In July 1995, in the shadow of the shocking mass murder of thousands
of Bosnian Muslims in Srebrenica, I sat around a table with colleagues
from the Prosecutor’s Office of the International Criminal Tribunal
for the former Yugoslavia (ICTY). We were called upon to review a
draft indictment against the notorious Bosnian Serb leaders President
Radovan Karad?ic´ and General Ratko Mladic´. Those of us assembled in
The Hague on that day were considering for the first time ever whether
to charge an accused with the crime of genocide. It had just been a few
months since the tribunal had become operational, there was a sense
of urgency as the war in Bosnia was still raging, and there was little jurisprudence
or academic commentary to guide our deliberations. After
all, the Genocide Convention had been adopted only in 1948, after the
Judgment of the International Military Tribunal at Nuremberg in 1946,
and there had been no international criminal jurisdiction to prosecute
such crimes until the ICTY’s establishment in 1993. As Legal Advisor,
I had prepared an exhaustive Memorandum on the Law of Genocide
that analyzed every conceivable source of authority – from the travaux
préparatoires to UN expert studies – and I was confident I had mastery
of the subject. But on that day, as we attempted to reduce the enormity
of the horrors unfolding in Bosnia to the strictures of legal reasoning,
I felt a profound sense of futility.