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“In the trials, we determined the level of evidence required to prove genocide. We showed how it happens, how to help stop these crimes, or reduce them or discourage perpetrators. The question is, will people learn from that? I don’t know that they will, since they haven’t so far,” Nice said in an interview with BIRN.
“If they had, we would not have Srebrenica or Rwanda or Cambodia… But it is important to have this information if the human race ever decides to use its superior intellect to stop doing what it has been doing,” he added.
Nice believes it is vital that Bosnia and Herzegovina creates some sort of record of the events of the 1990s war.
“When people talk about other mass crimes, I see some people in Bosnia and Herzegovina get upset, but you must realise Srebrenica is only one of such mass crimes committed daily across the world,” he said.
The Hague prosecutor tried to prove genocide was committed in other places in Bosnia and Herzegovina as well as Srebrenica. The first case in which genocide was alleged was the one against Bosnian Serb Goran Jelisic. Jelisic ended up being sentenced to 40 years for a variety of crimes against Bosniaks, but not genocide.
“The problem in the Jelisic case was that the trial chamber did not like that the prosecutor Louise Arbour chose for her first genocide case a lower-level perpetrator. They pressured her to drop the charges,” Nice recalled.
Nice also worked on the case against former Yugoslav leader Slobodan Milosevic between 1998 and 2006, and said the biggest problem in proving genocide is showing that the defendant had the intent to obliterate an entire ethnic group.
“In the Slobodan Milosevic case, genocide was also alleged in the Bosnian part of the indictment, and we already had rulings on the Srebrenica genocide, so the issue was only if we could prove Milosevic’s intent. You have to understand genocide is different because you have to have this special intent. Defendants usually don’t speak publically about what they plan to do,” explained Nice.
“This is what we had in the Milosevic case. He said little, if anything, which would speak about his intent. So you had to gather his intent from his actions. This was difficult to prove.”
Differing Views on Genocide
Differing motives for mass killing also make proving genocide difficult, Nice said.
“When someone is killing people massively, let’s say a hundred people, what goes on in his head? You tell me… He might be killing because he despises that person, or the group from which that person is coming from, or he could be drugged or drunk, or maybe his commander told him: ‘Kill him or I will kill you’, or for all sorts of other reasons… This is why genocide is so hard to prove,” he said.
He said that time was an important factor in decisions made by the Hague Tribunal.
“We prosecuted other crimes, but in the end we focused on Srebrenica. When you look at the majority of decisions made by trial teams and judges, it was probably a practical decision. Some things needed to be eliminated, some municipalities, some crimes… We simply didn’t have time. People don’t understand this. If you put everything in, the trial will never end,” he said.
Nice argues that large-scale crimes such as genocide are always supported by states, and because of this, states or parts of states should be convicted of the crime as well as individuals.
“I don’t know how victims would feel about this. Maybe they would prefer to know that the state is guilty of genocide and then to learn which individuals supported the state in this terrible endeavor,” he said.