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George Szamuely: Defining Genocide Down – The Case of Srebrenica

Finding the right ‘group’

The destruction of a group must mean what it says: the destruction of a people in its entirety or, at very least, a substantial number of its members. Eight thousand Srebrenica men could scarcely be considered a substantial part of the Bosnian Muslim population. Happily for the ICTY, the meaning of “substantial” had already been defined down by Bassiouni’s commission. “Destruction of a group in whole or in part does not mean that the group in its entirety must be exterminated. The words ‘in whole or in part’ were inserted in the text to make it clear that it is not necessary to aim at killing all the members of the group,” Bassioni’s commission said in its report.43 Selective targeting of members of a group can also be genocide, because killing the leaders of a group could be tantamount to genocide. “Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others—the totality per se may be a strong indication of genocide regardless of the actual numbers killed.” It would definitely amount to genocide

“[i]f a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively Flarge number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the [Genocide] Convention in a spirit consistent with its purpose.”

Killing academics, religious, administrative and business leaders could be genocide. But targeting law enforcement and military people could also be genocide. The “extermination of a group’s law enforcement and military personnel may be a significant section of a group in that it renders the group at large defenseless against other abuses of a similar or other nature, particularly if the leadership is being eliminated as well,” Bassiouni wrote in his report. “Thus, the intent to destroy the fabric of a society through the extermination of its leadership, when accompanied by other acts of elimination of a segment of society, can also be deemed genocide.”44 In this way, of course, almost any act of war, including attacks on legitimate military targets, could fall under the rubric of genocide.

As for genocide’s requirement that the targeted victim constitute a “national, ethnical, racial or religious group,” it is clear that Srebrenica’s Muslim inhabitants couldn’t possibly comprise such a “group.” Still less could the military-aged male population of Srebrenica comprise it. For genocide purposes, the only possible “national, ethnical, racial or religious group” had to be Bosnia’s Muslims as a whole.

To be sure, from the beginning, the ICTY hasn’t been too sure how it should classify groups. At times, the ICTY has taken the standard approach as articulated by Bassiouni’s commission of experts in its final report. “The different groups relevant to the conflict in the former Yugoslavia—the Serbs, the Croats, the Muslims, the Gypsies and others—all have status as ethnic groups, and may, at least in part, be characterized by religion, ethnicity and nationality,” the experts wrote. “It is not a condition that the victim group be a minority, it might as well be a numerical majority,” they added. This is the orthodox view. To the Bassiouni team, this was obviously far too restrictive. So Bassiouni also suggested a looser, more politically correct form of classification. Groups can have a real existence (if that’s the preference of their members) but they can also exist solely in the minds of those who would stigmatize them.

What would happen, the Final Report’s authors asked, if there was “more than one victim groups, and each group as such is protected”? Suppose “group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A”? The Bassiouni team’s answer was that all of the victim groups should then be taken as constituting a larger entity. “In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous.”45 In other words, Bassiouni had conjured out of thin air a brand new group for war crimes trials  purposes—an entirely fictional group, to be sure, the defining characteristic of which is being stigmatized by the perpetrator of a crime. Furthermore, Bassiouni suggested, suppose “group B and to a lesser degree group C have provided the non-A group with all its leaders.” Genocide would act as a feeble legal instrument “if the overall circumstances of mixed groups were not covered. The core of this reasoning is that in one-against- everyone-else cases the question of a significant number or a significant section of the group must be answered with reference to all the target groups as a larger whole.” Not only has a fictional national or ethnic group been created, but merely targeting its nominal leaders would constitute genocide.

The Bassiouni commission’s report referred almost exclusively to Serbs and non-Serbs, the latter being not only the victims of the former but also burdened with an identity created by the former. The ICTY was obviously only too happy to adopt this line of reasoning. In December 1999, the trial court in the case of Bosnian Serb Goran Jelisić announced in its judgment that “to attempt to define a national, ethnical or racial group today using objective and scientifically irreproachable criteria would be a perilous exercise whose result would not necessarily correspond to the perception of the persons concerned by such categorisation.” Instead, the ICTY would “evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community.” Pursuing this Sartrean logic, according to which the Jew only exists in the mind of the anti-Semite, the Jelisić court declared that “It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators.”

The Jelisić court explained that the perpetrators of a crime can stigmatize a group by attributing to it “characteristics which they deem to be particular to a national, ethnical, racial or religious group.” But they can also stigmatize a group by identifying its members “as not being part of the group to which the perpetrators of the crime consider that they themselves belong.”46 In subsequent cases, the ICTY happily adopted the principle that stigma creates the group. Both the Krstić and Blagojević trial courts said they would identify “the relevant group by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.”47

This was exactly the opposite what the ICTR had determined in the case of Jean-Paul Akayesu. The ICTR had asserted that “a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.”48

The Rwanda tribunal had said that the Genocide Convention protects “stable groups”— groups “constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.” The ICTY arrived at the opposite conclusion: It is the perpetrator of the crime who creates the group. However, this is an imaginary creation. It is inferred by the ICTY and then imputed to the alleged perpetrator. In this way, the ICTY is able to construct groups on an ad hoc basis in accordance with its needs.

The Krstić court toyed with the idea of designating Srebrenica’s victims in terms of who they weren’t. The court “identifies the relevant group by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.” But in the end it dropped the idea, hesitantly concluding that the targeted group in Srebrenica was the Muslims of Bosnia as a whole.

According to the Krstić court, the Bosnian Muslims were a nation, and had been recognized as such by every Yugoslav Constitution since 1963. This was not at all true. What was true was that, from the 1960s on, Yugoslavia’s Muslims ceased to be considered a religious group and became a national group for census purposes. One could self-identify as a Muslim, but not as a Bosnian Muslim. Serbia has for a long time had a large Muslim population located in the Sandžak region. According to the ICTY’s reasoning, Bosnia’s Muslims would have been a nation, but not the Sandžak Muslims. The truth is, Bosnian Muslims were not recognized as a nation either in the 1963 or in the 1974 Yugoslav constitution. Bosnia’s Muslims were first recognized as one of the three constituent peoples of Bosnia and Herzegovina in the 1963 constitution of Bosnia and Herzegovina. Hitherto, Bosnia’s constitution had specified only two constituent peoples: Serbs and Croats. The Muslims were held to be either Serbs or Croats who had converted to Islam. Neither the 1963 nor the 1974 Yugoslav constitution mentions the Bosnian Muslims. Bosnian Muslims were as much a nation as the Bosnian Serbs or the Bosnian Croats or the Croatian Serbs. Bosnia’s Serbs were of course members of the Serbian nation, much as Bosnia’s Croats were members of the Croatian nation. The ICTY obviously didn’t want to go down this path, since it would then have to acknowledge that Bosnia was made up of three nations, no one of which, either singly or in combination, had the right to impose its will on any other. Muslim self-determination could not come at the expense of the Serbs, and vice versa. The constitution of Bosnia was crafted so as to prohibit any two of its nations ganging up on a third, which is precisely what happened in October 1991, when the Bosnian parliament adopted its sovereignty declaration and in February 1992, when Bosnia went ahead with a plebiscite on independence.

The ICTY preferred to suggest, without explicitly saying so, that, just as Serbia was the nation-state of the Serbs and Croatia the nation-state of the Croats, Bosnia was the nation-state of the Muslims, even though, as it admitted, it comprised only a little more than 40% of the republic’s population. Having misread the 1963 Yugoslav constitution, the Krstić court felt able to make the next step in the argument and declare that the Bosnian Muslims qualified as the targeted national group for Genocide Convention and ICTY Statute purposes. “The Chamber concludes that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims.”49

But there was no evidence that the Serbs were seeking to exterminate the republic’s Muslims. Within days of the fall of Srebrenica, Bosnian Serb forces captured the neighboring “safe area” of Žepa. There were no allegations of mass executions. Genocidal intent requires that members of the victim group be targeted wherever the victimizers have them in their sights. Yet here we have a genocide in one town only. It would be as if the Nazis had targeted the Jews of Lodz, but gave the Jews of Warsaw a free pass. Legal scholar William Schabas has expressed bafflement as to how the ICTY could claim that

“…a single massacre perpetrated over a period of a few days was genocidal, when it is situated in the context of a three-year-long war that is…better described by the labels “crimes against humanity” and “war crimes.” It cannot even be argued that the mass killings at Srebrenica represented a more general change in policy by the Bosnian Serb leaders, because there is no suggestion of similar massacres taking place elsewhere in Bosnia and Herzegovina during or after the Srebrenica events. Genocide at Srebrenica appears to be both improvised and idiosyncratic, an aberration rather than an overarching feature of the wartime strategy.”50

As a matter of fact, the Serbs weren’t even all that thorough when it came to the military- aged men of Srebrenica. The Krstić court noted that Srebrenica’s wounded men were permitted to receive medical treatment. The court immediately dismissed this as merely evidence of “a strategy on the part of the Bosnian Serbs to avoid attracting international suspicion, especially given that U.N. personnel were present in the enclave watching the treatment accorded to some of these wounded men in the first few days after the takeover of Srebrenica.” The Bosnian Serbs were evidently eager to “show the media that non- combatants were properly treated.” Whether this entirely speculative explanation was true or not, it undermined the genocide claim. The ICTY adopted its usual strategy: If the facts don’t fit the theory, then so much the worse for the facts. “Except for the wounded, all the men, whether separated in Potocari or captured from the column, were executed, either in small groups or in carefully orchestrated mass executions,” the court happily concluded. Why Serbs would undertake mass executions that were sure to be detected if they were so anxious not to draw international opprobrium remained unexplained.

Be that as it may, Srebrenica’s military-aged constituted a very small percentage of the Bosnian Muslim population. The Krstić court estimated that at the time of the attack on Srebrenica the Muslim population of Bosnia was about 1.4 million (the court said that Muslims constituted 40% of the 1995 population of 3,569,000). Eight thousand executed Muslim men would constitute 0.57 percent of the Bosnian Muslim population.

The Krstić judges wouldn’t be put off by such minor considerations. That killings took place in one area but not in another or that they involved a relatively small percentage of the targeted group didn’t mean that they couldn’t count as genocide. As support, the court cited the 1982 murder of some 800 Palestinians at the Sabra and Shatila detention camps in Lebanon, “most of whom were women, children and elderly.” The U.N. General Assembly passed a resolution in December 1982 calling the massacre an “an act of genocide.” Genocide, therefore, does not require the destruction of the entire targeted group; it is enough if the perpetrators intend to destroy part of a group located in a small geographical area.

The ICTY was really reaching here. First, a U.N. General Assembly resolution has no legal force. Second, a number of key NATO powers, particularly the United States, had scornfully dismissed this resolution. Third, the difference between Sabra/ Shatilla and Srebrenica was evident even from the ICTY’s own description: In one case, women and children were spared; in the other they weren’t. Fourth, the Krstić court had forgotten the ICTY’s own earlier warning not to set too much store by this resolution: It “is appropriate to look upon this evaluation with caution due to its undoubtedly being more of a political assessment than a legal one.”51

An atrocity deserves the label genocide, the Krstić court explained, if “the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.”52 This applied to Srebrenica. The Serbs had intended to destroy the Srebrenica Muslim community. They wanted to make sure that that community “would not return to Srebrenica nor…reconstitute itself in that region or indeed, anywhere else.”53 The claim is particularly nonsensical in light of such facts as that thousands of Muslims have returned to Srebrenica and that the elected mayor of the town, Osman Suljic, is not only a Muslim but a member of political party of the Muslims, the SDA. Suljic, incidentally, was mayor of Srebrenica in July 1995.

The issue seemed to be not so much that the Muslim community of Srebrenica could not reconstitute itself in the region—that would only amount to ethnic cleansing. (Every national group had been subjected to ethnic cleansing. Serbs, Croats and Muslims, all had at one time or another been forced to uproot themselves and reconstruct their lives elsewhere.) What made Srebrenica different was that the town’s Muslim community couldn’t reconstitute itself “anywhere else” because of the loss of the men. The Bosnian Serbs, apparently, “could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian Muslims to recapture the territory.”54

The reasoning was more than a little foggy here. Preventing the Bosnian Muslims from mounting an effective campaign to recapture lost territory in eastern Bosnia was neither genocide nor even a war crime. On top of that, why would killing Srebrenica’s men, even perhaps all of them, preclude the Muslims from recapturing the town? The Bosnian Muslims had 250,000 men under arms at that time. That would surely be more than enough to retake Srebrenica if this was such an important military objective.

To make the genocide charge stick, the Krstić court now made an extraordinary speculative leap. The loss of men meant the end of the group, it claimed. In “a patriarchal society, such as the one in which the Bosnian Muslims of Srebrenica lived,” the court explained, “the elimination of virtually all the men has made it almost impossible for the Bosnian Muslim women who survived the take-over of Srebrenica to successfully re- establish their lives.”55

These women would have difficulties bearing children. What matters in a patriarchal society, it seems, is “clear marital status, whether widowed, divorced or married: a woman whose husband is missing does not fit within any of these categories. Moreover, on a psychological level, these women are unable to move forward with the process of recovery without the closure that comes from knowing with certainty what has happened to their family members and properly grieving for them.”56 In other words, women who remained uncertain as to what had happened to their husbands would be unable to remarry and produce more children.

The Krstić court’s speculations made very little sense. The category of women the court was describing consisted only of a very small proportion of the women whom the Bosnian Serbs had evacuated to safety. It would refer only to those women who were still of child-bearing age and whose husbands remained unaccounted for. The court offered no estimate of the number of women involved, but one would have to assume that it was considerably smaller than 8,000.

The Bosnian Serbs “had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society,” the Krstić court concluded. It is much more likely that the Bosnian Serbs were aware of the opposite: Women are more critical to the reproductive process than men; more than that of men, their physical survival ensures the continued existence of a people. Most important, their existing children as well as any further children they bear would be brought up as Muslims—hardly a desirable outcome if one’s intent is to destroy a national group. Thus, if destruction of a group were one’s objective, it would make a lot more sense to target the women.

Having engaged in frictionless speculation, the Krstić court now inferred that the Serbs had to have been aware that Bosnian Muslim women, unlike their Serb or Croat counterparts, live in a patriarchal society and are thus unable to reconstruct their lives without men. By killing military-aged men and forcibly transferring women and children, the Bosnian Serbs had to have known that this “would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.”57 The killings thus “effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever reestablish itself on that territory.”58

With the “intent” requirement of Article 4 satisfied, the court could now conclude— beyond all reasonable doubt, needless to say—that the Bosnian Serbs had intended “to destroy in part the Bosnian Muslim group” and that General Radislav Krstić was guilty of “genocide.”

This was all extraordinarily unimpressive and confusing. Even if the Serbs had intended to destroy Srebrenica’s Muslims, why would this mean that they had intended the annihilation of the targeted group in question, namely, the Bosnian Muslims? After all, Srebrenica is today a Serb town in the Bosnian Serb republic and this hasn’t led to the extinction of Bosnia’s Muslims. Furthermore, even if the Krstić court were right and the Serbs had been aware of all of those consequences of their actions, this still wouldn’t satisfy the intent requirement of genocide. Awareness is not intent, as World Court Judge Milorad Kreća pointed out in his separate opinion in the 2007 Bosnia genocide case. “Knowledge of the natural and foreseeable consequences of the acts performed is not per se sufficient to constitute the intent to destroy. It must be accompanied by the desire to destroy the groups,” he wrote. The Serbs had to have willed just those consequences, and the Krstić court had produced no evidence of this.

What the Krstić court had described as having taken place in Srebrenica was ethnic cleansing—brutal no doubt, but not genocide. Applying traditional understanding of international law, the World Court in the Bosnia case said unambiguously that ethnic cleansing wasn’t genocide:

Neither the intent, as a matter of policy, to render an area “ethnically homogeneous,” nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.59

To be sure, the World Court threw the genocide-enthusiasts at the ICTY a bone. Ethnic cleansing could constitute genocide, the court said, if the ethnic cleansing involves “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” However, such action has to be “carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region.” But the Serbs had to have intended this. Yet, according to the Krstić court, the Serbs had not even intended to capture the whole town, let alone eliminate its population. The genocide idea just came to them as they went along.

 

ICTY appeals court to the rescue

The ICTY quickly realized that there were too many holes in its genocide finding. The Milošević case was coming to the boil. In February 2004, prosecutors had finished presenting their case against the ICTY’s most famous defendant. In March, the Milošević amici filed a motion of acquittal, arguing that there was no evidence that Milošević possessed the requisite genocidal intent. The Milošević judges needed to counter their argument with something a little more convincing than speculations about patriarchy.

The ICTY appeals court duly stepped up to the plate. On April 19, 2004, the appeals chamber upheld the Krstić trial court’s genocide finding, even though it ruled Krstić to be guilty only of aiding and abetting genocide and reduced his sentence to 35 years. The Bosnian Serbs were still motivated by genocidal intent when they captured Srebrenica. And they still were aware that killing military-aged men would have a catastrophic impact on a traditional patriarchal society. However, the real issue now was not so much the killing of Srebrenica’s men but the symbolic impact of the fall of Srebrenica on the Bosnian Muslims, the group targeted for genocide.

Continued survival of Srebrenica would frustrate Serb ambitions. Therefore, the capture of Srebrenica had to have been “of immense strategic importance to the Bosnian Serb leadership.” Without Srebrenica, “the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted. The capture and ethnic purification of Srebrenica would therefore severely undermine the military efforts of the Bosnian Muslim state to ensure its viability.” The Serbs manifested genocidal intent by targeting a part of the group that “is emblematic of the overall group, or is essential to its survival.”

The issue now wasn’t so much “the long-term impact that the elimination of seven to eight thousand men from Srebrenica would have on the survival of that community,” as the Krstić trial court had it.60. The issue was the establishment of a Serb political entity in Bosnia. The removal of the Muslim enclaves in Eastern Bosnia would spell the end of the Muslim dream of a single, unitary Bosnian state. Such an outcome would not only be a defeat for the Muslims—here the ICTY appeals court made an extraordinary leap in logic —it would threaten the survival of the Bosnian Muslims as a whole.

The capture and ethnic purification of Srebrenica would…severely undermine the military efforts of the Bosnian Muslim state to ensure its viability, a consequence the Muslim leadership fully realized and strove to prevent. Control over the Srebrenica region was consequently essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian Muslim people.

In other words, since, as the ICTY would have it, Bosnia is the nation-state of the Muslims, the partition of a unitary Bosnian state has to be seen as an attack on the survival of the Bosnian Muslim nation.

This reasoning made even less sense than the stuff about patriarchy. Why would the creation of a Serb entity in Bosnia endanger the survival of the Bosnian Muslim people? It would certainly undermine the territorial and political aspirations of the Bosnian Muslim political leaders. But there would still be a Muslim political entity in Bosnia; it just wouldn’t encompass the entire territory of the republic. Following the Dayton Accords, that’s exactly what took place. Bosnia was divided into two separate political entities: a Muslim-Croat federation and a Serb republic. Srebrenica belongs to the Serb republic. Yet the Bosnian Muslims survive as a people.

The appeals court tried another tack. The fall of Srebrenica was of symbolic import.

Srebrenica was important due to its prominence in the eyes of both the Bosnian Muslims and the international community. The town of Srebrenica was the most visible of the ‘safe areas’ established by the U.N. Security Council in Bosnia. By 1995 it had received significant attention in the international media….The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would have served as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.

Of course to anyone who shares the ICTY’s mind-set, any military setback for the Bosnian Muslims is seen to be a threat to their continued existence. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims? Well, since the overwhelming majority of the Muslims of Srebrenica survived, then their fate was indeed emblematic of the fate of the Bosnian Muslims as a whole: The overwhelming majority of the Bosnian Muslims survived the war. That’s clearly not what the appeals court wanted to suggest.

What’s confusing is that that everything the court is talking about is supposed to be taking place in the minds of the Serbs. The ICTY was pursuing its mission to find genocidal “intent” very seriously and demonstrating an amazing ability to intuit the workings of the Serb mind. It wasn’t saying that the fate of the Muslims of Srebrenica was actually “emblematic of that of all Bosnian Muslims.” It was emblematic in the minds of the Serbs.

Free as they were of any need to look for corroborating facts, the ICTY’s psychological speculations were in reality nothing more than projections of its own thinking. By 2004, Srebrenica had become immensely important to the humanitarian interventionists, to NATO, to the ICTY and, above all, to the Muslim political leaders in Sarajevo, the latter hoping that ceaseless reminders of their status as victims of war and genocide would lead to the abrogation of the Dayton Accords and an end to the hated Republika Srpska. The ICTY assumed that Srebrenica therefore had to have been just as important to the Serbs in 1995. However, in 1995, Srebrenica was largely seen as a sideshow. The key prize for both Serbs and Muslims was Sarajevo. It was, as the Dutch government report described it, “the pearl in the Bosnian crown. All other interests were subordinate.” Sarajevo, in the words of the report, “was of greater strategic importance” than Srebrenica. The Muslims believed “that the decisive battle with the VRS” would be fought in Sarajevo:

If the ABiH were to lose the fighting around Sarajevo, then there would be losses on all fronts. The ABiH would then be exhausted, and would have to give up on other fronts. In the backs of their minds, [the Bosnian Muslim] leaders still thought that in the battle for Sarajevo the enclaves could be attacked by the VRS, but they were counting on the fact that the international community and UNPRO- FOR would be able to protect the population.

The Muslim leaders’ priority was to prevent the Serbs from sending reinforcements to the Sarajevo region. That was why the Muslims within the enclaves of eastern Bosnia launched attacks on neighboring Serbs and ran the risk of Serb retaliation. It “was precisely the importance that the Bosnian Muslims attached to Sarajevo that led to Srebrenica also being involved in the conflict,” the Dutch report said. “The ABiH carried out diversionary manoeuvres outside the enclave territory, so as to tie up the VRS around the enclaves and to prevent them from sending reinforcements to Sarajevo. This focused the attention of the Bosnian Serbs on the Srebrenica enclave, which was deemed to be demilitarized, as they did not hesitate to emphasize because of the losses they suffered there.” One must assume that the Serbs knew all about this and that it must have featured prominently in their thinking when they decided to attack Srebrenica.

The appeals court still had one problem to attend to. It had to explain why the genocidal Serbs hadn’t killed on the basis of ethnic or national identity. The Serbs had after all spared the women, children and old men of Srebrenica and shipped them to safety. The trial court had explained this in terms of the Serbs’ calculation that in a patriarchal society men are more important than women and that therefore targeting men would be a more effective way of destroying the group. The appeals court wasn’t entirely satisfied with this. So it upped the ante: The Bosnian Serbs had intended to kill the women and children and would have done so if they had the chance. They had to settle for “forcible transfer” because that was all they could get away with:

“The decision not to kill the women or children may be explained by the Bosnian Serbs’ sensitivity to public opinion. In contrast to the killing of the captured military men, such an action could not easily be kept secret, or disguised as a military operation, and so carried an increased risk of attracting international censure. The international attention focused on Srebrenica, combined with the presence of the U.N. troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way. Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.”61

As with their decision to allow wounded men to receive medical treatment, the Bosnian Serbs’ reluctance to kill everybody was to be explained by reference to their “sensitivity to public opinion.” As Michael Mandel has humorously observed, if what the appeals court was saying was true, it would only be further proof that there was no genocide in Srebrenica. “You know what it’s called when you don’t even try to commit a crime— even one that you want very badly to commit—because you don’t think you can get away with it? It’s called not committing the crime.”62 The ICTY’s argument didn’t even have the merit of consistency: It directly contradicted the theory that the Serbs had sought to destroy the Muslim community of Srebrenica precisely because international public opinion had deemed its continued survival so important.

The appeals court thus happily concluded that the Bosnian Serbs had indeed committed genocide in Srebrenica. As far as Radislav Krstić was concerned, the court had to admit that the trial court had manifestly failed to “supply adequate proof that [he] possessed the genocidal intent.” That didn’t get Krstić off the hook for genocide though. According to the ICTY, proof of genocidal intent isn’t necessary for a complicity-in-genocide finding. Krstić was “aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings.”63 The appeals court therefore overturned the genocide conviction, but adjudged him guilty of complicity in genocide and reduced his sentence from 42 years to 35 years.

The ICTY’s ruling here was as dubious as any of its other rulings. The Genocide Convention stipulates that all of the prohibited acts it lists—including genocide, conspiracy to commit genocide and complicity in genocide—have to be informed by genocidal intent. In no time at all, though, this became ICTY law. Complicity in genocide “does not require proof that the accomplice had the specific intent to destroy, in whole or in part, a protected group.” The prosecutor need only prove that “an accused knew that his own acts assisted in the commission of genocide by the principal offender and was aware of the principal offender’s state of mind; it need not show that an accused shared the specific intent of the principal offender.”64 Quite how one is supposed to intuit the state of mind of someone in the absence of a plan or an agreement remained a mystery.

By the time it came to render its most recent genocide judgment in June 2010, the ICTY had decided that the targeted group in Srebrenica had been the “Muslims of Eastern Bosnia,” identified as “part” of the Bosnian Muslim people. The Bosnian Serbs were seeking to destroy the Muslim population of eastern Bosnia. Again, the issue wasn’t numbers, it was symbolism:

“[A]lthough the size of the Bosnian Muslim population in Srebrenica before its capture by the VRS was a small percentage of the overall Muslim population of BiH at the time, the import of the community is not appreciated solely by its size. The Srebrenica enclave was of immense strategic importance to the Bosnian Serb leadership because (1) the ethnically Serb state they sought to create would remain divided and access to Serbia disrupted without Srebrenica; (2) most Muslim inhabitants of the region had, at the relevant time, sought refuge in the Srebrenica enclave and the elimination of the enclave would accomplish the goal of eliminating the Muslim presence in the entire region; and (3) the enclave’s elimination despite international assurances of safety would demonstrate to the Bosnian Muslims their defencelessness and be “emblematic” of the fate of all Bosnian Muslims.”65

Return to Srebrenica

In January 2005, the ICTY returned to Srebrenica and came up with yet another rationale for its genocide finding. The issue now wasn’t so much the killings, but the suffering inflicted on the inhabitants of Srebrenica following the capture of the town. The case involved Vidoje Blagojević, commander of the Drina Corps’ Bratunac Brigade, which had taken part in the attack on Srebrenica. The court pointed to the Genocide Convention’s prohibition of acts “causing serious bodily or mental harm to members of the group.” This was precisely what the Serbs inflicted. The “men who were separated, detained, abused and subsequently killed suffered serious mental harm in that they knew what their fate was: the last sight that many of the victims saw was killing fields full of bodies of the Bosnian Muslim men brought to the execution site before them.”66 The survivors also suffered. The “trauma and wounds suffered by those individuals who managed to survive the mass executions does constitute serious bodily and mental harm.” Then there were the women, children and elderly who fled to Potočari. “Leaving their homes and possessions, the Bosnian Muslims did so after determining that it was simply impossible to remain safe in Srebrenica town. Upon arrival in Potočari, the Bosnian Muslim population did not find the refuge they were seeking: rather they found UNPROFOR unable to provide the assistance they needed.”

The ICTY judgment now became extraordinarily colorful and imaginative in its description:

“After their husbands, fathers and sons were taken from them, the Bosnian Muslim women felt even more vulnerable and afraid—afraid not only for their own safety, but especially that of their loved ones. Having left Srebrenica to escape from the Bosnian Serbs, the Bosnian Muslim population saw that they must move farther than Potočari to be safe. As they boarded the buses, without being asked even for their name, the Bosnian Muslims saw the smoke from their homes being burned and knew that this was not a temporary displacement for their immediate safety. Rather, this displacement was a critical step in achieving the ultimate objective of the attack on the Srebrenica enclave to eliminate the Bosnian Muslim population from the enclave.”67

This all sounded very strange. The Krstić court had already asserted that there were virtually no men at Potočari. Suddenly, the women’s “husbands, fathers and sons” were being taken from them. Their homes were being burned. Why would Serbs burn houses in a town that was to become part of the Republika Srpska? As for boarding buses “without being asked even for their name,” that’s a lot better than getting killed. During Operation Flash and Storm, the Croatian forces did not provide transportation to the fleeing Serb women and children. In fact, they strafed them. Here is the description by Boutros-Ghali of what took place in May 1995, following Operation Flash:

“Following intensive negotiations in Knin and Zagreb, an agreement was reached on 3 May on a cessation of hostilities in all areas, including Sector West, and on arrangements to ensure safe passage from Sector West into Bosnian Serb- controlled parts of Bosnia and Herzegovina for those remaining Serb civilians and soldiers (with sidearms only) who wished to leave under UNCRO and UNHCR surveillance. However, at approximately 2 p.m. on 4 May, while UNCRO was attempting to negotiate the implementation of the agreement with some 600 Serb soldiers in Pakrac, the Croatian Army began to shell the Serb-inhabited part of Pakrac in response to alleged attacks on Croatian police and attempts by Serb soldiers to escape. As a result, the Serbs surrendered to the Croatian Army and police, who subsequently began to assemble the remaining Serb inhabitants, separating males and females. Males, mainly of military age but also including some young and very old individuals, were transported to three locations outside the Sector.”68

The Blagojević court concluded that there was “sufficient evidence to establish beyond reasonable doubt that in the circumstances of this case forcible transfer constituted ‘serious mental harm’ within the meaning of” the Genocide Convention.

One should note first that the suffering at Potočari, though real, lasted for only a few days while transportation was being organized. One should also recall that the women and children had been abandoned by the men—and armed men, at that—who had decided to flee to Muslim-held territory. Therefore, if the suffering of the women and children and elderly were to be the measure of genocide, then the contribution of the Muslim men to this suffering has to be factored into the equation. They caused the suffering by leaving them to the mercy of their enemies, the people against whom they had been conducting armed attacks for years. Indeed, it is hard to square the flight of the men with the ICTY’s speculations about patriarchy.

The Blagojević court then announced that “the term ‘destroy’ in the genocide definition can encompass the forcible transfer of a population. The Trial Chamber recalls that the specific intent for the crime of genocide must be to destroy the group as a separate and distinct entity.”69 No authority other than the ICTY’s past decisions was cited as a basis for the claim that the term “destroy” encompasses “forcible transfer of population.” Moreover, the Genocide Convention refers to the destruction of the group “as such,” not to its continuing as a separate and distinct entity. Intermarriage could mean the destruction of a group as a separate and distinct entity; the Genocide Convention omitted to list intermarriage as a prohibited act.

The Blagojević court then announced that “the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group.” The court explained that

“A group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself….In such cases the Trial Chamber finds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was.”70

The Blagojević court’s argument is as circular as any argument can get. Indeed, even the individual sentences are circular. Take this one, for example: “The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself.” So, the physical or biological destruction of the group is the likely outcome of the physical or biological destruction of the group. Writing that is literally meaningless is usually an indication of reasoning that is meaningless.

The court reached a conclusion that was included in the premise. It defined a group as a distinct association of people, with a distinct tradition and rooted in a particular location. If any of these ingredients is missing, then the group ceases to be that particular group. Therefore, it’s been destroyed; therefore, it is the victim of genocide. Using such criteria, one could argue that just about everyone in the Balkans had been the victim of genocide.

The Blagojević court’s reasoning flies in the face of the understanding of genocide under international law. The drafters of the Genocide Convention had every opportunity to include all manner of suffering and loss under the rubric of “destruction.” They chose however to limit the meaning of destruction to physical or biological destruction. As the International Law Commission argued in 1996,

As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word “destruction,” which must be taken only in its material sense, its physical or biological sense.71

The text of the convention that the U.N. General Assembly adopted did not include the concept of “cultural genocide,” which was contained in two earlier drafts, “and simply listed acts which come within the category of ‘physical’ or ‘biological’ genocide.”

The Blagojević court further confused issues by changing the identity of the group that the Serbs had supposedly targeted for genocide at Srebrenica. The Krstić court had said that the Serbs were targeting the Muslims of Bosnia as a whole. The Blagojević court decided that the Serbs’ “targeted group was the Bosnian Muslims of Srebrenica—a substantial part of the Bosnian Muslim group.” The killing of the men combined with the forcible transfer of the women, children and elderly “were all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica.”

Furthermore, the Blagojević court said that

“The manner in which the transfer was carried out—through force and coercion, by not registering those who were transferred, by burning the houses of some of the people, sending the clear message that they had nothing to return to, and significantly, through its targeting of literally the entire Bosnian Muslim population of Srebrenica, including the elderly and children—clearly indicates that it was a means to eradicate the Bosnian Muslim population from the territory where they had lived.”72

This was contrary to the record. Both the Blagojević and the Krstić courts knew perfectly well that Srebrenica’s women, children and the elderly were allowed to leave. They lived on, not in Srebrenica, but in Tuzla. So how could “the entire Bosnian Muslim population of Srebrenica” have been targeted? The “literally” is a priceless addition.

For the Blagojević court, as for the Krstić trial and appeals courts, the issue wasn’t so much the actual killings of the men, but its “impact on the Bosnian Muslim group.” The killings were “a manifestation of this intent to destroy the group.” It “sent a message to the remaining members of the group of their fate—that they were at the mercy of the Bosnian Serbs and that their lives, too, could be taken at any moment.” The killings were a physical manifestation of the intent to destroy. Those who were not killed could discern in the killings the intent to kill. The Bosnian Serbs sought not just “the physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended through these acts to physically destroy this group.”73

This was very confusing. The court kept switching the identity of the group the Serbs were supposedly targeting. Sometimes it was the Bosnian Muslims as a whole; sometimes it was the Bosnian Muslims of Srebrenica; sometimes it was the Bosnian Muslims of Eastern Bosnia. Customary international law, as articulated by the International Law Commission is explicit on this point:

The intention must be to destroy one of the types of groups covered by the Convention, namely, a national, ethnic, racial or religious group. Political groups were included in the definition of persecution contained in the Nurnberg Charter but not in the definition of genocide…because this type of group was not considered to be sufficiently stable.74

The Rwanda tribunal had said—correctly—that the Genocide Convention protects “stable groups”—groups “constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment.”

The Muslim population of Srebrenica, on the other hand, was anything but stable. According to the Krstić court, the population of Srebrenica was 37,000 in 1991, of which 73% was Muslim and 25% Serb. Subsequently, “Bosnian Muslim residents of the outlying areas converged on Srebrenica town and its population swelled to between 50,000 and 60,000 people”—100% Muslim, incidentally. “Between March and April 1993, approximately 8,000 to 9,000 Bosnian Muslims were evacuated from Srebrenica under the auspices of the UN High Commissioner for Refugees.” In July 1995, at the time of the attack, “the population of Srebrenica was between 38,000 to 42,000.” According to the Popović court, “in mid-1995, the population in Srebrenica was approximately 42,000, 85 per cent of whom were internally displaced persons.”75 So, between 1991 and 1993, the Bosnian Muslim population of Srebrenica doubled. Between 1993 and 1995, the population went down by something like 25%.

Who then are the Bosnian Muslims of Srebrenica? Anyone who was a resident of Srebrenica in 1991 and was still a resident in July 1995? Or everyone who resided in Srebrenica in July 1995? Neither group qualifies as “stable” enough for Genocide Convention purposes. In fact, they resemble political groups. The Bosnian Muslim leaders had refused to permit the residents of Srebrenica to leave the town because its survival was crucial to their political and territorial aspirations. The Muslim strategy changed in 1995, and the survival of Srebrenica ceased to be a high priority. Judge Patricia Wald, one of the three Krstić trial court judges, admitted that the Bosnian Muslim leadership made the decision not to defend Srebrenica. “Muslim army generals, who later testified at the Hague, said the town could have been defended with reinforcements but a strategic decision was made at the highest levels of the Bosnian Muslim military and civil leadership not to do so because of other priorities.”76 Since the Serbs had every reason to believe that the Muslims would defend Srebrenica, it is hard to understand how they could have intended “to bring about the destruction of the Bosnian Muslims of Srebrenica.”77

Watering genocide down

The ICTY now took the step that it had been threatening to take for some time. It determined that a genocide conviction can be secured under the theory of command responsibility. Command responsibility can refer to a commander’s issuing an illegal order to a subordinate. But illegal orders are already covered by the provisions of the Geneva Conventions. Usually, command responsibility is understood to be a crime of omission—it arises from a failure to prevent or punish. Genocide, on the other hand, is most definitely a crime of commission, requiring as it does specific intent. But the ICTY wouldn’t have any of this. It determined that a superior can indeed be guilty of genocide via failure to prevent and punish. He doesn’t need to possess genocidal intent.

The case involved Radoslav Brdjanin, a minister in the government of the Republika Srpska Krajina and a president of its crisis staff. The ICTY had indicted him for genocide in December 1999. However, the prosecutors had failed to adduce any evidence of genocide. Their case consisted of the usual litany of wartime atrocities: killings of civilians during military operations and torture of detainees. In its Sept. 1, 2004 judgment, the trial court acknowledged that “Superior criminal responsibility is a form of criminal liability that does not require proof of intent to commit a crime.” Therefore, it might be thought contrary to the letter and spirit of the Genocide Convention and to the preparatory work of the drafters to find someone guilty of genocide in the absence of requisite genocidal intent. Not so, the Brdjanin court explained: Just because the Genocide Convention makes no reference to superior criminal responsibility, that doesn’t mean that it doesn’t apply to genocide under customary international law. This is so because there may have been “a play of factors responsible for the silence which, for any of a number of reasons, sometimes occurs over the codification of an accepted point in the drafting of an international instrument.”78 No evidence was cited for this interesting piece of observation.

There was no reason to think that command responsibility liability “should apply differently to the crime of genocide than to any other crime in the Statute,” the Brdjanin judgment went on. A prosecutor has to show that a superior must have known or had reason to know of a subordinate’s specific genocidal intent. The mens rea requirement of the crime of genocide has nothing to do with “the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused.” Therefore, “If the elements dictated by Article 7(3) [which pertains to command responsibility] are fulfilled, there is no reason why superiors should not be convicted pursuant to Article 7(3) for genocide; genocide is, after all, the crime with which the superiors associated themselves, through the deliberate failure to carry out their duty to exercise control.”79 Thus, “the mens rea required for superiors to be held responsible for genocide pursuant to Article 7(3) is that the superiors knew or had reason to know that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent.”

Command responsibility wasn’t the only indirect route to a genocide conviction. A year earlier, in the same case, the ICTY appeals court had determined that conviction for genocide via the third category of joint criminal enterprise was also possible. On Aug. 22, 2003, even before prosecutors had finished presenting their case, Brdjanin’s defense attorneys filed a motion for judgment of acquittal on the charge of genocide. They pointed to the prosecutors’ failure to offer any evidence of genocidal intent on the part of Brdjanin himself or on the part of the Bosnian Serb authorities. Brdjanin’s lawyers protested that, in the absence of direct evidence linking Brdjanin to genocide, prosecutors were trying to prove genocide indirectly via the so-called category three form of the joint criminal enterprise. According to the prosecutors, even if there was no evidence that Brdjanin harbored genocidal intent, he was nonetheless guilty of genocide on account of his supposed membership of a joint criminal enterprise to commit some crime other than genocide, but the foreseeable consequence of which would be genocide. Brdjanin, the prosecutors alleged, had engaged in a campaign of “deportation or forcible transfer” of the non-Serb population. The “natural and foreseeable consequence” of this policy was genocide.

The trial court agreed with the Brdjanin defense. Category three JCE did not apply to genocide. On Nov. 28, 2003, the court dismissed the genocide count in the indictment, ruling that a conviction for genocide must be based on specific intent. And specific intent “is incompatible with the notion of genocide as a natural and foreseeable consequence of a crime other than genocide agreed to by the members of the JCE.” However, the trial court refused to dismiss the charge of complicity in genocide. A complicity-in-genocide conviction, the court said, requires only evidence that a defendant “knew that his own acts assisted in the commission of genocide by the principal offender and was aware of the principal offender’s state of mind.” There was no need to “show that an accused shared the specific intent of the principal offender.”80

The damage was done. The trial court had conceded too much to common sense. Prosecutors appealed, demanding reinstatement of category three JCE liability for genocide. The trial court’s insistence that genocide requires evidence of “specific intent” was inconsistent with ICTY “jurisprudence.” There was no justification for treating genocide any differently from other “specific intent” crimes. Liability does not require proof of intent. Prosecutors drew a distinction between specific intent and the mental state required to establish liability. JCE III is a mode of liability, applicable to all crimes in which a defendant neither physically perpetrates the offense nor plans it but is nonetheless responsible for it.

On March 19, 2004, the ICTY appeals court overturned the Brdjanin trial court’s decision and declared that someone can indeed be guilty of genocide even if he neither intended genocide nor aided and abetted in the perpetration of genocide nor desired any other person to commit genocide. Repeating the prosecutor’s brief almost word-for-word, the appeals court said that in order to convict someone under JCE III, a court doesn’t need evidence that the person intended to commit the crime or even to have known with certainty that the crime was to be committed. Rather, it is sufficient that the accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed.

All of this was a little baffling. How can one foresee that other members of the joint criminal enterprise will commit some other crime when one doesn’t know who those other members are and what they may be up to? As William Schabas has pointed out, “Several individuals may participate in a common plan, but this does not necessarily mean that they all share the same specific intent.”81 Indeed, one doesn’t even know that one is oneself a member of this joint criminal enterprise. To qualify for membership of an alleged joint criminal enterprise, one only needs to share the same intent to commit a crime as other purported members.

JCE III liability, the court explained, is a “mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence.” There is no requirement to prove “intent to commit a crime on the part of an accused before criminal liability can attach.” It is no different from command responsibility liability. To establish command responsibility liability, a prosecutor need only show “that a Commander knew or had the reason to know of the criminality of subordinates”; there is no requirement to prove that he shared the criminal intent of subordinates.

To convict someone of genocide under JCE III, a prosecutor need only prove “that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent.” If some members of a joint criminal enterprise had committed a crime, the supposedly foreseeable consequence of which was genocide, the appeals court said, then any member of this enterprise to commit this other crime would be guilty of genocide. If the crime is forcible transfer of population, say, then if prosecutors can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that [genocide] would be committed.82

All prosecutors need to show is that genocide is a “natural and foreseeable consequence” of forcible transfer of population and the defendant who is guilty of forcible transfer of population can be found guilty of genocide too. Indeed, the defendant may—and probably will be—guilty of forcible transfer only via his inferred membership of a joint criminal enterprise of which he was not even aware. Note that the court is talking about actual perpetration of genocide here, not the aiding and abetting of genocide or complicity in genocide through omission. One could be guilty of genocide even if one neither intended genocide nor knew genocide was taking place nor wanted anyone else to commit genocide.

The ICTY needed to come up with something like this because it had failed to find any evidence of a Serb genocidal plan. Since the ICTY only had ethnic cleansing to play with, it had to undertake a deft maneuver to equate ethnic cleansing with genocide. This Brdjanin genocide decision, needless to say, had no basis in international law. It made nonsense of the intent requirement for genocide. In fact, the drafters of the Genocide Convention had explicitly rejected a proposal to designate ethnic cleansing as a prohibited genocidal act. During debate at the 6th Committee of the U.N. General Assembly in October 1948, the Syrian delegate had proposed amending Article 2 by labeling as genocidal “any measures directed towards forcing members of a group to leave their homes should be regarded as constituting genocide.” Ironically, Yugoslavia supported the proposal, arguing that during World War II, the “Nazis had dispersed a Slav majority from a certain part of Yugoslavia in order to establish a German majority there. That action was tantamount to the deliberate destruction of a group. Genocide could be committed by forcing members of a group to abandon their homes.” The U.S. delegate strongly objected to the Syrian amendment, arguing that it “deviated too much from the original concept of genocide.”83 The U.K. and the USSR delegates also expressed strong opposition; the amendment was rejected 29 votes to four, with eight abstentions.

By reintroducing the idea that ethnic cleansing amounted to genocide, the ICTY was not only unilaterally amending the Genocide Convention, it was explicitly violating the will of the convention’s drafters. The Statute of the ICTY, which follows the Genocide Convention word-for-word, does not list ethnic cleansing as an act constituting genocide. Neither does the Rome Statute of the International Criminal Court. In its 2007 ruling, the World Court also rejected the ethnic cleansing equals genocide equation:

“Neither the intent, as a matter of policy, to render an area “ethnically homogeneous,” nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.”84

It was striking that the ICTY appeals court was unable to cite any supporting legal authority for this finding other than its own dubious jurisprudence. The ICTY even contradicted its sister-tribunal, the ICTR, which, in 1998, had ruled that complicity in genocide must be a knowing, not inadvertent, complicity. To be complicit in genocide one needs to know that one’s acts will aid and abet genocide. Or, rather, one needs to know that one’s acts will aid and abet another who is acting with genocidal intent. That would suffice for a complicity in genocide—though not a genocide—conviction. In its judgment in the case of Jean-Paul Akayesu, the ICTR said that “when dealing with a person Accused of having aided and abetted in the planning, preparation and execution of genocide, it must be proven that such a person did have the specific intent to commit genocide, namely that, he or she acted with the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such; whereas, as stated supra, the same requirement is not needed for complicity in genocide.”85

The Brdjanin decision was contrary even to the ICTY’s own 2003 ruling in the case of Milomir Stakić. Stakić, a Bosnian Serb, had been president of the Prijedor municipal assembly in Bosnia. He was charged with genocide. What was unusual about the case was the court’s attempt to distinguish joint criminal enterprise as a mode of liability from the crime itself. The court said that “the application of a mode of liability cannot replace a core element of a crime.” The prosecution had “confuse[d] modes of liability and the crimes themselves. Conflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished.” For genocide to occur “the elements of that crime, including the dolus specialis must be met.” The notion “escalation” to genocide or genocide as a “natural and foreseeable consequence” of an “enterprise not aimed specifically at genocide [is] not compatible with the definition of genocide” under the Genocide Convention and the ICTY Statute.86

The Stakić court concluded that prosecutors had failed to prove that Stakić or even the people above him had the requisite intent to commit genocide. The court said it had “not been provided with the necessary insight into the state of mind of alleged perpetrators acting on a higher level in the political structure than Dr. Stakić to enable it to draw the inference that those perpetrators had the specific genocidal intent.”87

Standard ICTY practice is to say that the state of mind can be inferred from the circumstances. This is what the Krstić appeals court had argued: “Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.” And, it went on, genocidal intent can be inferred even if the court doesn’t know who the perpetrators were and therefore can have no insight into their state of mind. “The inference that a particular atrocity was motivated by genocidal intent may be drawn…even where the individuals to whom the intent is attributable are not precisely identified.”

That the Krstić trial court did “not attribute genocidal intent to a particular official within the Main Staff…does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.”88 This was certainly a novel legal innovation: the attribution of criminal intent, and not of any old intent but genocidal intent, to a perpetrator who remains unidentified, indeed unknown. There was no genocidal plan, yet there was genocidal intent, an intent that apparently even Krstić himself didn’t share. The Krstić appeals court had determined that the trial court had failed “to supply adequate proof that Radislav Krstić possessed the genocidal intent.” There was no proof therefore that Krstić, the defendant on trial, possessed genocidal intent; no one on the VRS Main Staff had been named as possessing genocidal intent; there was no evidence of a genocidal plan; yet the ICTY can conclude that genocide had taken place at Srebrenica.

The Stakić court, on the other hand, had insisted on the need for a genocidal plan to exist. Individual criminal responsibility pursuant to a joint criminal enterprise must be based on proof of “existence of a common criminal plan between two or more persons in which the accused was a participant.”89 The court added that a plan doesn’t have to be spoken about or written down. “The existence of the agreement or understanding need not be express, but may be inferred from all the circumstances. The participation of two or more persons in the commission of a particular crime may itself establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that particular criminal act.” An unspoken understanding—the Serbs are well known masters of the technique of telepathic communication.

The Stakić decision was unusual. ICTY practice is to discount the significance of plans. In July 2001, the ICTY appeals court announced that “the existence of a plan or policy is not a legal ingredient of the crime.” The case involved Bosnian Serb Goran Jelisić. In October 1999, the trial court had thrown out the genocide charges against him on the ground that the prosecution had failed to provide evidence that “there existed a plan to destroy the Muslim group in Brcko or elsewhere within which the murders committed by the accused would allegedly fit.”90 The appeals court overturned the trial court. Prosecutors should not worry unduly over the lack of evidence of a plan, the “higher” court said. Genocide can take place without a plan to commit genocide. To be sure, the appellate judges explained, evidence for the existence of such a plan may be very helpful. In “the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime (my italics).”91

The Jelisić appeals court left unexplained how the members of the joint criminal enterprise to commit genocide understand, and communicate with, one another in the absence of a plan. In a hierarchical military organization such an absence would surely be keenly felt. Having overturned the trial court’s dismissal of the genocide charges, the appeals court declared that, given the severity of Jelisić’s sentence—40 years—a new trial for genocide wasn’t warranted. This was not at all to the liking of former D.C. Circuit Court Judge Patricia Wald, who was one of the Jelisić appeals court judges. She wrote a dissent demanding a new, genocide trial for Jelisić. It wasn’t true, she said, that a new trial would “not affect the sentence ultimately imposed upon the accused. Although the sentence of 40 years’ imprisonment for crimes against humanity and violations of the laws or customs of war…is substantial, it might have been even more substantial had the accused also been convicted of genocide.” Happily for Wald, she didn’t have to wait long for a genocide conviction and for the imposition of an even more substantial sentence. Less than a month later, she, along with two trial court judges, ruled that Radislav Krstić was guilty of genocide, and sentenced him to 42 years’ imprisonment.

 

NOTES

1 Michael P. Scharf, “Indicted for War Crimes, Then What?” Washington Post, Oct. 3, 1999.

2 The “Chamber is satisfied that the acts of rape and sexual violence…were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public….These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them.” Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998.

3 From Axis Rule in Occupied Europe: Laws of Occupation-Analysis of Government-Proposals for Redress (Washington DC: Carnegie Endowment for International Peace, 1944). http://www.preventgenocide.org/lemkin/AxisRule1944-1.htm. 4 “Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide,” E/CN.4/Sub.2/1985/6.

5 Report of the International Law Commission on the Work of Its 48th Session, May 6-July 26, 1996, U.N. doc. A/51/10, art. 17, commentary 5 (1996).

6 Final Report of the Commission of Experts Established Pursuant to Resolution 780 (1992), May 27, 1994, S/1994/674

7 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Feb. 26, 2007, paragraph 187.

8 Prosecutor v. Delalić, IT-96-21-A, Appeals Judgment, Feb. 20, 2001, paragraph 266.

9 Delalić, paragraph 197.

10Washington Post, Aug. 29, 2004.

11 A key prosecution witness during the Milošević trial was Renaud de la Brosse, described as an “expert in the use of propaganda in the media.” De la Brosse, a professor at the University of Reims, prepared a report entitled “Political Propaganda and the Plan to Create a State for All Serbs.” His thesis was that anytime any Serb complains of violence directed at Serbs he is stigmatizing some other national group.

12 The Associated Press, July 3, 1996. (According to the AP account, “Jean-Rene Ruez, a French policeman who interviewed witnesses, gave a numbing litany of atrocities Bosnian Serb forces allegedly committed against Muslim refugees following the fall of the U.N. safe haven in July 1995….Ruez cited an incident in the indictment where a man was forced by a soldier to cut open his grandson’s stomach and eat part of his liver. ‘He took the old man and put a knife in his hand…and cut open the stomach of the little boy and then with the tip of his knife took out an organ from the inside of the child’s stomach and he forced the man to eat that part,’ Ruez told the court.”)

13 ICTY Press Realease, Aug. 2, 2001. http://www.icty.org/x/cases/Krstić/tjug/en/010802_Krstić_summary_en.pdf.

14 Prosecutor v. Vujadin Popović et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 782.

15 “Situation of human rights in the territory of the former Yugoslavia: Final periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 42 of Commission resolution 1995/89,” Aug. 22, 1995, E/CN.4/1996/9, paragraph 32, footnote 3.

16 Prosecutor v. Radislav Krstić, IT-98-33-T, Judgment, Aug. 2, 2001, paragraph 165.

17 Krstić, paragraph 546.

18 http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/7609D560283849CFC1256B6600595006.

19 Krstić, paragraph 73.

20 Prosecutor v. Vujadin Popović et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 616.

21 Ljubisa Simic, “Analysis of Srebrenica Forensic Reports Prepared by ICTY Prosecution Experts,” in Stephen Karganovic, Deconstruction of a Virtual Genocide: An Intelligent Person’s Guide to Srebrenica (The Hague: Srebrenica Historical Project, 2011), p. 76.

22 Krstić, paragraph 165.

23 Patricia M. Wald, “Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal,” 5 Yale H.R. & Dev. L.J. 217.

24 Prosecutor v. Goran Jelisić, IT-95-10, Judgment, Dec. 14, 1999.

25 Milošević Trial Transcript, Aug. 25, 2003, pp. 25210-25212.

26 “War Criminals in the U.S.,” Newsday, March 12, 2006.

27 Prosecutor v. Erdemović, IT-96-22-T, Nov. 19, 1996, p. 210.

28 “The Ghosts of Srebrenica,” Boston Globe, May 19, 1996.

29 “Peabody Man Won’t Face Tribunal,” Boston Globe, Aug. 28, 2004.

30 “Former Bosnian Serb Soldier Jailed Over Srebrenica Massacre,” Agence France Presse, July 19, 2010.

31 “Bosnian Serb Pleads Guilty to Srebrenica Atrocities,” BBC Worldwide Monitoring, July 19, 2010.

32 Prosecutor v. Vujadin Popović et al, IT-05-88-T, Judgment, June 10, 2010, paragraphs 1134 and 1135.

33 Prosecutor v. Krstić, IT-98-33-T, Judgment, Aug. 2, 2001, paragraph 243.

34 Milošević Trial Transcript, Feb. 12, 2004, p. 31975.

35 Ibid., pp. 3167-3168.

36 Witness Statement of Francis Roy Thomas, Nov. 16, 17 and 18, 1997, ICTY Legal Library.

37 Krstić, paragraph 121.

38 Krstić, paragraph 120.

39 Krstić, paragraph 130.

40 Srebrenica Trial Video, ICTY Legal Library.

41 The ICTY doesn’t have a full transcript of the Hotel Fontana meeting on its Web site. There is only a heavily edited, compressed version. It has Mladić saying, “[T]here is no need for your people to get killed….all you have to do is say what you want. As I told the gentleman last night: you can either survive or disappear….For your survival I request: that all your armed men who attacked and committed crimes—and many did—against our people, hand over weapons….on handing over weapons you may…choose to stay in the territory…or, if it suits you, go where you want. The wish of every individual will be observed, no matter how many of you there are.” Given the enormous importance the ICTY attaches to this meeting the absence of a full transcript is extraordinary.

42 Prosecutor v. Radovan Karadžić and Ratko Mladić, IT-95-5-R61 and IT-95-18-R61, July 4, 1996, pp. 647-649.

43 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), S/1994/674, May 27, 1994, paragraph 93.

44 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), S/1994/674, May 27, 1994, paragraph 94.

45 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), S/1994/674, May 27, 1994, paragraph 96.

46 Prosecutor v. Goran Jelisić, IT-95-10, Judgment, Dec. 14, 1999, paragraphs 70 and 71.

47 Krstić, paragraph 557; Blagojević, paragraph 667.

48 Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998, paragraph 511.

49 Krstić, paragraph 560.

50 William A. Schabas, “State Policy as an Element of the Crime of Genocide,” Expert Witness Report, May 1, 2008, ICTY Legal Library.

51 Prosecutor v. Goran Jelisić, IT-95-10-T, Judgment, paragraph 63. To be sure, the Jelisić court nonetheless determined that “In view of the object and goal of the Convention and the subsequent interpretation thereof, the Trial Chamber thus finds that international custom admits the characterisation of genocide even when the exterminatory intent only extends to a limited geographic zone.” Yet the only authority the court cites besides the U.N. General Assembly resolution is a 1949 book by Nehemiah Robinson, The Genocide Convention. The court quotes this author as saying “the intent to destroy a multitude of persons of the same group must be classified as Genocide even if these persons constitute only a part of a group either within a country or within a region or within a single community (ICTY italics).” Leave aside the question of why the ICTY should have selected this author as the defining authority on the matter rather than other better-known authors. What’s most striking is that the ICTY deliberately misquotes him. What Robinson said was that “the intent to destroy a multitude of persons of the same group because of their belonging to this group, must be classified as Genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial; the Convention is intended to deal with action against large numbers, not individuals even if they happen to possess the same group characteristics (my italics).” The ICTY had carefully avoided quoting the second half of the sentence in which the author explains what he meant in the first half. Destruction of only a part of a group can count as genocide “provided the number is substantial.” That’s the key point, one that the ICTY was anxious for obvious reasons to elide.

52 Krstić, paragraph 590.

53 Krstić, paragraph 592.

54 Krstić, paragraph 595.

55 Krstić, paragraph 91.

56 Krstić, paragraph 93.

The Krstić court’s speculation was but the latest manifestation of the strange sexual preoccupations that animated Western involvement in Yugoslavia during the 1990s. Recall how at the height of the war in Bosnia, the media gave vent to wild, un- substantiated allegations about Serbs raping Muslim women en masse. This was no run-of-the-mill wartime atrocity. The Serbs had an agenda: They wanted Muslim women to “carry Serbian seed.” According to an oft-cited book from those days, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia by Beverly Allen, the Serbs would keep in captivity women they had impregnated until such a time as they could no longer terminate the pregnancy. “Genocidal rape aimed at enforced pregnancy would seem to be a peculiarly Serb contribution to the history of atrocity,” Allen wrote. The proponents of the genocide-by-mass-rape hypothesis had no more evidence to back up their claims than the Krstić court had. But, as with everything else in the wars in Yugoslavia, it was not enough to take note of atrocities; there had to be a very complicated theory to explain their meaning. On the face of it, the mass rape hypothesis makes little sense. By helping Muslim women to have more babies, the Serbs would only be accelerating the growth of the Muslim population and thereby facilitating eventual Muslim control of Bosnia. By hypothesizing that the Bosnian Serbs wanted to reduce the rate of growth of the Muslim population, the Krstić court seemed to be on more solid ground even though it was unable to offer a scrap of evidence that Bosnian Serb leaders entertained such thoughts at the time of the attack on Srebrenica.

57 Krstić, paragraph 595.

58 Krstić, paragraph 597.

59 Genocide case, paragraph 190.

                               60 The appeals court fully endorsed the trial court’s speculations about the procreative habits of Muslim women. [W]ith the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.

Prosecutor v. Krstić, Appeals Chamber Judgment, April 19, 2004, paragraph 28.

61 Krstić, Appeals Chamber, paragraphs 31 and 32.

62 Michael Mandel, “The ICTY Calls It Genocide,” chapter in forthcoming book, Srebrenica and the Politics of War Crimes. http://www.srebrenica-report.com/icty.htm#_edn11.

At the ICTY, assumption of collective Serb guilt is so deeply ingrained that any evidence of non-commission of crimes by Serbs has to be discounted by means of laughably convoluted explanations. One absurd example among many occurred during the testimony of Michael Williams, former director of information for Yasushi Akashi, who served as special representative of the secretary-general in Yugoslavia. During cross-examination, Milošević pointed to numerous letters written to him by Akashi, Williams’ boss, thanking Serbia’s leader for his efforts to end the war in Bosnia. Embarrassed, the ICTY prosecutors rushed to explain that Milošević wasn’t really interested in bringing the war to an end in Bosnia. No, his sole aim was to get sanctions against Yugoslavia lifted. During re-examination, the prosecutor asked Williams: “Did Mr. Milošević introduce the connection between the sanctions that were imposed on Serbia and the cessation of hostilities in Bosnia?” Williams, predictably enough, responded: “Yes, he did….I mean, clearly he was not a disinterested intermediary.” Triumphantly, the prosecutor pressed on: “Was this the only occasion in which he linked the two, the sanctions with cessation of hostilities in—or peace in Bosnia?” No, Williams replied, “I don’t believe it was the only occasion, but I can’t off the top of my head cite directly a date and place for another occasion.” (Milošević Trial Transcript, June 25, 2003, p. 23071.)

But why would Milošević act as a “disinterested intermediary”? Why would his first priority not be getting sanctions against his country lifted? The ICTY has thus blazed yet another trail in international jurisprudence. Political leaders will henceforth be deemed culpable for pursuing their nations’ interests rather than the supposedly disinterested goals of the international humanitarians.

63 Prosecutor v. Krstić, Appeals Chamber Judgment, April 19, 2004, paragraph 134.

64 Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Trial Judgment, Sept. 1, 2004, paragraph 730. 65 Prosecutor v. Vujadin Popović et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 865. 66 Prosecutor v. Vidoje Blagojević, IT-02-60-T, Jan. 17, 2005, paragraph 649.

67 Blagojević, paragraph 651.

68 Report of the Secretary-General Submitted Pursuant to Security Council Resolution 994 (1995), S/1995/467, June 9, 1995, paragraph 6.

69 Blagojević, paragraph 665.

70 Blagojević, paragraph 666.

71 Report of the International Law Commission on the Work of Its 48th Session, May 6-July 26, 1996, U.N. doc. A/51/10, art. 17, commentary 12 (1996).

72 Blagojević, paragraph 675.

73 Blagojević, paragraph 677.

74 Report of the International Law Commission on the Work of Its 48th Session, May 6-July 26, 1996, U.N. doc. A/51/10, art. 17, commentary 9 (1996).

75 Prosecutor v. Vujadin Popović et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 923.

76 Patricia M. Wald, “General Radislav Krstić: A War Crimes Case Study,” Georgetown Journal of Legal Ethics, Spring 2003.

77 Blagojević, paragraph 674.

78 Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Trial Judgment, Sept. 1, 2004, paragraph 712.

79 Brdjanin, Trial Judgment, paragraph 720.

80 Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 bis, Nov. 28, 2003, paragraph 66.

81 William A. Schabas, “State Policy as an Element of the Crime of Genocide,” Expert Witness Report, May 1, 2008, ICTY Legal Library.

82 Prosecutor v. Radoslav Brdjanin, No. IT-99-36-A, ICTY Appeals Chamber, Decision on Interlocutory Appeal, March 19, 2004.

83 Sixth Committee of the U.N. General Assembly, 82nd meeting, Oct. 23, 1948, U.N. doc. A/C.6/SR.82.

84 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Feb. 26, 2007, paragraph 190.

85 Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998, paragraph 485.

86 Prosecutor v. Milomir Stakić, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 530.

87 Prosecutor v. Milomir Stakić, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 547.

88 Prosecutor v. Krstić, Appeals Chamber Judgment, April 19, 2004, paragraph 34 and 35.

89 Prosecutor v. Milomir Stakić, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 435.

90 Prosecutor v. Goran Jelisić, IT-95-10-T, Trial Judgment, Dec. 14, 1999, paragraph 98.

91 Prosecutor v. Goran Jelisić, IT-95-10-A, Appeals Judgment, July 5, 2001, paragraph 48.