The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.
The law of persecutions has given rise to a certain definitional instability and judicial unease, notably due to the fact that the crime itself falls short of a definitive and comprehensive definition. As this article proposes to argue, this legal opacity could be unveiled by revisiting the law of Nuremberg, which, through the creation of the new crime against humanity of ‘persecutions’, might have in reality marked the birth in positive international law of the concept of ‘genocide’ itself. By keeping the crime of persecutions within the definitional ambit of crimes against humanity while simultaneously emancipating and recognizing genocide as a separate and distinct crime, contemporary international law has generated legal uncertainty and misconceptions as well as judicial unease, so much so that persecutions now found themselves somewhere between crimes against humanity and genocide. Not only is this definitional floating and opacity troublesome from a legality perspective, it also misunderstands the Nuremberg precedent and ultimately risks trivializing the essence of the crime of genocide itself.
The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.