Genocide is incontestably the central issue in all Srebrenica trials at ICTY. It is the essence of the “conventional wisdom” on the subject of Srebrenica. It is also the principal conclusory emanation of the controversial history writing project that the Hague Tribunal has taken upon itself, arguably while overstepping the legitimate mandate of a proper court of law. We examine its coherence and some of its factual foundations.
The finding, which was heavily influenced for the remainder of the conflict in Bosnia and Herzegovina by media-driven perception management, that the events that took place in Srebrenica in July 1995 may be deemed genocide under international law,[1] is central to the official ICTY Srebrenica narrative. A corollary assertion is that any resulting dilemmas regarding the narrative’s veracity are now superfluous after having taken into account judgments rendered by the International Criminal Tribunal for the Former Yugoslavia.
For all interested parties, the legal, political, and moral implications of genocide are so great that one must ask some hard questions. Is there evidence of genocidal intent in Srebrenica? If so, then how does The Hague Tribunal treat this issue?
This is the crux of the Srebrenica controversy regardless of what happened at any particular location and regardless of the total number of executed victims, at least in the legal and political sense, because genocidal intent, in legal terms dolus specialis, must be established; otherwise, the killing in Srebrenica cannot be raised to the level of genocide. Genocide is substantially more than simple killing or a military operation conducted with uncommon brutality. The essence of the crime of genocide is intent, coupled with concrete acts designed to carry it out, to destroy one of the groups — be it ethnic, religious, or racial — protected by the Convention. All specialists in the legal field accept this. It is indisputable.
If we start from the assumption that logistical preparation for a genocidal undertaking requires a certain minimal time-frame to come to fruition, it is reasonable to pose the following question: At what moment can the existence of genocidal intent be established for Srebrenica, assuming there was one? and how long before the actual events did genocidal intent manifest itself?
In the Krstić Trial Judgment, the Chamber linked the inception of the Srebrenica plan to commit genocide to a meeting of Serbian military and political leaders at the Hotel Fontana in Bratunac on the morning of July 12, 1995, even though it admits that it lacks firm evidence for such a hypothesis.[2] Par. 573 of the Krstić Trial Judgment is a characteristic example of the Chamber drawing a pre-conceived conclusion, regardless of whether it was corroborated by factual evidence or not:
The Trial Chamber is unable to determine the precise date on which the decision to kill all military age men was taken. Hence it cannot find that the killings committed in Potočari on 12 and 13 July 1995[3] formed part of the plan to kill all the military aged men. Nevertheless, the Trial Chamber is confident that the mass executions and other killings committed from July 13 onward were part of this plan.
How can “confidence” replace indisputable evidence, which admittedly is lacking?
The testimony of Jean-René Ruez, Chief Investigator for the Prosecution at the ICTY, given to the Srebrenica Commission established by the French Parliament in November of 2001, sheds light on the important chronological issue. Ruez, after having been asked by the Commission whether it was correct that prior to 9 July there was no Serbian plan to take over the enclave despite its enormous strategic significance, replied:
In fact, the decision to take over the enclave was not taken before 9 July, when General Mladic understood that the enclave would not be defended. The original goal was for the enclave to be narrowed down to the territory of Srebrenica town, converting it into a huge open-air refugee camp, thus obliging the U.N. to commence evacuating the zone.[4]
The last part of Ruez’s statement is pure speculation, but the first part about the non-existence of any Serbian plan to take over Srebrenica prior to 9 July is based on documents to which Ruez had access in his official capacity as Chief Investigator. It is therefore credible and has the status of a provable fact.
Bearing in mind that the genocide in Srebrenica should have been committed between 13 and 17 July 1995, Ruez’s revelation is of the utmost importance, precisely because it originates from a source so close to the Office of the Prosecutor of The Hague Tribunal. On Ruez’s evidence, the intent to physically destroy the population of Srebrenica — or part of it — could not have been formed before 9 July. Yet the genocide allegedly began only four days later.
Another significant clarification of the sequence of events was made by Richard Butler, the ICTY Prosecution’s military expert. Like Ruez’s statement, it also fits the definition of a “declaration against the superior’s interest,” which makes it all the more credible.
Butler testified before the Bosnia and Herzegovina War Crimes Court in Sarajevo as an expert witness at the Pelemiš and Perić trial in 2010. Butler’s evidence sheds light not only on the sequence of events, but also on another key issue: dolus specialis, or genocidal intent. Butler, in his official capacity as Prosecution military expert, also had access to the most sensitive and relevant documents.
Butler testified that he discovered no indication of a plan to exterminate Muslims at least up until 11 July, the date when Serbian forces took over Srebrenica. This advances Ruez’s chronology by at least two additional days, which confirms that the intent on the part of the Serbs to commit genocide could not have been contemplated even forty-eight hours before the imputed crime began to unfold.[5]
Butler, while giving his testimony, disclosed additional details which cast — to put it charitably — reasonable doubt on the existence of genocidal intent.
First, Butler confirmed Ruez’s report that the aim of the Serbian military operation, for which planning had begun on 30 June 1995, was confined to reducing the U.N. protected enclave to the city limits of the town of Srebrenica. Second, according to Butler, President Karadžić ordered Serbian forces to enter Srebrenica on 10 July, just one day before the takeover. This means that the takeover of the enclave was an improvised decision made in light of the operation’s military success up to that moment, not a step taken as part of a pre-existing plan to capture and then exterminate a large portion of the male Muslim population. Third, Butler confirmed that until the scope of the operation was unexpectedly broadened on July 10 to include taking full control of the enclave. The military campaign was being conducted exclusively by the Drina Corps,[6] without the participation of the Serbian Army Main Staff or other superior command structures. Fourth, Butler said that he was “unaware” of any post-July 11 example, once takeover of the enclave had been completed and the operation was ended, of the VRS firing at civilians in Srebrenica. Fifth, as far as the deportation of civilians from the enclave is concerned, the documentary evidence according to Butler “does not show proof” of prior planning before the morning of 11 July, when the decision to enter Srebrenica was made. Finally, sixth, Butler accepted that among the ranks of the Army of the Republic of Srpska “at least until 12 or even 13 July” there was “no expectation that the prisoners might be executed.”
How compatible is this sequence of events and its accompanying analysis, which was divulged by leading experts of ICTY Prosecution, with the Tribunal’s conclusion that the political and military leadership of the Republic of Srpska intended the physical destruction of Muslim men, as an ethnic or religious community, in Srebrenica? The Convention on Genocide holds that the intent must be evident for a proper finding of genocide. So, if genocide had occurred in Srebrenica, was it the calculated consequence of pre-existing intent — or an afterthought?
After the Krstić judgment, William Schabas, the Canadian law professor and expert in genocide studies, expressed the dilemma, which still remains eminently reasonable. After Schabas pointed out the Trial Chamber’s apparent willingness in Krstić to “accept the Prosecutor’s contention that the intent in killing the men and boys of military age was to eliminate the community as a whole,”[7] he observed that “this seems a rather enormous deduction to make on the basis that men and boys of military age were massacred.” He then asks:
Can there not be other plausible explanations for the destruction of 7,000 men and boys in Srebrenica? Could they not have been targeted precisely because they were of military age, and thus actual or potential combatants? Would someone truly bent upon the physical destruction of a group, and cold-blooded enough to murder more than 7,000 defenseless men and boys, go to the trouble of organizing transport so that women, children, and the elderly could be evacuated? It is certainly striking that another Trial Chamber, in Sikirica, dismissed the ‘significant part’ argument after noting that the common denominator of the victims was that they were men of military age and nothing more, as if this were insufficient.[8]
All professional observers of the ICTY agree that none of the six Srebrenica trials[9] ever produced one single item of evidence, originating at any command level, that demonstrated the existence of intent and ordered the necessary logistical preparations to destroy the Muslim community in Srebrenica. How did The Hague Tribunal then conclude that genocide did occur?
Par. 4 of the Krstić Trial Judgment provides a clue to answering this important question. The ICTY resorts to an inventive analytical technique as well as to a hitherto obscure legal doctrine:
The Trial Chamber draws upon a mosaic of evidence that combines to paint a picture of what happened during those few days in July 1995.[10]
One possible implication is that the Court lacked firm and direct evidence upon which to base its judgment. The Chamber therefore decided to combine potential bits and pieces of evidence as tesserae in a mosaic, resulting in an image, an impression that could most accurately be compared to a Rorschach test. Each observer is free to interpret the abstract image placed before him in a unique and subjective way. This is the Chamber’s “mosaic.”
Deep-rooted assumptions about what constitutes a genocidal operation must be discarded in advance in order for the Chamber’s interpretation to appear minimally plausible. One such common-sense assumption is that of the existence of a genocidal concept or plan. This is perhaps why the Chamber, in Par. 225 of the Krstić Appellate Judgment, expounds the amazing contention that “’the existence of a plan or policy is not a legal ingredient of the crime’ of genocide.” The Appellate Chamber might welcome evidence of planning, if any could be found, but it maintains that its task can still be performed without it: “While the existence of such a plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent, and does not become a legal ingredient of the offence.”[11]
The Chamber’s verbal gymnastics fail. If there was no discernible plan or policy, then what were the specific causes of the alleged genocide in Srebrenica? If there was no coherent concept to commit the criminal act imputed to him, then why was General Krstić sentenced to lengthy imprisonment? The same may be asked of virtually every other Srebrenica defendant.
In Par. 26 of the Krstić Appellate Judgment, the Chamber drastically refashioned the very concept of intent: “The main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.” Whether all captured military-age men were massacred is doubtful.[12] But more to the point is the question whether the notion of “men of military age” is sufficiently broad to merit inclusion as one of the protected groups indicated in the Convention. Even if such genocidal intent did exist within the ranks of the military and political leadership of the Republic of Srpska, how does the fact that this leadership refrained from ordering the killing of Muslims approximately ten days later, during and immediately after the operation that targeted the neighboring enclave of Žepa, fit in with the Appellate Chamber’s scenario? [13]
In the Krstić case, the Chamber identified the inception of the Srebrenica genocide plan (the necessity of which it had just denied) in a meeting of members of Serbian political and military leadership at the Hotel Fontana in nearby Bratunac in the afternoon of 12 July 1995; however, the Chamber frankly admits that it lacks hard evidence even for that.[14]
When one single body is authorized to interpret its own Rorschach test, problems are easily solved. One simply discards elements of the picture that do not conform to the concept, while at the same time one claims that what is seen — although others fail to notice it — is the most obvious part of the picture.
Finally, two important details frame this controversy.
The first has to do with the testimony of Dražen Erdemović, the ICTY Prosecution “crown witness,” which he gave at the trial of Radovan Karadžić. Karadžić, during his cross-examination, asked Erdemović a direct question that touched the essence of the matter as far as Srebrenica is concerned, which is the dolus specialis or genocidal intent:[15]
“Did you fire at them with the intention of destroying the Muslims as an ethnic group in Bosnia, destroying them as a people?” to which Erdemović replied: “No, Mr. Karadžić.”
Karadžić’s next question was whether anyone else in Erdemović’s unit had the intention of exterminating Muslims.
This was Erdemović’s reply: “Mr. Karadzic, I cannot remember, but I do not believe that we discussed who had which intention on that day and whether anyone wanted to exterminate the Muslims. We did not have such discussions. I don’t remember discussing that with anyone from my unit.”[16]
So much for now about the frame of mind of the immediate perpetrators and about the intent that motivated them during the commission of the crime.
The other detail that needs to be highlighted is an astonishing reflection from the Separate Opinion of Judge Jean-Claude Antonetti written as part of the Appellate Judgment in the Tolimir case, in April of 2015. In the context of an incisive, Cartesian critique of the majority’s view, Antonetti concludes with some poignant observations:
[The Accused’s] role, which was irreversibly determined by this Appeal Judgment, does not, however, provide an answer to the legitimate question of the victims’ families as to who ordered the mass executions (…) In that respect, I must mention the expectation of the victims’ families to learn the identity of the perpetrators of these tragic events that culminated in the executions of several thousand Muslims from Bosnia and Herzegovina (…) To this day, based on the evidence in the case file, I do not have an answer to this question.[17]
Everyone should ponder these devastating words of one of the most respected and fair-minded judges at The Hague Tribunal.[18] If, after more than twenty years of investigation, the Tribunal has failed to establish even the basic facts about Srebrenica, that strongly suggests that the ICTY was going about its job the wrong way and using a methodology that did not ensure professionally sustainable (or at least informative) conclusions, and that the ICTY was probably motivated by agendas that were, for the most part, without a juridical foundation.
If so, such an institution is manifestly unfit to make a finding of genocide.
Endnotes:
[1]. This issue is particularly pertinent in light of the Tolimir Chamber’s finding (2012) that the long-overlooked but practically simultaneous military operation in Žepa also constitutes “genocide,” based on the assassination by Serbian forces of three indispensable community leaders (military commander, municipal president, and imam), without whom the community was left rudderless and unsustainable and therefore — even in the absence of Srebrenica-style mass executions ― as good as “genocided.” See Tolimir Trial Judgment, par. 780.
[2]. See Prosecutor v. Krstić, Par. 126-134 and Par. 573 of the Trial Judgment and Par. 84, 85 and 91 of the Appellate Judgment for the way the Chambers treats the Hotel Fontana meetings on July 11 and 12, 1995.
[3]. If the Potočari killings on July 13 were not part of the “genocidal plan,” then what unique circumstances make Kravica Warehouse killings — just a few kilometers away and committed on the same day — part of that plan?
[4]. RAPPORT D’INFORMATION No. 3413, National Assembly of France, 22 November 2001, p. 43.
[5]. State Court of Bosnia and Hercegovina, War Crimes Department, Prosecutor v. Pelemiš et al, X-KR-08/602, 22 March 2010.
[6]. The military unit of the Serbian Army in whose zone of responsibility Srebrenica was located.
[7]. Krstić Trial Judgment, par. 594
[8]. William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia,” Fordham Journal of International Law, Vol. 25, No. 23, 2001-2002, p. 46.
[9]. Krstić, Blagojević and Jokić, Popović et al., Tolimir, Mladić, and Karadžić.
[10]. ICTY, Prosecutor v Krstić, Trial Judgment, Par. 4.
[11]. ICTY, Prosecutor v Krstić, Appellate Judgment, Par. 225
[12]. See Annex V: Muslim Military Age Males Captured but not Executed by Serb Forces between 11 and 17 July 1995
[13]. For fairness’ sake it should be noted that — by a curious act of omission — Žepa was not included in any of the Srebrenica indictments until the Tolimir trial, a decade after Krstić. Also, the Tolimir court had no need of mass slaughter to conclude that Žepa also constituted genocide. Prior to drawing this counter-intuitive conclusion, the court had prepared the theoretical groundwork by creatively redefining the concept of genocide so that three deaths were sufficient for its purposes. But it still remains a rhetorical question.
[14]. ICTY, Prosecutor v. Krstić, Trial Judgment, Par. 126-134 and Par. 573; Appellate Judgment, Par. 84-85 and Par. 91
[15]. ICTY, Prosecutor v. Karadžić, Transcript, 28 February 2012, p. 25410
[16]. Ibid., p. 25415
[17]. ICTY, Prosecutor v. Tolimir, Appellate Judgment, pp. 399 – 400.
[18]. Antonetti, driving the point home in the concluding remarks of his Dissenting Opinion, makes more disquieting comments about the Tribunal’s performance: “The question is why did this military operation transform into a massacre of the prisoners of war? By failing to examine this avenue, the ICTY did not perform its duty to establish the truth,” ibid.
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