When is a genocide not a genocide?

Here in the United States, we have been riveted all day on the Supreme Court health care ruling. But another judicial ruling, across the Atlantic Ocean, has significant implications for international law on genocide, which has been the subject of heated debate. It is also likely to affect the trial of former Bosnian Serb military commander Ratko Mladic, whose "double genocide" trial is now due to resume on July 9.

The Yugoslav war crimes tribunal today ruled that the vicious spasm of ethnic cleansing of Muslims and Croats that accompanied the beginning of the Bosnia war in 1992 did not rise to the level of genocide. They made this ruling in response to a motion for acquittal by former Bosnian Serb President Radovan Karadzic. But they also found that genocide had occurred in Srebrenica in July 1995, when around 7,000 Muslim men and boys were executed by Bosnian Serb troops.

The ruling will make little practical difference to Karadzic, who also stands accused of numerous "crimes against humanity" and violations of the "laws and customs of war" between 1992 and 1995. But it does focus attention on the charged question of how to define genocide, a subject that I have attempted to deal with in previous posts here and there.

Controversy over proper use of the G-word dates back to the 1948 United Nations convention on genocide, which emphasized the subjective motivations of the perpetrators. Genocide is defined as mass killing or other acts with "the intent to destroy, in whole or in part, a national ethnical, racial or religious group." In other words, it is not enough to murder a large number of people. In order to be convicted of genocide, you must also be shown to have "genocidal intent."

The Yugoslav tribunal had previously found that genocide occurred in the case of Srebrenica, but Mladic’s subordinates were eventually cleared of "genocidal intent." The question now is whether Mladic himself, and Karadzic as his direct superior, will be convicted of genocidal intent in the case of Srebrenica, as the men who put the killing/deportation operation into motion.

The Karadzic ruling will make it difficult to convict Mladic of genocide for the initial ethnic cleansing campaign in Bosnia between May and December 1992, which is the first count in his indictment. While there is a different set of judges in both trials, it seems unlikely that the Mladic judges will be willing to overrule the Karadzic judges, unless the prosecution successfully appeals today’s decision.

Deciding that genocide was committed in Srebrenica in July 1995 but not in other Bosnian municipalities in 1992 seems a little arbitrary. While the killing took place on a larger, more methodical scale in Srebrenica, the ethnic cleansing of 1992 was preceded by an organized terror campaign that was designed to drive non-Serbs out of a large area of Bosnia. The result, in both cases, was the same: the elimination of a minority group.

Anyone care to explain the difference?