Bosnian Genocide
Overview
The term Bosnian Genocide refers to either the genocide
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

 committed by Bosnian Serb forces in Srebrenica
Srebrenica
Srebrenica is a town and municipality in the east of Bosnia and Herzegovina, in the Bosnian Serb entity of Republika Srpska. Srebrenica is a small mountain town, its main industry being salt mining and a nearby spa. During the Bosnian War, the town was the site of the July 1995 massacre,...

 in 1995 or the ethnic cleansing campaign
Ethnic cleansing in Bosnia
Widespread ethnic cleansing accompanied the war in Bosnia , Large numbers of Bosniaks and Bosnian Croats were forced to flee their homes and were expelled by Bosnian Serbs; and Bosnian Croats also carried out similar campaign against Bosniaks....

 that took place throughout areas controlled by the Bosnian Serb Army during the 1992–1995 Bosnian War.

The events in Srebrenica in 1995 included the killing of more than 8,000 Bosnian Muslims as well as the mass expulsion of another 25,000–30,000 Bosnian Muslims, in and around the town of Srebrenica in Bosnia and Herzegovina
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...

, committed by units of the Army of Republika Srpska (VRS) under the command of General Ratko Mladić
Ratko Mladić
Ratko Mladić is an accused war criminal and a former Bosnian Serb military leader. On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia...

.

The ethnic cleansing
Ethnic cleansing
Ethnic cleansing is a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic orreligious group from certain geographic areas....

 campaign that took place throughout areas controlled by the Bosnian Serb Army targeted Bosnian Muslims and Bosnian Croats.
Encyclopedia
The term Bosnian Genocide refers to either the genocide
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

 committed by Bosnian Serb forces in Srebrenica
Srebrenica
Srebrenica is a town and municipality in the east of Bosnia and Herzegovina, in the Bosnian Serb entity of Republika Srpska. Srebrenica is a small mountain town, its main industry being salt mining and a nearby spa. During the Bosnian War, the town was the site of the July 1995 massacre,...

 in 1995 or the ethnic cleansing campaign
Ethnic cleansing in Bosnia
Widespread ethnic cleansing accompanied the war in Bosnia , Large numbers of Bosniaks and Bosnian Croats were forced to flee their homes and were expelled by Bosnian Serbs; and Bosnian Croats also carried out similar campaign against Bosniaks....

 that took place throughout areas controlled by the Bosnian Serb Army during the 1992–1995 Bosnian War.

The events in Srebrenica in 1995 included the killing of more than 8,000 Bosnian Muslims as well as the mass expulsion of another 25,000–30,000 Bosnian Muslims, in and around the town of Srebrenica in Bosnia and Herzegovina
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...

, committed by units of the Army of Republika Srpska (VRS) under the command of General Ratko Mladić
Ratko Mladić
Ratko Mladić is an accused war criminal and a former Bosnian Serb military leader. On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia...

.

The ethnic cleansing
Ethnic cleansing
Ethnic cleansing is a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic orreligious group from certain geographic areas....

 campaign that took place throughout areas controlled by the Bosnian Serb Army targeted Bosnian Muslims and Bosnian Croats. The ethnic cleansing campaign included unlawful confinement, murder, rape, sexual assault, torture, beating, robbery and inhumane treatment of civilians; the targeting of political leaders, intellectuals and professionals; the unlawful deportation and transfer of civilians; the unlawful shelling of civilians; the unlawful appropriation and plunder of real and personal property; the destruction of homes and businesses; and the destruction of places of worship.

In the 1990s, several authorities, along with a considerable number of legal scholars, asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...

. These included a resolution by the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

 and three convictions for genocide in German courts, (the convictions were based upon a wider interpretation of genocide than that used by international courts). In 2005, the United States Congress passed a resolution declaring that "the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide".

However, in line with a majority of legal scholars, the International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...

 (ICTY) and the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

 (ICJ) have ruled that, in order for actions to be deemed genocide, there must be physical or biological destruction of a protected group and a specific intent to commit such destruction. To date, only the Srebrenica massacre
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

 has been found to be a genocide by the ICTY, a finding upheld by the ICJ.

United Nations

On 18 December 1992, the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

 resolution 47/121 in its preamble deemed ethnic cleansing to be a form of genocide stating:
On 12 July 2007, in its judgement on the Jorgic v. Germany case, the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 noted that:

International Criminal Tribunal for the Former Yugoslavia

In 2001, the International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...

 (ICTY) judged that the 1995 Srebrenica massacre
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

 was genocide. In the unanimous ruling "Prosecutor v. Krstić", the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY)
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...

, located in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...

, reaffirmed that the Srebrenica massacre was genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...

, the Presiding Judge Theodor Meron stating:
In September 2006, former Bosnian Serb leader Momcilo Krajisnik
Momcilo Krajišnik
Momčilo Krajišnik is a Bosnian Serb former politician convicted of murder and other crimes against humanity during the Bosnian war .He co-founded the Bosnian Serb nationalist Serbian Democratic Party with Radovan...

 was found guilty of multiple instances of crimes against humanity, but while the ICTY judges found that there was evidence that crimes committed in Bosnia constituted the criminal act of genocide (actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

), they did not establish that the accused possessed genocidal intent, or was part of a criminal enterprise that had such an intent (mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

).

Ongoing Bosnian Genocide Trial

Currently, former Bosnian Serb leader Radovan Karadzic and Ratko Mladic are both on trial on two counts of genocide and other war crimes committed in Srebrenica, Prijedor, Kljuc, and other districts of Bosnia. Karadzic and Mladic are charged, separately, with:

Count 1: Genocide.
– Municipalities: Bratunac
Bratunac
Bratunac is a town and municipality located in eastern Bosnia and Herzegovina. The easternmost point of Bosnia and Herzegovina is located in the municipality of Bratunac which lies in the Republika Srpska.-1971:26.513 total...

, Foča
Foca
Foča is a town and municipality in southeastern Bosnia and Herzegovina on the Drina river, in the Foča Region of the Republika Srpska entity.-Early history:...

, Ključ
Kljuc
Ključ is a town and municipality by the same name in western Bosnia and Herzegovina. It is located in the Federation of Bosnia and Herzegovina, specifically the Una-Sana Canton. The name of the town and the municipality translates to "Key" in Bosnian....

, Kotor Varoš
Kotor Varoš
Kotor Varoš is a town and municipality in northwestern Republika Srpska, Bosnia and Herzegovina.-History:The city was first mentioned in the 10th century, when it was called Kotor. Varoš, added later, means "town" in Hungarian...

, Prijedor
Prijedor
Prijedor is a city and municipality in the north-western part of Bosnia and Herzegovina. It is situated in the Bosanska Krajina region....

, Sanski Most
Sanski Most
Sanski Most is a town and municipality in northwestern Bosnia and Herzegovina. It is located on the Sana River in Bosanska Krajina, between Prijedor and Ključ. Administratively it is part of the Una-Sana Canton of the Federation of Bosnia and Herzegovina....

, Vlasenica
Vlasenica
Vlasenica is a municipality and town of Bosnia and Herzegovina. Administratively it is part of Vlasenica Region.-1912:...

 and Zvornik
Zvornik
Zvornik is a city on the Drina river in northeastern Bosnia and Herzegovina, located south of the town of Bijeljina in Bosnia and Herzegovina. The town Mali Zvornik lies directly across the river in Serbia, and not far north is Loznica.-History:Zvornik is first mentioned in 1410, although it was...

.

Count 2: Genocide.
– Municipality: Srebrenica
Srebrenica
Srebrenica is a town and municipality in the east of Bosnia and Herzegovina, in the Bosnian Serb entity of Republika Srpska. Srebrenica is a small mountain town, its main industry being salt mining and a nearby spa. During the Bosnian War, the town was the site of the July 1995 massacre,...

.

Count 3: Persecutions on Political, Racial and Religious Grounds, a Crime Against Humanity.
– Municipalities: Banja Luka
Banja Luka
-History:The name "Banja Luka" was first mentioned in a document dated February 6, 1494, but Banja Luka's history dates back to ancient times. There is a substantial evidence of the Roman presence in the region during the first few centuries A.D., including an old fort "Kastel" in the centre of...

, Bijeljina
Bijeljina
Bijeljina is a city and municipality in northeastern Bosnia and Herzegovina. The city is the second largest in the Republika Srpska entity after Banja Luka and fifth largest city in Bosnia and Herzegovina, and is situated on the flat rich plains of Semberija...

, Bosanska Krupa
Bosanska Krupa
Bosanska Krupa is a town and municipality in northwestern Bosnia and Herzegovina, on the Una river. It is located northeast from Bihać...

, Bosanski Novi, Bratunac
Bratunac
Bratunac is a town and municipality located in eastern Bosnia and Herzegovina. The easternmost point of Bosnia and Herzegovina is located in the municipality of Bratunac which lies in the Republika Srpska.-1971:26.513 total...

, Brčko
Brcko
Brčko can refer to the following related geographical locations in Bosnia and Herzegovina:* Brčko District* Brčko...

, Foča
Foca
Foča is a town and municipality in southeastern Bosnia and Herzegovina on the Drina river, in the Foča Region of the Republika Srpska entity.-Early history:...

, Hadžići
Hadžici
Hadžići is a town and a municipality located south west of Sarajevo in Bosnia and Herzegovina. According to government statistics from 2002, Hadžići Municipality has a population of 20,055 residents.- 1971 :18,508 total...

, Ilidža
Ilidža
Ilidža is a town and municipality in central Bosnia and Herzegovina. It has a metro population of 157,654, making it the 7th largest city in the country. Ilidža is the chief suburb of Sarajevo. It is famous for the natural beauty of its surroundings and historical tradition dating back to...

, Kalinovik
Kalinovik
Kalinovik is a town and municipality in the Republika Srpska entity of Bosnia and Herzegovina.Kalinovik is located about 40 kilometres south of Sarajevo, in the middle of one of the karstic landscapes characteristic of the region...

, Ključ
Kljuc
Ključ is a town and municipality by the same name in western Bosnia and Herzegovina. It is located in the Federation of Bosnia and Herzegovina, specifically the Una-Sana Canton. The name of the town and the municipality translates to "Key" in Bosnian....

, Kotor Varoš
Kotor Varoš
Kotor Varoš is a town and municipality in northwestern Republika Srpska, Bosnia and Herzegovina.-History:The city was first mentioned in the 10th century, when it was called Kotor. Varoš, added later, means "town" in Hungarian...

, Novi Grad
Novi Grad
Novi Grad is a town and municipality in northern Republika Srpska entity, Bosnia and Herzegovina. The town is situated on the Una river on the border with Croatia . Today, the municipality has a population of about 30,000 people with 8,500 households...

, Novo Sarajevo
Novo Sarajevo
Novo Sarajevo is a municipality in Sarajevo, and Sarajevo Canton, Bosnia and Herzegovina.-1971:111,811 total* Serbs - 45,806 * Bosniaks - 37,147...

, Pale, Prijedor
Prijedor
Prijedor is a city and municipality in the north-western part of Bosnia and Herzegovina. It is situated in the Bosanska Krajina region....

, Rogatica
Rogatica
Rogatica is a municipality and town in eastern Bosnia and Herzegovina located 60 kilometres northeast of Sarajevo; midway on the road from Goražde towards Sokolac...

, Sanski Most
Sanski Most
Sanski Most is a town and municipality in northwestern Bosnia and Herzegovina. It is located on the Sana River in Bosanska Krajina, between Prijedor and Ključ. Administratively it is part of the Una-Sana Canton of the Federation of Bosnia and Herzegovina....

, Sokolac
Sokolac
Sokolac is a town and municipality in Bosnia and Herzegovina and the part of the City of East Sarajevo in the Republika Srpska entity....

, Trnovo
Trnovo
Trnovo may refer to:*In Bosnia and Herzegovina:**Trnovo, Republika Srpska, a town and municipality**Trnovo, Federation of Bosnia and Herzegovina, the rural part of the same pre-war municipality, presently in the Sarajevo Canton*In Bulgaria:...

, Vlasenica
Vlasenica
Vlasenica is a municipality and town of Bosnia and Herzegovina. Administratively it is part of Vlasenica Region.-1912:...

, Vogošća
Vogošca
Vogošća is a secondary suburb and municipality of Sarajevo, the capital of Bosnia and Herzegovina, located about 6 kilometers north of the city center and covering some 72 km².-1971:According to 1971 population census there were 14.402 residents....

, Zvornik
Zvornik
Zvornik is a city on the Drina river in northeastern Bosnia and Herzegovina, located south of the town of Bijeljina in Bosnia and Herzegovina. The town Mali Zvornik lies directly across the river in Serbia, and not far north is Loznica.-History:Zvornik is first mentioned in 1410, although it was...

 and Srebrenica
Srebrenica
Srebrenica is a town and municipality in the east of Bosnia and Herzegovina, in the Bosnian Serb entity of Republika Srpska. Srebrenica is a small mountain town, its main industry being salt mining and a nearby spa. During the Bosnian War, the town was the site of the July 1995 massacre,...

.

Count 4: Extermination, a Crime Against Humanity.

Count 5: Murder, a Crime Against Humanity.

Count 6: Murder, a Violation of the Laws or Customs of War.

Count 7: Deportation, a Crime Against Humanity.

Count 8: Inhumane Acts (forcible transfer), a Crime Against Humanity.

Count 9: Acts of Violence the Primary Purpose of which is to Spread Terror among the Civilian Population, aViolation of the Laws or Customs of War.

Count 10: Unlawful Attacks on Civilians, a Violation of the Laws or Customs of War.

Count 11: Taking of Hostages, a Violation of the Laws or Customs of War.

United States House and Senate resolutions

The month before the 10th anniversary of the Srebrenica Massacre
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

, both houses of the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 passed similarly worded resolutions asserting that the policies of aggression and ethnic cleansing as implemented by Serb forces in Bosnia and Herzegovina from 1992 to 1995, including the Srebrenica Massacre, constituted genocide.

On 27 June 2005, during the 109th Congress, the United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 passed a resolution (H. Res. 199 sponsored by Congressman Christopher Smith with 39 cosponsors) commemorating the 10th anniversary of the Srebrenica genocide. The resolution, as amended, was passed with an overwhelming majority of 370 – YES votes, 1 – NO vote, and 62 – ABSENT. The resolution
Resolution (policy debate)
In policy debate, a resolution or topic is a normative statement which the affirmative team affirms and the negative team negates. Resolutions are selected annually by affiliated schools....

 is a bipartisan measure commemorating 11 July 1995–2005, the tenth anniversary of the Srebrenica massacre
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

. The Senate version, S.Res.134, was sponsored by Senator Gordon Smith with 8 cosponsors and was agreed to in the Senate on 22 June 2005 without amendment and with unanimous consent. The summaries of the resolutions are identical, with the exception of the name of the house passing the resolution, and the substitution of the word executed for murdered by the House in the first clause:

International Court of Justice (ICJ)

On 26 February 2007 the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

 (ICJ), in the Bosnian Genocide Case concurred with the ICTY's earlier finding that the Srebrenica massacre constituted genocide:

ICJ President Rosalyn Higgins
Rosalyn Higgins
Dame Rosalyn Higgins, DBE, QC is the former President of the International Court of Justice. Higgins was the first female judge to be appointed to the ICJ, and was elected President in 2006. Her term of office expired on 6 February 2009...

 noted that there was a lot of evidence to prove that crimes against humanity and war crimes had been committed in Bosnia and Herzegovina such as widespread killings, the siege of towns, mass rapes, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...

, deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...

 to camps and detention centres, but the ICJ did not have jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 over them, because the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term". Moreover, the Court found "that Serbia has not committed genocide" nor "conspired to" or "incited the commission of genocide". It did however, find that Serbia had failed "to take all measures within its power to prevent genocide in Srebrenica" and to comply fully with the ICTY by failing to transfer Ratko Mladić
Ratko Mladić
Ratko Mladić is an accused war criminal and a former Bosnian Serb military leader. On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia...

 to the custody of the ICTY in the Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...

 and that Serbia must in future transfer to the Hague all ICTY-indicted individuals, who reside under Serbian jurisdiction.

Criticism of the ICJ Judgement

The Court's opinion that genocide did not take place across the entire occupied territory of Bosnia-Herzegovina and its finding that Serbia was not directly involved in the Srebrenica genocide have been strongly criticized. Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem, described the Court's conclusions on the three questions before it as anything but uncontroversial:

First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision. Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome.


Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian-Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state. Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains.


Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative. At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide. So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.


Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide." He added:

The ICJ, which ... deals with controversies between states, was faced with Bosnia's claim that Serbia was responsible for the Srebrenica massacre. Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law.


According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic's and Kristic's, were neither acting as Serbia's agents nor receiving specific instructions from Belgrade... Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership? More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention".


This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between 13 and 19 July). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world?


Vice-President of the International Court of Justice, Judge Al-Khasawneh, criticized the judgement as not reflecting the evidence with respect to Serbia's direct responsibility for genocide at Srebrenica:

The 'effective control' test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The 'overall control' test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.

Missing SDC Records

The International Criminal Tribunal never received complete archive of Supreme Defense Council minutes from Serbia. According to the explanation given by Sir Geoffrey Nice, former prosecutor in the trial of Slobodan Milosevic:

First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defence Council] records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenographically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ.

European Court of Human Rights

The Higher Regional Court of Düsseldorf, Germany, in September 1997, handed down a genocide conviction against Nikola Jorgić
Nikola Jorgic
Nikola Jorgic is a Bosnian Serb from the Doboj region who was the leader of a paramilitary group located in the Doboj region. In 1997, Nikola was convicted of genocide in Germany. This was the first conviction won against participants in the Bosnian Genocide...

, a Bosnian Serb who was the leader of a paramilitary group located in the Doboj
Doboj
Doboj is a city and a municipality in northern Bosnia and Herzegovina, situated in the northern part of the Republika Srpska entity on the river Bosna. Doboj is the largest national railway junction; as such, the seats of the Republika Srpska Railways, and the Railways Corporation of Bosnia and...

 region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica.

In a judgement issued on 12 July 2007, the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 (ECHR) in the Jorgic v. Germany case (Application no. 74613/01), reviewed the German court's judgements against Jorgic. In rejecting Jorgic's appeal, the ECHR affirmed that the German court's ruling was consistent with an interpretation of the Genocide Convention foreseeable at the time Jorgic committed the offence in 1992. However, the ECHR highlighted that the German court's ruling, based upon German domestic law, had interpreted the crime of genocide more broadly than and in a manner since rejected by international courts. Under the wider definition that the German judiciary upheld, the ethnic cleansing carried out by Jorgić was a genocide because it was an intent to destroy the group as a social unit, and although the majority of scholars took the view that German genocide law should interpret genocide as the physical-biological destruction of the protected group, "a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit".

In the case of Prosecutor v. Krstic (2 August 2001), the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide". On 19 April 2004, this determination was upheld on appeal: "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ..." although like the lower court, the appeal court also ruled that ethnic cleansing might with other evidence lead to an inference of genocidal intent. On 14 January 2000, the ICTY ruled in the Prosecutor v. Kupreškić and Others case that the Lašva Valley ethnic cleansing
Lašva Valley ethnic cleansing
The Lašva Valley ethnic cleansing, also known as the Lašva Valley case, refers to numerous war crimes committed during the Bosnian war by the Croatian Community of Herzeg-Bosnia's political and military leadership on Bosnian Muslim civilians in the Lašva Valley region of Bosnia-Herzegovina...

 campaign in order to expel the Bosnian Muslim population from the region was persecution, not genocide per se. The ECHR noted the opinion of the International Court of Justice ruling in the Bosnian Genocide Case that ethnic cleansing is not in and of itself genocide.

In reference to legal writers, the ECHR also noted: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide".

The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ..., is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable", so "In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.", and for this reason the court rejected Jorgic assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 by Germany.

European Parliament

On 15 January 2009 the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...

 passed a resolution calling on the European Union's executive authorities to commemorate 11 July as a day of remembrance and mourning of the 1995 Srebrenica genocide, explicitly recognized as such with reference to the ICJ decision. The resolution also reiterated a number of findings including the number of victims as "more than 8,000 Muslim men and boys" executed and "nearly 25,000 women, children and elderly people were forcibly deported, making this event the biggest war crime to take place in Europe since the end of the Second World War". The resolution passed overwhelmingly, on a vote of 556 to 9.

Individuals prosecuted for genocide during the Bosnian war

About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...

. To date, after several plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...

s and some convictions that were successfully challenged on appeal, two men, Vujadin Popovic and Ljubisa Beara, have been found guilty of genocide, and two others, Radislav Krstic
Radislav Krstic
Radislav Krstić was the Deputy Commander and later Chief of Staff of the Drina Corps of the Army of Republika Srpska from October 1994 until 12 July 1995...

 and Drago Nikolic, have been found guilty of aiding and abetting genocide, by an international court for their participation in the Srebrenica massacre.

Four have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic
Nikola Jorgic
Nikola Jorgic is a Bosnian Serb from the Doboj region who was the leader of a paramilitary group located in the Doboj region. In 1997, Nikola was convicted of genocide in Germany. This was the first conviction won against participants in the Bosnian Genocide...

 lost an appeal against his conviction in the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

.

On 29 July 2008 the State Court of Bosnia and Herzegovina found Milenko Trifunovic, Brano Dzinic, Aleksandar Radovanovic, Milos Stupar, Slobodan Jakovljevic Branislav Medan and Petar Mitrovic guilty of genocide for their part in the Srebrenica massacre, and on 16 October 2009 the State Court of Bosnia and Herzegovina found Milorad Trbic
Milorad Trbic
Milorad Trbić was an Assistant Commander for Security with the Zvornik Brigade of the Republika Srpska Army. He was indicted for genocide by the International Criminal Tribunal for the former Yugoslavia , arrested, and transferred to Sarajevo to stand genocide trial in front of the Court of Bosnia...

, a former member of the Bosnian Serb security forces, guilty of genocide for his participation in the genocide in the Srebrenica massacre.

Slobodan Milosevic
Slobodan Milošević
Slobodan Milošević was President of Serbia and Yugoslavia. He served as the President of Socialist Republic of Serbia and Republic of Serbia from 1989 until 1997 in three terms and as President of the Federal Republic of Yugoslavia from 1997 to 2000...

, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide, either alone or in concert with other named members of a joint criminal enterprise
Joint Criminal Enterprise
Joint criminal enterprise ' is a legal doctrine used by the International Criminal Tribunal for the former Yugoslavia to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav wars 1991-1999....

. The indictment accused him of planning, preparing and executing the destruction, in whole or in part, of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in territories within Bosnia and Herzegovina including Bijeljina, Bosanski Novi, Brcko, Kljuc, Kotor Varos, Prijedor, Sanski Most and Srebrenica. He died during his trial, on 11 March 2006, and no verdict was returned.

The ICTY has issued a warrant for the arrest of Radovan Karadzic
Radovan Karadžic
Radovan Karadžić is a former Bosnian Serb politician. He is detained in the United Nations Detention Unit of Scheveningen, accused of war crimes committed against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo, as well as ordering the Srebrenica massacre.Educated as a...

 and Ratko Mladic
Ratko Mladić
Ratko Mladić is an accused war criminal and a former Bosnian Serb military leader. On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia...

 on several charges including genocide. Karadzic was arrested
Arrest of Radovan Karadžic
Radovan Karadžić was arrested in Belgrade and extradited into International Criminal Tribunal for the former Yugoslavia custody in The Hague in July 2008, as the 44th Serb/Montenegrin suspect sent to The Hague....

 in Belgrade
Belgrade
Belgrade is the capital and largest city of Serbia. It is located at the confluence of the Sava and Danube rivers, where the Pannonian Plain meets the Balkans. According to official results of Census 2011, the city has a population of 1,639,121. It is one of the 15 largest cities in Europe...

 on 21 July 2008, and was transferred into the ICTY custody in the Hague nine days later on 30 July. Ratko Mladic, was arrested in Serbia on 26 May 2011 after a decade in hiding.

Casualties

If a narrow definition of genocide is used, as favoured by the international courts, then during the Srebrenica massacre
Srebrenica massacre
The Srebrenica massacre, also known as the Srebrenica genocide, refers to the July 1995 killing, during the Bosnian War, of more than 8,000 Bosniaks , mainly men and boys, in and around the town of Srebrenica in Bosnia and Herzegovina, by units of the Army of Republika Srpska under the command of...

 between 8,000 and 9,000 Bosnian (Bosniaks) men and boys were murdered and the remainder of the population (between 25,000–30,000, Bosniak women, children and elderly people) was forced to leave the area.

If a wider definition is used, then the number is much larger. For example in a statement on 23 September 2008 to the United Nations Dr Haris Silajdzic
Haris Silajdžic
Haris Silajdžić is a Bosnian politician and academic. In the 2006 elections, Silajdžić was elected as the Bosniak member of the Presidency of Bosnia and Herzegovina for four years in the rotating presidency.He was born in Sarajevo, Bosnia and Herzegovina, Yugoslavia.- Political career:From 1990...

, as head of the Bosnia and Herzegovina Delegation to the United Nations, 63rd Session of the General Assembly, said that "According to the ICRC
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...

 data, 200,000 people were killed, 12,000 of them children, up to 50,000 women were raped, and 2.2 million were forced to flee their homes. This was a veritable genocide and sociocide". More recently in October 2009, the Research and Documentation Center in Sarajevo published its findings and found 97,214 persons dead, of whom 57,529 were soldiers.

Controversy

While the majority of international opinion accepts the findings of the international courts, there remains some disagreement about the extent of the genocide and to what degree Serbia was involved (note: the involvement of the breakaway republic of Bosnian Serbs within Bosnia known as Republika Srpska
Republika Srpska
Republika Srpska is one of two main political entities of Bosnia and Herzegovina, the other being the Federation of Bosnia and Herzegovina...

, is not in doubt).

The Bosnian community assert that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.

The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the Dusko Tadic case. In the judgment delivered in July 1999, the Appeals Chamber found that the Army of Republika Srpska
Army of Republika Srpska
The Army of Republika Srpska ; Serbian, Bosnian, Croatian Vojska Republike Srpske ) also referred to as the Bosnian Serb Army, was the military of today's Republika Srpska which was then the "Serbian Republic of Bosnia and Herzegovina", a self-proclaimed state within the internationally recognized...

 was "under overall control" of Belgrade
Belgrade
Belgrade is the capital and largest city of Serbia. It is located at the confluence of the Sava and Danube rivers, where the Pannonian Plain meets the Balkans. According to official results of Census 2011, the city has a population of 1,639,121. It is one of the 15 largest cities in Europe...

 and the Yugoslav Army
Yugoslav Army
Aside from the Yugoslav People's Army, the terms Yugoslav Army, Army of Yugoslavia, or Military of Yugoslavia may refer to:* Yugoslav Partisans , the Yugoslav resistance army during World War II...

, which meant that they had funded, equipped and assisted in coordination and planning of military operations. Had the International Court of Justice accepted this finding of the Tribunal, Serbia would have been found guilty of complicity in the Srebrenica genocide. Instead it concluded that the Appeals Chamber in the Tadic case "did not attempt to determine the responsibility of a state but individual criminal responsibility". Paradoxical as it may be, the outcome of this legal suit filed back in March 1993 arrived too early for Bosnia and Herzegovina. Radovan Karadzic arrest came over a year after the ICJ gave its judgement, and Ratko Mladic, also accused of Bosnian genocide, was arrested in May 2011. Slobodan Milosevic died during the trial and three trials of former Serbian officials have just started.
Although the ICTY prosecutors had access to them during the trials, some of the minutes of wartime meetings of Yugoslavia’s political and military leaders, were not made public as the ICTY accepted the Serbian argument that to do so would damage Serbia's national security. Although the ICJ could have subpoenaed the documents directly from Serbia, it did not do so and relied instead on those made public during the ICTY trials. Two of the ICJ judges criticised this decision in strongly worded dissents. Marlise Simons reporting on this in the New York Times, states that "When the documents were handed over [to the ICTY], the lawyers said, a team from Belgrade made it clear in letters to the tribunal and in meetings with prosecutors and judges that it wanted the documents expurgated to keep them from harming Serbia’s case at the International Court of Justice. The Serbs made no secret of that even as they argued their case for 'national security,' said one of the lawyers, adding, 'The senior people here [at the ICTY] knew about this'.". Simons continues that Rosalyn Higgins
Rosalyn Higgins
Dame Rosalyn Higgins, DBE, QC is the former President of the International Court of Justice. Higgins was the first female judge to be appointed to the ICJ, and was elected President in 2006. Her term of office expired on 6 February 2009...

 the president of the ICJ, declined to comment when asked why the full records had not been subpoenaed, saying that "The ruling speaks for itself". Diane Orentlicher, a law professor at American University in Washington, commented "Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference." , and William Schabas, a professor of international law at the University of Ireland in Galway, suggested that as a civil rather than a criminal court, the ICJ was more used to relying on materials put before it than aggressively pursuing evidence which might lead to a diplomatic incident.

Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that women and children were largely spared and that only military age men were targeted. This view is not supported by the findings of the ICJ or the ICTY. According to Sonja Biserko, president of the Helsinki Committee for Human Rights in Serbia, and Edina Becirevic, the faculty of criminology and security studies of the University of Sarajevo:

See also

  • Bosniaks
    Bosniaks
    The Bosniaks or Bosniacs are a South Slavic ethnic group, living mainly in Bosnia and Herzegovina, with a smaller minority also present in other lands of the Balkan Peninsula especially in Serbia, Montenegro and Croatia...

  • Command responsibility
    Command responsibility
    Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....

  • Genocides in history
    Genocides in history
    Genocide is the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group. It is defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide as "any of the following acts committed with intent to destroy, in...

  • Republika Srpska
    Republika Srpska
    Republika Srpska is one of two main political entities of Bosnia and Herzegovina, the other being the Federation of Bosnia and Herzegovina...

  • Serbian war crimes in the Yugoslav Wars

External links

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