The term Bosnian Genocide refers to either the genocide committed by Bosnian Serb forces in Srebrenica in 1995 or the ethnic cleansing campaign that took place throughout areas controlled by the Bosnian Serb Army during the 1992–1995 Bosnian War.[1]
The events in Srebrenica in 1995 included the killing of more than 8,000 Bosnian Muslims as well as the mass expulsion of another 25,000–30,000 Bosnian Muslims, in and around the town of Srebrenica in Bosnia and Herzegovina, committed by units of the Army of Republika Srpska (VRS) under the command of General Ratko Mladić.[2][3]
The ethnic cleansing campaign that took place throughout areas controlled by the Bosnian Serb Army targeted Bosnian Muslims and Bosnian Croats. The ethnic cleansing campaign included unlawful confinement, murder, rape, sexual assault, torture, beating, robbery and inhumane treatment of civilians; the targeting of political leaders, intellectuals and professionals; the unlawful deportation and transfer of civilians; the unlawful shelling of civilians; the unlawful appropriation and plunder of real and personal property; the destruction of homes and businesses; and the destruction of places of worship.[4]
In the 1990s, several authorities, along with a considerable number of legal scholars, asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide.[5] These included a resolution by the United Nations General Assembly and three convictions for genocide in German courts, (the convictions were based upon a wider interpretation of genocide than that used by international courts).[6] In 2005, the United States Congress passed a resolution declaring that "the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide".[7]
However, in line with a majority of legal scholars, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ) have ruled that, in order for actions to be deemed genocide, there must be physical or biological destruction of a protected group and a specific intent to commit such destruction. To date, only the Srebrenica massacre has been found to be a genocide by the ICTY, a finding upheld by the ICJ.[8]
On 18 December 1992, the United Nations General Assembly resolution 47/121 in its preamble deemed ethnic cleansing to be a form of genocide stating:
Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of “ethnic cleansing”, which is a form of genocide, ...
On 12 July 2007, in its judgement on the Jorgic v. Germany case, the European Court of Human Rights noted that:
the ICTY, in its judgments in the cases of Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly disagreed with the wide interpretation of the 'intent to destroy' as adopted by the UN General Assembly and the German courts. Referring to the principle of nullum crimen sine lege, the ICTY considered that genocide, as defined in public international law, comprised only acts aimed at the physical or biological destruction of a protected group.—European Court of Human Rights.[11]
In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide.[12] In the unanimous ruling "Prosecutor v. Krstić", the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), located in The Hague, reaffirmed that the Srebrenica massacre was genocide,[13] the Presiding Judge Theodor Meron stating:
By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.[14]
In September 2006, former Bosnian Serb leader Momcilo Krajisnik was found guilty of multiple instances of crimes against humanity, but while the ICTY judges found that there was evidence that crimes committed in Bosnia constituted the criminal act of genocide (actus reus), they did not establish that the accused possessed genocidal intent, or was part of a criminal enterprise that had such an intent (mens rea).[15]
Currently, former Bosnian Serb leader Radovan Karadzic and Ratko Mladic are both on trial on two counts of genocide and other war crimes committed in Srebrenica, Prijedor, Kljuc, and other districts of Bosnia. Karadzic and Mladic are charged, separately, with:
Count 1: Genocide. – Municipalities: Bratunac, Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, Vlasenica and Zvornik.
Count 2: Genocide. – Municipality: Srebrenica.
Count 3: Persecutions on Political, Racial and Religious Grounds, a Crime Against Humanity. – Municipalities: Banja Luka, Bijeljina, Bosanska Krupa, Bosanski Novi, Bratunac, Brčko, Foča, Hadžići, Ilidža, Kalinovik, Ključ, Kotor Varoš, Novi Grad, Novo Sarajevo, Pale, Prijedor, Rogatica, Sanski Most, Sokolac, Trnovo, Vlasenica, Vogošća, Zvornik and Srebrenica.
Count 4: Extermination, a Crime Against Humanity.
Count 5: Murder, a Crime Against Humanity.
Count 6: Murder, a Violation of the Laws or Customs of War.
Count 7: Deportation, a Crime Against Humanity.
Count 8: Inhumane Acts (forcible transfer), a Crime Against Humanity.
Count 9: Acts of Violence the Primary Purpose of which is to Spread Terror among the Civilian Population, aViolation of the Laws or Customs of War.
Count 10: Unlawful Attacks on Civilians, a Violation of the Laws or Customs of War.
Count 11: Taking of Hostages, a Violation of the Laws or Customs of War. [16][17]
The month before the 10th anniversary of the Srebrenica Massacre, both houses of the United States Congress passed similarly worded resolutions asserting that the policies of aggression and ethnic cleansing as implemented by Serb forces in Bosnia and Herzegovina from 1992 to 1995, including the Srebrenica Massacre, constituted genocide.
On 27 June 2005, during the 109th Congress, the United States House of Representatives passed a resolution (H. Res. 199 sponsored by Congressman Christopher Smith with 39 cosponsors) commemorating the 10th anniversary of the Srebrenica genocide.[18] The resolution, as amended, was passed with an overwhelming majority of 370 – YES votes, 1 – NO vote, and 62 – ABSENT.[19] The resolution is a bipartisan measure commemorating 11 July 1995–2005, the tenth anniversary of the Srebrenica massacre.[20] The Senate version, S.Res.134, was sponsored by Senator Gordon Smith with 8 cosponsors and was agreed to in the Senate on 22 June 2005 without amendment and with unanimous consent.[7][21] The summaries of the resolutions are identical, with the exception of the name of the house passing the resolution, and the substitution of the word executed for murdered by the House in the first clause:
Expresses the sense of the [House of Representatives]/[Senate] that:
- (1) the thousands of innocent people executed at Srebrenica in Bosnia and Herzegovina in July 1995, along with all individuals who were victimized during the conflict and genocide in Bosnia and Herzegovina from 1992 to 1995, should be remembered and honored;
- (2) the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide;
- (3) foreign nationals, including U.S. citizens, who have risked, and in some cases lost, their lives in Bosnia and Herzegovina should be remembered and honored;
- (4) the United Nations (U.N.) and its member states should accept their share of responsibility for allowing the Srebrenica massacre and genocide to occur, and seek to ensure that this does not happen in future crises;
- (5) it is in the U.S. national interest that the responsible individuals should be held accountable for their actions;
- (6) persons indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) should be apprehended and transferred to The Hague without further delay, and countries should meet their obligations to cooperate with the ICTY; and
- (7) the United States should support the independence and territorial integrity of Bosnia and Herzegovina and peace and stability in southeastern Europe.
On 26 February 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case concurred with the ICTY's earlier finding that the Srebrenica massacre constituted genocide:[25]
ICJ President Rosalyn Higgins noted that there was a lot of evidence to prove that crimes against humanity and war crimes had been committed in Bosnia and Herzegovina such as widespread killings, the siege of towns, mass rapes, torture, deportation to camps and detention centres, but the ICJ did not have jurisdiction over them, because the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term".[25][26][27] Moreover, the Court found "that Serbia has not committed genocide" nor "conspired to" or "incited the commission of genocide". It did however, find that Serbia had failed "to take all measures within its power to prevent genocide in Srebrenica" and to comply fully with the ICTY by failing to transfer Ratko Mladić to the custody of the ICTY in the Hague and that Serbia must in future transfer to the Hague all ICTY-indicted individuals, who reside under Serbian jurisdiction.[28]
The Court's opinion that genocide did not take place across the entire occupied territory of Bosnia-Herzegovina and its finding that Serbia was not directly involved in the Srebrenica genocide have been strongly criticized. Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem,[29] described the Court's conclusions on the three questions before it as anything but uncontroversial:
First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision. Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome.
Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian-Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state. Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains.
Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative. At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide. So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.
Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide." He added:
The ICJ, which ... deals with controversies between states, was faced with Bosnia's claim that Serbia was responsible for the Srebrenica massacre. Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law.
According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic's and Kristic's, were neither acting as Serbia's agents nor receiving specific instructions from Belgrade... Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership? More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention".
This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between 13 and 19 July). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world?[30]
Vice-President of the International Court of Justice, Judge Al-Khasawneh, criticized the judgement as not reflecting the evidence with respect to Serbia's direct responsibility for genocide at Srebrenica:
The 'effective control' test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The 'overall control' test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.[31]
The International Criminal Tribunal never received complete archive of Supreme Defense Council minutes from Serbia. According to the explanation given by Sir Geoffrey Nice, former prosecutor in the trial of Slobodan Milosevic:
First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defence Council] records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenographically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ.[32]
The Higher Regional Court of Düsseldorf, Germany, in September 1997, handed down a genocide conviction against Nikola Jorgić, a Bosnian Serb who was the leader of a paramilitary group located in the Doboj region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica.[33]
In a judgement issued on 12 July 2007, the European Court of Human Rights (ECHR) in the Jorgic v. Germany case (Application no. 74613/01), reviewed the German court's judgements against Jorgic. In rejecting Jorgic's appeal, the ECHR affirmed that the German court's ruling was consistent with an interpretation of the Genocide Convention foreseeable at the time Jorgic committed the offence in 1992. However, the ECHR highlighted that the German court's ruling, based upon German domestic law, had interpreted the crime of genocide more broadly than and in a manner since rejected by international courts.[34] Under the wider definition that the German judiciary upheld, the ethnic cleansing carried out by Jorgić was a genocide because it was an intent to destroy the group as a social unit, and although the majority of scholars took the view that German genocide law should interpret genocide as the physical-biological destruction of the protected group, "a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit".[35][36]
In the case of Prosecutor v. Krstic (2 August 2001), the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide".[37] On 19 April 2004, this determination was upheld on appeal: "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ..." although like the lower court, the appeal court also ruled that ethnic cleansing might with other evidence lead to an inference of genocidal intent.[38] On 14 January 2000, the ICTY ruled in the Prosecutor v. Kupreškić and Others case that the Lašva Valley ethnic cleansing campaign in order to expel the Bosnian Muslim population from the region was persecution, not genocide per se.[39] The ECHR noted the opinion of the International Court of Justice ruling in the Bosnian Genocide Case that ethnic cleansing is not in and of itself genocide.[9]
In reference to legal writers, the ECHR also noted: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide".[40]
The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ..., is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable",[41] so "In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.",[42] and for this reason the court rejected Jorgic assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany.[43]
On 15 January 2009 the European Parliament passed a resolution calling on the European Union's executive authorities to commemorate 11 July as a day of remembrance and mourning of the 1995 Srebrenica genocide, explicitly recognized as such with reference to the ICJ decision. The resolution also reiterated a number of findings including the number of victims as "more than 8,000 Muslim men and boys" executed and "nearly 25,000 women, children and elderly people were forcibly deported, making this event the biggest war crime to take place in Europe since the end of the Second World War".[44] The resolution passed overwhelmingly, on a vote of 556 to 9.
About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date, after several plea bargains and some convictions that were successfully challenged on appeal, two men, Vujadin Popovic and Ljubisa Beara, have been found guilty of genocide, and two others, Radislav Krstic and Drago Nikolic, have been found guilty of aiding and abetting genocide, by an international court for their participation in the Srebrenica massacre.[45][46]
Four have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights.
On 29 July 2008 the State Court of Bosnia and Herzegovina found Milenko Trifunovic, Brano Dzinic, Aleksandar Radovanovic, Milos Stupar, Slobodan Jakovljevic Branislav Medan and Petar Mitrovic guilty of genocide for their part in the Srebrenica massacre,[47][48] and on 16 October 2009 the State Court of Bosnia and Herzegovina found Milorad Trbic, a former member of the Bosnian Serb security forces, guilty of genocide for his participation in the genocide in the Srebrenica massacre.[49]
Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide, either alone or in concert with other named members of a joint criminal enterprise. The indictment accused him of planning, preparing and executing the destruction, in whole or in part, of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in territories within Bosnia and Herzegovina including Bijeljina, Bosanski Novi, Brcko, Kljuc, Kotor Varos, Prijedor, Sanski Most and Srebrenica.[50] He died during his trial, on 11 March 2006, and no verdict was returned.
The ICTY has issued a warrant for the arrest of Radovan Karadzic and Ratko Mladic on several charges including genocide. Karadzic was arrested in Belgrade on 21 July 2008, and was transferred into the ICTY custody in the Hague nine days later on 30 July.[51] Ratko Mladic, was arrested in Serbia on 26 May 2011 after a decade in hiding.[52]
If a narrow definition of genocide is used, as favoured by the international courts, then during the Srebrenica massacre between 8,000 and 9,000 Bosnian (Bosniaks) men and boys were murdered and the remainder of the population (between 25,000–30,000, Bosniak women, children and elderly people) was forced to leave the area.
If a wider definition is used, then the number is much larger. For example in a statement on 23 September 2008 to the United Nations Dr Haris Silajdzic, as head of the Bosnia and Herzegovina Delegation to the United Nations, 63rd Session of the General Assembly, said that "According to the ICRC data, 200,000 people were killed, 12,000 of them children, up to 50,000 women were raped, and 2.2 million were forced to flee their homes. This was a veritable genocide and sociocide".[53] More recently in October 2009, the Research and Documentation Center in Sarajevo published its findings and found 97,214 persons dead, of whom 57,529 were soldiers.
While the majority of international opinion accepts the findings of the international courts, there remains some disagreement about the extent of the genocide and to what degree Serbia was involved (note: the involvement of the breakaway republic of Bosnian Serbs within Bosnia known as Republika Srpska, is not in doubt).
The Bosnian community assert that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.[54]
The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the Dusko Tadic case. In the judgment delivered in July 1999, the Appeals Chamber found that the Army of Republika Srpska was "under overall control" of Belgrade and the Yugoslav Army, which meant that they had funded, equipped and assisted in coordination and planning of military operations. Had the International Court of Justice accepted this finding of the Tribunal, Serbia would have been found guilty of complicity in the Srebrenica genocide. Instead it concluded that the Appeals Chamber in the Tadic case "did not attempt to determine the responsibility of a state but individual criminal responsibility". Paradoxical as it may be, the outcome of this legal suit filed back in March 1993 arrived too early for Bosnia and Herzegovina. Radovan Karadzic arrest came over a year after the ICJ gave its judgement,[51] and Ratko Mladic, also accused of Bosnian genocide, was arrested in May 2011. Slobodan Milosevic died during the trial and three trials of former Serbian officials have just started.[55]
Although the ICTY prosecutors had access to them during the trials, some of the minutes of wartime meetings of Yugoslavia’s political and military leaders, were not made public as the ICTY accepted the Serbian argument that to do so would damage Serbia's national security. Although the ICJ could have subpoenaed the documents directly from Serbia, it did not do so and relied instead on those made public during the ICTY trials. Two of the ICJ judges criticised this decision in strongly worded dissents. Marlise Simons reporting on this in the New York Times, states that "When the documents were handed over [to the ICTY], the lawyers said, a team from Belgrade made it clear in letters to the tribunal and in meetings with prosecutors and judges that it wanted the documents expurgated to keep them from harming Serbia’s case at the International Court of Justice. The Serbs made no secret of that even as they argued their case for 'national security,' said one of the lawyers, adding, 'The senior people here [at the ICTY] knew about this'.". Simons continues that Rosalyn Higgins the president of the ICJ, declined to comment when asked why the full records had not been subpoenaed, saying that "The ruling speaks for itself". Diane Orentlicher, a law professor at American University in Washington, commented "Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference." , and William Schabas, a professor of international law at the University of Ireland in Galway, suggested that as a civil rather than a criminal court, the ICJ was more used to relying on materials put before it than aggressively pursuing evidence which might lead to a diplomatic incident.[57]
Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that women and children were largely spared and that only military age men were targeted.[58][59] This view is not supported by the findings of the ICJ or the ICTY.[60] According to Sonja Biserko, president of the Helsinki Committee for Human Rights in Serbia, and Edina Becirevic, the faculty of criminology and security studies of the University of Sarajevo:
Denial of the Srebrenica genocide takes many forms [in Serbia]. The methods range from the brutal to the deceitful. Denial is present most strongly in political discourse, in the media, in the sphere of law, and in the educational system.[61]