THE HAGUE, Netherlands — As U.N. prosecutors weigh up accusing Slobodan Milosevic of genocide, the heaviest war crimes charge, even they admit it will be a struggle to make it stick.
"To prove genocide in court is very difficult ... You need a specific kind of evidence for all the specific elements for the definition of genocide," Florence Hartmann, spokeswoman for chief prosecutor Carla del Ponte, told Reuters.
"If you miss one, you can't bring a charge of genocide."
The U.N. genocide convention, drawn up in 1948 when the Nazi Holocaust was still fresh in world minds, defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."
Del Ponte said Tuesday she expected Milosevic to be charged with genocide over his role in the Croatian and Bosnian wars. The current indictment against him relates purely to atrocities committed in the Serb republic of Kosovo in 1999.
Proving the intent to wipe out a population group is vital to securing a genocide conviction.
Late last month, prosecutors at the International Criminal Tribunal for former Yugoslavia ordered their second genocide acquittal, when Bosnian Serb former camp commander Dusko Sikirica was cleared of the charge midway through his trial.
The judge ruled prosecutors had failed to prove such an intent on Sikirica's part. His trial continues on other charges.
Proving genocide requires convincing judges of the intent to eliminate a group and that is very hard to do, said Richard Dicker, director of the international justice program at Human Rights Watch.
"It's a difficult challenge to meet, which is probably why it hasn't worked out in previous (ex-Yugoslavia) cases."
The United Nations has, however, secured genocide convictions at its Rwanda war crimes court.
Its first came in September 1998 when former mayor Jean Paul Akayesu was found guilty of genocide for his part in the 1994 massacres of ethnic Tutsis. That was the first case brought under the provisions of the 1948 U.N. convention.
As mayor of Taba commune, Akayesu used his authority over the police and community to incite and to supervise massacres of ethnic Tutsis, more than 2,000 of whom were killed in the area in a 2-1/2 month period, the court was told.
But Avril McDonald, a specialist at the Asser Institute of International Law in The Hague, said the Yugoslavia tribunal was interpreting genocide more narrowly than the Rwanda court.
"The facts in Rwanda are so different," she told Reuters. An estimated 800,000 people died in Rwanda massacres approved by the former Hutu government.
McDonald said laying a genocide charge against Milosevic for the 1999 atrocities in Kosovo would be difficult in the extreme.
"It seems there was a plan to expel, persecute and kill in Kosovo. I don't see any evidence that there was a plan to wipe out all or part of the Kosovo Albanian population," she said.
Bosnia was different, she said, referring to atrocities such as the notorious 1995 massacre of up to 8,000 Muslims in Srebrenica.
"It's really tough to prove genocide," said McDonald. "It's not only the number of those you kill—it's also who you kill, such as healthy young men of reproductive age."
Del Ponte told France's Le Monde newspaper she had asked her team of prosecutors to prepare fresh charges relating to the earlier wars in Bosnia, where some 200,000 people died, and Croatia.
"Concerning these two inquiries, I envisage a charge of genocide. But we will only know at the end of those inquiries if we can prove that charge before the judges," she said.
Milosevic made his debut appearance before the Hague tribunal Tuesday, defiantly refusing to enter a plea to the four counts of crimes against humanity and violations of the war or customs of war with which he is charged.
Three quarters of a million people were forced from their homes in Kosovo. The names of nearly 600 identified dead are listed on Milosevic's indictment for murder.
An appeals chamber will issue a landmark ruling on Thursday when it makes a final judgment in the case of Bosnian Serb Goran Jelisic, acquitted by trial judges of genocide.
A December 1999 judgment sentenced Jelisic to 40 years imprisonment for crimes against humanity against Muslims in 1992 in a Serb-run camp in Brcko, northern Bosnia.
Prosecutors have appealed the acquittal on the genocide charge as an error in law and procedure.