22. april 2012. | Stephen Karganović
The extraordinary recent revelations of the sordid crimes committed by the Argentine junta under the leadership of the dictator, General Jorge Rafael Videla, give us a glimpse into the double standard which prevails in the administration of what passes for “international justice”.
General Videla was quoted in the Buenos Aires daily “La Nacion”  as admitting that during his seven-year reign in Argentina from 1976 to 1981 “about 7,000 to 8,000 people who needed to die” were “disappeared” (i.e. executed) by the authorities under his command, while several thousand children were forcibly removed from the custody of their parents, who were suspected of being “subversives”, and transferred to the care of government-approved “good” families.
The analogies between what is alleged to have happened in Argentina (and now it has apparently been admitted by the chief actor) and what is alleged to have occurred in Srebrenica are conspicuous. In both instances, violent death was inflicted on a segment of the population (leftist “subversives” in Argentina, military-age males in Srebrenica) who were targeted for execution. The alleged number of victims also coincides in both cases, about 8,000. Yet, unlike General Mladić, General Videla was not charged with genocide. The crimes imputed to the latter, although of roughly the same magnitude and also allegedly targeting a specific segment of the population, were treated as simple acts of murder. The obvious question comes to mind: why are executions of Argentine victims murder, while executions of a similar number of Bosnian Muslim victims are defined as “genocide”?
The Krstić trial verdict at ICTY, par. 589, admits the possibility of “local”, or geographically limited, genocide, which is a clear departure from prevailing interpretation of the Convention and judicial practice. The sole purpose of that departure was to accommodate the specificities of the Srebrenica case and to furnish a plausible rationale for the conclusion that it constituted genocide. Under the Krstić rationale the concept of genocide is no longer anchored strictly to the three categories (ethnic, religious, racial) which the Convention posits must be proved to have constituted extermination targets for the finding of genocide to be sustained. Krstić expands the concept arbitrarily by introducing a new target class: a significant portion of “military-age males”. If expansion by the addition of a new category of targeted individuals is legitimate in Srebrenica, what prevents the legal theory of genocide of being creatively developed further by the courts by creating additional new categories in order to accommodate victims in other situations?
In par. 501 of the Krstić trial judgment we already learned that the number of executed victims can be “limited” without affecting the conclusion of genocide. Serbian units, according to the Chamber, did not have to execute all military-age Bosnian Muslim males, or even all who happened to be in their custody, for the finding of genocide to be sustained. Obviously, the General Videla’s junta did not manage to kill every “leftist subversive” in Argentina, either. Why then would the execution of a limited number of Bosnian Muslims be regarded as genocide, but not so a similarly limited number of Argentines?
There is an additional element, absent in Srebrenica, whose presence greatly bolsters the hypothetical argument for bringing the charge of genocide in the Videla case. It is the forcible removal of children from the custody of their parents, or as Videla described it: “I am the first to admit … at this time children were taken, some with the best intention that the child would go to a good, unknown home”. Good intentions notwithstanding, the removal of children is explicitly forbidden by the Genocide Convention and it is treated as an element of genocide. The deliberate mass kidnapping of children from the target class would unquestionably strengthen the case for genocide against Videla and his associates if Argentine or international prosecutors had the will to properly formulate it. The International Criminal Court has jurisdiction should Argentine judicial authorities fail to perform their duty, and the rule prohibiting retroactive prosecution was deliberately made inapplicable to cases of suspected genocide.
To sum up. In light of the crimes attributed to General Videla and freely admitted by him, a prima facie case for genocide clearly is sustainable. It is at least as strong, and in some segments appears to be stronger, than the case against generals Krstić and Mladić. If Argentine and Bosnian Muslim victims are ranked equally, why are the crimes which were committed against them legally defined differently?
A theoretical objection to the preceding comparative analysis no doubt may be made. It was suggested by a colleague with a keen analytical mind. Distinguishing General Videla from Srebrenica, he suggests that “prosecutions for genocide cannot be brought for political murders because the Genocide Convention was formulated specifically to exclude political assassinations or purges. This is clear from the travaux préparatoires. Moreover, even the ICTY would hesitate to bring prosecutions for acts which occurred so long before the tribunal itself was even created”.
The point about ICTY bringing prosecutions is, of course, moot. The issue would more properly be under the jurisdiction of ICC because Videla’s crimes occurred outside the context of the Former Yugoslavia and ICTY no longer brings new indictments since 2005. However, ICC remains mute in this matter.
But of course, the question we raise is purely rhetorical, and it is not based on a serious expectation that an Argentine general would be charged with genocide merely because he killed approximately as many people as are alleged to have been executed on the orders of a Serbian general in Srebrenica. We wanted to highlight that if ICTY had no trouble imputing to Serbian defendants genocidal intent without any evidence that it actually existed (the only provable motive being revenge, which would place Srebrenica executions also in the criminal category, alongside those ordered by Videla) it could have been done to Videla also. Why would a court determined to convict Videla of genocide have any difficulty in principle to formulate the required rationale and to improvise some semblance of intent? Videla certainly intended to exterminate a precisely defined class of ideological opponents of his regime, and he has not hesitated to admit it publicly. (“Let’s say there were 7,000 or 8,000 people who needed to die to win the war against subversion,” newspaper La Nacion quoted Videla as saying…)
International tribunals analogous to ICTY and ICC had no trouble circumventing the travaux préparatoires and accusing the Khmer Rouge leadership of genocide (rather absurdly in the view of ICTY judge Kristof Flugge) although its conduct while the killings were taking place fits the pattern of political assassination and/or ideologically inspired purge far more than that of an ethnically, racially, or religiously motivated extermination campaign. Without necessarily taking the position that Videla is a genocidaire, it is correct to point out the application of a double standard.
If those who control judicial mechanisms and public discourse perceived a political advantage from accusing Videla of genocide, however untenable in his case such a charge might be, does anyone doubt that Videla would have been charged under the Genocide Convention? The unequal treatment of alleged offences with strikingly similar factual characteristics sends a clear message: justice is political, crimes are categorised with reference to political impact, and dead Serbs are not necessarily the only second-class victims in the orchestrated upheavals of our dreadful times.
 Der Spiegel, July 7, 1995