included acts not just of physical obliteration but also of cultural annihilation. For him, the word described any attempt to stamp out a people’s essence from the earth. It included mass killings as well as actions to eliminate the “essential foundations of the life of national groups”: the destruction of language, traditions, monuments, artworks, archives, libraries, universities and places of worship. Lemkin’s hope was that coining the word, and persuading nations to recognize it as a crime, might somehow prevent it from recurring. He wanted his neologism to convert what Winston Churchill once called a “crime without a name” into an identifiable, obvious and abhorrent thing.

But by the time the United Nations approved the Genocide Convention on Dec. 9, 1948, making genocide a crime under international law, only a shadow of Lemkin’s original idea survived. After years of contentious deliberation and diplomatic negotiation, the convention limited genocide to five categories of acts: killing members of a group; causing group members serious bodily or mental harm; imposing measures intended to prevent births within the group; forcibly transferring children from one group to another; and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Each one of these acts could constitute genocide only if and when committed with the specific intent to destroy a protected group. All state parties agreed to prevent and punish any instance of this crime.