Talk:Bosnian genocide/Archive 3

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Informal mediation 2008-01-08

see Wikipedia:Mediation_Cabal/Cases/2008-01-08 Bosnian Genocide

Could we start by examining the lead section? Looking at this diff part of the disagreement appears to be about the inclusion of:

"and to a lesser extent Croat secessionist authorities (Republika Srpska and Herzeg-Bosnia)."

This statement doesn't appear to be fully justified from paragraph 642 of ICTY judgment - is a better citation available? Addhoc (talk) 19:55, 11 January 2008 (UTC)

I have no problem with the first part of the sentence ("The term Bosnian Genocide is used to refer either to the genocide committed by Serb forces in Srebrenica in 1995..."), what I have a problem with is the rest of that sentence ("...or to the crimes against humanity and war crimes during the 1992-1995 Bosnian War,[2] to describe the ethnic cleansing campaign and persecution conducted by Serb, and to a lesser extent Croat secessionist authorities (Republika Srpska and Herzeg-Bosnia[3]) in Bosnia and Herzegovina on political, racial and religious grounds in the context of a widespread attack on the Bosniak civilian population"), it presents the facts as if the term "Bosnian Genocide" is widely used to describe ethnic cleansing and war crimes in Bosnia during the war, something which there is no evidence for (pls see my entry in the section above). Is that what you are referring to above?Osli73 (talk) 22:11, 11 January 2008 (UTC)

Yes, currently the reference cited doesn't fully support the text. Addhoc (talk) 19:02, 12 January 2008 (UTC)

Actually I prefer the wording in the lead that we had in place before mediation started. I have gone along with other versions in an attempt to reach a compromise but I do not think that they are as clear as:

The term Bosnian Genocide is used to refer either to the Srebrenica massacre, or — prior to the International Court of Justice (ICJ) ruling on the Bosnian Genocide Case in February 2007 — the term Bosnian Genocide had been used by some academics, and human rights officials, to describe the allegations made by the government of Bosnia and Herzegovina that there had been a wider genocide in Bosnia during the during the 1992-1995 war in Bosnia and Herzegovina.

A version as of 21:56, 25 November 2007 with reference stripped out. I think this is clearer because there are dozens of articles in English language newspapers etc circa 1993 which use the term genocide and ethnic cleansing in the same article, but next to none in the last year. --Philip Baird Shearer (talk) 16:28, 13 January 2008 (UTC)

The question is whether the term "Bosnian genocide" refers to the one act of genocide in Srebrenica or the overall ethnic cleansing campaign aimed at executing or removing all Bosnian Muslims from Bosnia. I believe it is clear that when people refer to the genocide committed in Bosnia they are not referring only to Srebrenica but the entire ethnic cleansing campaign.

Here is text from the Milosevic indictment which clearly uses the term genocide to describe the entire ethnic cleansing campaign:

"From on or about 1 March 1992 until 31 December 1995, Slobodan MILOSEVIC, acting alone or in concert with other members of the joint criminal enterprise, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation and execution of the destruction, in whole or in part, of the Bosnian Muslim and Bosnian Croat national, ethnical, racial or religious groups, as such, in territories within Bosnia and Herzegovina, including: Bijeljina; Bosanski Novi; Bosanski Samac; Bratunac; Brcko; Doboj; Foca; Sarajevo (Ilijas); Kljuc; Kotor Varos; Sarajevo (Novi Grad); Prijedor; Rogatica; Sanski Most; Srebrenica; Visegrad; Vlasenica and Zvornik. ... By these acts and omissions, Slobodan MILOSEVIC committed... genocide, punishable under Articles 4(3)(a) and 7(1) and 7(3) of the Statute of the Tribunal."

Here the International Herald Tribune uses the term genocide to refer to the ethnic cleansing campaign: http://hrw.org/english/docs/2006/03/13/yugosl12885.htm This is just one of numerous examples in the media.

Here is an exhaustive list of 1267 books, buttons, and various items that refer to Bosnia and genocide. A review of several pages with 10 books or items per page shows that the reference of genocide in Bosnia is not limited to Srebrenica but rather the entire ethnic cleansing campaign. http://www.google.com/products?hl=en&q=books+on+the+Bosnian+genocide&um=1&ie=UTF-8

When people refer to O.J. Simpson murdering Nicole, they are refering to O.J. taking a knife and nearly decapitating her. If it is a question of what they mean when they refer to O.J. murdering Nicole, it is not a question of what was proven in court; it is, to be redundant, a question of what they mean when they refer to "O.J. murdering Nicole." Clearly, unless a specific conversation or book about Srebrenica, when people refer to genocide being committed in Bosnia, they are referring to the entire ethnic cleansing campaign. I am surprised that one would try to argue otherwise. Fairview360 (talk) 19:58, 13 January 2008 (UTC)

No one is disputing that before the ICJ judgement on February 26, 2007 some people referred to a general Bosnian genocide. The dispute is since the ICJ judgement if it is still in use.

The Milosevic indictment you refer to is dated Dated "this 22nd day of November 2001" [1]. There were two earlier indictments (Louise Arbour Prosecutor 22 May 1999) [2] and Carla del Ponte Prosecutor 29 June 2001 [3] neither of which mentioned genocide. He died on 12 March 2006 [4]. The Herald article you refer to is dated March 13, 2006. As for the list of books one needs to look at the books published in 2007,2008 a Google book search returns returns 5 in English.

• GLOCALIZATION: The Human Side of Globalization as If the Washington Consensus Mattered Paper back (second edition February 2, 2007) -- Before the ICJ ruling
• Sin and Evil: Moral Values in Literature March 28, 2007 -- very close to the ICJ ruling -- mentions the Bosnian genocide in the same sentence as several other genocides. Not clear if it mean the general genocide but probably does.
• The Psychology of Genocide, Massacres, and Extreme Violence: Why "Normal" People Come to Commit Atrocities. May 30, 2007, Not clear if the author means a general genocide or the Srebrenica massacre.
• The Limits of Bodily Integrity: Abortion, Adultery, and Rape June 2007 -- Probably to a general genocide but only cites the ICTY not the ICJ.
• An Introduction to International Criminal Law and Procedure June 2007 -- Is a footnote and a citation to a reference on the ICJ Bosnian Genocide Case Preliminary Objections 11.7.1996

Notice that in all cases there is only one mention of the term Bosnian genocide and none of these analyse the genocide. Also there have been no books referring to the Bosnian Genocide since June last year, so it is quite possible, given the lead time in that these books were already at the publishers/printers before the ICJ verdict.--Philip Baird Shearer (talk) 10:39, 14 January 2008 (UTC)

The term Bosnian Genocide was not rendered obsolete by the ICJ judgement. In fact, it remains very much in use in current academic, legal, and public discourse. Andras J. Riedlmayer of Harvard University continues to this day to lecture on the cultural destruction of Bosnia as part of the Bosnian Genocide. Prof John Weiss of Cornell University continues to teach his course on the Rwandan, Darfur, and Bosnian genocide. House Resolution #679 currently being considered in committee in the US Congress refers to the Bosnian genocide. The current indictments active now today against Ratko Mladic and Radovan Karadzic charge both with genocide throughout areas controlled by the VRS. On November 25, 2007, the St. Louis Holocaust Museum and Learning Center based in St. Louis Missouri USA opened an exhibit called "Prijedor: Lives from the Bosnian Genocide". That exhibit remains open to this day and will continue into the spring of 2008. On March 27, 2008, Cornell University's Institute for Public Affairs will be hosting a talk entitled "the path to reconciliation and co-existence in a post-genocidal society". Indeed, now and for many future generations to come, people will be talking about the Bosnian genocide. Fairview360 (talk) 01:38, 15 January 2008 (UTC)

As the term Bosnian Genocide can either refer to the Srebrenica massacre or to a wider genocide as put forward by B&H in the Bosnian Genocide Case could you please provide sources and quotes that show the people you mention mean a wider genocide than the Srebrenica mssacre? BTW the in a previous version of this article we had "Martin Shaw has criticized the ICJ judgement (see below). In addition, the Fontbonne University has contributed research to a project documenting a wider genocide which is to be presented in an exhibition titled "Prijedor: Lives From the Bosnian Genocide."Holocaust Museum and Learning Center (Prijedor: Lives From the Bosnian Genocide (Prijedor: Lives From the Bosnian Genocide Missouri Passages Volume 4, No. 10: October 2007, Published by Missouri Humanities Council Students Participate in Groundbreaking Exhibit, website of Fontbonne University, 1 October 2007. A Brief History of the Bosnian Genocide). So those sources are covered. --Philip Baird Shearer (talk) 15:13, 15 January 2008 (UTC)

I checked the House of Representatives Bill H. Res. 679 5 September 2007, and the genocide mentioned in that bill is the Srebrenica massacre as there are three references in the bill. Paragraph 4: to those found guilty by the ICTY of genocide have been in relation to the Srebrenica massacre. Paragraph 5: The ICJ case (that found that Srebrenica massacre only genocide). Paragraph 6: Srebrenica and other areas of eastern Bosnia was another description given by the ICJ for the victims of the Srebrenica massacre. --Philip Baird Shearer (talk) 11:36, 16 January 2008 (UTC)

Nothing PBS has stated here refutes the above given examples. Noticibly absent from PBS' rebuttal is any mention of the ICTY indictments against Mladic and Karadzic which, as part of the charge of genocide, specifically name cities throughout Bosnia and Herzegovina. Furthermore, PBS ignores section F of House Resolution 679 which clearly shows that the resolution considers the entire ethnically cleansed area of RS to be the result of genocide.

It appears that Osli73 and PBS are intent on foisting upon wikipedia the myth that the ICJ decision proved that genocide did not occur. In fact, the chamber stated that genocide "actus reus" did occur. It was a question of intent "mens rea" of the particular defendents and the available evidence, evidence the ICJ was not permitted however ICTY does still possess and can use in the case against Karadzic and Mladic. One can continue to produce ample evidence of the ethnic cleansing campaign being referred to as genocide in academic, legal, and public discussion. However, it appears Osli73 and PBS are intent on ignoring the evidence being provided while complaining that others are not willing to engage them ad nauseum in providing this evidence over and over again. Fairview360 (talk) 19:20, 20 January 2008 (UTC)

Did you see my request above to "please provide sources and quotes that show the people you mention mean a wider genocide than the Srebrenica mssacre?" Let us be clear no one is refuting that the term was in use, but it is difficult to refute post ICJ examples when sources for those examples are not given with quotations showing that they refer to a general Bosnian genocide and not "just" the the Srebrenica massacre. I have looked up those that I can find on the net and they do not seem to support you assertion that "The term Bosnian Genocide was not rendered obsolete by the ICJ judgement. In fact, it remains very much in use in current academic, legal, and public discourse.". If it is very much in use where are the large number of sources post February 2007 that note the ICJ judgement but still insist that wider genocide did take place?

As to the two ICTY charges. A they were laid before the ICJ judgement and we have know way of knowing if the incitement is not worded that way so that it can be used as a bargaining position by the prosecutor because to date the prosecutors office has plea bargained away charges of genocide for lesser charges more often than they have seen the case through to the end. And as this article points out (while criticising the ICJ judgement) "Dr Robert Cryer, an expert on international criminal law from the University of Nottingham... doesn’t think that future cases at the ICTY, involving former officers of the Serbian military and secret services in relation to their alleged role Bosnian conflict, will be greatly affected by the ICJ judgment.", but it also says that "Professor Johannes Houwink ten Cate, a historian at the Netherlands War Documentation Centre and a professor of genocide studies ... believes that the [ICJ] judgment 'must' affect the future trials at the ICTY of Momcilo Perisic, the former head of the Yugoslav army, and Jovica Stanisic and Franko Simatovic, alias Frenki, former commanders of the Serbian state security services". Choose the expert you prefer :-)

I find it strange that some people who accept that Srebrenica was a genocide because several international courts have ruled it to be, will not accept that there was no general genocide because the ICJ has so ruled. Presenting so forcefully in this article what appears to me to be a fringe view on the general genocide debate -- that the ICJ's analysis of the "intent" was too restrictive (and so ethnic cleansing and the other crimes committed while implementing it was genocide), is in my opinion as wrong as attempting to present in the first paragraph of the Srebrenica genocide in the fringe view that no genocide took place because the ICTY interpretation of "in part" was too broad. --Philip Baird Shearer (talk) 11:59, 21 January 2008 (UTC)

Fairview360, a reply to the above:

• I don't agree with your interpretation of the ICJ judgmenet. As far as I understand, "genocide" requires intent and not simply a genocidal act. This was the case with the Srebrenica massacre - it was the intent to kill the Bosniak population of the town that mattered, not the number of people killed. As I understand it, the ICJ did not find (enough?) evidence of intent in this case and thus came to the conclusion that no wider genocide had occured.
• I agree that the Mladic (and probably also Karadzic) indictments include charges of genocide based on that he (according to the indictment) "planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the intentional partial destruction of the Bosnian Muslim national, ethnical, racial or religious group." Although the prosecution does not use the word "Bosnian genocide" this is what they mean. Thus, I have nothing against stating that the ICTY indictments against Mladic and Karadzic include charges for wider genocide against the Bosniak population during the war. Though it should be noted that these allegations/indictments have not been tried by the court. Also, I'm not sure of what importance it is that these indictments were written prior to the outcome of the ICJ case (probably no importance, but maybe it should be noted?).
• I don't agree with you reg. House of Rep. Bill 679. To begin with it refers to the Srebrenica massacre. Second, the bill is only in the first step of the judicial process ("This bill is in the first stage of the legislative process where the bill is considered in committee and may undergo significant changes in markup sessions").[5]

I have no problem mentioning that the ICTY indictment against Mladic and Karadzic include charges of wider genocide in Bosnia and that there are those who disagree with the ICJ case (mentioning these persons and why, in general, they disagree). However, this should be after we have described the judgement of the ICJ on the matter. It's an issue of finding the right balance in the article. The problem with the version supported by GG and TDoB was that it completely glossed over the ICJ and ECHR findings and gave undue weight to the "wider Bosnian genocide" argument.Osli73 (talk) 09:11, 21 January 2008 (UTC)

---

There is a reference which fully support the text:

SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE:

• The world's highest court concluded that the crimes, such as mass killing, rapes, detention, destruction or deportations, committed during the 1992 -1995 war, are acts of genocide according to the Convention, but could not be qualified as genocide (dolus specialis).

There are two terms. Genocide dolus specialis, and acts of genocide, both confirmed by ICJ. The first one is referred to Srebrenica genocide, the second one - acts of genocide (such as mass killing, rapes, detention, destruction or deportations, committed during the 1992 -1995 war)- is referred to the wider crimes committed in Bosnia, know as Bosnian genocide.

• ICJ President Rosalyn Higgins noted that there is a lot of evidence to prove that crimes against humanity and war crimes had been committed in Bosnia-Herzegovina. The International Court of Justice does not have jurisdiction over them, because this case deals "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term ".

So, there is a broader sense of the term, which is sometimes given to it. --Grandy Grandy (talk) 22:48, 12 January 2008 (UTC)

That is an interpretation from one source from a little known news agency neither Reuters or AP and sources with their own reporters like the BBC agree and it is contradicted by the press release put out by the ICJ on February 26 2007.

Indeed, the article in Sense Agency starts off stating "The judgment delivered by the International Court of Justice today confirmed that the Bosnian Serb forces committed the genocide in Srebrenica in July 1995." (my bold). The sentence(s) you are reffering to - "The world's highest court concluded that the crimes, such as mass killing, rapes, detention, destruction or deportations, committed during the 1992 -1995 war, are "acts of genocide" according to the Convention, but could not be qualified as genocide. The Court found that it had not been proven that those crimes had been committed with a specific intent "to destroy as such" the protected group of Bosnian Muslims in part or as a whole" states that while these individual acts might have amounted to "acts of genocide" they did not amount to a general genocide of the Bosnian population, as claimed by the government of BiH. Hence, no "Bosnian Genocide" in the wider sense claimed by GG and DoB.Osli73 (talk) 11:04, 14 January 2008 (UTC)

You're wrong this is well know agency, specialized for ICTY/ICJ trials, supported by EU and USA. --Grandy Grandy (talk) 22:10, 16 January 2008 (UTC)

It is not clear to me which part of Osli73's statement you are describing as wrong. Please explain further. --Philip Baird Shearer (talk) —Preceding comment was added at 08:28, 17 January 2008 (UTC)

disambiguation page

I think it is very telling that he first article that appears on a Google search for "Bosnian Genocide" is this article. None of the first page of articles returned are post February 2007 and from reliable sources. Last year I said that if there were a number of academic articles published that still maintain that a wider genocide took place then there would be a need for such an article as this. However after nearly a year there have been fewer than half a dozen articles and all of those are of dubious quality that continue to argue for a wider genocide. A number of books have been cited as possible sources on this talk page, but requests for page numbers and quotes have not been forth coming.

I think we should seriously reconsider making this page a disambiguation page to the Srebrenica genocide and the Bosnian Genocide Case. If there is a need for an article that lists genocide prosecutions bought after the Bosnian war then that should be created with a name like List of Bosnian genocide prosecutions. --Philip Baird Shearer (talk) 14:01, 13 January 2008 (UTC)

I agree. As academic sources and major media today only use the term "Bosnian genocide" to refer to the Srebrenica massacre (or to the "ICJ Bosnian Genocide case") we should disambiguate the article to either refer to the Srebrenica massacre article or the Bosnian genocide case. The criticism of the ICJ's verdict could then be related in the latter article.Osli73 (talk) 14:52, 13 January 2008 (UTC)

I've been bold and converted the page to a disambiguation page. --Philip Baird Shearer (talk) 19:32, 16 January 2008 (UTC)

Disagree. See earlier comments. Grandy Grandy (talk) 22:11, 16 January 2008 (UTC)

Which earlier comments? --Philip Baird Shearer (talk) 08:23, 17 January 2008 (UTC)

Been brazen and presumptuous would be a better description of PBS deleting this entire article. Fairview360 (talk) 06:07, 17 January 2008 (UTC)

I did not delete the page. I converted it to a disambiguation page. This is not a new suggestion see the section at the top of this page. --Philip Baird Shearer (talk) 08:23, 17 January 2008 (UTC)

PBS is making a distinction without a difference. "Converting it to a disambiguation page" includes deleting the article.Fairview360 (talk) 18:58, 20 January 2008 (UTC)

potential for a quality article

There is actually potential here for an interesting and informative article which would describe what actually happened and how it has been interpreted in the legal, academic, and public arenas. This version of the intro http://en.wikipedia.org/w/index.php?title=Bosnian_Genocide&oldid=186152787 shows that even within the legal arena it is a matter of interpretation with both the wider legal interpretation of genocide (such as the Dusseldorf conviction establishing genocide) and the narrower legal interpretation (such as the ICJ decision leading to acquittal of genocide charges) both being legitimate according to the Genocide Convention of 1948. Then there is also the question of available evidence and how evidence with the ICTY may lead to a conviction for a wider genocide throughout Bosnia even according to the narrower interpretation of genocide which has prevailed within ICTY and ICJ circles. Of course, the article should not be simply a presentation of the different legal interpretations of genocide and available evidence and how it applies to the mass killings in Bosnia, but also a description of those mass killings, the actual subject matter of the article, namely, the ethnic cleansing campaign of which the Srebrenica massacre was a part.Fairview360 (talk) 21:55, 22 January 2008 (UTC)

The only problem is that the ICJ (and since reinforced by the ECHR) has dismissed the wider interpretation of the term "Bosnian genocide" which you would like to describe. Thus, to use this article to describe the ethnic cleansing campaign in Bosnia, would be to mislead the reader that the ethnic cleansing and war crimes committed during the war consituted genocide. Hence, we are stuck with either describing the legal discussion on the issue or redirecting to the Srebrenica massacre, which is the only case of "Bosnian genocide" which is widely accepted.Osli73 (talk) 23:13, 22 January 2008 (UTC)

I do not think that this is the right article for the war crimes and crimes against humanity committed during the early 90s in Bosnia, because this is an article on genocide and apart from the Srebrenica genocide, there is no wide spread agreement among scholars and legal circles that the other actions fall within the definition of genocide. If it does not exist an article on "ethnic cleansing in Bosnia", or some similar title, could be written that describes the the actions and the subsequent prosecutions for crimes against humanity and war crimes, that were committed by the parties to the Bosnian War. There is a strong argument for saying the Bosnia accused Serbia of genocide because it was the only way that Bosnia could have Serbia tried by the ICJ, because there was no case to answer for before the ICJ for the -- just as serious -- allegation of crimes against humanity, because the ICJ has no remit to hear such cases: Dr Larissa van den Herik, an assistant professor in public international law at Leiden University ... dismisses the claim made by some academics that genocide is too difficult to prove - but rather is a narrowly defined legal definition, which is sometimes charged in circumstances where it doesn't apply. In this particular case, she says, a gap in international law meant the Genocide Convention had to be used. "The only way for Bosnia to go to the ICJ was to allege genocide. There is no Crimes against Humanity Convention providing for jurisdiction for the ICJ," she said. She is concerned that too much focus is placed on the crime of genocide, which is often erroneously held up by victims, the media - and even ad hoc tribunal judges - as the crime of crimes." "Genocide and crimes against humanity are of equal gravity, yet everyone feels that genocide is worse and carries an extra stigma," she said.(Caroline Tosh Genocide Acquittal Provokes Legal Debat, TU No 491, Institute for War & Peace Reporting 2 March 2007.) --Philip Baird Shearer (talk) 11:21, 23 January 2008 (UTC)

Osli73 has demonstrated here why many editors choose not to participate in the discussion page and rather simply edit. Osli73 has been provided with ECHR source material (see link below) summarizing the ECHR decision upholding Nikolic's genocide conviction as follows: "it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt. Accordingly, the applicant's conviction for genocide was not in breach of Article 7 § 1 of the Convention." The source material states clearly the fact that the ECHR upheld the genocide conviction of Nikolic. The ECHR decision clearly states that the Nikolic conviction was not in violation of the Genocide Convention of 1948. And yet, Osli73 claims above that the ECHR dismissed the basis for the conviction. Simply not true. Meanwhile, PBS provides dead links while engaging in the specious argument that one can not take the ICTY's indictments at face value because, according to PBS, "we have know way of knowing if the incitement (indictment) is not worded that way so that it can be used as a bargaining position." Well according to the same logic, "we have no way of knowing" if PBS argues the way he does just as a bargaining position and therefore his statements can be ignored.

http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/c71ce8eeaf4c09a0c1257313002ef90e?OpenDocument

Fairview360 (talk) 00:21, 24 January 2008 (UTC)

The link, as you must have known, was a courtesy link and rather than criticising it for no longer working perhaps in line with What to do when a reference link "goes dead" you could have fixed it. This point and the rest of your comment directly above this one on what I said in other sections is not in my opinion, relevant to the point that ethnic cleansing as carried out in Bosnia is not seen as genocide by the majority of the international legal community or scholars, so it is not appropriate in this article to emphasise heinous crimes that are not considered to be genocide by most informed opinion.

Just a brief comment on the ECHR ruling it was making the point that in 1992 opinion on this issue was split and that "In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992." (my emphasis). But that was at the time he was arrested and charged, the ECHR ruling of last year, where it emphasises the ICTY and ICJ judements, makes it much less likely that Jorgic would risk being fond guilty of genocide if he were to be charged with it in Germany today. --Philip Baird Shearer (talk) 12:19, 24 January 2008 (UTC)

sample introduction

Since it appears the quality of this article will suffer as a result of edit wars, I would like to offer this intro here as an example of a factual balanced presentation. It is a fact that there are narrow and wider legal definitions of genocide that are both consistent with the Genocide Convention of 1948.

File:MassGraveNearSrebrenicaGenocideVictims.jpg

One of 550 exhumed mass graves of Bosniak victims near Srebrenica

[[:Image:Omarska2.jpg|thumb|200px|Omarska camp detainees]]

Burial of 465 identified Bosniak civilians (July 11 2007)

The term Bosnian Genocide is used to refer either to the massacre of approximately 8,000 Bosniak men and boys committed by nationalist Serb forces in Srebrenica in 1995, or to the entire ethnic cleansing campaign conducted throughout Bosnia and Herzegovina during the 1992-1995 of which the Srebrenica massacre was a part. The convictions by international courts establishing the Srebrenica massacre as genocide are based upon a narrow definition of genocide. The judgements of German courts and resolutions of the United Nations establishing the ethnic cleansing as genocide are based upon a wider definition of genocide.

In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.

On February 26, 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.

On 12 July 2007, European Court of Human Rights, when upholding the conviction of Nikola Jorgic for genocide by a German court (Jorgic v. Germany), noted that the German courts wider interpretation of genocide, while consistent with the Genocide Convention of 1948, has since been rejected by international courts considering similar cases. Considering the interpretation of legal writers, the ECHR stated: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide" In consideration of the German court's decision in relation to the Genocide Convention of 1948, the ECHR stated: "the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide."

Fairview360 (talk) 17:01, 24 January 2008 (UTC) 2

---

From the history of the article Fairview360 wrote: "There is a narrow definition of genocide. There is a wider definition of genocide. Both are consistent with the Genocide Convention of 1948." Not true, there is only one legal definition of genocide and that has been established through legal precedent. When the German courts made their judgements they could not cite other cases, but the ICTY considered the German cases but chose to define genocide as physical destruction of a group. The ICJ considered both the German and ICTY and decided to follow the ICTY definition. The ECHR has upheld the ICJ (could not do anything else really if precedent is to have any meaning) but got around the problem of Jorgic trying to wriggle out of his conviction by saying "AT the time he committed the offences" the interpretation that the German courts subsequently used was a minority view but a viable one as there was very little case law to consider at that point. Now that there is much more case law, and that the higher courts have chosen to use intent to physically destroy it is highly unlikely that ethnic cleansing on its own (without the planned physical destruction of a substantial part of a protected group) will be enough for a conviction on genocide. To argue substantial it to ignore the ECHR judgement.

If we had been editing this article in January 1998 then obviously we would put the emphasis on the German court cases and say that current legal definition of genocide is "XYZ" (citing the German courts arguments), and (if a source could be found) add a NPOV however some legal opinion thinks that this is too wide a definition. But this is not 1998 it is 2008 and several higher courts have used a more narrow definition an the ECHR very kindly specifically sums up the scholarly opinion (so mentioning that most scholars support the ICJ interpretation is not an OR exercises), so given these facts we should emphasise that recent court decisions and scholarly opinion that favours the definition genocide being the physical destruction of a group and that ethnic cleansing does not in its self warrant the description genocide. It seems to me Fairview360 that you are putting too much weight on older cases and not enough on recent higher court decisions. --Philip Baird Shearer (talk) —Preceding comment was added at 18:02, 24 January 2008 (UTC)

re Fairview360's suggested edits

I have a couple of objections to these suggested edits:

1. Pictures: there is already a picture of exhumed victims of the Srebrenica massacre in the introduction. Adding the picture of "Burial of 465 identified Bosniak civilians (July 11 2007)" is unnecessary. Adding the picture of the "Omarska camp detainees" gives the reader the impression that this camp was part of a "Bosnian genocide", something which the majority view says it was not. To present such a picture in the introduction gives undue weight to the minority view.
2. ECHR 1: the full discussion of the findings should be discussed in the specific subsection, not at length in the intro.
3. ECHR 2: as I understand it, the ECHR didn't uphold the German court's decision, it only upheld its right to judge in the matter stating that Jorgic could reasonably have expected to have been tried for genocide.

Osli73 (talk) 23:00, 24 January 2008 (UTC)

The ECHR rejected Jorgic appeal on the grounds that at the time he committed the offences and when he was arrested he or his legal advisers should have known that the wider interpretation of genocide might be used in Germany. Given this, his defence to the ECHR that he could not reasonably have know that he could be found guilty in a German court was rejected. --Philip Baird Shearer (talk) 09:23, 25 January 2008 (UTC)

Is one really expected to take the time to respond to the above? Osli73 is perfectly aware that an appeals court either overturns or upholds a conviction. Here are over 100,000 examples of the phrase "appeals court upheld": http://www.google.com/search?hl=en&q=%22appeals+court+upheld%22 Meanwhile, PBS, having apparently read the ECHR decision multiple times, must by now be fully aware that the ECHR decision explicitly upheld the German court's decision as consistent with the Genocide Convention. One can read below the relevant clauses of the ECHR decision upholding the German courts decision as consistent with the Genocide Convention. The ECHR decision states the German court had jurisdiction to judge the case, that the German court's interpretation of genocide and conviction of the defendant was reasonable, that, even if not consistent with the ICTY and the ICJ's interpretation, the court's interpretation of genocide is consistent with the Genocide Convention of 1948, that it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt, and that the defendant could reasonably have foreseen that he risked being charged with and convicted of genocide. Is PBS going to continue to argue that the German court's interpretation has been deemed inconsistent with the Genocide Convention? Again, below are the relevant clauses of the ECHR decision with emphasis added, the clauses below ending with this statement: "the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide"

Clauses 105 through 108 of the ECHR decision:

105. The Court notes that the domestic courts construed the “intent to destroy a group as such” systematically in the context of Article 220a § 1 of the Criminal Code as a whole, having regard notably to alternatives no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) of that provision, which did not necessitate a physical destruction of living members of the group in question. The Court finds that the domestic courts' interpretation of “intent to destroy a group” as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars (see paragraphs 36 and 47 above), is therefore covered by the wording, read in its context, of the crime of genocide in the Criminal Code and does not appear unreasonable.

106. Furthermore, the Court, like the national courts, considers it necessary, in order to determine the essence of the offence of genocide, to take into consideration also the codification of the prohibition of genocide in Article II of the Genocide Convention, for the observance of which Article 220a had been incorporated into the Criminal Code and in the light of which the said Article was to be construed. As the wording of Article 220a of the Criminal Code corresponds to that of Article II of the Genocide Convention in so far as the definition of genocide is concerned, the above reasoning with respect to the scope of the prohibition of genocide equally applies.

107. Moreover, the German courts' interpretation has not only been supported by a number of scholars at the relevant time of the commission of the crime (see paragraph 36 above). In its Resolution 47/121 of 18 December 1992 the UN General Assembly agreed with the wider interpretation adopted by the German courts in the present case

(see paragraph 41 above).

108. Consequently, the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide.

In other words, the ECHR decision confirms that this article describing the ethnic cleansing campaign as genocide is reasonable. Fairview360 (talk) 16:26, 25 January 2008 (UTC)

I think you have mistaken what the ECHR said please look at the last four paragraphs of the judgement:

113. In view of the foregoing, the Court concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the Court finds that the applicant, if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992. In this context the Court also has regard to the fact that the applicant was found guilty of acts of a considerable severity and duration: the killing of several people and the detention and ill-treatment of a large number of people over a period of several months as the leader of a paramilitary group in pursuit of the policy of ethnic cleansing.

114. Therefore, the national courts' interpretation of the crime of genocide could reasonably be regarded as consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time. These requirements being met, it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt. Accordingly, the applicant's conviction for genocide was not in breach of Article 7 § 1 of the Convention.

115. As regards the applicant's further complaint under Article 7 § 1 that the courts wrongly found that his guilt was of a particular gravity, the Court notes that the applicant's submissions in this respect are limited to an allegation of factual and legal errors. They disclose neither an appearance of a breach of the said provision nor a breach of Article 6 § 1 of the Convention.

116. Accordingly, the Court concludes that there has been no violation of Article 7 § 1 of the Convention.

Your changing to "upholding the conviction of Nikola Jorgic for genocide by a German court" from "dismissing the appeal by [Nikola Jorgic against his conviction" is a change for the worst because the ECHR are not upholding the conviction they are dismissing Jorgic's appeal. That change of words suggests to me that you do not understand what an Appeal court does. It looks at points of law it does not retry the case. The point of law in this case was 7 § 1 of the European Convention on Human rights Convention (European Convention on Human Rights#Article 7 - no punishment without law). The is much clearer under commmon law because a jury finds on the guilt of the charged, the judiciary find on points of law. All the ECHR did was rule that at the time of his offences and when he went to Germany the German courts views on Genocide was a minority view but substantial view and given that it was not an unreasonable to expect the possibility of the view upheld by the German courts AT THAT TIME the German courts had not breached the principle of nullum crimen, nulla poena sine lege.

The wording you have added to the introduction ignores that the ECHR emphasises that most scholars and the international courts have rejected the German interpretation. It also ignores the emphasis the the ECHR put on the the time when these German decisions were made. This is made clear by the courts with the term "at the material time" in two of the last four paragraphs. --Philip Baird Shearer (talk) 12:44, 26 January 2008 (UTC)

Perhaps PBS did not read the comment above which states "Here are over 100,000 examples of the phrase "appeals court upheld": http://www.google.com/search?hl=en&q=%22appeals+court+upheld%22 " Perhaps PBS needs further examples. Here are over 200 examples of the New York Times describing appeals courts upholding earlier court judgements: http://query.nytimes.com/search/query?query=%22appeals+court+upholds%22&srchst=nyt The ECHR decision was more affirmative than PBS is acknowledging. Furthermore, the clauses PBS has shown do not contradict that the ECHR decision states

-that the German court had jurisdiction to judge the case,

-that the German court's interpretation of genocide and conviction of the defendant was reasonable,

-that, even if not consistent with the ICTY and the ICJ's interpretation, the court's interpretation of genocide is consistent with the Genocide Convention of 1948,

-that it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt, and

-that the defendant could reasonably have foreseen that he risked being charged with and convicted of genocide.

The clauses that PBS has highlighted above simply reaffirm the last above assertion, that the defendant could reasonably have foreseen that he risked being charged with and convicted of genocide. Fairview360 (talk) 22:25, 26 January 2008 (UTC)

I have only two nitpicks with what you have written above:

• We could both play the Google game but there is no point. Why do you think "upholding the conviction of Nikola Jorgic" is more precise than "dismissing the appeal by Nikola Jorgic against his conviction" as they were considering Jorgic appeal no the his conviction?
• Second you have not addressed the issue I bought up about "AT THAT TIME" the given the working of legal precedents ECHR is not suggesting that the wider view of genocide is still to be expected in a court of law after the ICTY and ICJ rulings.

--Philip Baird Shearer (talk) 12:38, 27 January 2008 (UTC)

At time of the commission of the crime

Fairview360 when you added

In consideration of the German court's decision in relation to the Genocide Convention of 1948, the ECHR stated: "the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide.2

why did you selectivly quote the ECHR paragraph 108 the full paragraph 108 is (my emphaise) :Consequently, the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide. In other words it can only be read in context of paragraph 107:

Moreover, the German courts' interpretation has not only been supported by a number of scholars at the relevant time of the commission of the crime (see paragraph 36 above). In its Resolution 47/121 of 18 December 1992 the UN General Assembly agreed with the wider interpretation adopted by the German courts in the present case (see paragraph 41 above).

If we have to include it at all in the lead section it would be more accurate to write:

In consideration of the German court's decision in relation to the Genocide Convention of 1948, the ECHR stated: "At time of the commission of the crime ... the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide."

Do you object to that change and if so why? --Philip Baird Shearer (talk) 12:55, 27 January 2008 (UTC)

Prijedor: Lives from the Bosnian Genocide in St. Louis Holocaust Museum - November 2007

On November 25, 2007 the new multi-media exhibit Prijedor: Lives from the Bosnian Genocide was opened at the St. Louis Holocaust Museum and Learning Center by Zerina Musić born fifteen years ago in the Trnopolje concentration camp.

• Patrick McCarthy - Prijedor: Lives from the Bosnian Genocide [6]
• Kozarac.ba - Genocide in Prijedor [7]
• Associated Press - January 2008 - Exhibit tells story of Bosnian genocide [8]

--Grandy Grandy (talk) 21:36, 26 January 2008 (UTC)

"majority opinion"

If one is going to claim "majority opinion", I believe the majority opinion is that those who killed 10's of thousands of Bosnian Muslims, destroyed hundreds of mosques, erased all traces of their culture wherever they could, with the goal of eradicating every last Bosnian Muslim from all of Bosnia and Herzegovina had the intention of committing genocide as defined below according to the Genocide Convention of 1948. What legal scholars say about what it takes to gain a conviction of genocide does not constitute a general "majority opinion". Resolutions from the UN Assembly or alternatively the US Congress are better examples of majority opinion.

Article 2 of the Convention defines genocide as

...any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. – Convention on the Prevention and Punishment of the Crime of Genocide, Article 2

Fairview360 (talk) 04:47, 27 January 2008 (UTC)

Personally I think that since the ICJ ruling most disinterested people would go along with their ruling as they do with the ICTY ruling on Srebrenica. But Luckily we do not have to speculate on what "majority opinion" is in the article as we have an unimpeachable source that clearly states what major scholarly opinion was and is which also explains that it is the same opinion as that of the ICTY and the ICJ Genocide must include intent to physical destroy (a substantial part) a protected group and that ethnic cleansing in Bosnia with the exception of Srebrenica was not genocide. --Philip Baird Shearer (talk) —Preceding comment was added at 12:18, 27 January 2008 (UTC)

Actually, the ICJ concurred that the destruction and killing of ethnic cleansing did rise to the level of genocide if it could be proven that there was a specific intent to commit genocide along with the ethnic cleansing. The court states: "However, the evidence presented has not enabled the Court to find that those acts were accompanied by specific intent (dolus specialis) to destroy the protected group, in whole or in part." So the ICJ states there was not sufficient proof of intent. The intent might have been there, but there is not sufficient proof.

Despite what PBS wishes to claim as the case, the ICTY has not actually stated affirmatively that genocide was committed only in Srebrenica and nowhere else. Rather the truth is, to date, the only genocide convictions have come from Srebrenica. That's it. No sweeping statements such as PBS claims. There remain indictments against Mladic and Karadzic for genocide throughout Bosnia and there remains the possibility that the evidence that only the ICTY possesses showing evidence of intent to commit genocide may be presented in court if Mladic or Karadzic are caught.

For PBS to take this situation and declare that the ICTY and ICJ have definitively affirmed that no genocide took place anywhere other than Srebenica is like saying that, since the courts could convict Al Capone of tax evasion and nothing more, Al Capone was therefore innocent of all other charges. If that is the standard that PBS suggests for wikipedia, then he might want to go over to the Al Capone article and tell the editors there they have no right to say anything about Al Capone unless he had been convicted of it in court. I do not believe that is the way wikipedia works. Fairview360 (talk) 04:26, 28 January 2008 (UTC)

Fairview360 please stop stop putting words into my mouth. Where in this section have I claimed that the the ICTY has stated affirmatively that "genocide was committed only in Srebrenica and nowhere else"? What I wrote was "Personally I think that since the ICJ ruling most disinterested people would go along with their ruling as they do with the ICTY ruling on Srebrenica" which is not making the claim that you state I made.

But please do note that the ECHR ruling states in paragraphs 42-44 that the ICTY court found for a narrower interpretation “The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ...”

OK on re-reading my comment above I can where you got your interpretation from "the ICTY and the ICJ Genocide must include intent to physical destroy (a substantial part) a protected group and that ethnic cleansing in Bosnia with the exception of Srebrenica was not genocide." Teaches me to be more precise in talk page discourses. I will re-phrase it -- The ICTY and the ICJ Genocide must include intent to physical destroy (a substantial part) a protected group and that in the case of ethnic cleansing in Bosnia, with the exception of Srebrenica, in no other case have they ruled that a genocide took place. --Philip Baird Shearer (talk) 16:29, 28 January 2008 (UTC)

The reasons I added this sentence to the article "To date the ICTY has ruled that only the Srebrenica massacre was an act of genocide, a view that was upheld by the ICJ." to the introduction was to cover the fact that there a still a couple of outstanding cases. I am not arguing for the creation of a synthetic OR construction. I am suggesting that as no reliable source has yet published in an article that an editor to this Wikipedia article is aware, "the overall majority/minority view" we should stick to the ECHR ruling as a source were they clearly state what is the majority and minority view among scholars. --Philip Baird Shearer (talk) 15:07, 28 January 2008 (UTC)

Suggested solution:

1. state that the term "refers to the 1995 Srebrenica massacre" - this is in line with how the ICJ has judged the matter and how it is used in the majority of media sources
2. state that "there is a dissenting opinion... most notably supported by Bosnian Muslims and some academics" (stating who these are)
3. concluding by citing the ICJ judgemnet on the matter, which found that while the Srebrenica massacre had been genocide there was not enough evidence to find that there had been a wider genocide in Bosnia during the war-

choosing ONE picture in the intro and max one per section

Osli73 (talk) 13:51, 27 January 2008 (UTC)

ECHR

From the history of the article Fairview360 wrote: "In 2007, the ECHR deemed the German court definition of genocide to be consistent with Art. 2 of the Gen. Convention." But the ECHR deemed the German court definition of genocide to be consistent with Art. 2 of the Gen. Convention at the time the German court made its decision. It did not rule that it is still consistent. See paragraph 112

The Court further observes that – also after the applicant committed the impugned acts – the scope of genocide was interpreted differently by the international authorities. It is true that the ICTY, in its judgments in the cases of Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly disagreed with the wide interpretation of the “intent to destroy” as adopted by the UN General Assembly and the German courts. Referring to the principle of nullum crimen sine lege, the ICTY considered that genocide, as defined in public international law, comprised only acts aimed at the physical or biological destruction of a protected group. However, as the judgments of the ICTY – as well as further decisions concerning this subject matter taken by national and international courts, in particular the International Court of Justice (see paragraph 45 above), in respect of their own domestic or international codifications of the crime of genocide – were delivered subsequent to the commission of his offences, the applicant could not rely on this interpretation being taken by the German courts in respect of German law at the material time, that is, when he committed his offences.

--Philip Baird Shearer (talk) 17:56, 27 January 2008 (UTC)

Like Frankenstien taking body parts to create his own monster, PBS pieces together bits and pieces of the ECHR decision to create the conclusion that PBS wants. Namely, PBS wants to say that the ECHR stated that the German courts interpretation of genocide was consistent with the Genocide Convention but only at the time the German court made its decision. That is absurd. The ECHR made no such qualification. Either the German court's interpretation is consistent with the Convention or it is not. Again here is what the ECHR actually stated (the Criminal Code being German law), taking note that the following is in the present tense (my emphasis): "the wording of Article 220a of the Criminal Code corresponds to that of Article II of the Genocide Convention in so far as the definition of genocide is concerned."

As the ECHR stated (my emphasis), "In the light of the above principles, the Court therefore needs to decide whether the national courts' interpretation of the crime of genocide under German law, notably of the genocidal “intent to destroy”, so as to cover the applicant's acts committed in the course of the ethnic cleansing in Bosnia and Herzegovina was consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time."

The ECHR then concludes that, while not consistent with the ICTY or ICJ interpretation, the German court's interpretation of genocide is consistent with German law and is consistent with the Genocide Convention. The ECHR, while fully acknowledging majority scholarly opinion and ICTY/ICJ interpretation, states "the applicant's acts could reasonably be regarded as falling within the ambit of the offence of genocide."

The ECHR then turns to the question whether the applicant could have reasonably foreseen the risk of a genocide conviction. It is then that paragraph 112 -- the one highlighted by PBS -- was written. There was no way the applicant could have depended on the ICTY's or the ICJ's narrow interpretations of genocide since those interpretations had not been made at the time of the crime. There is nothing in that statement disallowing the German court's interpretation. It simply emphasizes the baselessness of the applicants claim that he could not have foreseen the risk of a genocide conviction. In addition to the German court's interpretation being reasonable and consistent with the Genocide Convention, the ICTY and ICJ narrower interpretation had not even come into existence at the time of the crime. Hence, there is no basis to the applicants claim that he could not have reasonably foreseen the possibility of a genocide conviction.

The ECHR is not about to write a decision that is inherently contradictory or incoherent. The ECHR decision clearly states the German court's interpretation of genocide is consistent with the Genocide Convention, is consistent with the German Criminal Code, is reasonable, is consistent with the severity of the crimes committed by the applicant (murdering defensely Bosnian Muslim civilians while leading a paramilitary group participating in ethnic cleansing with the goal of eliminating Bosnian Muslims from the Doboj region) and there is no basis to the applicants' claim that he couldn't have known that he risked a genocide conviction. Fairview360 (talk) 03:31, 28 January 2008 (UTC)

I have listed several other paragraphs on this page -- so I see no point in listing lots of paragraphs from the text here -- at the end of this sentence I will put a link to the whole judgement, so please stop implying that I an acting in bad faith (Jorgic v. Germany Judgement)

The ECHR was asked to address several points of law not whether Jorgic was innocent or guilty ("The applicant, invoking Article 5 § 1 (a), Article 6 § 1 Article 6 § 3 (d) and Article 7 § 1 of the European Convention on Human Rights. We can put aside 5 and 6 for the purpose of this debate and only look at Article 7 of the convention (unfortunately this designation is confusing because its interpretation affects the interpretation of Article 7 of the German Criminal Code)

Article 7 [of the Convention]– Article 7 – No punishment without law1

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Now let us play a hypothetical game. Suppose at the start of 2007 an international convention of all the signatories of the Genocide Convention was held and at it they had decided to annul the Genocide Convention so that genocide was no longer a crime under international law and the German parliament had followed suit and abolished the crime in Germany. This would not have altered the ruling that the ECHR gave in this case, because the ECHR is ruling on "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed." the answer to which they said that at the time of the crime (7.1 of the EConHR), a competent lawyer could have warned Jorgic that he could be in breach of the German law on Genocide there for Article 7.2 of the EConHR was not breached. The ECHR is not stating that if he were to go on trial today (given that the German courts have abolished the crime) that he would be found guilty.

Of course in the real world no such international conference has taken place but there have been several judgements by international courts that have rejected the German interpretation. What the ECHR is saying is that those judgements do not affect the German trial and conviction of Jorgic because he was tried before those judgements were made so there was no breach of Article 7.2 of the convention. Fairview360 If you do not agree with this reading of the judgement which paragraph are you relying on that does not qualify the ECHR judgement with the phrase "at the time"? --Philip Baird Shearer (talk) 15:12, 28 January 2008 (UTC)

The construction of this paragraph is not meant to be a rewrite of all of the article it is meant to be a compromise that lists the two major alternative views taking into consideration the WP:NPOV:

In the 1990s several authorities, in line with a minority of scholars, asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide. These included three convictions for genocide in German courts and resolution by the United Nations General Assembly[2] More recently the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ) have followed the majority of scholarly opinion and ruled that there must be physical destruction of a protected group for genocide to occur. To date the ICTY has ruled that only the Srebrenica massacre was an act of genocide, a view that was upheld by the ICJ.[3]

From the history of the article Fairview360 wrote: "Only 1990's? In 2005, the US Congress deemed the ethnic cleansing to be genocide. In 2007, the ECHR deemed the German court definition of genocide to be consistent with Art. 2 of the Gen. Convention."

• I have not written only in the 1990s.
• I have addressed the ECHR. It deemed the German courts decision when it was made acceptable because the ICTY and ICJ had not made their judgements. Not that a new German case would not have to consider the views of the ICTY and ICJ when reaching any decisions post the ICJ ruling. --Philip Baird Shearer (talk) 18:05, 27 January 2008 (UTC)

I'll leave this to another editor to respond to if they wish. PBS writes "in the 1990's" as if that means not in the 2000's and then turns around and denies that he said only in the 1990's. It is reminiscent of PBS saying he did not "delete the article" but rather "replaced it with a disambiguation page" when doing so includes deleting the article. Fairview360 (talk) 03:31, 28 January 2008 (UTC)

recent edits 1 February 2008

Fairview360, thanks for your recent work in going through the text. It flows better now. Just one question, why did you change from the ICTY having "ruled" to "reaffirmed" that the Srebrenica massacre was genocide? As far as I know it was their first ruling on the issue and the case was not referred to them from any other legal institution.Osli73 (talk) 08:39, 1 February 2008 (UTC)

Because it is the "Appeals Chamber" and not the "Criminal Chamber" that is being quoted. --Philip Baird Shearer (talk) 09:36, 1 February 2008 (UTC)

I am not happy with the addition of legal in front of scholar in the lead. The paragraph cited is ECHR 47

• Paragraph 27: "by the competent tribunals, several scholars and as reflected in the practice of the United Nations"
• Paragraph 36: "a majority of scholars took the view that genocidal “intent to destroy a group ... a considerable number of scholars were of the opinion"
• Paragraph 47: "Amongst scholars, the majority have taken the view that ethnic cleansing,"
• Paragraph 97: "This was confirmed by numerous scholars and by the UN General Assembly,"
• Paragraph 98: "German scholars had by then taken the view that criminal liability for genocide was also aimed at protecting the social existence of groups"
• paragraph 105: "which has also been adopted by a number of scholars"
• paragraph 107: "Moreover, the German courts' interpretation has not only been supported by a number of scholars"
• Paragraph 111: "The Court notes in this connection that at the material time the scope of Article II of the Genocide Convention, on which Article 220a of the Criminal Code is based, was contested amongst scholars as regards the definition of “intent to destroy a group”. Whereas the majority of legal writers took the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide, a considerable number of scholars suggested that these acts did indeed amount to genocide (see paragraph 47 above)."

It seems to me that the ECHR is making a distinction between "scholars" and "legal writers", but even if they are not we can not assume that they are because it is not clear and to do so would be a synthesis. --Philip Baird Shearer (talk)

taken out of context

Taken out of context, the following statement from the ECHR is an extraordinarily strong sweeping statement that would take an immense amount of time and research to defend:

Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide.

Taken out of context, that statement communicates that in all of academia among all scholars of all disciplines among all interpretations of genocide, the majority opinion is that the ethnic cleansing campaign was not genocide. That is not what the ECHR is claiming to know. The ECHR made it very clear that that statement was limited to legal writers. The ECHR put a title over that one statement which reads: "vi. Interpretation by legal writers".

In the actual ECHR judgement, the full statement appears as follows:

vi. Interpretation by legal writers

47.Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide (see, amongst many others, William A. Schabas, Genocide in International Law: the crime of crimes, Cambridge 2000, pp. 199 et seq.). However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide (see, inter alia, M. Lippman, Genocide: The Crime of the Century, HOUJIL 23 (2001), p. 526, and J. Hübner, Das Verbrechen des Völkermordes im internationalen und nationalen Recht, Frankfurt a.M. 2004, pp. 208-17; G. Werle, differentiating in Völkerstrafrecht, 1st edition, Tübingen 2003, pp. 205, 218 et seq., pointed out that it depended on the circumstances of the case, in particular on the scope of the crimes committed, whether an intent to destroy the group as a social unit, as opposed to a mere intent to expel the group, could be proved).

The four writers that the ECHR refers to in this statement are: William A. Schabas, M. Lippman, J. Hübner, G. Werle. They are all Law professors. William A Shabas is a professor of Law at the National University of Ireland. M. Lippman is a Law professor at the University of Illinois, J. Hübner the University of Berne, G. Werle is a prolific legal writer and a member of the Humboldt University Law Faculty.

So why on earth would an editor keep deleting the clarification that the ECHR quote is in reference to legal writers? Doesn't the reader of this article have a right to know that? The ECHR itself wanted to make that clear. Why would an editor want to obscure that fact? Is the purpose of wikipedia to inform or mislead? Fairview360 (talk) 02:12, 3 February 2008 (UTC)

Thank you for pointing out the section heading "vi. Interpretation by legal writers" I had not noticed it. So I now agree with the inclusion of legal. --Philip Baird Shearer (talk) 10:02, 3 February 2008 (UTC)

Change title

Hi, I would propose changing the title of the article from capital Genocide to genocide with a small g since I don't think it's a proper noun (or whatever a noun that's a proper name is called in English).Osli73 (talk) 12:20, 8 February 2008 (UTC)

Actually it's a title for an event and correct grammatically. Geoff Plourde (talk) 18:36, 12 February 2008 (UTC)

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