{"id":1955,"date":"2021-02-08T13:12:50","date_gmt":"2021-02-08T12:12:50","guid":{"rendered":"http:\/\/www.balkan-conflicts-research.com\/archive\/?page_id=1955"},"modified":"2021-02-08T13:12:50","modified_gmt":"2021-02-08T12:12:50","slug":"defining-genocide-down-the-case-of-srebrenica-george-szamuely","status":"publish","type":"page","link":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/","title":{"rendered":"Defining Genocide Down: The Case of Srebrenica – George Szamuely"},"content":{"rendered":"
\n

Srebrenica is the main business of the Hague Tribunal and establishing genocide in Srebrenica is the court\u2019s principal political task. Prof. George Szamuely closely examines the Tribunal\u2019s questionable legal rationale used in arguing its Srebrenica genocide case.<\/span><\/h1>\n<\/div>\n
\n
\n
\n

Genocide, which had not featured at Nuremburg, is the pride and glory of the U.N. tribunals. The International Criminal Tribunal for Rwanda, which had come into existence more than a year after the International Criminal Tribunal for the Former Yugoslavia, had beaten the latter to the punch. On May 1, 1998, a former prime minister of Rwanda, Jean Kambanda, had pleaded guilty to genocide and had been sentenced to life imprisonment. Later that year, the ICTR became the first court ever to convict anyone of genocide. On Sept. 2, it convicted a former mayor, Jean-Paul Akayesu, of genocide, finding, among other things, that rape and sexual assault could constitute genocide.2<\/sup><\/a><\/p>\n

Genocidal intent<\/strong><\/h1>\n

The willful extermination of people is a very grave crime\u2014the gravest, in fact. An accumulation of wartime atrocities\u2014killings, rape, torture\u2014will not in and of itself constitute genocide. International law stipulates that the crime of genocide is made up of a number of elements, each one of which must be present and each one of which must be proved.<\/p>\n

Raphael Lemkin, who coined the term \u201cgenocide\u201d and who helped draft the 1948 Genocide Convention, defined it as signifying<\/p>\n

\u201c\u2026a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.\u201d3<\/sup><\/a><\/p>\n

There has to be a coordinated plan and it has to be directed against the national group as a whole. The Genocide Convention of 1948, states that genocide refers to the \u201cintent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.\u201d The convention lists as punishable the crimes of: \u201c(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.\u201d The meaning is clear: There has to be \u201can intent to destroy.\u201d And there has to be a target: a \u201cnational, ethnical, racial or religious group, as such.\u201d In other words, killings are carried out not with a view to winning a war or to inflicting as much pain and suffering as possible. They are carried out with a view to destroying a targeted group. As World Court Judge Milorad Kre\u0107a put it in his separate opinion in the Bosnia genocide case,<\/p>\n

\u201cTo qualify as genocidal, the intention must be aimed at individuals who constitute the group in their collective capacity, the capacity of members of the protected group whose destruction is an incremental step in the realization of the overall objective of destroying the group.\u201d<\/p>\n

Genocide requires an instigator or, at the very least, a knowing accomplice. Genocide can\u2019t be committed inadvertently or through omission. Responsibility has to be direct; it can\u2019t come about through negligence or dereliction of duty. The command responsibility theory of liability cannot apply to genocide. Genocide can\u2019t be committed through failure to prevent and punish. According to a 1985 U.N. Commission on Human Rights <\/a>report,<\/p>\n

It is the element of intent to destroy a designated group wholly or partially which raises crimes of mass murder and against humanity to qualify as the special crime of genocide. An essential condition is provided by the words \u201cas such\u201d\u2026which stipulates that, in order to be characterized as genocide, crimes against a number of individuals must be directed at their collectivity or at them in their collective character or capacity.4<\/sup><\/a><\/p>\n

To be sure, the authors of that report realized that intent may be hard to prove in the absence of documentary evidence. Consequently, the U.N. report said that a court could \u201cinfer the necessary intent from sufficient evidence, and that in certain cases this would include actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct.\u201d This sounds like a command responsibility form of liability. It isn\u2019t. The report is saying that there may be times when negligence or recklessness are on such a scale that no other interpretation is possible than that the genocide was the willed outcome. In any case, the United Nations did not adopt this report.<\/p>\n

In 1996, the International Law Commission presented a report to the United Nations articulating customary international law on genocide. Genocidal acts, according to the ILC report, \u201care by their very nature conscious, intentional or volitional acts\u2026.These are not the type of acts that would normally occur by accident or even as a result of mere negligence\u2026.The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited act.\u201d5<\/sup><\/a><\/p>\n

In other words, a genocidal state of mind is required for genocide to be committed. This is customary international law. Even M. Cherif Bassiouni\u2019s Commission of Experts, the report of which became the basis for the establishment of the ICTY, agreed on this point. In its Final Report, the commission said,<\/p>\n

It is the element of intent to destroy a designated group in whole or in part, which makes crimes of mass murder and crimes against humanity qualify as genocide. To be genocide within the meaning of the Convention, the crimes against a number of individuals must be directed at their collectivity or at them in their collective character or capacity. This can be deduced from the words \u2018as such\u2019 stated in article II of the Convention.6<\/sup><\/a><\/p>\n

The World Court affirmed this in its 2007 Bosnia decision in which it denied that Serbia had committed genocide in Bosnia. The court said,<\/p>\n

\u201cIt is not enough to establish\u2026that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis<\/em>\u2026.It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in [the Genocide Convention] must be done with intent to destroy the group as such in whole or in part. The words \u2018as such\u2019 emphasize that intent to destroy the protected group.\u201d\u00a07<\/sup><\/a><\/p>\n

The key issue was the \u201cspecial or specific intent.\u201d As ICJ Judge Milenko Kre\u0107a put it in his separate concurring opinion, \u201cIn the absence of that intent, whatever the degree of atrocity of an act and however similar it might be to the acts referred to in the Convention, that act can still not be called genocide.\u201d<\/p>\n

Considerations such as these would play little part in the deliberations of a court that was determined to create new international humanitarian law. On Aug. 2, 2001, one month after President Slobodan Milo\u0161evi\u0107\u2019s transfer to The Hague, the ICTY convicted VRS Drina Corps commander General Radislav Krsti\u0107, of genocide relating to the July 1995 attack on Srebrenica, and sentenced him to 46 years in prison. To secure its desperately-sought-for genocide conviction, the ICTY twisted the words of the Genocide Convention out of all recognition. It changed the meaning of \u201cintent\u201d; it changed the meaning of \u201cdestroy\u201d; it changed the meaning of \u201cgroup.\u201d<\/p>\n

However, armed with Krsti\u0107 decision, the ICTY, through its all-embracing \u201cjoint criminal enterprise\u201d conspiracy theory, was now able to extend the genocide charge to Milo\u0161evi\u0107, the biggest of the ICTY\u2019s big fish. On Nov. 22, 2001, the ICTY issued its genocide indictment against Milo\u0161evi\u0107. But how would the ICTY prove these genocide charges? Genocide requires a high standard of proof. Where was the evidence that Milo\u0161evi\u0107 intended to commit genocide? There was no Mein Kampf <\/em>among Milo\u0161evi\u0107\u2019s publications. There were no racist speeches; Milo\u0161evi\u0107 had made no derogatory comments about other national groups. He had never touted the supposed racial superiority of the Serbs over their neighbors. He had never advocated the creation of Greater Serbia. He had been the champion of multinational Yugoslavia. (Milo\u0161evi\u0107\u2019s Serbia was the most multinational republic in the Balkans.) There were no forces under his command fighting in Bosnia. There was no evidence that Milo\u0161evi\u0107 ever exercised effective control over the Bosnian Serb armed forces. Above all, there was not a scintilla of evidence that Milo\u0161evi\u0107\u2019s Serbia ever pursued a policy of genocide as a matter of state policy.<\/p>\n

The ICTY executed a deft maneuver. Milo\u0161evi\u0107 had to have been in on this Bosnian Serb-led genocide because, in the words of the ICTY\u2019s indictment, he exerted \u201ceffective control over elements of the JNA and VJ which participated in the planning, preparation, facilitation and execution of the forcible removal of the majority of non-Serbs\u2026.He provided financial, logistical and political support to the VRS\u2026.He exercised substantial influence over, and assisted, the political leadership of Republika Srpska.\u201d Milo\u0161evi\u0107, the ICTY also claimed, \u201cparticipated in the planning and preparation of the take-over of municipalities in Bosnia and Herzegovina and the subsequent forcible removal of the majority of non-Serbs\u2026from those municipalities.\u201d<\/p>\n

\u201cEffective control,\u201d \u201cfinancial\u2026support,\u201d \u201csubstantial influence\u201d\u2014this was standard ICTY fare, but not terribly useful for its purposes. The ICTY needed to prove genocidal intent and for that it had to have evidence that Milo\u0161evi\u0107 willed genocide. In any case, the ICTY\u2019s claims about \u201ceffective control\u201d contradicted the accounts and testimony of Westerners who had been direct participants in the events the ICTY purported to be adjudicating. David Owen, Philippe Morillon, Lewis MacKenzie, Michael Rose had all expressed skepticism about the extent of Milo\u0161evi\u0107\u2019s control over the leaders of the Bosnian Serb republic. The official Dutch government report on Srebrenica concluded that \u201cWhile it cannot be denied that Milo\u0161evi\u0107 could exert a certain degree of influence on Mladi\u0107, it was unclear how far this went.\u201d In 2007, the ICJ had also determined that Belgrade did not issue instructions to, or exercise \u201ceffective control\u201d over, the VRS.<\/p>\n

The ICTY elided the issue of \u201ceffective control\u201d by focusing instead on the gratifyingly nebulous notion of \u201csubstantial influence.\u201d But even here the ICTY was not acting with any consistency. In early 2001, the ICTY had ruled that \u201csubstantial influence\u201d does not suffice to establish the kind of superior-subordinate relationship necessary for a command responsibility conviction. In Prosecutor v. Delali\u0107<\/em>, the ICTY appeals court declared that,<\/p>\n

\u201c[S]ubstantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates, which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and judicial decisions.\u201d<\/p>\n

Neither state practice nor judicial authority supports \u201ca theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed.\u201d8<\/sup><\/a> The ruling seemed unusual, but not when one took into consideration the identity of the defendant in question. Zejnil Delali\u0107 was a commander of the First Tactical Group of the Bosnian Muslim forces. The case involved the notorious \u010celebi\u0107i camp, which was run by the Bosnian Muslims. According to prosecutors, at \u010celebi\u0107i, \u201cdetainees were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhumane treatment.\u201d Delali\u0107 coordinated Bosnian Muslim and Bosnian Croat forces in the area and had authority over the \u010celebi\u0107i camp. The ICTY trial court duly acquitted Delali\u0107, arguing that that he lacked \u201csufficient command and control over the \u010celebi\u0107i camp and its guards to found his criminal responsibility as a superior for the crimes\u201d committed in the camp. The ICTY appeals court upheld his acquittal.<\/p>\n

\u201cThe doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates,\u201d the Delali\u0107 <\/em>trial and appeals courts had both asserted.9<\/sup><\/a> For command responsibility to be applicable, \u201cit is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences.\u201d Material ability to prevent and punish<\/em>! If the ICTY were serious about this, it would have had to abandon its genocide case against Milo\u0161evi\u0107. Whatever influence Milo\u0161evi\u0107 may at one time or another have had over Radovan Karad\u017ei\u0107 or Ratko Mladi\u0107 and whatever financial or logistical support he may have provided, it was ludicrous to suggest that Milo\u0161evi\u0107 ever had the material ability to prevent and punish crimes committed by forces that were not under his command. Thus, by charging Milo\u0161evi\u0107 with responsibility for possible crimes committed by the Bosnian Serb forces, including the gravest crime of all, the ICTY was not only flouting international criminal law, common sense and the testimony of disinterested outsiders but dicta that it had itself issued a few months earlier.<\/p>\n

However, as Scharf had cheerfully admitted, the ICTY was not in the truth-seeking business. \u201cIn creating the Yugoslavia tribunal statute,\u201d he explained, the U.N. Security Council set three objectives:<\/p>\n

\u201c[F]irst, to educate the Serbian people, who were long misled by Milo\u0161evi\u0107\u2019s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milo\u0161evi\u0107 and other top leaders and disclosing the ways in which the Milo\u0161evi\u0107 regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia\u2019s newly elected leaders to distance themselves from the repressive policies of the past.\u201d\u00a010<\/sup><\/a><\/p>\n

In other words, the ICTY was created in order to prove what NATO desperately wanted proven: The Serbs were to blame for the wars. The Serbs alone committed genocide. All Serbs everywhere took their marching orders from Slobodan Milo\u0161evi\u0107.<\/p>\n

The ICTY has followed this script diligently. If Milo\u0161evi\u0107\u2019s guilt couldn\u2019t be established directly, the ICTY went the indirect route. Milo\u0161evi\u0107 was responsible for genocide, the Nov. 22 indictment claimed, through his control and manipulation of \u201cSerbian state-run media.\u201d The media followed Milo\u0161evi\u0107\u2019s orders and \u201cspread exaggerated and false messages of ethnically based attacks by Bosnian Muslims and Croats against Serb people intended to create an atmosphere of fear and hatred among Serbs living in Serbia, Croatia and Bosnia and Herzegovina which contributed to the forcible removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of Bosnia and Herzegovina.\u201d The Serbs were collectively guilty. Yet they were also innocent since they had committed their crimes while in thrall to \u201cMilo\u0161evi\u0107\u2019s propaganda.\u201d The ICTY could thus assert collective guilt\u2014something the international justice brigade had promised it would not do\u2014but punish only the individuals who had misled the befuddled Serb masses.<\/p>\n

The attempt to square the circle ran into problems right away. First, the ICTY needed to prove, rather than to assume, that the stories the Serbian state-run media ran were \u201cexaggerated and false.\u201d Second, if the stories were indeed \u201cexaggerated and false,\u201d then the ICTY needed to prove that they were known to be \u201cexaggerated and false\u201d and were disseminated with a view to encouraging the forcible removal of non-Serbs. The ICTY would also need to establish that forcible removal amounted to, or at least inevitably led to, genocide. For good measure, the ICTY would need to prove, rather than simply take for granted, that the only media that mattered in Yugoslavia were \u201cSerbian state-run media.\u201d \u201cSerbian state-run media\u201d referred to television. However, most newspapers and magazines in Serbia during the 1990s were not under Milo\u0161evi\u0107\u2019s control; indeed they were openly very hostile to Milo\u0161evi\u0107.<\/p>\n

It is interesting to note that only Serbs have been accused of spreading \u201cexaggerated and false messages of ethnically based attacks\u2026intended to create an atmosphere of fear and hatred.\u201d11<\/sup><\/a> The ICTY has never charged non-Serbs with creating an atmosphere of fear\u00a0 and hatred by spreading false and exaggerated stories about Serbs. Yet a number of possible indictees spring to mind. Kofi Annan spoke of \u201chundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers\u2019 eyes\u201d\u2014 all at the hands of the Serbs. Rudolf Scharping claimed Serbs were forcing children to \u201cwatch their teachers being assassinated.\u201d Blair said Serbs were engaging in \u201cracial genocide\u201d in Kosovo.<\/p>\n

For the better part of 10 years, the Western media lived on a steady diet of made-up stories of Serb concentration camps and rape camps, of Serbs playing football with severed heads, of Serbs executing 100,000 men, of Serbs mutilating bodies at Ra\u010dak, of Serbs forcing \u201ca man to cut open his grandson\u2019s stomach and eat part of his liver\u201d12<\/sup> <\/a>(this entirely unlikely story came from the mouth of one of the ICTY\u2019s own employees, Judge Riad, one of the trial judges in the Krsti\u0107 case). Without question, these false stories incited hatred toward the Serbs and led to crimes against Serbs, chief among them NATO\u2019s 11-week bombing campaign. The ICTY either believed these allegations to be true or pardonable exaggerations\u2014they are the sorts of things the Serbs would have done if given the chance to do so. Or perhaps the Serbs actually did do those things, but the evidence had yet to be discovered.<\/p>\n

The Krsti\u0107 decision<\/strong><\/h1>\n

The ICTY was clearly very proud of the reasoning by which it arrived at its Aug. 2, 2001, genocide conviction of Radislav Krsti\u0107. Heaping praise upon itself, the court began its judgment by misquoting Hegel and went on with mellifluous, self-congratulatory phrases: \u201cdoing its duty in meting out justice,\u201d \u201ccreating a better world,\u201d \u201cmeticulous analysis\u201d and \u201cscrupulous examination.\u201d Not only that, the court had been \u201cparticularly vigilant\u201d about keeping \u201cthe necessary distance for carrying out its work of justice with the requisite calm and as objectively as possible.\u201d13<\/sup><\/a> Needless to say, these laudatory words made their way into awed media accounts of this \u201chistoric\u201d ruling.<\/p>\n

After all the self-congratulation, the abysmal reasoning of the judgment comes as a bit of a shock. Extraordinarily, the court couldn\u2019t even come up with a coherent account of what it believed had happened at Srebrenica. At times, the Krsti\u0107 judgment suggested that the Bosnian Serbs took 7,000 or 8,000 men out of the town and executed them in cold blood. \u201cThe forensic evidence supports the Prosecution\u2019s claim that, following the take- over of Srebrenica, thousands of Bosnian Muslim men were summarily executed and consigned to mass graves,\u201d the court announced. \u201c7,000 to 8,000 Bosnian Muslim men and boys were executed in the most cruel manner.\u201d Fine: This is the commonly-held view of what happened at Srebrenica, one that the ICTY has done much to foster.<\/p>\n

At other times, however, the Krsti\u0107 judgment suggested that the Muslim men were killed while they were seeking to reach Bosnian Muslim lines. In other words, they were killed while undertaking a military operation, namely, a strategic retreat\u2014a very different proposition entirely. Srebrenica\u2019s military-aged men, the court explained, \u201cdecided to flee through the woods towards Tuzla much further to the north in territory under Bosnian Muslim control. About ten to fifteen thousand men formed a column several kilometres long and left on foot through the woods.\u201d<\/p>\n

At the head and at the rear of the column was the 28th<\/sup> Division of the Bosnian Muslim army. \u201cAbout one-third was able to get through, including 3,000 men of the 28th Division,\u201d the judges said. \u201cThe first of these arrived in Bosnian Muslim controlled territory on 16 July. The others, subjected to shelling and automatic weapons fire, were captured or surrendered\u2026. In all, 7 to 8,000 men were captured by the Serbian forces. Almost all of them were killed.\u201d \u201cAbout ten to fifteen thousand men,\u201d [a]bout one-third\u201d\u2014the vagueness of these numbers contrasts starkly with the pinpoint\u2014and unchanging\u2014precision of the number of men the Serbs had supposedly executed at Srebrenica.<\/p>\n

This retreat to Tuzla story contradicts the more popular story. If the fleeing Muslim men, armed members of the 28th<\/sup> Division, were subjected to shelling and automatic weapons fire, how could they have been \u201csummarily executed\u201d? How could the court be sure that the men who didn\u2019t reach Tuzla were either captured or surrendered and killed afterward? How could the court know that no one was killed in combat? More important, how was the ICTY able to determine that armed military-aged men are civilians? A retreating army is redeploying; it is not a refugee convoy. The Bosnian Serbs were under no obligation to help Muslim forces to redeploy. Killing Muslim fighters while they are fleeing is not genocide; it is not even a war crime. As the Krsti\u0107 court acknowledged, the Muslim armed forces had refused to surrender. Mladi\u0107 had \u201cdemanded that the ABiH lay down its weapons,\u201d and had promised Srebrenica town leaders that \u201che would organize the transport of the population.\u201d By refusing to surrender, the Bosnian Muslim men became a legitimate military target. Yet the ICTY has continued to insist that the attack on the column constituted an attack on civilians. In its 2010 Srebrenica judgment, it declared:<\/p>\n

\u201cThe same conditions that prompted the women, children, and the elderly to flee to Potocari, including the catastrophic humanitarian situation due to the restrictions of humanitarian aid and the military attack against the enclave, similarly compelled the formation of the column and the departure of the men. It therefore also formed an intrinsic part of the widespread and systematic attack against the civilian population. In the case of the military component of the column, albeit their flight with the column has not been found to constitute a part of the forcible transfer, the Trial Chamber finds it was undoubtedly the direct consequence of the military assault on the enclave by the VRS, which in and of itself constituted a widespread and systematic attack against a civilian population.\u201d14<\/sup><\/a><\/p>\n

The circular argument seems to runs like this: The Bosnian Muslim armed forces fled in terror in the face of a Serb armed attack against a civilian target. Therefore, firing on retreating Muslim armed forces constituted an attack against civilians.<\/p>\n

\u201cThe ICTY\u2019s problem had been foreshadowed by the August 1995 report on Srebrenica written by the Special Rapporteur of the Commission on Human Rights. The report said, \u201cAttacks against combatants are permitted in the course of normal warfare. This poses a problem in the situation in question as the initial column and subsequent splinter groups were comprised of a mixture of civilians and combatants. Thus it would be necessary to determine on a case-by-case basis whether each individual attack on a particular group constitutes a violation of international humanitarian law.\u201d15<\/sup><\/a><\/p>\n

Not only that, international war crimes law specifically prohibits armies from using civilians as shields. Article 51 (7) of the 1977 Protocol Additional to the Geneva Conventions says,<\/p>\n

\u201cThe presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.\u201d<\/p>\n

By including civilian refugees within a retreating armed column, whether to prevent Serb attacks or to cause a humanitarian disaster in order to provoke NATO into action, the Muslims had violated international humanitarian law.<\/p>\n

Thoroughly confusing issues, the Krsti\u0107 court jumped from one version of Srebrenica to the other as necessity dictated. High emotion was more important than getting facts straight or numbers to add up.<\/p>\n

The court\u2019s arithmetic was as shaky as its reasoning: At one point, the court claimed that about one-third of the column \u201cwas able to get through, including 3,000 men of the 28th Division.\u201d However, the court also said that \u201cOn 16 July 1995, Lieutenant Colonel Vinko Pandurevic, the Commander of the Zvornik Brigade, reported that, in view of the enormous pressure on his Brigade, he had taken a unilateral decision to open up a corridor to allow about 5,000 unarmed members of the Bosnian Muslim column to pass through.\u201d16<\/sup><\/a><\/p>\n

So, 3,000 men of the 28th<\/sup> Division got through, plus 5,000 unarmed men were allowed through. That already comes to 8,000. Recall that the Krsti\u0107 court repeatedly refers to retreating Bosnian Muslim column as comprising \u201cbetween 10,000 and 15,000 men.\u201d If the column was 10,000 strong, then only 2,000 would remain unaccounted for. If it were 15,000 strong, 7,000 would remain unaccounted for. Either way, it is hard to see how the court could come up with the 7 to 8,000 executed Muslim men number. The court had already acknowledged that there were very few military-aged men among the 25,000 civilians who crowded into the U.N. compound at Poto\u010dari.<\/p>\n

Even more baffling was the Krsti\u0107 court\u2019s assertion that \u201cOverall\u2026as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing.\u201d17<\/sup><\/a> The court here was probably referring to the International Committee of\u00a0 the Red Cross\u2019 press release from September 1995, in which it disclosed that it had<\/p>\n

\u201c\u2026received over 10,000 requests for family news from civilians who were transferred to Tuzla in central Bosnia. About 2,000 of these requests were from different family members seeking the same individuals. An in-depth analysis has shown that the remaining 8,000 requests fall into two categories: about 5,000 concern individuals who apparently fled the enclave before it fell, while the remaining 3,000 relate to persons reportedly arrested by the Bosnian Serb forces.\u201d18<\/sup><\/a><\/p>\n

This release from the Red Cross was to cause an enormous amount of confusion, leading to immediate claims that 8,000 Srebrenica men had been killed.<\/p>\n

An inability to come up with a coherent Srebrenica narrative was only the start of the Krsti\u0107 court\u2019s problems. The ICTY wanted a genocide conviction very badly. However, the forensic evidence unearthed by the Srebrenica investigators failed to indicate anything remotely resembling genocide. According to the Krsti\u0107 court, \u201cthe experts were able to conservatively estimate that a minimum of 2,028 separate bodies were exhumed from the mass-graves. Identity documents and belongings, found in most of the exhumed graves, suggest that the victims were linked with Srebrenica.\u201d19<\/sup> <\/a>This 2,028 number was well short of 7 to 8,000. The numbers were still falling well short of the desired total by the time ICTY forensic investigator Dean Manning came to testify in the Milo\u0161evi\u0107 trial. On Jan. 26, 2004, Manning estimated that \u201cthe number of bodies located within the exhumed graves conducted by the ICTY\u201d was 2,570. Now, the region had been the scene of fairly intense fighting for more than three years. Serbs had killed Muslims. But Muslims had also killed Serbs. Many bodies had to have been buried there\u2014and in mass graves. There was no time for individual burials, certainly not during the summer when bodies decompose very quickly. Serbs and Muslims are physically indistinguishable from one another.<\/p>\n

How was the Krsti\u0107 court able then to conclude that all of the exhumed bodies were Muslims from Srebrenica? Indeed, how could it determine that the bodies were those of Muslims, rather than Serbs? \u201c[A]rtefacts found at the majority of the gravesites, such as verses from the Koran, suggest the presence of victims with Muslim religious affiliation,\u201d the Krsti\u0107 court explained. The presence of verses from the Koran was a little surprising. For years, Western commentators had urged their governments to support the Bosnian Muslims on the ground that here were Muslims who were entirely secular. Now, apparently their most personal belongings consisted of verses from the Koran. Be that as it may, the court made no mention of how many such verses from the Koran were found or what other kinds of artifacts were taken to be evidence of buried Muslims. The court also adopted a curiously reticent tone: The presence of \u201cvictims with Muslim religious affiliation\u201d was only suggested.<\/p>\n

As for how they died, forensic evidence showed that the \u201coverwhelming majority of victims located in the graves\u201d died of gunshot wounds. No surprise there. However, the court concluded that \u201cthe majority of bodies exhumed were not killed in combat; they were killed in mass executions.\u201d How was it able to determine that? Investigators had discovered 448 blindfolds and 423 ligatures. These numbers have remained remarkably consistent. In its June 2010 Srebrenica judgment, the ICTY referred to 448 blindfolds and 413 ligatures.20<\/sup> <\/a>Blindfolds and ligatures \u201care inconsistent with combat casualties.\u201d The term \u201cmajority\u201d sounds strange. What does it mean? 51%? 75%? 90%? It is hard to see how 448 blindfolds and 423 ligatures would allow anyone to conclude that the majority of 2,028 exhumed bodies comprised execution victims. And how does one go from 448 to 7 to 8,000? Incidentally, the ICTY was guilty of double-counting here since a number of the exhumed corpses had both blindfolds and ligatures. According to forensic expert Ljubisa Simic,<\/p>\n

The total number of cases (or purported bodies) with blindfolds and\/or ligatures is, by our count, 442\u2026.Some had only blindfolds, others had only ligatures, but many had both. Thus there was much overlap between the two groups. However, this is not mentioned anywhere in the judgment nor is there the slightest allusion to the fact that in a significant number of cases the same individuals may have had a blindfold and a ligature.21<\/sup><\/a><\/p>\n

Indeed, the court undermined its claim that the presence of ligatures and blindfolds proved that the majority was executed by explaining that<\/p>\n

\u201c\u2026at those sites where no blindfolds or ligatures were found during exhumations, the evidence that the victims were not killed in combat was less compelling. Significantly, some of the gravesites located in the Nova Kasaba and Konjevic Polje area, where intense fighting took place between the Bosnian Serb and Bosnian Muslim forces, on 12 and 13 July 1995, were amongst those where very few blindfolds and ligatures were uncovered.\u201d<\/p>\n

Intense fighting took place<\/em>! So now we\u2019re not talking about execution victims. July 12 and 13 weren\u2019t the only days on which heavy fighting took place. On July 15, according to the Krsti\u0107 court, the Zvornik Brigade had notified Drina Corps Command of \u201cheavy combat with the Bosnian Muslim column, as well as the actions of Bosnian Muslim forces who were attacking the front line in an effort to assist the column in breaking through.\u201d On July 16, Pandurevic, the commander of the Zvornik Brigade, \u201creported that, in view of the enormous pressure on his Brigade, he had taken a unilateral decision to open up a corridor to allow about 5,000 unarmed members of the Bosnian Muslim column to pass through.\u201d22<\/sup> <\/a>Unarmed, of course\u2014this after all that heavy fighting!<\/p>\n

Yet, in a fine demonstration of its \u201cmeticulous analysis,\u201d the court happily concluded that, \u201cAlthough the Trial Chamber cannot dismiss the possibility that some of the exhumed bodies were killed in combat, it accepts that the majority of the victims were executed.\u201d<\/p>\n

The Krsti\u0107 court had blithely discounted the evidence it had heard. On the basis of several hundred blindfolds and ligatures, the judges announced that<\/p>\n

It has been established beyond all reasonable doubt that Bosnian Muslim men residing in the enclave were murdered, in mass executions or individually\u2026.Bosnian Serb forces executed several thousand Bosnian Muslim men. The total number is likely to be within the range of 7,000-8,000 men.<\/p>\n

Beyond all reasonable doubt<\/em>! The claim sounded impressive, but there was very little to justify it.<\/p>\n

In the absence of forensic evidence, what was the basis of the claim that the Serbs had executed 7,000 to 8,000 men? It goes back to the assertions made by the Bosnian Muslim government in July 1995 that 8,000 men from Srebrenica remained unaccounted for. Subsequently, the men were deemed missing, presumed dead. Then they were deemed dead. Finally, they were deemed to have been executed. This progression, all in a matter of months was quite extraordinary. How was it possible to be so definitive about these numbers when no one even knew the size of Srebrenica\u2019s population at the time of the attack? Estimates ranged from 35,000 to 42,000. The ICTY was even unsure whether the number of men in the column that set out from Srebrenica to Tuzla was 10,000 or 15,000.<\/p>\n

The Krsti\u0107 court wasn\u2019t on any more solid ground when it came to witnesses. Though the ICTY prides itself, as Judge Patricia M. Wald has explained, on \u201clavish use of witness testimony,\u201d the Krsti\u0107 court was strikingly short of eyewitnesses. Wald, one of the three Krsti\u0107 trial judges and a long-time judge on the U.S. Circuit Court of Appeals for the District of Columbia (second only to the U.S. Supreme Court in importance), explained the lack of witnesses as a consequence of the effectiveness of the massacres\u2014\u201conly one or two victims survived. Sometimes, despite extensive rumors of executions, there were no survivors at all and therefore no witnesses.\u201d23<\/sup><\/a>Extraordinary efficiency from people who a little more than three years later at Ra\u010dak absent-mindedly left the bodies of 43 executed civilians lying around for the KLA and NATO observers to stumble upon the next day.<\/p>\n

However, the ICTY didn\u2019t give up on witnesses entirely. It claimed to have at its disposal the testimony of a man who was not simply an eyewitness but an active participant in the executions. Dra\u017een Erdemovi\u0107, a Bosnian Croat who served, successively, in the Yugoslav People\u2019s Army (JNA), Alija Izetbegovic\u2019s ABiH, the Croatian HVO and, finally, in the army of the Republika Srpska, recounted for the ICTY a horrific tale of mass murder. According to his story, he and seven or so members of the unit to which he belonged, the 10th<\/sup>Sabotage Detachment, were ordered by an unidentified VRS lieutenant colonel to go to Branjevo military farm, near Pilica, to execute Muslim prisoners of war. At the farm, over a period of about five hours, Erdemovi\u0107 and members of his unit, a number of whom were Croats and Slovenes, shot in cold blood some 1,200 unarmed Muslims bussed in from Srebrenica. Erdemovi\u0107 claimed to have personally executed between 70 and 100 men.<\/p>\n

In February 1996, the Serbian authorities arrested Erdemovi\u0107 and, surprisingly, transferred him swiftly to The Hague. ICTY prosecutors \u00a0kept him under wraps, allowing only a few stage-managed appearances during which he was protected from serious cross-examination. On May 22, 1996, the ICTY indicted him for crimes against humanity, though not genocide. On May 31, he pleaded guilty to one crime against humanity. On June 27, a commission of experts concluded that Erdemovi\u0107\u2019s mental condition did not permit his standing trial. However, a few days afterward, on July 5, Erdemovi\u0107 was happily testifying in Rule 61 hearings against Karad\u017ei\u0107 and Mladi\u0107. Using Erdemovi\u0107\u2019s testimony, the ICTY, on July 11, issued international arrest warrants against Karad\u017ei\u0107 and Mladi\u0107.<\/p>\n

On Nov. 29, 1996, the ICTY sentenced Erdemovi\u0107 to 10 years\u2019 imprisonment\u2014a remarkably lenient sentence for a court that cheerfully doles out decades\u2019 long terms for much less grave crimes. In 1998, Goran Jelisi\u0107 pleaded guilty to violations of the laws or customs of war and crimes against humanity arising from the murder of 12 people in Brcko in 1992; he was sentenced to 40 years in prison.24<\/sup><\/a><\/p>\n

The ICTY\u2019s generosity didn\u2019t satisfy Erdemovi\u0107. The supposedly contrite mass executioner appealed, claiming that his offences had been committed under duress and \u201cwithout the possibility of another moral choice.\u201d The prosecutors agreed. On Jan. 14, 1998, the trial court reconvened, and Erdemovi\u0107, with the consent of the prosecutors, withdrew his guilty plea to crime against humanity and, instead, pleaded guilty to the lesser crime of violation of the laws or customs of war. The prosecutors urged the court to show leniency to Erdemovi\u0107, arguing that he had provided very significant cooperation. The judges obliged and reduced Erdemovi\u0107\u2019s sentence to five years. As it turned out, he only served 3 \u00bd years.<\/p>\n

The ICTY\u2019s extraordinary show of compassion was not the strangest aspect of the case. More bizarre has been its reluctance to conduct any kind of a serious investigation into what may have happened at Branjevo farm. There were gaping holes in Erdemovi\u0107\u2019s story, yet neither prosecutors nor judges nor, shockingly, defense attorneys have made the slightest attempt to challenge Erdemovi\u0107\u2019s claims. It was bad enough that Erdemovi\u0107 had offered contradictory accounts of what happened at Branjevo farm: Erdemovi\u0107 often got dates mixed up (sometimes the killings were carried out on July 16, sometimes on July 20); sometimes he had the drivers of the buses who brought the men to Branjevo taking part in the killings, sometimes he had them believing that they were simply facilitating a prisoner exchange; sometimes Erdemovi\u0107 claimed that he had taken part in the executions because he was afraid for his life, sometimes he claimed that he had refused to carry out orders, yet suffered no adverse consequences. Erdemovi\u0107 also failed to offer a plausible account of how eight men, armed only with Kalashnikovs, could kill 1,200 men in five hours.<\/p>\n

Not least of Erdemovi\u0107\u2019s unlikely claims was his assertion that the leader of the execution squad was one Brano Gojkovi\u0107, a mere private. However, according to Erdemovi\u0107, one member of the execution squad taking orders from Gojkovic was Franc Kos, who was a lieutenant. This made absolutely no sense and cried out for explanation. There is no army in the world in which a private issues orders to an officer. Yet the judges chose not to probe the matter.<\/p>\n

Erdemovi\u0107 also claimed that his unit had been paid lavishly to carry out the killings. To ABC\u2019s Vanessa Vasic-Janekovic, he had claimed that his unit had been promised 12 kilograms of gold.25<\/sup> <\/a>However, he could not say who promised this or whether payment was ever made. The 12 kilograms of gold story was of course at odds with Erdemovi\u0107\u2019s claim that he had taken part in the killings only because he was afraid for his life. The ICTY wasn\u2019t interested in pursuing the gold story. Understandably so. It didn\u2019t want to hear anything that appeared to suggest that the 10th<\/sup> Sabotage Detachment may have been a mercenary group for hire, operating outside of normal Bosnian Serb command and control channels.<\/p>\n

Not only has the ICTY demonstrated an extraordinary lack of curiosity about the event often described as Europe\u2019s worst atrocity since World War II, it has shown no interest in prosecuting any other member of the 10th<\/sup> Sabotage Detachment, even anyone actually named by Erdemovi\u0107 as having taken part in the killings. Many of these men have been living openly for years, yet the ICTY has made no effort to have them arrested or, more astonishingly, to call them as witnesses in any of the Srebrenica trials. Instead, the ICTY has relied wholly on Erdemovi\u0107, who traipses in and out of court, testifying in one trial after another. Even when the ICTY had within its grasp two of Erdemovi\u0107\u2019s named co- killers, it elected not to take them into custody. Evidently, the narrative it had constructed out of one man\u2019s testimony is too politically useful to require any corroboration. Or, rather, it is too politically useful to risk challenge.<\/p>\n

There was first the commander of the 10th Sabotage Detachment\u2014Milorad Pelemi\u0161. In 2000, the Serbian authorities arrested Pelemi\u0161 and charged him with spying for France. In November 2000, one month after the coup against Milo\u0161evi\u0107, Pelemis was acquitted on all charges. At no time during his imprisonment did the ICTY seek to extradite Pelemi\u0161, or even to interview him. The ICTY\u2019s lack of interest was remarkable. Pelemi\u0161, who had seniority over Erdemovi\u0107, would surely have provided plenty of additional details and named names. Since 2000, he has lived openly in Belgrade untroubled by ICTY investigators. Other than a reporter for Newsday <\/em>(New York) in \u00a02006, no journalist has bothered to seek him out to find out about Srebrenica.26<\/sup><\/a><\/p>\n

Also neglected by the ICTY was one Marko Bo\u0161ki\u0107, another Bosnian Croat member of the 10th<\/sup> Sabotage Detachment. According to Erdemovi\u0107, Bo\u0161ki\u0107 took part in the Branjevo farm killings. It has been known since 1996 Erdemovi\u0107 had named Bo\u0161ki\u0107 as one of the killers. On Nov. 19, 1996, ICTY \u201cinvestigator\u201d Jean-Rene Ruez testified,<\/p>\n

\u201cThe officer in charge of the Unit who ordered the murder\u2026is Lieutenant Pelemi\u0161 who is in charge of the 10th Sabotage Unit. The members of the execution group who were involved\u2026their names were also given by Mr. Erdemovi\u0107; the head of that group being Brano Gojkovi\u0107. The other members being Aleksandar Cvetkovi\u0107, Marko Bo\u0161ki\u0107, Zoran Goranja, Stanko Savanovi\u0107, Vlastimir Golijan, Franc Kos.\u201d27<\/sup><\/a><\/p>\n

Four years later, in 2000, Bo\u0161ki\u0107 entered the United States without any trouble at all. In May 1996, the Boston Globe <\/em>even ran an article on Bo\u0161ki\u0107 (at that time residing in Bosnia).28<\/sup> <\/a>During his sojourn in the United States, Bo\u0161ki\u0107 had repeated run-ins with the law, which led to numerous arrests on charges of drunken driving and serious assault. Finally, in August 2004, he was arrested and charged with having lied on his immigration application, specifically with having failed to disclose that he had been a member of the 10th<\/sup> Sabotage Detachment and a participant in the Branjevo farm massacre. The ICTY announced immediately that it had no interest in seeking Bo\u0161ki\u0107\u2019s extradition. A spokesman claimed that the tribunal only had resources to go after the big fish. \u201cWe are a small institution with a limited capacity,\u201d said Anton Nikiforov, an adviser to Carla del Ponte. \u201cWe go after the main players, those who planned and ordered the killings.\u201d29<\/sup> <\/a>He didn\u2019t explain how the ICTY could go after the \u201cmain players\u201d who \u201cplanned and ordered the killings\u201d without obtaining first the evidence and testimony of those who actually carried out the killings.<\/p>\n

It was left to a Massachusetts federal court in 2006 to convict Bo\u0161ki\u0107 on two counts of immigration document fraud and to sentence him to five years in prison.<\/p>\n

In April 2010, the United States extradited Bo\u0161ki\u0107\u2014not to The Hague but to Bosnia. On July19, Bo\u0161ki\u0107 pleaded guilty to taking part in mass executions at Branjevo farm and was sentenced to 10 years in prison. Like Erdemovi\u0107, he received nothing but praise and sympathy from prosecutors and judges. \u201cThis is the lowest sentence for such a crime. The tribunal took as a mitigating circumstance the fact that Bo\u0161ki\u0107 took part in the crime since he was forced to do so and that he had pleaded guilty,\u201d the presiding judge was quoted as saying.30<\/sup><\/a> The Bosnia State Prosecutor\u2019s Office recommended a sentence of five to 10 years. By pleading guilty, it said, \u201cBo\u0161ki\u0107 had provided significant information about the Srebrenica atrocities and about others involved in planning, preparing, ordering and carrying out the execution of captive Srebrenica residents and in removing traces of the crime.\u201d31<\/sup><\/a> Associations of Srebrenica survivors were also said to be satisfied with the leniency shown toward Bo\u0161ki\u0107. They had \u201cconsented to the relatively mild punishment recommended, given that the information Bo\u0161ki\u0107 is offering can help trace and punish many of those responsible.\u201d This was all very strange since the names of those allegedly responsible had been common knowledge since 1996 and no one had bothered\u2014or indeed bothers\u2014to do anything about it.<\/p>\n

Though Erdemovi\u0107 is the ICTY\u2019s star witness, it accepts his testimony only as long as it appears to support the Serb genocide thesis. Whenever Erdemovi\u0107 says anything that brings the thesis into question, the ICTY discounts it. For example, Erdemovi\u0107 claimed that his unit was ordered to carry out the executions by a lieutenant colonel from the army of Republika Srpska. There was one drawback: Erdemovi\u0107 has never been able to identify this lieutenant colonel. Years went by, and the ICTY still couldn\u2019t determine who this officer was. A lieutenant colonel couldn\u2019t have been that hard to track down. Finally, in June 2010, the ICTY ruled that Erdemovi\u0107\u2019s lieutenant colonel was none other than defendant Vujadin Popovi\u0107, whom it convicted of genocide and sent away for life. The Popovi\u0107 judgment mentioned Erdemovi\u0107\u2019s name 66 times\u2014an extraordinary level of dependence on one man, someone whose claims to this day remain uncorroborated.<\/p>\n

The Popovi\u0107 court had a major problem though. Erdemovi\u0107 had failed to identify Popovi\u0107 as the lieutenant colonel. With typical dishonesty, the ICTY accepted everything Erdemovi\u0107 said but discounted his inability to identify Popovi\u0107. \u201cThere is no evidence before the Trial Chamber of any other Lieutenant Colonel in Pilica at this time,\u201d the court announced in its June 10 judgment. \u201cIn light of this, the Trial Chamber is satisfied that there is no other reasonable conclusion available on the evidence but that the Lieutenant Colonel whom Erdemovi\u0107 saw at Branjevo Military Farm and in Pilica town on 16 July was Popovi\u0107.\u201d<\/p>\n

But maybe Erdemovi\u0107 was wrong or had lied about the lieutenant colonel? And why had he failed to identify him? \u201cThe Trial Chamber has carefully considered the fact that Erdemovi\u0107 was unable to identify Popovi\u0107 in a photo lineup. However, the Trial Chamber considers that given the traumatic circumstances in which Erdemovi\u0107 met Popovi\u0107 and the significant passage of time since then, Erdemovi\u0107\u2019s failure to identify Popovi\u0107 in a photo lineup does not raise a reasonable doubt as to the Trial Chamber\u2019s conclusion that the man whom Erdemovi\u0107 saw at Pilica on 16 July was, in fact, Popovi\u0107.\u201d32<\/sup> <\/a>Does not raise a reasonable doubt<\/em>? What exactly would raise a reasonable doubt at the ICTY? The only evidence linking Popovi\u0107 to the alleged Branjevo farm killings is Erdemovi\u0107\u2019s eyewitness testimony. But this same eyewitness testimony can be ignored if it fails to deliver the desired results. Moreover, the passage of time is neither here nor there. Since 1996, Erdemovi\u0107 had been repeatedly shown photos and video footage of just about everybody who could have been that lieutenant colonel. Not once has Erdemovi\u0107 been able to identify anyone. Also, if the passage of time renders eyewitness testimony unreliable, then the ICTY really should not be in the business of holding trials concerning events that took place nearly two decades ago.<\/p>\n

Erdemovi\u0107\u2019s testimony, even if true, would still not suffice to sustain a genocide conviction. He was too vague about details and unable to point a finger at anyone more senior than a lieutenant. So the Krsti\u0107 court decided to go beyond Erdemovi\u0107\u2019s claims whenever needs dictated. For example, the Krsti\u0107 court declared that Erdemovi\u0107 had<\/p>\n

testified that two Drina Corps brigades, the Zvornik and Bratunac brigades, had taken part in the massacre.<\/p>\n

The Zvornik Brigade had to have been involved in the executions, the court explained, because Erdemovi\u0107 had testified that members of his unit met the Bosnian Serb lieutenant colonel directing the executions at Zvornik Brigade headquarters. But Erdemovi\u0107 had said no such thing. He only said that his unit had gone to Zvornik to pick up this (unnamed) army officer. Erdemovi\u0107 had made no mention of Zvornik brigade headquarters. The same went for the court\u2019s Bratunac Brigade claim. Relying entirely on Erdemovi\u0107, the court said that \u201cmembers of the Bratunac Brigade arrived at Branjevo Farm during the course of the afternoon on 16 July 1995 and participated in the killings.\u201d33<\/sup><\/a> But Erdemovi\u0107 had not referred to the Bratunac Brigade. To the contrary, throughout his testimony, he referred to \u201cthe men from Bratunac\u201d or the \u201cpeople from Bratunac.\u201d That locals rather than the military may have carried out the killings would support the testimony of Morillon, who spoke of his long-standing fear that the Serbs of Bratunac would one day take revenge against Oric\u2019s men in Srebrenica:<\/p>\n

I feared that the Serbs, the local Serbs, the Serbs of Bratunac, these militiamen, they wanted to take their revenge for everything that they attributed to Naser Oric. It wasn\u2019t just Naser Oric that they wanted to revenge, take their revenge on, they wanted to revenge their dead on Orthodox Christmas. They were in this hellish circle of revenge. It was more than revenge that animated them all. Not only the men. The women, the entire population was imbued with this. It wasn\u2019t the sickness of fear that had infected the entire population of Bosnia-Herzegovina, the fear of being dominated, of being eliminated, it was pure hatred.34<\/sup><\/a><\/p>\n

Erdemovi\u0107 pointedly avoided saying \u201cBratunac Brigade.\u201d During cross-examination, Krsti\u0107\u2019s counsel had asked Erdemovi\u0107 whether these so-called men from Bratunac had specified the unit to which they belonged. Erdemovi\u0107 responded vaguely: \u201cI don\u2019t know exactly whether they were from Bratunac, nor did I talk to them.\u201d Krsti\u0107\u2019s counsel persisted: \u201cSo it was not stated that members of such and such a brigade were coming, but simply men from Bratunac,\u201d Erdemovi\u0107 replied, \u201cYes.\u201d35<\/sup><\/a> In the face of such prevarication, the Krsti\u0107 <\/em>court\u2019s categorical assertions\u2014\u201cbeyond all reasonable doubt,\u201d no less\u2014about the supposed involvement of the Bratunac and Zvornik brigades in the executions hardly exemplified \u201cscrupulous examination\u201d or \u201ccareful weighing\u201d of the evidence.<\/p>\n

Ad hoc genocide<\/strong><\/h1>\n

The ICTY wanted very badly to reach a genocide judgment, but the material it had to hand was rather flimsy. Genocide, in the words of the Genocide Convention of 1948, refers to the \u201cintent to destroy, in whole or in part, a national, ethnical, racial or religious group.\u201d (Article 4 of the ICTY Statute follows the Genocide Convention, almost word- for-word.) Genocide thus requires, first, the \u201cintent to destroy,\u201d and, second, a purported group of victims constituting a clearly-defined \u201cnational, ethnical, racial or religious group.\u201d<\/p>\n

The ICTY was in trouble right away. There was no evidence of an \u201cintent to destroy\u201d any group, other than perhaps the Muslims 28th<\/sup>Division, on the part of the Bosnian Serbs.<\/p>\n

Even if the ICTY were right and the Serbs had executed 8,000 \u201cmale Muslim prisoners,\u201d in cold blood, that would still count as a horrific wartime atrocity, not genocide. During the Bosnian war all sides regarded males, whether they were wearing military uniforms or not, as fair game. According to Francis Roy Thomas, a senior U.N. military observer in Bosnia through 1993 and 1994, \u201cOne of the local \u2018realities\u2019 worth noting that on both sides, all males were considered to be soldiers whether or not they were wearing a uniform at the time they were shot. It was thus not a case of \u2018wanton killing of civilians\u2019 if a man were involved.\u201d36<\/sup><\/a><\/p>\n

Most damaging to a genocide finding, there was no evidence that, prior to the capture of the town, the Bosnian Serbs had intended to kill the town\u2019s military-aged men. The Krsti\u0107 court itself said that it is \u201cnot stating, nor does it wish to suggest, that a plan to commit genocide existed prior to the attack on Srebrenica or even right before the city fell.\u201d Moreover, as the court acknowledged, the Bosnian Serb forces had not even planned to capture the town. The Bosnian Serb plan \u201cwas aimed at reducing the \u2018safe area\u2019 of Srebrenica to its urban core and was a step towards the larger VRS goal of plunging the Bosnian Muslim population into humanitarian crisis and, ultimately, eliminating the enclave.\u201d37<\/sup><\/a><\/p>\n

Reducing Srebrenica to its urban core made military and political sense. Fighting off Muslim incursions from Srebrenica was diverting Serb resources at a time when the Serbs were under attack around Sarajevo and in western Bosnia. In addition, since the Muslims did not dispute that the 1993 Mladi\u0107-Morillon-Halilovic agreements had envisaged the demilitarization of Srebrenica\u2019s urban core, reduction of the town to its urban core would end the argument about how those agreements were to be interpreted.<\/p>\n

The Bosnian Serbs entered Srebrenica but found, to their surprise, that the 28th<\/sup> Division had withdrawn. With the town undefended, they did what any army would do: they took over the town. The VRS military plan, the Krsti\u0107 court admitted, \u201ccertainly did not include a VRS scheme to bus the Bosnian Muslim civilian population out of the enclave, nor to execute all the military aged Bosnian Muslim men.\u201d38<\/sup><\/a><\/p>\n

Despite the Krsti\u0107 court\u2019s valiant effort to massage the evidence in order to make it support the desired conclusions, there simply wasn\u2019t enough material on the record to indicate that, even after the fall of the town, the Serbs sought the removal of its Muslim population. The Serbs wanted to capture and destroy the Muslims\u2019 28th<\/sup> Division. But they did not order Srebrenica\u2019s civilian population to leave. The Krsti\u0107 court tried to make it appear otherwise. In its judgment, the trial court claimed that Mladi\u0107 had made it clear to DutchBat and Srebrenica\u2019s town leaders that Srebrenica\u2019s Muslims had two choices: they could either leave or face extinction. The court acknowledged that during the July 11 meeting at the Hotel Fontana in Bratunac, Mladi\u0107 had \u201csaid that the population had to choose whether to stay or, if they were not staying, where to go.\u201d However, Mladi\u0107 had \u201cused threatening language\u201d and had \u201cdemanded that all ABiH troops within the area of the former enclave lay down their arms.\u201d He also \u201cmade it clear that, if this did not happen, the survival of the Bosnian Muslim population would be in danger. General Mladi\u0107 said he wanted a clear position on whether the Bosnian Muslims wanted to<\/p>\n

\u201c\u2026\u2018survive, stay, or disappear.\u2019 \u201d The court concluded, \u201cTo those present at the meeting that night it seemed clear that staying would not be an option for the Bosnian Muslim civilians of Srebrenica.\u201d39<\/sup><\/a><\/p>\n

Furthermore, the Krsti\u0107 court explained, on the following morning Mladi\u0107 spelled out the Muslims\u2019 situation in even direr terms. \u201cGeneral Mladi\u0107 again made it clear that survival of the Srebrenica Muslims was conditional upon a military surrender.\u201d According to the court, Mladi\u0107 said<\/p>\n

\u201cYou can either survive or disappear\u2026For your survival, I request: that all your armed men who attacked and committed crimes\u2014and many did\u2014against our people, hand over their weapons to the Army of the Republika Srpska\u2026on handing over weapons you may\u2026choose to stay in the territory\u2026.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.\u201d<\/p>\n

According to the ICTY, these comments prove that Mladi\u0107 was blackmailing the civilians: either disclosure of the whereabouts of the 28th<\/sup> Division or extinction. By interpreting Mladi\u0107\u2019s words in this way the Krsti\u0107 court sought to establish Serb genocidal intent. In typical ICTY fashion though, the court elided the key issue. Did Mladi\u0107 mean that Srebrenica\u2019s Muslims would all be killed? Or did he mean that they would all have to leave the town? Or did he mean that if the Muslim men who had fled the town refuse to surrender then they would all be killed since the odds were so heavily stacked against them? These are critical questions, particularly if you are trying to prove genocidal intent.<\/p>\n

So what did Mladi\u0107 say? According to the transcript accompanying the Srebrenica video in the ICTY Legal Library, this is what Mladi\u0107 said at the third Fontana meeting:<\/p>\n

\u201cI want to help you, but I want absolute cooperation from the civilian population because your army has been defeated. There is no need for your people to get killed, your husband, your brothers or your neighbors. All you have to do is say what you want. As I [said] last night you can either survive or disappear. For your survival, I demand that all your armed men, even those who committed crimes\u2014 and many did\u2014against our people, surrender their weapons to the VRS. Upon surrendering the weapons, you may choose to stay in the territory or, if you so wish, go wherever you want. The wish of every individual will be observed no matter how many of you there are\u2026.The rest of your army can disarm and surrender their weapons to my officers in the presence of UNPROFOR officers. You can choose to stay or you can choose to leave\u2026.If you wish to leave, you can go anywhere you like. When the weapons have been surrendered every individual will go where they say they want to go\u2026.It is your choice to leave\u2014and I don\u2019t want to influence this\u2014I don\u2019t mind anyhow. I have nothing against the innocent and guiltless. You can choose\u2026If you want to go east, across Serbia or to it, I don\u2019t mind. If you want to go west, you can say where you want to go.\u201d40<\/sup><\/a><\/p>\n

Mladi\u0107\u2019s meaning is clear. Srebrenica had been surrendered without a fight. Therefore, the members of the defeated army must give up their weapons. If they fail to do so they would be killed. The 28th<\/sup> Division had disappeared. Mladi\u0107 wanted to know its whereabouts. Mladi\u0107 has no problem with the Srebrenica\u2019s civilian population. He said several times that anyone who wanted to stay on in Srebrenica could do so.<\/p>\n

One person who attended all of the Fontana meetings was Colonel Thomas Karremans, commanding officer of DutchBat. Karremans testified in 1996 in the Rule 61 hearings against Mladi\u0107 and Karad\u017ei\u0107. Karremans did not testify in the Krsti\u0107 or Popovic trials, though he did testify in the Blagojevi\u0107 trial.41<\/sup><\/a><\/p>\n

According to Karremans\u2019 testimony in 1996, Mladi\u0107 at the first Hotel Fontana meeting had asked \u201cthat all Bosnian soldiers should lay down their weapons and deliver those weapons in the hands of the BSA. He said that he had a clear attitude towards the BiH soldiers, survive or disappear.\u201d At the second meeting on the following morning, Mladi\u0107 said more or less the same thing. He again \u201cstated that handing over the weapons by BiH soldiers would mean survival of them; \u2018If they should keep their weapons,\u2019 he said, \u2018that will be their death.\u2019 He stated that if BiH soldiers should hand over their weapons, that they will be treated according to the Geneva Conventions.\u201d42<\/sup><\/a>At the third meeting on the following day, Mladi\u0107 \u201cagain said regarding the BiH forces, the same expression as the day before, \u2018survive or disappear.\u2019 He again requested to the BiH forces to hand over their weapons, even criminals amongst them could hand over their weapons.\u201d Furthermore, Mladi\u0107 \u201cstated that BiH forces could hand over their weapons in the presence of UN forces, UNPROFOR, he stated in general. I think he meant Dutch BAT.\u201d<\/p>\n

So, on three separate occasions, Karremans understood Mladi\u0107 to be \u00a0saying that it was the Bosnian soldiers, not Srebrenica\u2019s civilians, who had the choice: survive or disappear. If they handed in their weapons, they would survive. If not, they would disappear. Mladi\u0107 had made no threats against the civilian population. His threats were exclusively directed at soldiers. In fact, according to Karremans, Mladi\u0107 said that \u201cthe guarded population in and around the [Poto\u010dari] compound had the choice either to stay in Srebrenica or to be evacuated, to be evacuated to Serbia, to the Bosnian territory around Tuzla, or even to foreign countries.\u201d Mladi\u0107\u2019s actions were consistent with this interpretation. Srebrenica\u2019s civilians were unharmed and were bussed to safety.<\/p>\n

Yet, for the next decade and a half, the ICTY continued to misrepresent the gist of the Hotel Fontana meetings and to extract unwarranted conclusions from them. A measure of how heavily the ICTY relies on the Hotel Fontana meetings to support its genocide contention is the number of times it brings up the meetings. The 2010 Popovi\u0107 judgment mentions Hotel Fontana no less than 95 times! Admittedly, the judgment came in at a grotesque 882 pages. Nonetheless, it still averaged to more than one mention per 10 pages.<\/p>\n

In any case, whether Mladi\u0107 wanted Srebrenica\u2019s residents to stay or to go did not matter. The Muslims didn\u2019t want to stay in Srebrenica and they couldn\u2019t stay on at the U.N. compound. Had the Muslims intended to stay in Srebrenica, the town\u2019s men would not have fled days before the Serbs\u2019 arrival. Mladi\u0107 organized the evacuation of Srebrenica\u2019s civilians. By Balkan war standards, this was quite generous. The Croatian authorities did not organize an evacuation of the civilian population during Operation Storm. They attacked with artillery and aircraft a column that comprised women and children. In any case, the 28th<\/sup> Division did not surrender and Srebrenica\u2019s civilians were not killed.<\/p>\n

Finding the right \u2018group\u2019<\/strong><\/h1>\n

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 \u201csubstantial\u201d had already been defined down by Bassiouni\u2019s commission. \u201cDestruction of a group in whole or in part does not mean that the group in its entirety must be exterminated. The words \u2018in whole or in part\u2019 were inserted in the text to make it clear that it is not necessary to aim at killing all the members of the group,\u201d Bassioni\u2019s commission said in its report.43<\/sup> <\/a>Selective targeting of members of a group can also be genocide, because killing the leaders of a group could be tantamount to genocide. \u201cSuch leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others\u2014the totality per se may be a strong indication of genocide regardless of the actual numbers killed.\u201d It would definitely amount to genocide<\/p>\n

\u201c[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.\u201d<\/p>\n

Killing academics, religious, administrative and business leaders could be genocide. But targeting law enforcement and military people could also be genocide. The \u201cextermination of a group\u2019s 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,\u201d Bassiouni wrote in his report. \u201cThus, 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.\u201d44<\/sup> <\/a>In this way, of course, almost any act of war, including attacks on legitimate military targets, could fall under the rubric of genocide.<\/p>\n

As for genocide\u2019s requirement that the targeted victim constitute a \u201cnational, ethnical, racial or religious group,\u201d it is clear that Srebrenica\u2019s Muslim inhabitants couldn\u2019t possibly comprise such a \u201cgroup.\u201d Still less could the military-aged male population of Srebrenica comprise it. For genocide purposes, the only possible \u201cnational, ethnical, racial or religious group\u201d had to be Bosnia\u2019s Muslims as a whole.<\/p>\n

To be sure, from the beginning, the ICTY hasn\u2019t been too sure how it should classify groups. At times, the ICTY has taken the standard approach as articulated by Bassiouni\u2019s commission of experts in its final report. \u201cThe different groups relevant to the conflict in the former Yugoslavia\u2014the Serbs, the Croats, the Muslims, the Gypsies and others\u2014all have status as ethnic groups, and may, at least in part, be characterized by religion, ethnicity and nationality,\u201d the experts wrote. \u201cIt is not a condition that the victim group be a minority, it might as well be a numerical majority,\u201d 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\u2019s the preference of their members) but they can also exist solely in the minds of those who would stigmatize them.<\/p>\n

What would happen, the Final Report\u2019s authors asked, if there was \u201cmore than one victim groups, and each group as such is protected\u201d? Suppose \u201cgroup 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\u201d? The Bassiouni team\u2019s answer was that all of the victim groups should then be taken as constituting a larger entity. \u201cIn 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.\u201d45<\/sup> <\/a>In other words, Bassiouni had conjured out of thin air a brand new group for war crimes trials\u00a0 purposes\u2014an entirely fictional group, to be sure, the defining characteristic of which is being stigmatized by the perpetrator of a crime. Furthermore, Bassiouni suggested, suppose \u201cgroup B and to a lesser degree group C have provided the non-A group with all its leaders.\u201d Genocide would act as a feeble legal instrument \u201cif 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.\u201d Not only has a fictional national or ethnic group been created, but merely targeting its nominal leaders would constitute genocide.<\/p>\n

The Bassiouni commission\u2019s 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 Jelisi\u0107 announced in its judgment that \u201cto 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.\u201d Instead, the ICTY would \u201cevaluate 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.\u201d Pursuing this Sartrean logic, according to which the Jew only exists in the mind of the anti-Semite, the Jelisi\u0107 court declared that \u201cIt 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.\u201d<\/p>\n

The Jelisi\u0107 court explained that the perpetrators of a crime can stigmatize a group by attributing to it \u201ccharacteristics which they deem to be particular to a national, ethnical, racial or religious group.\u201d But they can also stigmatize a group by identifying its members \u201cas not being part of the group to which the perpetrators of the crime consider that they themselves belong.\u201d46<\/sup><\/a> In subsequent cases, the ICTY happily adopted the principle that stigma creates the group. Both the Krsti\u0107 and Blagojevi\u0107 trial courts said they would identify \u201cthe 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.\u201d47<\/sup><\/a><\/p>\n

This was exactly the opposite what the ICTR had determined in the case of Jean-Paul Akayesu. The ICTR had asserted that \u201ca 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.\u201d48<\/sup><\/a><\/p>\n

The Rwanda tribunal had said that the Genocide Convention protects \u201cstable groups\u201d\u2014 groups \u201cconstituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more \u2018mobile\u2019 groups which one joins through individual voluntary commitment, such as political and economic groups.\u201d 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.<\/p>\n

The Krsti\u0107 court toyed with the idea of designating Srebrenica\u2019s victims in terms of who they weren\u2019t. The court \u201cidentifies 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.\u201d But in the end it dropped the idea, hesitantly concluding that the targeted group in Srebrenica was the Muslims of Bosnia as a whole.<\/p>\n

According to the Krsti\u0107 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\u2019s 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 Sand\u017eak region. According to the ICTY\u2019s reasoning, Bosnia\u2019s Muslims would have been a nation, but not the Sand\u017eak Muslims. The truth is, Bosnian Muslims were not recognized as a nation either in the 1963 or in the 1974 Yugoslav constitution. Bosnia\u2019s 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\u2019s 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\u2019s Serbs were of course members of the Serbian nation, much as Bosnia\u2019s Croats were members of the Croatian nation. The ICTY obviously didn\u2019t 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.<\/p>\n

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\u2019s population. Having misread the 1963 Yugoslav constitution, the Krsti\u0107 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. \u201cThe 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.\u201d49<\/sup><\/a><\/p>\n

But there was no evidence that the Serbs were seeking to exterminate the republic\u2019s Muslims. Within days of the fall of Srebrenica, Bosnian Serb forces captured the neighboring \u201csafe area\u201d of \u017depa. 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<\/p>\n

\u201c\u2026a 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\u2026better described by the labels \u201ccrimes against humanity\u201d and \u201cwar crimes.\u201d 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.\u201d50<\/sup><\/a><\/p>\n

As a matter of fact, the Serbs weren\u2019t even all that thorough when it came to the military- aged men of Srebrenica. The Krsti\u0107 court noted that Srebrenica\u2019s wounded men were permitted to receive medical treatment. The court immediately dismissed this as merely evidence of \u201ca 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.\u201d The Bosnian Serbs were evidently eager to \u201cshow the media that non- combatants were properly treated.\u201d Whether this entirely speculative explanation was true or not, it undermined the genocide claim. The ICTY adopted its usual strategy: If the facts don\u2019t fit the theory, then so much the worse for the facts. \u201cExcept 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,\u201d 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.<\/p>\n

Be that as it may, Srebrenica\u2019s military-aged constituted a very small percentage of the Bosnian Muslim population. The Krsti\u0107 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.<\/p>\n

The Krsti\u0107 judges wouldn\u2019t 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\u2019t mean that they couldn\u2019t count as genocide. As support, the court cited the 1982 murder of some 800 Palestinians at the Sabra and Shatila detention camps in Lebanon, \u201cmost of whom were women, children and elderly.\u201d The U.N. General Assembly passed a resolution in December 1982 calling the massacre an \u201can act of genocide.\u201d 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.<\/p>\n

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\u2019s own description: In one case, women and children were spared; in the other they weren\u2019t. Fourth, the Krsti\u0107 court had forgotten the ICTY\u2019s own earlier warning not to set too much store by this resolution: It \u201cis appropriate to look upon this evaluation with caution due to its undoubtedly being more of a political assessment than a legal one.\u201d51<\/sup><\/a><\/p>\n

An atrocity deserves the label genocide, the Krsti\u0107 court explained, if \u201cthe perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.\u201d52<\/sup> <\/a>This applied to Srebrenica. The Serbs had intended to destroy the Srebrenica Muslim community. They wanted to make sure that that community \u201cwould not return to Srebrenica nor\u2026reconstitute itself in that region or indeed, anywhere else.\u201d53<\/sup> <\/a>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.<\/p>\n

The issue seemed to be not so much that the Muslim community of Srebrenica could not reconstitute itself in the region\u2014that 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\u2019s Muslim community couldn\u2019t reconstitute itself \u201canywhere else\u201d because of the loss of the men. The Bosnian Serbs, apparently, \u201ccould 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.\u201d54<\/sup><\/a><\/p>\n

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\u2019s 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.<\/p>\n

To make the genocide charge stick, the Krsti\u0107 court now made an extraordinary speculative leap. The loss of men meant the end of the group, it claimed. In \u201ca patriarchal society, such as the one in which the Bosnian Muslims of Srebrenica lived,\u201d the court explained, \u201cthe 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.\u201d55<\/sup><\/a><\/p>\n

These women would have difficulties bearing children. What matters in a patriarchal society, it seems, is \u201cclear 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.\u201d56<\/sup> <\/a>In other words, women who remained uncertain as to what had happened to their husbands would be unable to remarry and produce more children.<\/p>\n

The Krsti\u0107 court\u2019s 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.<\/p>\n

The Bosnian Serbs \u201chad 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,\u201d the Krsti\u0107 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\u2014hardly a desirable outcome if one\u2019s intent is to destroy a national group. Thus, if destruction of a group were one\u2019s objective, it would make a lot more sense to target the women.<\/p>\n

Having engaged in frictionless speculation, the Krsti\u0107 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 \u201cwould inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.\u201d57<\/sup><\/a> The killings thus \u201ceffectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever reestablish itself on that territory.\u201d58<\/sup><\/a><\/p>\n

With the \u201cintent\u201d requirement of Article 4 satisfied, the court could now conclude\u2014 beyond all reasonable doubt, needless to say\u2014that the Bosnian Serbs had intended \u201cto destroy in part the Bosnian Muslim group\u201d and that General Radislav Krsti\u0107 was guilty of \u201cgenocide.\u201d<\/p>\n

This was all extraordinarily unimpressive and confusing. Even if the Serbs had intended to destroy Srebrenica\u2019s 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\u2019t led to the extinction of Bosnia\u2019s Muslims. Furthermore, even if the Krsti\u0107 court were right and the Serbs had been aware of all of those consequences of their actions, this still wouldn\u2019t satisfy the intent requirement of genocide. Awareness is not intent, as World Court Judge Milorad Kre\u0107a pointed out in his separate opinion in the 2007 Bosnia genocide case. \u201cKnowledge 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,\u201d he wrote. The Serbs had to have willed just those consequences, and the Krsti\u0107 court had produced no evidence of this.<\/p>\n

What the Krsti\u0107 court had described as having taken place in Srebrenica was ethnic cleansing\u2014brutal no doubt, but not genocide. Applying traditional understanding of international law, the World Court in the Bosnia case said unambiguously that ethnic cleansing wasn\u2019t genocide:<\/p>\n

Neither the intent, as a matter of policy, to render an area \u201cethnically homogeneous,\u201d nor the operations that may be carried out to implement such policy, can as such <\/em>be designated as genocide: the intent that characterizes genocide is \u201cto destroy, in whole or in part\u201d 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<\/sup><\/a><\/p>\n

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 \u201cdeliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.\u201d However, such action has to be \u201ccarried out with the necessary specific intent (dolus specialis)<\/em>, that is to say with a view to the destruction of the group, as distinct from its removal from the region.\u201d But the Serbs had to have intended this. Yet, according to the Krsti\u0107 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.<\/p>\n

ICTY appeals court to the rescue<\/strong><\/h1>\n

The ICTY quickly realized that there were too many holes in its genocide finding. The Milo\u0161evi\u0107 case was coming to the boil. In February 2004, prosecutors had finished presenting their case against the ICTY\u2019s most famous defendant. In March, the Milo\u0161evi\u0107 amici filed a motion of acquittal, arguing that there was no evidence that Milo\u0161evi\u0107 possessed the requisite genocidal intent. The Milo\u0161evi\u0107 judges needed to counter their argument with something a little more convincing than speculations about patriarchy.<\/p>\n

The ICTY appeals court duly stepped up to the plate. On April 19, 2004, the appeals chamber upheld the Krsti\u0107 trial court\u2019s genocide finding, even though it ruled Krsti\u0107 to be guilty only of aiding and abetting genocide and reduced his sentence to 35 years. The Bosnian\u00a0Serbs 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\u2019s men but the symbolic impact of the fall of Srebrenica on the Bosnian Muslims, the group targeted for genocide.<\/p>\n

Continued survival of Srebrenica would frustrate Serb ambitions. Therefore, the capture of Srebrenica had to have been \u201cof immense strategic importance to the Bosnian Serb leadership.\u201d Without Srebrenica, \u201cthe 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.\u201d The Serbs manifested genocidal intent by targeting a part of the group that \u201cis emblematic of the overall group, or is essential to its survival.\u201d<\/p>\n

The issue now wasn\u2019t so much \u201cthe long-term impact that the elimination of seven to eight thousand men from Srebrenica would have on the survival of that community,\u201d as the Krsti\u0107 trial court had it.60<\/sup><\/a>. 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\u2014here the ICTY appeals court made an extraordinary leap in logic\u00a0\u2014it would threaten the survival of the Bosnian Muslims as a whole.<\/p>\n

The capture and ethnic purification of Srebrenica would\u2026severely 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.<\/p>\n

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.<\/p>\n

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\u2019t encompass the entire territory of the republic. Following the Dayton Accords, that\u2019s 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.<\/p>\n

The appeals court tried another tack. The fall of Srebrenica was of symbolic import.<\/p>\n

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 \u2018safe areas\u2019 established by the U.N. Security Council in Bosnia. By 1995 it had received significant attention in the international media\u2026.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\u00a0military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.<\/p>\n

Of course to anyone who shares the ICTY\u2019s 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<\/em>? 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\u2019s clearly not what the appeals court wanted to suggest.<\/p>\n

What\u2019s 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 \u201cintent\u201d very seriously and demonstrating an amazing ability to intuit the workings of the Serb mind. It wasn\u2019t saying that the fate of the Muslims of Srebrenica was actually \u201cemblematic of that of all Bosnian Muslims.\u201d It was emblematic in the minds of the Serbs.<\/p>\n

Free as they were of any need to look for corroborating facts, the ICTY\u2019s 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, \u201cthe pearl in the Bosnian crown. All other interests were subordinate.\u201d Sarajevo, in the words of the report, \u201cwas of greater strategic importance\u201d than Srebrenica. The Muslims believed \u201cthat the decisive battle with the VRS\u201d would be fought in Sarajevo:<\/p>\n

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.<\/p>\n

The Muslim leaders\u2019 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 \u201cwas precisely the importance that the Bosnian Muslims attached to Sarajevo that led to Srebrenica also being involved in the conflict,\u201d the Dutch report said. \u201cThe 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.\u201d 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.<\/p>\n

The appeals court still had one problem to attend to. It had to explain why the genocidal Serbs hadn\u2019t 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\u2019 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\u2019t 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 \u201cforcible transfer\u201d because that was all they could get away with:<\/p>\n

\u201cThe decision not to kill the women or children may be explained by the Bosnian Serbs\u2019 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.\u201d61<\/sup><\/a><\/p>\n

As with their decision to allow wounded men to receive medical treatment, the Bosnian Serbs\u2019 reluctance to kill everybody was to be explained by reference to their \u201csensitivity to public opinion.\u201d 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. \u201cYou know what it\u2019s called when you don\u2019t even try to commit a crime\u2014 even one that you want very badly to commit\u2014because you don\u2019t think you can get away with it? It\u2019s called not committing the crime.\u201d62<\/sup> <\/a>The ICTY\u2019s argument didn\u2019t 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.<\/p>\n

The appeals court thus happily concluded that the Bosnian Serbs had indeed committed genocide in Srebrenica. As far as Radislav Krsti\u0107 was concerned, the court had to admit that the trial court had manifestly failed to \u201csupply adequate proof that [he] possessed the genocidal intent.\u201d That didn\u2019t get Krsti\u0107 off the hook for genocide though. According to the ICTY, proof of genocidal intent isn\u2019t necessary for a complicity-in-genocide finding. Krsti\u0107 was \u201caware 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.\u201d63<\/sup> <\/a>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.<\/p>\n

The ICTY\u2019s ruling here was as dubious as any of its other rulings. The Genocide Convention stipulates that all of the prohibited acts it lists\u2014including genocide, conspiracy to commit genocide and complicity in genocide\u2014have to be informed by genocidal intent. In no time at all, though, this became ICTY law. Complicity in genocide \u201cdoes not require proof that the accomplice had the specific intent to destroy, in whole or in part, a protected group.\u201d The prosecutor need only prove that \u201can accused knew that his own acts assisted in the commission of genocide by the principal offender and was aware of the principal offender\u2019s state of mind; it need not show that an accused shared the specific intent of the principal offender.\u201d64<\/sup> <\/a>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.<\/p>\n

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 \u201cMuslims of Eastern Bosnia,\u201d identified as \u201cpart\u201d of the Bosnian Muslim people. The Bosnian Serbs were seeking to destroy the Muslim population of eastern Bosnia. Again, the issue wasn\u2019t numbers, it was symbolism:<\/p>\n

\u201c[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\u2019s elimination despite international assurances of safety would demonstrate to the Bosnian Muslims their defencelessness and be \u201cemblematic\u201d of the fate of all Bosnian Muslims.\u201d65<\/sup><\/a><\/p>\n

Return to Srebrenica<\/strong><\/h1>\n

In January 2005, the ICTY returned to Srebrenica and came up with yet another rationale for its genocide finding. The issue now wasn\u2019t so much the killings, but the suffering inflicted on the inhabitants of Srebrenica following the capture of the town. The case involved Vidoje Blagojevi\u0107, commander of the Drina Corps\u2019 Bratunac Brigade, which had taken part in the attack on Srebrenica. The court pointed to the Genocide Convention\u2019s prohibition of acts \u201ccausing serious bodily or mental harm to members of the group.\u201d This was precisely what the Serbs inflicted. The \u201cmen 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.\u201d66<\/sup><\/a> The survivors also suffered. The \u201ctrauma and wounds suffered by those individuals who managed to survive the mass executions does constitute serious bodily and mental harm.\u201d Then there were the women, children and elderly who fled to Poto\u010dari. \u201cLeaving 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 Poto\u010dari, the Bosnian Muslim population did not find the refuge they were seeking: rather they found UNPROFOR unable to provide the assistance they needed.\u201d<\/p>\n

The ICTY judgment now became extraordinarily colorful and imaginative in its description:<\/p>\n

\u201cAfter their husbands, fathers and sons were taken from them, the Bosnian Muslim women felt even more vulnerable and afraid\u2014afraid 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 Poto\u010dari 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.\u201d67<\/sup><\/a><\/p>\n

This all sounded very strange. The Krsti\u0107 court had already asserted that there were virtually no men at Poto\u010dari. Suddenly, the women\u2019s \u201chusbands, fathers and sons\u201d 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 \u201cwithout being asked even for their name,\u201d that\u2019s 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:<\/p>\n

\u201cFollowing 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.\u201d68<\/sup><\/a><\/p>\n

The Blagojevi\u0107 court concluded that there was \u201csufficient evidence to establish beyond reasonable doubt that in the circumstances of this case forcible transfer constituted \u2018serious mental harm\u2019 within the meaning of\u201d the Genocide Convention.<\/p>\n

One should note first that the suffering at Poto\u010dari, 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\u2014and armed men, at that\u2014who 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\u2019s speculations about patriarchy.<\/p>\n

The Blagojevi\u0107 court then announced that \u201cthe term \u2018destroy\u2019 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.\u201d69<\/sup> <\/a>No authority other than the ICTY\u2019s past decisions was cited as a basis for the claim that the term \u201cdestroy\u201d encompasses \u201cforcible transfer of population.\u201d Moreover, the Genocide Convention refers to the destruction of the group \u201cas such,\u201d 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.<\/p>\n

The Blagojevi\u0107 court then announced that \u201cthe 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.\u201d The court explained that<\/p>\n

\u201cA 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\u2026.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.\u201d70<\/sup><\/a><\/p>\n

The Blagojevi\u0107 court\u2019s argument is as circular as any argument can get. Indeed, even the individual sentences are circular. Take this one, for example: \u201cThe 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.\u201d 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.<\/p>\n

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\u2019s 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.<\/p>\n

The Blagojevi\u0107 court\u2019s 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 \u201cdestruction.\u201d They chose however to limit the meaning of destruction to physical or biological destruction. As the International Law Commission argued in 1996,<\/p>\n

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 \u201cdestruction,\u201d which must be taken only in its material sense, its physical or biological sense.71<\/sup><\/a><\/p>\n

The text of the convention that the U.N. General Assembly adopted did not include the concept of \u201ccultural genocide,\u201d which was contained in two earlier drafts, \u201cand simply listed acts which come within the category of \u2018physical\u2019 or \u2018biological\u2019 genocide.\u201d<\/p>\n

The Blagojevi\u0107 court further confused issues by changing the identity of the group that the Serbs had supposedly targeted for genocide at Srebrenica. The Krsti\u0107 court had said that the Serbs were targeting the Muslims of Bosnia as a whole. The Blagojevi\u0107 court decided that the Serbs\u2019 \u201ctargeted group was the Bosnian Muslims of Srebrenica\u2014a substantial part of the Bosnian Muslim group.\u201d The killing of the men combined with the forcible transfer of the women, children and elderly \u201cwere all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica.\u201d<\/p>\n

Furthermore, the Blagojevi\u0107 court said that<\/p>\n

\u201cThe manner in which the transfer was carried out\u2014through 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\u2014clearly indicates that it was a means to eradicate the Bosnian Muslim population from the territory where they had lived.\u201d72<\/sup><\/a><\/p>\n

This was contrary to the record. Both the Blagojevi\u0107 and the Krsti\u0107 courts knew perfectly well that Srebrenica\u2019s women, children and the elderly were allowed to leave. They lived on, not in Srebrenica, but in Tuzla. So how could \u201cthe entire Bosnian Muslim population of Srebrenica\u201d have been targeted? The \u201cliterally\u201d is a priceless addition.<\/p>\n

For the Blagojevi\u0107 court, as for the Krsti\u0107 trial and appeals courts, the issue wasn\u2019t so much the actual killings of the men, but its \u201cimpact on the Bosnian Muslim group.\u201d The killings were \u201ca manifestation of this intent to destroy the group.\u201d It \u201csent a message to the remaining members of the group of their fate\u2014that they were at the mercy of the Bosnian Serbs and that their lives, too, could be taken at any moment.\u201d 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 \u201cthe physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended through these acts to physically destroy this group.\u201d73<\/sup><\/a><\/p>\n

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:<\/p>\n

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\u2026because this type of group was not considered to be sufficiently stable.74<\/sup><\/a><\/p>\n

The Rwanda tribunal had said\u2014correctly\u2014that the Genocide Convention protects \u201cstable groups\u201d\u2014groups \u201cconstituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more \u2018mobile\u2019 groups which one joins through individual voluntary commitment.\u201d<\/p>\n

The Muslim population of Srebrenica, on the other hand, was anything but stable. According to the Krsti\u0107 court, the population of Srebrenica was 37,000 in 1991, of which 73% was Muslim and 25% Serb. Subsequently, \u201cBosnian Muslim residents of the outlying areas converged on Srebrenica town and its population swelled to between 50,000 and 60,000 people\u201d\u2014100% Muslim, incidentally. \u201cBetween 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.\u201d In July 1995, at the time of the attack, \u201cthe population of Srebrenica was between 38,000 to 42,000.\u201d According to the Popovi\u0107 court, \u201cin mid-1995, the population in Srebrenica was approximately 42,000, 85 per cent of whom were internally displaced persons.\u201d75<\/sup><\/a> So, between 1991 and 1993, the Bosnian Muslim population of Srebrenica doubled. Between 1993 and 1995, the population went down by something like 25%.<\/p>\n

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 \u201cstable\u201d 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 Krsti\u0107 trial court judges, admitted that the Bosnian Muslim leadership made the decision not to defend Srebrenica. \u201cMuslim 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.\u201d76<\/sup> <\/a>Since the Serbs had every reason to believe that the Muslims would defend Srebrenica, it is hard to understand how they could have intended \u201cto bring about the destruction of the Bosnian Muslims of Srebrenica.\u201d77<\/sup><\/a><\/p>\n

Watering genocide down<\/strong><\/h1>\n

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\u2019s 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\u2014it 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\u2019t have any of this. It determined that a superior can indeed be guilty of genocide via failure to prevent and punish. He doesn\u2019t need to possess genocidal intent.<\/p>\n

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 \u201cSuperior criminal responsibility is a form of criminal liability that does not require proof of intent to commit a crime.\u201d 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\u2019t mean that it doesn\u2019t apply to genocide under customary international law. This is so because there may have been \u201ca 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.\u201d78<\/sup> <\/a>No evidence was cited for this interesting piece of observation.<\/p>\n

There was no reason to think that command responsibility liability \u201cshould apply differently to the crime of genocide than to any other crime in the Statute,\u201d the Brdjanin judgment went on. A prosecutor has to show that a superior must have known or had reason to know of a subordinate\u2019s specific genocidal intent. The mens rea <\/em>requirement of the crime of genocide has nothing to do with \u201cthe mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused.\u201d Therefore, \u201cIf 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.\u201d79<\/sup><\/a> Thus, \u201cthe mens rea <\/em>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.\u201d<\/p>\n

Command responsibility wasn\u2019t 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\u2019s defense attorneys filed a motion for judgment of acquittal on the charge of genocide. They pointed to the prosecutors\u2019 failure to offer any evidence of genocidal intent on the part of Brdjanin himself or on the part of the Bosnian Serb authorities. Brdjanin\u2019s 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 \u201cdeportation or forcible transfer\u201d of the non-Serb population. The \u201cnatural and foreseeable consequence\u201d of this policy was genocide.<\/p>\n

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 \u201cis 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.\u201d 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 \u201cknew that his own acts assisted in the commission of genocide by the principal offender and was aware of the principal offender\u2019s state of mind.\u201d There was no need to \u201cshow that an accused shared the specific intent of the principal offender.\u201d80<\/sup><\/a><\/p>\n

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\u2019s insistence that genocide requires evidence of \u201cspecific intent\u201d was inconsistent with ICTY \u201cjurisprudence.\u201d There was no justification for treating genocide any differently from other \u201cspecific intent\u201d 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.<\/p>\n

On March 19, 2004, the ICTY appeals court overturned the Brdjanin trial court\u2019s 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\u2019s brief almost word-for-word, the appeals court said that in order to convict someone under JCE III, a court doesn\u2019t need evidence that the person\u00a0intended 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.<\/p>\n

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\u2019t know who those other members are and what they may be up to? As William Schabas has pointed out, \u201cSeveral individuals may participate in a common plan, but this does not necessarily mean that they all share the same specific intent.\u201d81<\/sup> <\/a>Indeed, one doesn\u2019t 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.<\/p>\n

JCE III liability, the court explained, is a \u201cmode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence.\u201d There is no requirement to prove \u201cintent to commit a crime on the part of an accused before criminal liability can attach.\u201d It is no different from command responsibility liability. To establish command responsibility liability, a prosecutor need only show \u201cthat a Commander knew or had the reason to know of the criminality of subordinates\u201d; there is no requirement to prove that he shared the criminal intent of subordinates.<\/p>\n

To convict someone of genocide under JCE III, a prosecutor need only prove \u201cthat 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.\u201d 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\u00a0can 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<\/sup><\/a><\/p>\n

All prosecutors need to show is that genocide is a \u201cnatural and foreseeable consequence\u201d 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\u2014and probably will be\u2014guilty 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.<\/p>\n

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<\/sup> Committee of the U.N. General Assembly in October 1948, the Syrian delegate had proposed amending Article 2 by labeling as genocidal \u201cany measures directed towards forcing members of a group to leave their homes should be regarded as constituting genocide.\u201d Ironically, Yugoslavia supported the proposal, arguing that during World War II, the \u201cNazis 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.\u201d The U.S. delegate strongly objected to the Syrian amendment, arguing that it \u201cdeviated too much from the original concept of genocide.\u201d83<\/sup><\/a> The U.K. and the USSR delegates also expressed strong opposition; the amendment was rejected 29 votes to four, with eight abstentions.<\/p>\n

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\u2019s 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:<\/p>\n

\u201cNeither the intent, as a matter of policy, to render an area \u201cethnically homogeneous,\u201d nor the operations that may be carried out to implement such policy, can as such <\/em>be designated as genocide: the intent that characterizes genocide is \u2018to destroy, in whole or in part\u2019 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.\u201d84<\/sup><\/a><\/p>\n

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\u2019s acts will aid and abet genocide. Or, rather, one needs to know that one\u2019s acts will aid and abet another who is acting with genocidal intent. That would suffice for a complicity in genocide\u2014though not a genocide\u2014conviction. In its judgment in the case of Jean-Paul Akayesu, the ICTR said that \u201cwhen 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<\/em>, the same requirement is not needed for complicity in genocide.\u201d85<\/sup><\/a><\/p>\n

The Brdjanin decision was contrary even to the ICTY\u2019s own 2003 ruling in the case of Milomir Staki\u0107. Staki\u0107, 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\u2019s attempt to distinguish joint criminal enterprise as a mode of liability from the crime itself. The court said that \u201cthe application of a mode of liability cannot replace a core element of a crime.\u201d The prosecution had \u201cconfuse[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 <\/em>being so watered down that it is extinguished.\u201d For genocide to occur \u201cthe elements of that crime, including the dolus specialis <\/em>must be met.\u201d The notion \u201cescalation\u201d to genocide or genocide as a \u201cnatural and foreseeable consequence\u201d of an \u201centerprise not aimed specifically at genocide [is] not compatible with the definition of genocide\u201d under the Genocide Convention and the ICTY Statute.86<\/sup><\/a><\/p>\n

The Staki\u0107 court concluded that prosecutors had failed to prove that Staki\u0107 or even the people above him had the requisite intent to commit genocide. The court said it had \u201cnot 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. Staki\u0107 to enable it to draw the inference that those perpetrators had the specific genocidal intent.\u201d87<\/sup><\/a><\/p>\n

Standard ICTY practice is to say that the state of mind can be inferred from the circumstances. This is what the Krsti\u0107 appeals court had argued: \u201cWhere direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.\u201d And, it went on, genocidal intent can be inferred even if the court doesn\u2019t know who the perpetrators were and therefore can have no insight into their state of mind. \u201cThe inference that a particular atrocity was motivated by genocidal intent may be drawn\u2026even where the individuals to whom the intent is attributable are not precisely identified.\u201d<\/p>\n

That the Krsti\u0107 trial court did \u201cnot attribute genocidal intent to a particular official within the Main Staff\u2026does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.\u201d88<\/sup> <\/a>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 Krsti\u0107 himself didn\u2019t share. The Krsti\u0107 appeals court had determined that the trial court had failed \u201cto supply adequate proof that Radislav Krsti\u0107 possessed the genocidal intent.\u201d There was no proof therefore that Krsti\u0107, 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.<\/p>\n

The Staki\u0107 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 \u201cexistence of a common criminal plan between two or more persons in which the accused was a participant.\u201d89<\/sup> <\/a>The court added that a plan doesn\u2019t have to be spoken about or written down. \u201cThe 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.\u201d An unspoken understanding<\/em>\u2014the Serbs are well known masters of the technique of telepathic communication.<\/p>\n

The Staki\u0107 decision was unusual. ICTY practice is to discount the significance of plans. In July 2001, the ICTY appeals court announced that \u201cthe existence of a plan or policy is not a legal ingredient of the crime.\u201d The case involved Bosnian Serb Goran Jelisi\u0107. 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 \u201cthere existed a plan to destroy the Muslim group in Brcko or elsewhere within which the murders committed by the accused would allegedly fit.\u201d90<\/sup><\/a> The appeals court overturned the trial court. Prosecutors should not worry unduly over the lack of evidence of a plan, the \u201chigher\u201d 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 \u201cthe context of proving specific intent, the existence of a plan or policy may <\/em>become an important factor in most cases. The evidence may <\/em>be consistent with the existence of a plan or policy, or may <\/em>even show such existence, and the existence of a plan or policy may <\/em>facilitate proof of the crime (my italics).\u201d91<\/sup><\/a><\/p>\n

The Jelisi\u0107 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\u2019s dismissal of the genocide charges, the appeals court declared that, given the severity of Jelisi\u0107\u2019s sentence\u201440 years\u2014a new trial for genocide wasn\u2019t warranted. This was not at all to the liking of former D.C. Circuit Court Judge Patricia Wald, who was one of the Jelisi\u0107 appeals court judges. She wrote a dissent demanding a new, genocide trial for Jelisi\u0107. It wasn\u2019t true, she said, that a new trial would \u201cnot affect the sentence ultimately imposed upon the accused. Although the sentence of 40 years\u2019 imprisonment for crimes against humanity and violations of the laws or customs of war\u2026is substantial, it might have been even more substantial had the accused also been convicted of genocide.\u201d Happily for Wald, she didn\u2019t 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 Krsti\u0107 was guilty of genocide, and sentenced him to 42 years\u2019 imprisonment.<\/p>\n

NOTES<\/strong><\/p>\n

1<\/sup> Michael P. Scharf, \u201cIndicted for War Crimes, Then What?\u201d Washington Post<\/em>, Oct. 3, 1999.<\/p>\n

2<\/sup> The \u201cChamber is satisfied that the acts of rape and sexual violence\u2026were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public\u2026.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.\u201d Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998.<\/p>\n

3<\/sup> From Axis Rule in Occupied Europe: Laws of Occupation-Analysis of Government-Proposals for Redress <\/em>(Washington DC: Carnegie Endowment for International Peace, 1944). http:\/\/www.preventgenocide.org\/lemkin\/AxisRule1944-1.htm<\/a>. 4<\/sup> \u201cRevised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide,\u201d E\/CN.4\/Sub.2\/1985\/6.<\/p>\n

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

6<\/sup> Final Report of the Commission of Experts Established Pursuant to Resolution 780 (1992), May 27, 1994, S\/1994\/674<\/p>\n

7<\/sup> 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.<\/p>\n

8<\/sup> Prosecutor v. Delali\u0107<\/em>, IT-96-21-A, Appeals Judgment, Feb. 20, 2001, paragraph 266.<\/p>\n

9<\/sup> Delali\u0107<\/em>, paragraph 197.<\/p>\n

10<\/sup>Washington Post<\/em>, Aug. 29, 2004.<\/p>\n

11<\/sup> A key prosecution witness during the Milo\u0161evi\u0107 trial was Renaud de la Brosse, described as an \u201cexpert in the use of propaganda in the media.\u201d De la Brosse, a professor at the University of Reims, prepared a report entitled \u201cPolitical Propaganda and the Plan to Create a State for All Serbs.\u201d His thesis was that anytime any Serb complains of violence directed at Serbs he is stigmatizing some other national group.<\/p>\n

12<\/sup> The Associated Press, July 3, 1996. (According to the AP account, \u201cJean-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\u2026.Ruez cited an incident in the indictment where a man was forced by a soldier to cut open his grandson\u2019s stomach and eat part of his liver. \u2018He took the old man and put a knife in his hand\u2026and 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\u2019s stomach and he forced the man to eat that part,\u2019 Ruez told the court.\u201d)<\/p>\n

13<\/sup> ICTY Press Realease, Aug. 2, 2001. http:\/\/www.icty.org\/x\/cases\/Krsti\u0107\/tjug\/en\/010802_Krsti\u0107_summary_en.pdf<\/a>.<\/p>\n

14<\/sup> Prosecutor v. Vujadin Popovi\u0107 et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 782.<\/p>\n

15<\/sup> \u201cSituation 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,\u201d Aug. 22, 1995, E\/CN.4\/1996\/9, paragraph 32, footnote 3.<\/p>\n

16<\/sup> Prosecutor v. Radislav Krsti\u0107, IT-98-33-T, Judgment, Aug. 2, 2001, paragraph 165.<\/p>\n

17<\/sup> Krsti\u0107, paragraph 546.<\/p>\n

18<\/sup> http:\/\/www.icrc.org\/Web\/Eng\/siteeng0.nsf\/iwpList74\/7609D560283849CFC1256B6600595006<\/a>.<\/p>\n

19<\/sup> Krsti\u0107, paragraph 73.<\/p>\n

20<\/sup> Prosecutor v. Vujadin Popovi\u0107 et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 616.<\/p>\n

21<\/sup> Ljubisa Simic, \u201cAnalysis of Srebrenica Forensic Reports Prepared by ICTY Prosecution Experts,\u201d in Stephen Karganovic, Deconstruction of a Virtual Genocide: An Intelligent Person\u2019s Guide to Srebrenica <\/em>(The Hague: Srebrenica Historical Project, 2011), p. 76.<\/p>\n

22<\/sup> Krsti\u0107, paragraph 165.<\/p>\n

23<\/sup> Patricia M. Wald, \u201cDealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal,\u201d 5 Yale H.R. & Dev. L.J. 217.<\/p>\n

24<\/sup> Prosecutor v. Goran Jelisi\u0107, IT-95-10, Judgment, Dec. 14, 1999.<\/p>\n

25<\/sup> Milo\u0161evi\u0107 Trial Transcript, Aug. 25, 2003, pp. 25210-25212.<\/p>\n

26<\/sup> \u201cWar Criminals in the U.S.,\u201d Newsday<\/em>, March 12, 2006.<\/p>\n

27<\/sup> Prosecutor v. Erdemovi\u0107, IT-96-22-T, Nov. 19, 1996, p. 210.<\/p>\n

28<\/sup> \u201cThe Ghosts of Srebrenica,\u201d Boston Globe<\/em>, May 19, 1996.<\/p>\n

29<\/sup> \u201cPeabody Man Won\u2019t Face Tribunal,\u201d Boston Globe<\/em>, Aug. 28, 2004.<\/p>\n

30<\/sup> \u201cFormer Bosnian Serb Soldier Jailed Over Srebrenica Massacre,\u201d Agence France Presse, July 19, 2010.<\/p>\n

31<\/sup> \u201cBosnian Serb Pleads Guilty to Srebrenica Atrocities,\u201d BBC Worldwide Monitoring, July 19, 2010.<\/p>\n

32<\/sup> Prosecutor v. Vujadin Popovi\u0107 et al, IT-05-88-T, Judgment, June 10, 2010, paragraphs 1134 and 1135.<\/p>\n

33<\/sup> Prosecutor v. Krsti\u0107, IT-98-33-T, Judgment, Aug. 2, 2001, paragraph 243.<\/p>\n

34<\/sup> Milo\u0161evi\u0107 Trial Transcript, Feb. 12, 2004, p. 31975.<\/p>\n

35<\/sup> Ibid., pp. 3167-3168.<\/p>\n

36<\/sup> Witness Statement of Francis Roy Thomas, Nov. 16, 17 and 18, 1997, ICTY Legal Library.<\/p>\n

37<\/sup> Krsti\u0107, paragraph 121.<\/p>\n

38<\/sup> Krsti\u0107, paragraph 120.<\/p>\n

39<\/sup> Krsti\u0107, paragraph 130.<\/p>\n

40<\/sup> Srebrenica Trial Video, ICTY Legal Library.<\/p>\n

41<\/sup> The ICTY doesn\u2019t have a full transcript of the Hotel Fontana meeting on its Web site. There is only a heavily edited, compressed version. It has Mladi\u0107 saying, \u201c[T]here is no need for your people to get killed\u2026.all you have to do is say what you want. As I told the gentleman last night: you can either survive or disappear\u2026.For your survival I request: that all your armed men who attacked and committed crimes\u2014and many did\u2014against our people, hand over weapons\u2026.on handing over weapons you may\u2026choose to stay in the territory\u2026or, if it suits you, go where you want. The wish of every individual will be observed, no matter how many of you there are.\u201d Given the enormous importance the ICTY attaches to this meeting the absence of a full transcript is extraordinary.<\/p>\n

42<\/sup> Prosecutor v. Radovan Karad\u017ei\u0107 and Ratko Mladi\u0107, IT-95-5-R61 and IT-95-18-R61, July 4, 1996, pp. 647-649.<\/p>\n

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

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

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

46<\/sup> Prosecutor v. Goran Jelisi\u0107, IT-95-10, Judgment, Dec. 14, 1999, paragraphs 70 and 71.<\/p>\n

47<\/sup> Krsti\u0107, paragraph 557; Blagojevi\u0107, paragraph 667.<\/p>\n

48<\/sup> Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998, paragraph 511.<\/p>\n

49<\/sup> Krsti\u0107, paragraph 560.<\/p>\n

50<\/sup> William A. Schabas, \u201cState Policy as an Element of the Crime of Genocide,\u201d Expert Witness Report, May 1, 2008, ICTY Legal Library.<\/p>\n

51<\/sup> Prosecutor v. Goran Jelisi\u0107, IT-95-10-T, Judgment, paragraph 63. To be sure, the Jelisi\u0107 court nonetheless determined that \u201cIn 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.\u201d Yet the only authority the court cites besides the U.N. General Assembly resolution is a 1949 book by Nehemiah Robinson, The Genocide Convention<\/em>. The court quotes this author as saying \u201cthe 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 <\/em>(ICTY italics).\u201d 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\u2019s most striking is that the ICTY deliberately misquotes him. What Robinson said was that \u201cthe 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 <\/em>(my italics).\u201d 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 \u201cprovided the number is substantial.\u201d That\u2019s the key point, one that the ICTY was anxious for obvious reasons to elide.<\/p>\n

52<\/sup> Krsti\u0107, paragraph 590.<\/p>\n

53<\/sup> Krsti\u0107, paragraph 592.<\/p>\n

54<\/sup> Krsti\u0107, paragraph 595.<\/p>\n

55<\/sup> Krsti\u0107, paragraph 91.<\/p>\n

56<\/sup> Krsti\u0107, paragraph 93.<\/p>\n

The Krsti\u0107 court\u2019s 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 \u201ccarry Serbian seed.\u201d According to an oft-cited book from those days, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia <\/em>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. \u201cGenocidal rape aimed at enforced pregnancy would seem to be a peculiarly Serb contribution to the history of atrocity,\u201d Allen wrote. The proponents of the genocide-by-mass-rape hypothesis had no more evidence to back up their claims than the Krsti\u0107 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 Krsti\u0107 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.<\/p>\n

57<\/sup> Krsti\u0107, paragraph 595.<\/p>\n

58<\/sup> Krsti\u0107, paragraph 597.<\/p>\n

59<\/sup> Genocide case, paragraph 190.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 60<\/sup> The appeals court fully endorsed the trial court\u2019s 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.<\/p>\n

Prosecutor v. Krsti\u0107, Appeals Chamber Judgment, April 19, 2004, paragraph 28.<\/p>\n

61<\/sup> Krsti\u0107, Appeals Chamber, paragraphs 31 and 32.<\/p>\n

62<\/sup> Michael Mandel, \u201cThe ICTY Calls It Genocide,\u201d chapter in forthcoming book, Srebrenica and the Politics of War Crimes<\/em>. http:\/\/www.srebrenica-report.com\/icty.htm#_edn11<\/a>.<\/p>\n

 <\/p>\n

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, Milo\u0161evi\u0107 pointed to numerous letters written to him by Akashi, Williams\u2019 boss, thanking Serbia\u2019s leader for his efforts to end the war in Bosnia. Embarrassed, the ICTY prosecutors rushed to explain that Milo\u0161evi\u0107 wasn\u2019t 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: \u201cDid Mr. Milo\u0161evi\u0107 introduce the connection between the sanctions that were imposed on Serbia and the cessation of hostilities in Bosnia?\u201d Williams, predictably enough, responded: \u201cYes, he did\u2026.I mean, clearly he was not a disinterested intermediary.\u201d Triumphantly, the prosecutor pressed on: \u201cWas this the only occasion in which he linked the two, the sanctions with cessation of hostilities in\u2014or peace in Bosnia?\u201d No, Williams replied, \u201cI don\u2019t believe it was the only occasion, but I can\u2019t off the top of my head cite directly a date and place for another occasion.\u201d (Milo\u0161evi\u0107 Trial Transcript, June 25, 2003, p. 23071.)<\/p>\n

 <\/p>\n

But why would Milo\u0161evi\u0107 act as a \u201cdisinterested intermediary\u201d? 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\u2019 interests rather than the supposedly disinterested goals of the international humanitarians.<\/p>\n

63<\/sup> Prosecutor v. Krsti\u0107, Appeals Chamber Judgment, April 19, 2004, paragraph 134.<\/p>\n

64<\/sup> Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Trial Judgment, Sept. 1, 2004, paragraph 730. 65<\/sup> Prosecutor v. Vujadin Popovi\u0107 et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 865. 66<\/sup> Prosecutor v. Vidoje Blagojevi\u0107, IT-02-60-T, Jan. 17, 2005, paragraph 649.<\/p>\n

67<\/sup> Blagojevi\u0107, paragraph 651.<\/p>\n

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

69<\/sup> Blagojevi\u0107, paragraph 665.<\/p>\n

70<\/sup> Blagojevi\u0107, paragraph 666.<\/p>\n

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

72<\/sup> Blagojevi\u0107, paragraph 675.<\/p>\n

73<\/sup> Blagojevi\u0107, paragraph 677.<\/p>\n

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

75<\/sup> Prosecutor v. Vujadin Popovi\u0107 et al, IT-05-88-T, Judgment, June 10, 2010, paragraph 923.<\/p>\n

76<\/sup> Patricia M. Wald, \u201cGeneral Radislav Krsti\u0107: A War Crimes Case Study,\u201d Georgetown Journal of Legal Ethics<\/em>, Spring 2003.<\/p>\n

77<\/sup> Blagojevi\u0107, paragraph 674.<\/p>\n

78<\/sup> Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Trial Judgment, Sept. 1, 2004, paragraph 712.<\/p>\n

79<\/sup> Brdjanin, Trial Judgment, paragraph 720.<\/p>\n

80<\/sup> Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 bis, Nov. 28, 2003, paragraph 66.<\/p>\n

81<\/sup> William A. Schabas, \u201cState Policy as an Element of the Crime of Genocide,\u201d Expert Witness Report, May 1, 2008, ICTY Legal Library.<\/p>\n

82<\/sup> Prosecutor v. Radoslav Brdjanin, No. IT-99-36-A, ICTY Appeals Chamber, Decision on Interlocutory Appeal, March 19, 2004.<\/p>\n

83<\/sup> Sixth Committee of the U.N. General Assembly, 82nd<\/sup> meeting, Oct. 23, 1948, U.N. doc. A\/C.6\/SR.82.<\/p>\n

84<\/sup> 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.<\/p>\n

85<\/sup> Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, Sept. 2, 1998, paragraph 485.<\/p>\n

86<\/sup> Prosecutor v. Milomir Staki\u0107, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 530.<\/p>\n

87<\/sup> Prosecutor v. Milomir Staki\u0107, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 547.<\/p>\n

88<\/sup> Prosecutor v. Krsti\u0107, Appeals Chamber Judgment, April 19, 2004, paragraph 34 and 35.<\/p>\n

89<\/sup> Prosecutor v. Milomir Staki\u0107, IT-97-24-T, Trial Judgment, July 31, 2003, paragraph 435.<\/p>\n

90<\/sup> Prosecutor v. Goran Jelisi\u0107, IT-95-10-T, Trial Judgment, Dec. 14, 1999, paragraph 98.<\/p>\n

91<\/sup> Prosecutor v. Goran Jelisi\u0107, IT-95-10-A, Appeals Judgment, July 5, 2001, paragraph 48.<\/p>\n<\/div>\n<\/article>\n

 <\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Srebrenica is the main business of the Hague Tribunal and establishing genocide in Srebrenica is the court\u2019s principal political task. Prof. George Szamuely closely examines the Tribunal\u2019s questionable legal rationale used in arguing its Srebrenica genocide case. Genocide, which had not featured at Nuremburg, is the pride and glory of the U.N. tribunals. The International … <\/p>\n

Continue reading “Defining Genocide Down: The Case of Srebrenica – George Szamuely”<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"yoast_head":"\nDefining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Defining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team\" \/>\n<meta property=\"og:description\" content=\"Srebrenica is the main business of the Hague Tribunal and establishing genocide in Srebrenica is the court\u2019s principal political task. Prof. George Szamuely closely examines the Tribunal\u2019s questionable legal rationale used in arguing its Srebrenica genocide case. Genocide, which had not featured at Nuremburg, is the pride and glory of the U.N. tribunals. The International … Continue reading "Defining Genocide Down: The Case of Srebrenica – George Szamuely"\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/\" \/>\n<meta property=\"og:site_name\" content=\"Balkan Conflicts Research Team\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Estimated reading time\" \/>\n\t<meta name=\"twitter:data1\" content=\"120 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/#website\",\"url\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/\",\"name\":\"Balkan Conflicts Research Team\",\"description\":\"Information on recent conflicts in the Balkans\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-GB\"},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#webpage\",\"url\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/\",\"name\":\"Defining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team\",\"isPartOf\":{\"@id\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/#website\"},\"datePublished\":\"2021-02-08T12:12:50+00:00\",\"dateModified\":\"2021-02-08T12:12:50+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#breadcrumb\"},\"inLanguage\":\"en-GB\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.balkan-conflicts-research.com\/archive\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Defining Genocide Down: The Case of Srebrenica – George Szamuely\"}]}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Defining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/","og_locale":"en_GB","og_type":"article","og_title":"Defining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team","og_description":"Srebrenica is the main business of the Hague Tribunal and establishing genocide in Srebrenica is the court\u2019s principal political task. Prof. George Szamuely closely examines the Tribunal\u2019s questionable legal rationale used in arguing its Srebrenica genocide case. Genocide, which had not featured at Nuremburg, is the pride and glory of the U.N. tribunals. The International … Continue reading \"Defining Genocide Down: The Case of Srebrenica – George Szamuely\"","og_url":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/","og_site_name":"Balkan Conflicts Research Team","twitter_card":"summary_large_image","twitter_misc":{"Estimated reading time":"120 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebSite","@id":"https:\/\/www.balkan-conflicts-research.com\/archive\/#website","url":"https:\/\/www.balkan-conflicts-research.com\/archive\/","name":"Balkan Conflicts Research Team","description":"Information on recent conflicts in the Balkans","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.balkan-conflicts-research.com\/archive\/?s={search_term_string}"},"query-input":"required name=search_term_string"}],"inLanguage":"en-GB"},{"@type":"WebPage","@id":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#webpage","url":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/","name":"Defining Genocide Down: The Case of Srebrenica - George Szamuely - Balkan Conflicts Research Team","isPartOf":{"@id":"https:\/\/www.balkan-conflicts-research.com\/archive\/#website"},"datePublished":"2021-02-08T12:12:50+00:00","dateModified":"2021-02-08T12:12:50+00:00","breadcrumb":{"@id":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#breadcrumb"},"inLanguage":"en-GB","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.balkan-conflicts-research.com\/archive\/defining-genocide-down-the-case-of-srebrenica-george-szamuely\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.balkan-conflicts-research.com\/archive\/"},{"@type":"ListItem","position":2,"name":"Defining Genocide Down: The Case of Srebrenica – George Szamuely"}]}]}},"_links":{"self":[{"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/pages\/1955"}],"collection":[{"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/comments?post=1955"}],"version-history":[{"count":1,"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/pages\/1955\/revisions"}],"predecessor-version":[{"id":1957,"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/pages\/1955\/revisions\/1957"}],"wp:attachment":[{"href":"https:\/\/www.balkan-conflicts-research.com\/archive\/wp-json\/wp\/v2\/media?parent=1955"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}