REASON WHY KRAJISNIK GOT AWAY WITH GENOCIDE
As Serb Gen. Ratko Mladic pointed out:
‘People are not little stones, or keys in someone’s pocket, that can be moved from one place to another just like that… Therefore, we cannot precisely arrange for only Serbs to stay in one part of the country while removing others painlessly. I do not know how Mr Krajisnik and Mr Karadzic will explain that to the world. That is genocide.’
Author: Edina Becirevic
The acquittal of Krajisnik on genocide charges challenges the very definition of this gravest of all crimes, according to a leading Sarajevo criminal justice authority writing for IWPR’s Tribunal Update 470
On 27 September 2006 Momcilo Krajisnik, a Bosnian Serb leader accused of being one of the architects of ethnic cleansing during the Bosnian 1992-95 war, was found guilty of most of the charges against him and sentenced to 27 years in prison. The tribunal judges said it had been proved beyond reasonable doubt that he was responsible for the extermination, murder, persecution and deportation of non-Serbs during the war, adding that his role in the commission of these crimes was crucial. However, rather surprisingly, Krajisnik was acquitted of the most serious charges – genocide or complicity in genocide.
On first reading, this finding sends a somewhat confusing message. According to the summary of the judgement, read by Presiding Judge Alphons Orie on 27 September, genocide did take place in Bosnia – however, it was not possible to prove the intent of the perpetrators. ‘The Chamber finds that in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide, the chamber has not received sufficient evidence to establish whether the perpetrators had genocidal intent, that is the intent to destroy, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such,’ says the summary. The only reasonable conclusion that could be taken from this formulation is that genocide took place in Bosnia merely by accident.
The term genocide carries a heavy political burden, and scholars of genocide quite often disagree on the interpretation of the 1951 genocide convention. However, theorists from Raphael Lemkin – the Jewish lawyer who coined the term genocide – to any other contemporary scholar in this field, would agree that it simply does not happen by accident and requires organised action. In his book Axis Rule in Occupied Europe, published in 1944, Lemkin specifically says that genocide could – but does not necessarily – mean destruction of a whole nation. However, he says that genocide requires organised planning aimed at destroying the basic foundations of the life of the national groups. That kind of plan would target ‘political and social institutions, culture, language, economic existence, as well as the personal security, freedom health, dignity, even lives of individuals that belong to those groups’.
Another recognised expert on the subject, Helen Fein, considers that the process of proving genocide involves establishing continuity in attacks aimed at destroying members of a group in an organised manner. Fein also says that two of the preconditions for genocide are the absence of sanctions for the perpetrators and the existence of ideologies that promote the idea of genocide.
Irvin Louis Horowitz, meanwhile, suggests that genocide is the structural and systematic destruction of innocent people.
None of the leading scholars in the field mentions ‘accidental genocide’.
The judgement against Krajisnik says, ‘The common objective of the joint criminal enterprise was to ethnically re-compose the territories targeted by the Bosnian-Serb leadership, by drastically reducing the proportion of Bosnian Muslims and Bosnian Croats through expulsion.’ It is important to note that this conclusion relies on the ‘six strategic aims of the Serb people’, which were adopted by the Bosnian Serb parliament at a session held on 12 May 1992. The first of these goals – to ‘separate Serb people from another two national communities’ – was announced by Radovan Karadzic, the former Bosnian Serb leader also indicted for genocide by the tribunal. As parliamentary speaker, Momcilo Krajisnik presided over this session, and he emphasised the importance of the first strategic goal, which he said should be supported by ethnic division on the ground.
It is noteworthy that at this meeting, both Karadzic and Krajisnik were warned by Bosnian Serb military commander General Ratko Mladic, also indicted on genocide charges, that their plans could not be committed without committed genocide. ‘People are not little stones, or keys in someone’s pocket, that can be moved from one place to another just like that… Therefore, we cannot precisely arrange for only Serbs to stay in one part of the country while removing others painlessly. I do not know how Mr Krajisnik and Mr Karadzic will explain that to the world. That is genocide,’ said Mladic. It was obvious to Mladic that the plan envisaged by the Serb politicial leadership could not be put into practice without a genocide. Even though the general had no qualms about executing this genocidal plan, this quote from the parliamentary transcript shows that Serb military and political leaders were aware of the likely consequences of their actions.In short, Krajisnik’s judgement seems to go against established definitions of genocide, as well as what General Mladic believed the crime to be. The judges in the Krajisnik case said they had established that genocide took place, but were not convinced the Serb leadership intended to commit it. They appear to lean toward a school of thought which sets extremely high standards of proof for genocide. To them, the Srebrenica massacre was one ‘genocidal incident’ in the broader ethnic cleansing of Bosnia. In his book States of Denial, Stanley Cohen says that avoiding the use of the word genocide in situations of armed conflict gives other countries an excuse not to intervene. This may help explain why the term was so studiously avoided during the Bosnian war.
Edina Becirevic is senior lecturer at the Faculty of Criminal Justice Sciences in Sarajevo. This comment appeared in IWPR’S Tribunal Update No. 470, 29September 2006, see
http://www.iwpr.net/Bosnia’s Accidental Genocide – republished from Bosnian Institute.
Srebrenica Massacre 
This is perhaps an overly simplified answer, and I hope, when I have time to give a more expanded answer.
But, not even taking into consideration the Krajisnik verdict at all; perhaps it lies in people’s inability to acknowledge when genocide occurs.
The Holocaust and Rwanda are rightfully recognized as genocides. However, I think too many people believe that genocide means you have to target the entire group for biological destruction, as was the case in the Nazi Holocaust and Rwanda.
A more cynical view could be looking at politicians and policy makers who do not want to recognize that a situation is genocide, because that would put pressure on them to intervene, including the possibility of military intervention.
If you look at the beginning of the Krstic judgment that’s quite informative about how genocide was recognised in the particular cricumstances of Srebrenica. It also demolishes MacKenzie’s comments on the subject in advance.
“The Holocaust and Rwanda are rightfully recognized as genocides.”
So is Srebrenica massacre.
http://blogs.ushmm.org/index.php/COC2
Voices for Genocide Prevention
An Interview Program with Jerry Fowler
There’s an interesting interview (click on Listen now or Transcript to hear or read) in which Michael Scharf, Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western University Law School in Cleveland, discusses the Krajišnik verdict and tries to understand how the judges failed to return a verdict of genocide.
He also talks about the problems of dealing with a disruptive defendant like Saddam Hussein and refers to Seselj and Charles Taylor as well.
(The transcript refers to the “onfall campaign” – should of course be “Anfal”)
Dan, please don’t hesitate to cut this down or leave it out if it’s too long. I haven’t edited it down enough to be really succinct. It’s a bit short on the issues relating to the joint criminal enterprise and the general principles but it contains most of the substance of the court’s reasoning in finding Krstic guilty of genocide and the implicit parallels make it difficult to understand the failure to convict Krajisnik of genocide.
In particular you can see how the court notes the Bosnian Serbs’ central war objective was “the use of military means to terrorise civilian populations, often with the goal of forcing their flight in a process that came to be known as ‘ethnic cleansing'” and how it notes the way Krajisnik and Krstic defined the objective in very similar terms with reference to the Serbianisation of the Podrinje region, (“in [which] goal the cleansing of Bosnian Muslims from Srebrenica had special advantages”). From a different point of view, in relation to Lewis MacKenzie’s refutation of genocide at Srebrenica, the court couldn’t be clearer in explaining why it found that the killing of the Muslim men of military age in Srebrenica did in fact constitute genocide.
This isn’t as clear an analysis as it might have been but it and I hope that anyone else reading the judgment will spot any other significant points.
The full Krstic judgment is at
http://www.un.org/icty/krstic/TrialC1/judgement/index.htm
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3. In July 1995, at the time the atrocities occurred, General Krstic was first the Chief of Staff and, subsequently, the Commander of the Drina Corps, a formation of the Bosnian Serb Army (hereafter “VRS”). All of the crimes committed following the take-over of Srebrenica were committed in the zone of responsibility of the Drina Corps. …
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14.Conclusions
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335. Despite efforts to distance himself from Krivaja 95, particularly the second phase involving the capture of Srebrenica, the Trial Chamber is left without doubt that General Krstic was no ordinary participant in these events. Regardless of whether or not he was completely sidelined upon the arrival of General Mladic, it is clear that General Krstic was fully informed of the conduct of the operation. Given his position as Deputy Commander/Chief of Staff of the Drina Corps and his prominent role in the drafting and execution of Krivaja 95, the Trial Chamber finds that General Krstic must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave. He thus played a leading role in the events that forced the terrorised civilian population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed. From his vantage point at the FCP in the hills of Pribicevac, he had an unobstructed view of the impact of the shelling upon the terrorised Bosnian Muslim residents of Srebrenica town. It is inconceivable that a commander so actively involved in the campaign would not have been aware of such an obvious cause and effect relationship between the shelling and the exodus of residents from Srebrenica that was apparent to virtually all UN military personnel in the area.
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335. The Trial Chamber finds that General Krstic was well aware that the shelling of Srebrenica would drive tens of thousands of Bosnian Muslim civilians from the town into the small area of Potocari they thought “safe” because of the UN base there. He must have known that, inevitably, basic needs for shelter, food, water and medicine at that site would prove overwhelming. The Trial Chamber further finds that General Krstic was fully appraised of the VRS territorial goals in the Srebrenica enclave, which included cleansing the area of the Bosnian Muslim population.
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544. The critical determination still to be made is whether the offences were committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
545. The Prosecution contends that the Bosnian Serb forces planned and intended to kill all the Bosnian Muslim men of military age at Srebrenica and that these large scale murders constitute genocide. The Defence does not challenge that the Bosnian Serb forces killed a significant number of Bosnian Muslim men of military age but disagrees a genocidal intent within the meaning of Article 4 has been proved.
546. The Trial Chamber is ultimately satisfied that murders and infliction of serious bodily or mental harm were committed with the intent to kill all the Bosnian Muslim men of military age at Srebrenica. The evidence shows that the mass executions mainly took place between 13 and 16 July, while executions of smaller scale continued until 19 July. All of the executions systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers. …
547. The VRS may have initially considered only targeting the military men for execution. Some men from the column were in fact killed in combat and it is not certain that the VRS intended at first to kill all the captured Muslim men, including the civilians in the column. Evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians. … The evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in Srebrenica, regardless of their civilian or military status.
548. The Prosecution contends that evidence demonstrates an intent to destroy part of a group as such, which is consonant with the definition of genocide. Conversely, the Defence maintains that the intent to kill all the Bosnian Muslim men of military age living in Srebrenica cannot be interpreted as an intent to destroy in whole or in part a group as such within the meaning of Article 4 of the Statute.
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557. A group’s cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits. As in the Nikolic and Jelisic cases, the Chamber 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.
558. Whereas the indictment in this case defined the targeted group as the Bosnian Muslims, the Prosecution appeared to use an alternative definition in its pre-trial brief by pleading the intention to eliminate the “Bosnian Muslim population of Srebrenica ” through mass killing and deportation. In its final trial brief, the Prosecution chose to define the group as the Bosnian Muslims of Srebrenica, while it referred to the Bosnian Muslims of Eastern Bosnia in its final arguments. The Defence argued in its final brief that the Bosnian Muslims of Srebrenica did not form a specific national, ethnical, racial or religious group. In particular , it contended that “one cannot create an artificial ‘group’ by limiting its scope to a geographical area”. According to the Defence, the Bosnian Muslims constitute the only group that fits the definition of a group protected by the Convention.
559. … The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group. Conversely, no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims. The only distinctive criterion would be their geographical location, not a criterion contemplated by the Convention. In addition, it is doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims. Indeed, most of the Bosnian Muslims residing in Srebrenica at the time of the attack were not originally from Srebrenica but from all around the central Podrinje region. Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group.
560. 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. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4. The question of whether an intent to destroy a part of the protected group falls under the definition of genocide is a separate issue that will be discussed below.
561. The Prosecution and the Defence, in this case, concur in their belief that the victims of genocide must be targeted by reason of their membership in a group. This is the only interpretation coinciding with the intent which characterises the crime of genocide. The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such. As the ILC noted:
[…] the intention must be to destroy a group and not merely one or more individuals who are coincidentally members of a particular group. The […] act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group.
562. As a result, there are obvious similarities between a genocidal policy and the policy commonly known as ”ethnic cleansing”. In this case, acts of discrimination are not confined to the events in Srebrenica alone, but characterise the whole of the 1992-95 conflict between the Bosnian Serbs, Muslims and Croats. The Report of the Secretary-General comments that “a central objective of the conflict was the use of military means to terrorise civilian populations, often with the goal of forcing their flight in a process that came to be known as ‘ethnic cleansing’ ”. The Bosnian Serbs’ war objective was clearly spelt out, notably in a decision issued on 12 May 1992 by Momcilo Krajisnik , then President of the National Assembly of the Bosnian Serb People. The decision indicates that one of the strategic objectives of the Serbian people of Bosnia-Herzegovina was to reunite all Serbian people in a single State, in particular by erasing the border along the Drina which separated Serbia from Eastern Bosnia, whose population was mostly Serbian.
563. The accused himself defined the objective of the campaign in Bosnia during an interview in November 1995, when he explained that the Podrinje region should remain “Serbian for ever, while the Eastern part of Republika Srpska and the Drina river w?ouldg be an important meeting point for the entire Serbian people from both sides of the Drina”.
564. In this goal, the cleansing of Bosnian Muslims from Srebrenica had special advantages. Lying in the central Podrinje region, whose strategic importance for the creation of a Bosnian Serb Republic has frequently been cited in testimony,1247 Srebrenica and the surrounding area was a predominantly Muslim pocket within a mainly Serbian region adjoining Serbia.1248 Given the war objectives, it is hardly surprising that the Serbs and Bosnian Muslims fought each other bitterly in this region from the outbreak of the conflict.
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567. … the Trial Chamber has found that, on its face, the operation Krivaja 95 did not include a plan to overrun the enclave and expel the Bosnian Muslim population. …
568. The operation, however, was not confined to mere retaliation. Its objective, although perhaps restricted initially to blocking communications between the two enclaves and reducing the Srebrenica enclave to its urban core, was quickly extended. … Operation Krivaja 1995 then became an instrument of the policy designed to drive out the Bosnian Muslim population. The humanitarian crisis caused by the flow of refugees arriving at Potocari, the intensity and the scale of the violence, the illegal confinement of the men in one area, while the women and children were forcibly transferred out of the Bosnian Serb held territory , and the subsequent death of thousands of Bosnian Muslim civilian and military men, most of whom clearly did not die in combat, demonstrate that a purposeful decision was taken by the Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason of their membership in the Bosnian Muslim group. It remains to determine whether this discriminatory attack sought to destroy the group, in whole or in part, within the meaning of Article 4 of the Statute.
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569. The Prosecution urges a broad interpretation of Article 4’s requirement of an intent to destroy all or part of the group. It contends that the acts have been committed with the requisite intent if “?the accusedg consciously desired ?hisg acts to result in the destruction, in whole or in part, of the group, as such; or he knew his acts were destroying, in whole or in part, the group, as such; or he knew that the likely consequence of his acts would be to destroy, in whole or in part, the group, as such”. The Prosecution is of the opinion that, in this case, General Krstic and others “consciously desired their acts to lead to the destruction of part of the Bosnian Muslim people as a […] group”.
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571. … Some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequence is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act. Whether this interpretation can be viewed as reflecting the status of customary international law at the time of the acts involved here is not clear. For the purpose of this case, the Chamber will therefore adhere to the characterisation of genocide which encompass only acts committed with the goal of destroying all or part of a group.
572. … Evidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardised coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men.
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581. Since in this case primarily the Bosnian Muslim men of military age were killed , a second issue is whether this group of victims represented a sufficient part of the Bosnian Muslim group so that the intent to destroy them qualifies as an “ intent to destroy the group in whole or in part” under Article 4 of the Statute.
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583. The Defence contends that the term “in part” refers to the scale of the crimes actually committed, as opposed to the intent, which would have to extend to destroying the group as such, i.e. in its entirety. …
584. The Trial Chamber does not agree. Admittedly, by adding the term “in part”, some of the Convention’s drafters may have intended that actual destruction of a mere part of a human group could be characterised as genocide, only as long as it was carried out with the intent to destroy the group as such. The debates on this point during the preparatory work are unclear, however, and a plain reading of the Convention contradicts this interpretation. Under the Convention , the term ”in whole or in part” refers to the intent, as opposed to the actual destruction, and it would run contrary to the rules of interpretation to alter the ordinary meaning of the terms used in the Convention by recourse to the preparatory work which lacks clarity on the issue. The Trial Chamber concludes that any act committed with the intent to destroy a part of a group, as such, constitutes an act of genocide within the meaning of the Convention.
585. The Genocide Convention itself provides no indication of what constitutes intent to destroy “in part”. …
586. … According to the ILC, the perpetrators of the crime must seek to destroy a quantitatively substantial part of the protected group:
It is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group . …
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587. Benjamin Whitaker’s 1985 study on the prevention and punishment of the crime of genocide holds that the partial destruction of a group merits the characterisation of genocide when it concerns a large portion of the entire group or a significant section of that group.
‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership .
The “Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992)” (hereinafter “ Report of the Commission of Experts ”) confirmed this interpretation, and considered that an intent to destroy a specific part of a group, such as its political, administrative, intellectual or business leaders, “may be a strong indication of genocide regardless of the actual numbers killed”. The report states that extermination specifically directed against law enforcement and military personnel may affect “a significant section of a group in that it renders the group at large defenceless against other abuses of a similar or other nature”. However, the Report goes on to say that “the attack on the leadership must be viewed in the context of the fate of what happened to the rest of the group. If a group suffers extermination of its leadership and in the wake of that loss, a large number of its members are killed or subjected to other heinous acts, for example deportation, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose”.
588. Judge Elihu Lauterpacht, the ad hoc Judge nominated by Bosnia-Herzegovina in the case before the International Court of Justice regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide, spoke similarly in his separate opinion. Judge Lauterpacht observed that the Bosnian Serb forces had murdered and caused serious mental and bodily injury to the Bosnian Muslims and had subjected the group to living conditions meant to bring about its total or partial physical destruction . He went on to take into account “the forced migration of civilians, more commonly known as ‘ethnic cleansing’” in order to establish the intent to destroy all or part of the group. In his view, this demonstrated the Serbs’ intent “to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina”. Judge Lauterpacht concluded that the acts which led to the group’s physical destruction had to be characterised as “acts of genocide” since they were “directed against an ethnical or religious group as such, and they (were( intended to destroy that group, if not in whole certainly in part, to the extent necessary to ensure that that group (would( no longer occup(y( the parts of Bosnia-Herzegovina coveted by the Serbs”.
589. Several other sources confirm that the intent to eradicate a group within a limited geographical area such as the region of a country or even a municipality may be characterised as genocide. …
590. The Trial Chamber is … left with a margin of discretion in assessing what is destruction “in part” of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups, as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because 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. In this regard, it is important to bear in mind the total context in which the physical destruction is carried out.
591. The parties have presented opposing views as to whether the killings of Bosnian Muslim men in Srebrenica were carried out with intent to destroy a substantial part of the Bosnian Muslim group. It should be recalled that the Prosecution at different times has proposed different definitions of the group in the context of the charge of genocide. In the Indictment, as in the submission of the Defence, the Prosecution referred to the group of the Bosnian Muslims, while in the final brief and arguments it defined the group as the Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia. The Trial Chamber has previously indicated that the protected group, under Article 4 of the Statue, should be defined as the Bosnian Muslims.
594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community. …
595. Granted, only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces 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. Furthermore, the Bosnian Serb forces 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, an impact the Chamber has previously described in detail. The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari and the principal mosque in Srebrenica soon after the attack.
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597. The strategic location of the enclave, situated between two Serb territories , may explain why the Bosnian Serb forces did not limit themselves to expelling the Bosnian Muslim population. By killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever re-establish itself on that territory.
598. The Chamber concludes that the intent to kill all the Bosnian Muslim men of military age in Srebrenica constitutes an intent to destroy in part the Bosnian Muslim group within the meaning of Article 4 and therefore must be qualified as a genocide.
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619. The Trial Chamber has made findings that, as of 13 July, the plan to ethnically cleanse the area of Srebrenica escalated to a far more insidious level that included killing all of the military-aged Bosnian Muslim men of Srebrenica. A transfer of the men after screening for war criminals – the purported reason for their separation from the women, children and elderly at Potocari – to Bosnian Muslim held territory or to prisons to await a prisoner exchange was at some point considered an inadequate mode for assuring the ethnic cleansing of Srebrenica. Killing the men, in addition to forcibly transferring the women, children and elderly, became the object of the newly elevated joint criminal enterprise of General Mladic and VRS Main Staff personnel. The Trial Chamber concluded that this campaign to kill all the military aged men was conducted to guarantee that the Bosnian Muslim population would be permanently eradicated from Srebrenica and therefore constituted genocide.
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621. The Trial Chamber has concluded that General Krstic was involved in organising the buses for the transportation of the women, children and elderly from Potocari throughout 12 July. He personally saw that the military-aged men were being segregated at Potocari and that they were being detained at the White House in sordid conditions. He must have observed, further, that contrary to General Mladic’s statement at the Hotel Fontana meeting, no genuine efforts were taking place to screen the men for war criminals. General Krstic knew, also on 12 July, that the buses exiting from Potocari were being stopped at Tišca where any men who had managed to get aboard were pulled off and taken to detention sites. On 13 July, when he was preparing the military operation at Zepa which commenced the next day, General Krstic found out that thousands of Srebrenica men fleeing in the column through the woods toward Tuzla had been captured on the territory of the Drina Corps. As the then Corps’ Chief of Staff, “the primary co-ordinator of the Corps’ activities”, General Krstic must have been aware that no adequate measures were being taken to provide for shelter, food, water and medical care for several thousand captured men and that no arrangements or negotiations were ongoing for their prisoner-of-war exchange.
622. On that basis alone, the Trial Chamber must conclude that, by the evening of 13 July at the latest, General Krstic knew that the Muslim men were being executed at a number of separate sites and that none had been allowed to enter government held territory along with the women, children and elderly. General Krstic could only surmise that the original objective of ethnic cleansing by forcible transfer had turned into a lethal plan to destroy the male population of Srebrenica once and for all.
623. In terms of General Krstic’s participation in the killing plan, the evidence has established that, from 14 July onwards, Drina Corps troops took part in killing episodes. The facts in relation to the Drina Corps’ participation at each site may be summarised as follows:
[Details of actions at Orahovac, Petkovci Dam, Branjevo Farm, Pilica Cultural Dom, Kozluk]
624. Thus, the Drina Corps rendered tangible and substantial assistance and technical support to the detention, killing and burial at these several sites between 14 and 16 July. …
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630. … as Commander of the Drina Corps, General Krstic had extensive formal powers over the assets and troops of the Drina Corps. …
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633. The Trial Chamber concludes beyond reasonable doubt that General Krstic participated in a joint criminal enterprise to kill the Bosnian Muslim military-aged men from Srebrenica from the evening of 13 July onward. General Krstic may not have devised the killing plan, or participated in the initial decision to escalate the objective of the criminal enterprise from forcible transfer to destruction of Srebrenica’s Bosnian Muslim military-aged male community, but there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men. This cannot be gainsaid given his informed participation in the executions through the use of Drina Corps assets.
634. Finally, the Trial Chamber has concluded that, in terms of the requirement of Article 4(2) of the Statute that an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively , the military aged Bosnian Muslim men of Srebrenica do in fact constitute a substantial part of the Bosnian Muslim group, because the killing of these men inevitably and fundamentally would result in the annihilation of the entire Bosnian Muslim community at Srebrenica. In this respect, the intent to kill the men amounted to an intent to destroy a substantial part of the Bosnian Muslim group. Having already played a key role in the forcible transfer of the Muslim women, children and elderly out of Serb-held territory, General Krstic undeniably was aware of the fatal impact that the killing of the men would have on the ability of the Bosnian Muslim community of Srebrenica to survive, as such. General Krstic thus participated in the genocidal acts of “killing members of the group” under Article 4(2)(a) with the intent to destroy a part of the group.
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644. In the present case, General Krstic participated in a joint criminal enterprise to kill the military-aged Bosnian Muslim men of Srebrenica with the awareness that such killings would lead to the annihilation of the entire Bosnian Muslim community at Srebrenica. His intent to kill the men thus amounts to a genocidal intent to destroy the group in part. General Krstic did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key co-ordinating role in the implementation of the killing campaign. In particular, at a stage when his participation was clearly indispensable, General Krstic exerted his authority as Drina Corps Commander and arranged for men under his command to commit killings . He thus was an essential participant in the genocidal killings in the aftermath of the fall of Srebrenica. In sum, in view of both his mens rea and actus reus, General Krstic must be considered a principal perpetrator of these crimes.
645. General Krstic is guilty of genocide pursuant to Article 4(2)(a).
Shaina, what did you mean by this statement:
“The Holocaust and Rwanda are rightfully recognized as genocides.”
What were you trying to imply with that statement?
What I meant is that unfortunately, some of the same people who recognize the Holocaust and Rwanda, don’t recognize Srebrenica; because they are under the FALSE impression that genocide means killing everyone in the group.
Many people, are under the false impression that genocide means killing everyone in the group; which it does not.
People like Johnstone and MacKenzie are under the FALSE impression that because the VRS did not kill everyone in the enclave-that genocide did not take place.
Genocide is not a numbers game (although numbers and statistical loses may be a tool for prooving genocide). Genocide is based on intent.
Unfortunately, many people DO think that genocide is based on numbers. (Ask the average person what “genocide” is and they’d probably give the example of the Nazi Holocaust. The Holocaust was one of the worst genocides in human history; but the death toll does not need to be in the millions like it was in Nazi Germany; or 800,000 like it was in Rwanda for it to be genocide).
Which is why they recognize what happenened in Rwanda and Nazi Germany as Genocides; but not what happened in Bosnia.
That’s all I meant by it.
I never implied that what happened in Srebrenica wasn’t a genocide.
What needs to be done is to educate people on what genocide is.
That way, people who recognize what happened in Rwanda as genocide; would also be able to see that although the entire population of Bosnia was not slated for permanent biological destruction; the ethnic cleansing campaign and the attacks on the cultural instiutions and rape camps together with the mass executions were an act of genocide.
However, if we do not educate people about what genocide is-than people are going to believe that genocide means killing everyone (as it was in Rwanda and the Holocaust) and means millions of dead.
Dan, I think it’s quite clear from what Shaina went on to say that she was raising the question of whether genocide is a term that can be applied to anything less than a bureautically coordinated attempt to exterminate an entire race.
That is a widely-held interpretation and it’s perfectly reasonable for Shaina to bring the subject up when whether or not these barbarians can be convicted of genocide depends – as it should where any crime is concerned – on their actions and intentions being found to satisfy very specific relevant legal criteria.
In Bosnia genocide did not take the form of a campaign to exterminate all the Muslims of Bosnia. The object was, as the quotes from Krajisnik and Krstic in the Krstic judgment above show, to create homogeneous entities.
The fact that the target at Srebrenica or in Bosnia was part of the group rather than the whole is often mentioned by people who have not read the Convention or have failed to understand what Lemkin’s term signifies and that misunderstanding is wilfully used by the apologists to deny that what happened was genocide. It’s perfectly obvious that Shaina is addressing the issue of genocide when the target is clearly a part of the group rather than the whole group.
In the passages from the Krstic judgment you can see how the court builds up the argument justifying its finding that genocide was perpetrated at Srebrenica on solid philosophical and evidential foundations.
Respect for a system of law requires that people understand what constitutes a crime. As Shaina points out in the sentence that immediately follows the one that you seem to be picking a quarrel with her about, “too many people believe that genocide means you have to target the entire group for biological destruction, as was the case in the Nazi Holocaust and Rwanda.” She’s not “implying” anything, she’s making what she’s saying as plain as a pikestaff. Too many people have the wrong idea about what constitutes
genocide.
The point of the Convention and the ICTY’s case law is that we now have an understanding of what constitutes genocide that it is impossible for anyone to ignore if they want to be taken seriously on the subject.
When you attack the Tribunal for being “over philosophical” you seem to be unconcerned that what you’re doing is attempting to undermine the most important tool we have for ensuring that the perpetrators of genocide – not murder, not persecution, not extermination, not crimes against humanity, not war crimes, but genocide itself – are brought to justice.