This is question must be asked if we wish to deal with Srebrenica in a serious manner. In light of the common depiction of events in Srebrenica immediately following July 11th 1995, there are only two ways to characterize the ensuing executions: (1) as a massacre of significant proportions which is a major violation of the laws and customs of war, or (2) as an act of genocide. For explanation (2), genocide, to be sustainable, a further question must be asked: Was there an intent to execute all Muslims as such who might be captured by Serbian forces? For genocide to be established, the answer to that further question must be unequivocally positive. To the extent that conditionalities are attached to the affirmative answer, the genocide thesis is undermined. [1] Even some sort of “yes, but” answer would tend to distance mass killing from genocide and would ultimately shift the characterization of what happened to the first option, massacre.
In the Krstić case, the chamber articulated a very clear position with respect to this point. The chamber’s language about Srebrenica executions in par. 546 imposes rather strict evidentiary standards and leave it little room for maneuver:
“The Trial Chamber is ultimately satisfied that murders and infliction of serious bodily or mental harm were committed with the intent to kill all the Bosnian Muslim men of military age at Srebrenica. (…) All of the executions systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers.” [2]
And further on:
“Evidence shows … that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately…” [3]
Finally:
“Except for the wounded, all the men, whether separated in Potočari or captured from the column, were executed, either in small groups or in carefully orchestrated mass executions … The evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in Srebrenica, regardless of their civilian or military status [emphasis added].” [4]
The ICTY chamber in the recently concluded Popović et al. case was equally emphatic in its trial judgment that the criterion for genocide required that the nature of Srebrenica killing had to be all-inclusive:
“The Trial Chamber has found that several thousand Bosnian Muslim males were killed by members of the Bosnian Serb Forces. The scale and nature of the murder operation, the targeting of the victims, the systematic and organized manner in which it was carried out, and the plain intention to eliminate every Bosnian Muslim male who was captured or surrendered [emphasis added] proves beyond reasonable doubt that members of the Bosnian Serb Forces, including members of the VRS Main Staff and Security Branch, intended to destroy the Muslims of Eastern Bosnia as a group.” [5]
Two things should be noted here from the outset. First, ICTY chambers have erected a very strict standard of proof with regard to the occurrence of genocide in Srebrenica. They should now be held to that strict standard and the evidence should be scrutinised very carefully to see whether or not that standard has been met. Second, even if ICTY chambers, for whatever reasons, decided even before seriously approaching the evidence that it was their “public duty” to simply validate the prevalent perception of what happened in Srebrenica, the evident requirements of the Genocide Convention leave them no choice but to begin setting the stage for it with precisely such rhetoric. Only specific and indiscriminate intent to wipe out a protected group satisfies unconditionally the standard for genocide. So on the theoretical and rhetorical levels at least, the chambers figured out correctly what they had to say. For the finding of genocide to have apparent validity, the existence of the requisite intent must be maintained at any cost and it must be attributed to someone, even if necessary by shaping the evidence to fit such a design. Any limitations or conditions placed upon such an intention actually would create far more theoretical problems than it would resolve. [6]
The distinction between genocide and massacre is not a matter of nuance, nor is it a matter of intensity or style of killing; it is essential. Genocide assumes the presence of a particular element, dolus specialis, and it is defined as specific intent to destroy a protected human group, or a significant part of it, as such. If the presence of the mental elements which characterize genocide cannot be established, then regardless of the scale or methodology of the illegal killing it is not possible to draw the conclusion of genocide. That is why in legal scholarship genocide is considered one of the most difficult crimes to prove. Genocide has been a relatively rare occurrence in history and, because of the difficulty of proof, in jurisprudence as well. For that reason, where genocide can be proved the authors and instruments of that crime are subject to the most severe legal, moral, and even material punishment. That is entirely proper, given the heinousness of that crime.
Leaving aside the huge issue of about 20.000 Muslim women, children, and elderly who were not harmed but were safely evacuated by Serbian forces from Potočari to territory under Muslim control, which is clearly a major difficulty for the genocide theory, it seems that there is also some evidence that military-age men were not automatically executed. On the theoretical level, that is an even bigger problem for ICTY jurisprudence because the genocide rationale was motivated by the supposedly special status of males in the patriarchal Srebrenica Muslim society.
In the Cyrillic section of our website we present statements given by Muslims who were captured by Serbian forces during the critical week, which we define as July 11 to 19, 1995. They were not executed as one would have expected that they would be if the theory that Serbian forces were operating with genocidal intent (at least during the Srebrenica operation) were correct. Upon being released and reaching territory under Muslim control they gave statements to the authorities there or, later, to ICTY investigators.
We post here only translations of such statements that were prepared by non-Serb sources acting in an official capacity. For statements in Serbo-Croatian we refer readers who speak the language to the Cyrillic side of our website.
Endnotes:
[1] The UN Convention on Preventing and Punishing Genocide (1948) defines that crime as “deliberate and systematic extermination, in whole or in part, of an ethnic, racial, or religious group.”
[2] Trial judgment in Krstić, par. 546.
[3] Trial judgment in Krstić, par. 547. The chamber does not say when that moment occurred, when the decision was taken, or who took it. That is a rather large gap in the factual analysis when such an important and dramatic conclusion is involved.
[4] Ibid., par. 547. The Chamber must in some fashion explain the problem of the treated – not executed – wounded Moslem prisoners, because the defence had offered evidence on that subject in support of its own view of the matter. The Chamber’s solution is the cynical claim that the Serbian side spared those wounded for purely propaganda reasons. (Ibid., par. 86)
[5] Prosecutor v. Popović et al., par. 856.
[6] For genocide to be an applicable concept there must have been intent for every targeted Moslem to be killed, which obviously is overwhelmingly contradicted by the evidence. But the point is that as soon as you open the door for discrimination in the selection of victims within the target group, you undermine the notion that the killing, regardless of its scale or barbarity, was genocide. So on the theoretical level, assuming that they decided in advance what they wanted to call it, the court did the right thing from its own standpoint to tighten its description of the Serbs’ intent by saying that all members of the group targeted for genocide – not just military aged men, but every captured male Muslim – were slated for extermination. If they had been more flexible about it and allowed for selectivity, they would have faced a complicated situation. Instead of simply ignoring contradictory evidence, which is what they are doing now, they would have had a lot of tortuous explaining to do in order to fit uncooperative facts within their definition of genocide. The option they chose is much simpler for them.
Statements of Muslim survivors: