Why We Must Remember, part 2

Consider the following: Andrew VORKINK Former World Bank Country Manager for Turkey Professor of International Law at the Bogaziçi University andrew.vorkink@boun.edu.tr RETROACTIVE APPLICATION IS NOT PERMITTED Under international law, retroactive application of criminal laws is not permitted as a general principle. Thus the Genocide Convention applies from when it came into force and not for past acts. Accordingly the Convention cannot be used to bring cases which occurred during World War II, let alone earlier. Further, as the first major case involving a claim that a state committed genocide shows – the case brought by Bosnia against Serbia in the International Court of Justice and decided in February 2007, the burden of proof that there were both killings and intent to destroy a group as a group, is very high. Even with enormous amounts of evidence and testimony in the Bosnia case, the International Court of Justice did not find that the government of Serbia was responsible for genocide in planning or carrying out killings in Bosnia in the 1990's, although the court found it should have done more to stop the killings taking place. The international legal situation is thus clear – genocide as a crime exists from 1948 onwards, both intent to destroy a group and actual killings must be proven and that proof is hard to establish when a state is accused. Switching from the legal to the moral issue, is there a case to be made that genocide can be applied to historical acts even if it cannot be legally applied retroactively? In my view, the answer to this is no, not unless the historical situation is so clear and so close to when genocide became a crime that there is no mistaking the acts as qualifying as genocide from a moral view. The Holocaust against the Jews in World War II, which gave rise to the concept of genocide, meets these criteria. But once we start going further back in history, where does it end? This is where double standards become very obvious. Countries which are willing to classify historical acts in other countries as genocide yet are not willing to recognize acts within their own borders as even crimes - let alone genocide - from a moral and not legal view, are using double standards which undercut their own credibility. Once we start going backwards from the Holocaust, … shall we include the atrocities at Nanking by the Japanese against the Chinese as genocide? … Shall we declare that the killings and starvation of Africans in the Belgian Congo under King Leopold were genocide? … Shall the United States declare that slavery of blacks and treatment of Native Americans in the United States in the 1800's were genocide? And who should make such determinations? Unlike today where there are impartial courts to hear charges of genocide by individuals – such as in the tribunals on Yugoslavia and Rwanda or in the International Criminal Court, or by states in the International Court of Justice, who look at the evidence to decide cases from the past? Surely political bodies cannot be expected to be impartial and decide, nor can they sit as judges of evidence, let alone history. Should Parliaments of other countries decide what happened in another country? If the French Parliament passed a resolution declaring that the treatment of Native Americans in the United States was genocide, would such a resolution be acceptable to the U.S. Congress and American people? Absolutely not – the reaction would be outrage and rightfully so. So when we look back at what happened in 1915, we should not make a judgment because one side lobbies hard in favor of a label and the other lobbies against it or because a declaration would be inconvenient due to current events. Instead we should decide whether it makes sense to use such a politically explosive term as genocide at all for events in history before genocide came into existence. We cannot do it legally and we should not do it morally. Please respond to Andrew Vorkink by Friday, May 3