This July marks the thirtieth anniversary of the Srebrenica massacre, which took place in a mountainous enclave in eastern Bosnia and Herzegovina, near the Serbian border.
Between July 6 and 11, 1995, over 8,000 Bosniak Muslim men and children where killed by Bosnian Serbs in what the UN had declared a “safe area” under direct protection from blue-helmet peacekeepers. The scenes broadcast by war journalists sent shockwaves through the world, and marked a turning point for the West’s collective consciousness.
Today, as images from Gaza re-ignite the debate on what constitutes genocide, it is imperative that we look back at Srebrenica to understand how international courts interpret this crime.
Proving genocidal intent in Srebrenica
The International Criminal Tribunal for the former Yugoslavia (ICTY) recognised the Srebrenica massacre as genocide. This was a significant legal step, but it also left a bitter taste for many of the victims. This was because the tribunal only deemed the crimes committed in Srebrenica to be genocide, despite other episodes of equally systematic violence against the Bosniak Muslim population in other areas.
This was the result of an extremely restrictive legal interpretation of the crime of genocide. According to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, it requires proof that the acts (such as murder, torture, destruction of living conditions) were committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
The problem lies in how this “intent” is interpreted. Current jurisprudence has broadly adopted what is known as a “purpose-based” approach – a requirement of conscious and deliberate intent to destroy. Under this logic, it is not enough to prove that the acts had devastating effects on a group – they must also be committed with the specific intention of eliminating it.
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A collective crime
In modern contexts of conflict, the intention to destroy a group is confirmed through the accumulation of public policies, military decisions, normative frameworks and rhetoric. Incriminating evidence – whether it takes the form of an explicit order, speeches that openly speak of annihilation, or references to a single act of extermination – is almost impossible to objectively record.
Moreover, limiting genocide to one concentrated, media-visible episode means many other more complex and subtle forms of collective destruction can be overlooked.
In this sense, it is increasingly necessary that we rethink the way we identify genocide. This means moving away from the totalising model of the Holocaust (which is, for some, the only possible form of genocide, and therefore an unrepeatable event).
An alternative to this traditional approach is what critical legal scholars have called the “knowledge-based interpretation”. This perspective does not require proof of an explicit will to exterminate. Instead, it asks whether the perpetrators knew – or could not have been unaware – that their acts contributed to a systematic pattern of collective destruction.
This approach is based on a more structural and less individualistic view of genocide. The crime is not committed by one internal subjective will, but through broader patterns made up of contextual elements: public policies, legal frameworks of exception, dehumanising rhetoric, and strategic decisions sustained over time. Under this logic, criminal responsibility is not diluted, but adapted to contemporary realities of collective violence.
Gaza: putting theory into practice
This debate transcends mere questions of theoretical framework. Since October 2023, Gaza has been subjected to a campaign of progressive destruction: massive bombardment, cutting off essential services, forced displacement, engineered famine and health system collapse.
More than 55,000 people have been killed and hundreds of thousands injured, but beyond the numbers, what we are seeing is a sustained annihilation of the Palestinian way of life.
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This was raised by South Africa in the application it brought before the International Court of Justice in December 2023. The case was ratified by the Court in its indication of provisional measures.
What this means is that the UN’s highest judicial body has found a real and imminent risk of irreparable harm to the right of the Palestinian people in Gaza to be protected from genocidal acts and other conduct prohibited by the Convention. And yet, the legal recognition of this situation as genocide remains a topic of heated debate.
Raphael Lemkin, the legal theorist who coined the term “genocide” in 1944, understood this crime not only as the physical destruction of people, but also as the elimination of the collective life of a group, its culture, its symbols and its conditions of existence.
Cultural genocide: beyond direct violence
The current legal definition of genocide, shaped by colonial interests and centred on the Holocaust model, deliberately excludes cultural genocide. This narrow view ignores the fact that human groups can also be destroyed through policies of displacement and forced assimilation, strategies that erase memory, language, or ties to a territory. Human groups are not destroyed by direct violence alone.
Thirty years after Srebrenica, we urgently need a critical re-imagining of the concept of genocide, not to hollow it out but to restore its protective capacity in the face of new forms of collective destruction. The perpetrator’s knowledge of the impact of their acts should be enough to generate genocidal responsibility – especially if those acts contribute to a systematic plan to eliminate a people.
In a world where extermination can be administered bureaucratically, international justice must learn to recognise and name the violence of the present – even when it does not fit the categories established in the past. Failure to do so risks impunity for those enacting collective destruction today.
Pilar Eirene de Prada no recibe salario, ni ejerce labores de consultoría, ni posee acciones, ni recibe financiación de ninguna compañía u organización que pueda obtener beneficio de este artículo, y ha declarado carecer de vínculos relevantes más allá del cargo académico citado.
This article was originally published on The Conversation. Read the original article.
