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Published online by Cambridge University Press: 27 January 2017
This comment responds to Robert M. Hayden's concerns by highlighting the importance of contextualizing definitions of genocide and by advocating that determinations of genocide be legally defined. Sari Wastell argues that legal determinations are contingent and contestable when established as “adjudicated facts,” that the law is the most appropriate venue for broaching these debates, and that the proposed genocide denial legislation that worries Hayden cannot target legitimate inquiry into the coherence of legal definitions of the crime of genocide. While reports, rumors, and accusations of genocidal activity might well be the impetus for the establishment of ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia, the existence of these international bodies is precisely aimed at determining the “truth” of these claims in a legal sense.
1. Nersessian, David L., “Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against Humanity,” Stanford Journal of International Law 43 (Summer 2007): 221-64Google Scholar; Andrea Gattini, “Evidentiary Issues in the ICJ's Genocide Judgment,“ Antonia Cassese, “On the Use of Criminal Law Notions in Determining State Responsibility for Genocide,” and Loewenstein, Andrew B. and Kostas, Stephen A., “Divergent Approaches to Determining Responsibility for Genocide,” all in Journal of International Criminal Justice 5, no. 4 (September 2007): 889–904, 875-87, and 839-57CrossRefGoogle Scholar.
2. I recognize that speaking of an “international legal system” overstates the level of coherence and unity that could be said to characterize the various institutions, laws, jurisprudence, and practices and procedures that comprise international criminal justice, a point that will be brought into sharper focus in the discussion below.
3. This statement belies the full complexity of the situation, since it is clear from the research that a measure of representative prosecution was pursued throughout the existence of the tribunal. The motivations for this, however, were not uniform and often derived from a desire to promote certain areas of jurisprudence rather than to represent disparate facets of criminal activity within the temporal and geographical jurisdiction of the tribunal. All of my research to date suggests that there was never any sense that a consummate history could be read from the tribunal's judgments nor that its convictions should be understood as indicative of the proportion of blame to be attributed to various parties to the conflict. Indeed, the refusal to countenance any implication of corporate responsibility has been a driving ethos of the court's modus operandi, a stance that has both positive and negative effects in my estimation. (I am currently working on a paper elaborating these themes.)
4. By contrast with adjudicated facts, facts of common knowledge have an entirely different status and, where admitted, require judicial notice to be taken. For the most lucid and consummate discussion of the difference between the two, the importance of “genocide” being denned and determined pursuant to 94b (as an adjudicated fact), and the significance of this distinction for European Union legislation to combat racism and xenophobia, see Jorgensen, Nina H. B., “Genocide as a Fact of Common Knowledge,“ International and Comparative Law Quarterly 56, no. 4 (October 2007): 885-98.CrossRefGoogle Scholar
Indeed the usage is further circumscribed in a decision of the Appeals Chamber (“Decision on the Motions of Dragojosipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94[B]“). In this decision, the bench specified that “Only facts in a judgment from which there has been no appeal or as to which any appellate proceedings have concluded, can truly be considered ‘adjudicated facts’ within the meaning of Rule 94(B) of the Rules.“ In this decision, the bench also precluded the possibility of using an entire judgment from another trial as documentary evidence as allowed in Rule 94b, insisting that the rule referred only to discrete witness testimonies and trial exhibits.
5. Nersessian, “Comparative Approaches.“
6. Ibid., 252.
7. Ibid., 258.
8. Ibid., 254; Schabas, William A., “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia,“ Fordham International Law Journal 25, no. 1 (November 2001): 45–47 Google Scholar.
9. Nersessian, “Comparative Approaches,” 254.
10. Ibid., 247.
11. David Luban, however, argues for the conflation of the two types of crime, “Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur, and the UN Report,” Chicago Journal of International Law 7', no. 1 (Summer 2006): 303-20.
12. Nersessian, “Comparative Approaches,” 244.
13. Mahmood Mamdani, “The Politics of Naming: Genocide, Civil War, Insurgency,“ London Review of Books, 8 March 2007; and Luban, “Calling Genocide.“
14. Stephanie Farrior, “Hate Propaganda and International Human Rights Law,” and Blinderman, Eric, “International Law and Information Intervention,” both in Price, Monroe E. and Thompson, Mark, eds., Forging Peace: Intervention, Human Rights and the Management of Media Space (Edinburgh, 2002)Google Scholar.