448 Between Yesterday and Tomorrow (1914– )International Criminal Courts
Th e end of the Cold War brought the revival of a post– World War II dream
that many had thought to be defi nitively dead: the establishment of a perma-
nent international criminal court to function as a sort of ongoing Nurem-
berg Tribunal. It will be recalled that the project had been abandoned in the
1950s because of an inability to agree a defi nition of aggression. In the 1990s,
however, in the face of a global outcry against the various atrocities commit-
ted in the course of the civil confl icts in Yugo slavia, plans for an interna-
tional criminal court were hastily revived. Public pressure led the UN Secu-
rity Council, in 1993, to establish a tribunal to prosecute individual persons
accused of international crimes occurring during the breakup of Yugo-
slavia. Th e tribunal, situated in Th e Hague, began operations the following
year.
Th is Yugo slavia Crimes Tribunal was given jurisdiction over three types of
crime: genocide, crimes against humanity, and war crimes. (Aggression was
not included.) Genocide was now a criminal off ense with a stated legal
defi nition— set out in the Genocide Convention of 1948— and not merely a
general term of outrage or abuse. Unfortunately, though, the legal defi nition
and the “pop u lar” conception of genocide diverged considerably. According
to the pop u lar perception, genocide is large- scale killing, motivated by racial,
religious, or ethnic hatred. Th e technical legal defi nition, however, is diff erent.
It does require killing (or similar oppressive acts), but it does not require that
the acts actually be carried out on a large scale. Instead of focusing on the size
of the victim group, the legal defi nition of genocide concentrates on two other
elements: the nature of the victims, and the mental state of the perpetrators.
Th e victims are required to be members of a targeted racial, ethnic, national,
or religious group. More important— and problematic— is the state of mind of
the perpetrators. Th ey must intend to commit not only the killing itself, but, in
addition, they must harbor a broader, long- term intention: to “destroy” the
victim group “as such,” either in “whole or in part.” In legal terms, this is a
highly demanding standard— especially considering that the requisite state of
mind must be proved beyond a reasonable doubt. For this reason, prosecu-
tions for genocide at the Yugo slavia Crimes Tribunal were few.
Much more useful, from the standpoint of prosecutors, was the off ense of
crimes against humanity. Th is was given a rigorous defi nition in 1993, in the