A. Introduction

478. In this third Part, the Trial Chamber will explore whether the particular facts , as found by the Trial Chamber, support beyond reasonable doubt findings that the crimes alleged in the indictment have been committed. Since, by their nature, these crimes tend to involve many people with differing degrees of participation and to include series of events over a period of time, it is reasonable to ascertain, first , whether a factual case has been made out that the legal pre-requisites for the commission of these crimes have been proved and, then, to determine the degree of culpability, if any, attributable to the defendant, General Krstic. The legal pre -requisites will be determined in light of the state of customary international law at the time of the events Srebrenica took place.

479. The Indictment charges the accused with murders, as independent crimes under both Article 3 and Article 5 of the Statute and as an element of the counts of persecutions and extermination under Article 5. The murders are further referred to in the alternative counts of genocide and complicity of genocide, which counts also encompass causing serious bodily or mental harm. Finally, the indictment alleges that crimes against humanity, in the form of deportation or forcible transfer of women, children and elderly persons, were committed in violation of Article 5. Each of these crimes has its own specific elements which the Trial Chamber will now discuss.

480. The jurisprudence of the Tribunal establishes that, for a crime under Article 3, it must be determined that a state of armed conflict existed, at the time the criminal acts were committed, and that there is a close nexus between the armed conflict and those acts. By comparison, Article 5 of the Statute requires only that there be an armed conflict and that the acts have occurred within the frame of that armed conflict. The critical element of a crime under Article 5 is that the criminal acts form part of a widespread or systematic attack against a civilian population. Further, such acts may constitute persecution where it is demonstrated that they were perpetrated with a discriminatory intent on political, racial or religious grounds. By contrast, genocide, as envisaged in Article 4 of the Statute , does not require that there be an armed conflict, only that the prohibited acts be committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (…).”

481. According to the Appeals Chamber, “an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”¹¹¹¹ In the present instance , it is not disputed that a state of armed conflict existed between BiH and its armed forces, on the one hand, and the Republika Srpska and its armed forces, on the other. There is no doubt that the criminal acts set out in the indictment occurred not only within the frame of, but in close relation to, that conflict.

482. According to the Judgement rendered by Trial Chamber II in the Kunarac case ,¹¹¹² five elements are required for “an attack directed against a civilian population” within the meaning of Article 5 of the Statute:

     (i) There must be an attack.¹¹¹³

     The acts of the perpetrator must be part of the attack.¹¹¹⁴

     The attack must be “directed against any civilian population”.¹¹¹⁵

     The attack must be “widespread or systematic”.¹¹¹⁶

     The perpetrator must know of the wider context in which his acts occur and know his acts are part of the attack.¹¹¹⁷

     All of these elements are met in this case. Thus, there is no doubt, from a reading of the factual Part of this Judgement,¹¹¹⁸ that all the criminal acts described in the indictment form part of a widespread or systematic attack against a civilian population and were committed with discriminatory intent within the meaning of Article 5 (h) of the Statute.

     In sum, all the statutory pre-requisites for crimes under Articles 3 and 5, including persecution, are met.

483. The next question is whether the factual elements of each of the specific crimes encompassed by Articles 3, 4 and 5 listed in the indictment have been met and especially whether the particularly strict requirements of Article 4 have been established. The Trial Chamber will discuss those factual elements for, in turn: murder, extermination , serious bodily or mental harm, deportation or forcible transfer, persecution and , finally, genocide and complicity of genocide.
     B. Murders¹¹¹⁹

484. The Prosecution argues that the notion of murder encompasses “all forms of voluntary killings, whether premeditated or not”.¹¹²⁰ The Defence made no specific submissions in this regard.

485. Murder has consistently been defined by the ICTY and the ICTR as the death of the victim resulting from an act or omission of the accused committed with the intention to kill or to cause serious bodily harm which he/she should reasonably have known might lead to death.¹¹²¹

486. In this case, it is undisputed that thousands of Bosnian Muslims, residing or taking refuge in Srebrenica, were murdered during the period of 12-19 July and , in particular, that varying size groups of men were summarily executed on several sites within the jurisdiction of the Drina Corps.¹¹²² These mass executions were not challenged by the accused.¹¹²³

487. The Trial Chamber concluded that almost all of those murdered at the execution sites were adult Bosnian Muslim men and that up to 7000-8000 men were executed.¹¹²⁴

488. In addition, many murders were committed in Potocari on 12, 13 and 14 July.¹¹²⁵ The people murdered there were Bosnian Muslim adults, although witnesses T and Ademovic recounted the murder of a young boy¹¹²⁶ and a baby.¹¹²⁷ It is impossible to determine exactly how many murders were committed in Potocari, but it was a sizeable number. The Trial Chamber is also satisfied that men, detained in Bratunac between 12 and 14 July 1995, were executed at night opportunistically,¹¹²⁸ although again, it is not possible to establish exactly how many victims there were .

489. Therefore, the Trial Chamber is satisfied that murders falling within the meaning of Article 3 and Article 5 (murder and persecution) of the Statute were committed .
     C. Extermination

490. The indictment also charges extermination under Article 5(b) based on these murders. The Trial Chamber will first set out a legal definition of extermination , before moving to consider whether the elements required to establish the crime of extermination are met in this case.
     1.Definition

491. Article 5 of the Statute which covers crimes against humanity states:

     [t]he International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in an armed conflict, whether international or national in character, and directed against any civilian population:

     […]

     (b) extermination.

492. Extermination is also widely recognised as a crime against humanity in many international¹¹²⁹ and national¹¹³⁰ instruments. Nevertheless, it has rarely been invoked by national courts¹¹³¹ and it has not yet been defined by this Tribunal. The term “extermination” appeared in a number of post-war decisions by the Nuremberg Military Tribunal and the Supreme National Tribunal of Poland. However, although the crime of extermination was alleged , the judgements generally relied on the broader notion of crimes against humanity and did not provide any specific definition of the term “extermination”.¹¹³² Only the ICTR has defined, on several occasions, the requisite elements of the offence :¹¹³³

     1. the accused or his subordinate participated in the killing of certain named or described persons;

     2. the act or omission was unlawful and intentional.

     3. the unlawful act or omission must be part of a widespread or systematic attack;

     4. the attack must be against the civilian population[.]¹¹³⁴

493. The Prosecutor submits¹¹³⁵ that the crime of extermination must, by its very nature, be directed against a group of individuals, that it requires an element of mass destruction and that it embraces situations where a large number of people who do not share any common characteristic are killed.¹¹³⁶ No discriminatory element is required.¹¹³⁷

494. The pre-trial Brief of the Defence¹¹³⁸ argues that the act of extermination is distinguishable from genocide by the fact that it is not committed on account of a person’s national, ethnical, racial or religious affiliation and that, moreover, the commission of the act does not require any special intention, that is, the intent to destroy the group in whole or in part .¹¹³⁹

495. The offences of murder and extermination have a similar element in that they both intend the death of the victims. They have the same mens rea, which consists of the intention to kill or the intention to cause serious bodily injury to the victim which the perpetrator must have reasonably foreseen was likely to result in death.¹¹⁴⁰ The Trial Chamber will now identify what extermination further involves and whether the requirements of that crime are met in this case.

496. To this end, the Trial Chamber notes the common definition of “extermination ”. According to the French Dictionary Nouveau Petit Robert, “exterminer ” (to exterminate) derives from the Latin exterminare, meaning “to drive out”, which comes from “ex” meaning “out” and “terminus” meaning “ border”. Likewise, the Oxford English Dictionary gives the primary meaning of the word “exterminate”¹¹⁴¹ as the act of driving out or banishing a person or group of persons beyond the boundaries of a state, territory or community. The ordinary use of the term “extermination ”,¹¹⁴² however, has come to acquire a more destructive connotation meaning the annihilation of a mass of people.

497. Thus, the International Law Commission insists on the element of mass destruction in defining extermination:

     [Extermination is a] crime which by its very nature is directed against a group of individuals. In addition, the act used to carry out the offence of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crime of genocide […]¹¹⁴³

498. Given the limited precedents in the matter, it is useful to refer further to Article 7(2)(b) of the Statute of the International Criminal Court, which goes into more detail on the definition of the term “extermination” and specifies that:

     Extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of the population.

     From the insertion of this provision, we surmise that the crime of extermination may be applied to acts committed with the intention of bringing about the death of a large number of victims either directly, such as by killing the victim with a firearm, or less directly, by creating conditions provoking the victim’s death .¹¹⁴⁴ The Report of the ICC Preparatory Commission on the Elements of the crimes provides further guidance. It indicates that “the perpetrator [should have] killed one or more persons” and that the conduct should have taken place “as part of a mass killing of members of a civilian population .”¹¹⁴⁵

499. It is necessary, then, to identify the victims. Article 5 of the ICTY Statute covering crimes against humanity refers to acts “directed against any civilian population ”. The victims need not share national, ethnical, racial or religious characteristics . In accordance with the Tadic Appeals Judgement,¹¹⁴⁶ the Trial Chamber is of the view that it is unnecessary that the victims were discriminated against for political, social or religious grounds, to establish the crime of extermination .

500. According to the commentary on the ILC Draft Code, extermination distinguishes itself from the crime of genocide by the fact that the targeted population does not necessarily have any common national, ethnical, racial or religious characteristic , and that it also covers situations where “some members of a group are killed while others are spared”.¹¹⁴⁷ For this reason, extermination may be retained when the crime is directed against an entire group of individuals even though no discriminatory intent nor intention to destroy the group as such on national, ethnical, racial or religious grounds has been demonstrated ; or where the targeted population does not share any common national, ethnical, racial or religious characteristics.

501. The very term “extermination” strongly suggests the commission of a massive crime, which in turn assumes a substantial degree of preparation and organisation .¹¹⁴⁸ It should be noted, though , that “extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population, distinguishable by some characteristic(s) not covered by the Genocide Convention, but made up of only a relatively small number of people. In other words , while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.

502. In this respect, the ICC definition of extermination indicates that it would be sufficient that the criminal acts be “calculated to bring about the destruction of part of the population.” The Trial Chamber notes that this definition was adopted after the time the offences in this case were committed. In accordance with the principle that where there is a plausible difference of interpretation or application, the position which most favours the accused should be adopted, the Chamber determines that, for the purpose of this case, the definition should be read as meaning the destruction of a numerically significant part of the population concerned.

503. In sum, the Trial Chamber finds that for the crime of extermination to be established , in addition to the general requirements for a crime against humanity, there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.
     2. Findings

504. Although there is evidence that a small number of killings in Potocari and afterwards involved women, children and elderly,¹¹⁴⁹ virtually all of the persons killed in the aftermath of the fall of Srebrenica were Bosnian Muslim males of military age. The screening process at Potocari, the gathering of those men at detention sites, their transportation to execution sites, the opportunistic killings of members of the column along the Bratunac-Milici road as they were apprehended , demonstrate beyond any doubt that all of the military aged Bosnian Muslim males that were captured or fell otherwise in the hands of the Serb forces were systematically executed. The result was that the majority of the military aged Bosnian Muslim males who fled Srebrenica in July 1995 were killed.

505. A crime of extermination was committed at Srebrenica.
     D. Mistreatments

506. While the indictment cites mainly the killing of large numbers of Bosnian Muslim men, it also alleges two kinds of mistreatments: serious bodily or mental harm, as a genocidal crime;¹¹⁵⁰ and cruel and inhumane treatment, including severe beatings, as an element of the persecutions inflicted on the Bosnian Muslims.¹¹⁵¹
     1. Serious bodily or mental harm

507. The serious bodily or mental harm, cited by the Prosecution in support of the genocide charge, relates to the suffering endured by those who survived the executions .

508. The Prosecution relies upon the definition of serious bodily or mental harm found in the Akayesu Judgement, which includes “acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution”.¹¹⁵² The Prosecution also quotes the Eichmann Judgement rendered by the Jerusalem District Court on 12 December 1961, according to which “the enslavement, starvation , deportation and persecution ?and theg detention ?of individualsg in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation , deprivation of their rights as human beings and to suppress them and cause them inhumane suffering and torture”¹¹⁵³ may constitute serious bodily or mental harm. The Defence made no specific submissions on this issue.

509. The Chamber observes that, in the decision on the review of the indictment against Karadzic and Mladic pursuant to Rule 61, the ICTY stated that cruel treatment, torture, rape and deportation could constitute serious bodily or mental harm done to members of a group under a count of genocide.¹¹⁵⁴ The Preparatory Commission for the International Criminal Court indicated that serious bodily and mental harm “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”.¹¹⁵⁵

510. The Kayishema and Ruzindana Judgement defined serious bodily harm as “harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses”.¹¹⁵⁶ The same Judgement held that serious mental harm must “be interpreted on a case- by-case basis in light of the relevant jurisprudence”.¹¹⁵⁷ Reference to serious mental harm, in the context of the Genocide Convention, appears to have been restricted originally to the injection of pharmacological substances occasioning the serious impairment of mental faculties.¹¹⁵⁸ The United States supported this restrictive interpretation, indicating in a statement of interpretation annexed to their instrument of accession that, in their view, “mental harm” meant permanent impairment of the mental faculties brought on through drugs, torture or techniques similar thereto.¹¹⁵⁹ In addition, the Preparatory Committee of the International Criminal Court points out that “'mental harm' is understood to mean more than the minor or temporary impairment of mental faculties”.¹¹⁶⁰ A distinction must thus be drawn between serious mental harm and emotional or psychological damage or attacks on the dignity of the human person not causing lasting impairment. The Akayesu Judgement stressed, however, that “causing serious bodily or mental harm […] does not necessarily mean that the harm is permanent and irremediable”.¹¹⁶¹

511. The serious bodily or mental harm, included within Article 4 of the Statute , can be informed by the Tribunal’s interpretation of the offence of wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute . The latter offence was defined in the Celebici Judgement as “an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury”.¹¹⁶²

512. The Blaskic Judgement defined the serious bodily or mental harm required to prove a charge of persecution under Article 5 as follows:

     the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case by case basis with due regard for the individual circumstances ;

     the suffering must be the result of an act of the accused or his subordinate;

     when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim, through his own will or deliberate recklessness.¹¹⁶³

513. The Trial Chamber finds that serious bodily or mental harm for purposes of Article 4 actus reus is an intentional act or omission causing serious bodily or mental suffering. The gravity of the suffering must be assessed on a case by case basis and with due regard for the particular circumstances. In line with the Akayesu Judgement,¹¹⁶⁴ the Trial Chamber states that serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life. In subscribing to the above case-law, the Chamber holds that inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury.

514. The Chamber is fully satisfied that the wounds and trauma suffered by those few individuals who managed to survive the mass executions do constitute serious bodily and mental harm within the meaning of Article 4 of the Statute.¹¹⁶⁵
     2. Cruel and Inhumane Treatment

515. The Prosecution relies on paragraphs 4, 6, 7, 11 and 22 to 26 of the indictment to allege that persecutions were committed against the Bosnian Muslims by, among other crimes, “the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings.”¹¹⁶⁶ The paragraphs mentioned above, however, do not contain any specifics with respect to cruel and inhumane treatment.

516. Cruel and inhumane treatment has been defined in the jurisprudence of the Tribunal as “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity” and includes such offences as torture.¹¹⁶⁷ The Chamber has just explained how the term “serious” should be interpreted.

517. The Trial Chamber has described in detail the ordeal suffered both by the Bosnian Muslims who fled to Potocari and the Bosnian Muslims captured from the column. More specifically, the Trial Chamber heard reliable evidence concerning the severe beatings and other cruel treatments suffered by the Bosnian Muslim men after they had been separated from their relatives in Potocari. Numerous witnesses further testified about the terrible conditions prevailing both in and outside the UN Potocari compound: lack of food and water which the VRS provided in very limited quantity , thousands of people crammed into a small space. More significantly, rapes and killings were reported by credible witnesses and some committed suicide out of terror . The entire situation in Potocari has been depicted as a campaign of terror. As an ultimate suffering, some women about to board the buses had their young sons dragged away from them, never to be seen again.¹¹⁶⁸

518. The Trial Chamber thus concludes that the VRS and other Serb forces imposed cruel and inhumane treatment on a large number of Bosnian Muslims who were subjected to intolerable conditions in Potocari, cruelly separated from their family members , and, in the case of the men, subjected to the unspeakable horror of watching their fellow captives die on the execution fields, escaping that fate only by chance. The main fact for which the Prosecution alleges inhumane treatment, though, is the forcible transfer of the Bosnian Muslim women, children and elderly outside the enclave of Srebrenica.
     E. Deportation or Forcible Transfer

519. The Chamber has found that, on 12 and 13 July 1995, about 25,000 Bosnian Muslim civilians were forcibly bussed outside the enclave of Srebrenica to the territory under BiH control. The transportation of these Bosnian Muslim women, children and elderly from Potocari to Kladanj forms the basis of three counts in the indictment . It is included under the count of crime against humanity for persecutions (count 6). In addition, the Prosecution characterises the act as a deportation constituting a crime against humanity (count 7) or, alternatively, as an inhumane act constituting a crime against humanity (forcible transfer) (count 8).
     1. General Considerations

520. The Prosecution defines deportation as the “forced displacement of civilians from the area in which they are lawfully present without grounds permitted by international law”. The Prosecution submits that it is “not necessary […] for civilians to be forcibly removed across a national border in order for the offence to be established ”.¹¹⁶⁹ The Defence defines deportation as the forced removal of a person to another country,¹¹⁷⁰ and emphasises that not all forcible transfers of civilians are criminal offences .¹¹⁷¹

521. Both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.¹¹⁷²

522. However, this distinction has no bearing on the condemnation of such practices in international humanitarian law. Article 2(g) of the Statute, Articles 49 and 147 of the Geneva Convention concerning the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Article 85(4)(a) of Additional Protocol I, Article 18 of the ILC Draft Code and Article 7(1)(d) of the Statute of the International Criminal Court all condemn deportation or forcible transfer of protected persons .¹¹⁷³ Article 17 of Protocol II likewise condemns the “displacement” of civilians.

523. In this regard, the Trial Chamber notes that any forced displacement is by definition a traumatic experience which involves abandoning one’s home, losing property and being displaced under duress to another location. As previously stated by the Trial Chamber in the Kupreskic case,¹¹⁷⁴ forcible displacement within or between national borders is included as an inhumane act under Article 5(i) defining crimes against humanity. Whether, in this instance , the facts constitute forcible transfer or deportation is discussed below.
     2. Evaluation of the facts

     (a) Lawfulness of the transfer

524. Article 49 of the Fourth Geneva Convention and Article 17 of Protocol II allow total or partial evacuation of the population “if the security of the population or imperative military reasons so demand”.¹¹⁷⁵ Article 49 however specifies that “?pgersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”.

525. As a preliminary matter, this condition is not satisfied in the present case . The Srebrenica citizens who had gathered in Potocari were not returned to their homes as soon as hostilities in the area in question had ceased. In fact, active hostilities in Srebrenica town itself and to the south of the enclave had already ceased by the time people were bussed out of Potocari. Security of the civilian population can thus not be presented as the reason justifying the transfer.

526. In addition to the security of the population, the Geneva Convention also allows for evacuations based on “imperative military reasons”. In terms of military necessity , two World War II cases are relevant. General Lothar Rendulic was accused of violating Article 23(g) of the 1907 Hague Regulations, which prohibits the destruction or seizure of the enemy’s property, “unless such destruction or seizure [is] imperatively demanded by the necessities of war”. Retreating forces under his command engaged in scorched earth tactics, destroying all facilities that they thought might aid the opposing army. In addition, Rendulic ordered the evacuation of civilians in the area. Rendulic raised the defence of “military necessity”, since his troops were being pursued by what appeared to be overwhelming Soviet forces. The U.S. Military Tribunal at Nuremberg concluded that, even though Rendulic may have erred in his judgement as to the military necessity for evacuating the civilians, his decisions were still justified by “urgent military necessity” based on the information in his hands at the time.¹¹⁷⁶ By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of “the mass deportation and evacuation of civilian inhabitants” of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.¹¹⁷⁷ This was not found to be a legitimate reason for the evacuation of the population or the destruction of their property.¹¹⁷⁸ In addition, the judge advocate¹¹⁷⁹ noted that the Prosecution’s evidence showed that “far from this destruction being the result of imperative necessities of the moment, it was really the carrying out of a policy planned a considerable time before, a policy which the accused had in fact been prepared to carry out on two previous occasions and now was carrying out in its entirety and carrying out irrespective of any question of military necessity ”.¹¹⁸⁰

527. In this case no military threat was present following the taking of Srebrenica . The atmosphere of terror in which the evacuation was conducted proves, conversely , that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action.

     (b) The compulsory nature of the transfer

528. The Chamber next must determine whether the civilians were in fact forcefully transferred. The commentary to Article 49 of Geneva Convention IV suggests that departures motivated by the fear of discrimination are not necessarily in violation of the law:

     [T]he Diplomatic Conference preferred not to place an absolute prohibition on transfers of all kinds, as some might up to a certain point have the consent of those being transferred. The Conference had particularly in mind the case of protected persons belonging to ethnic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. In order to make due allowances for that legitimate desire the Conference decided to authorise voluntary transfers by implication, and only to prohibit ‘forcible’ transfers .¹¹⁸¹

529. However, the finalised draft text of the elements of the crimes adopted by the Preparatory Commission for the International Criminal Court provides that:

     [t]he term 'forcibly' is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention , psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.¹¹⁸²

530. The threats to Srebrenica residents far transcended mere fear of discrimination . The evacuation took place at the final stage of a campaign conducted to force the population to flee the enclave during a time when VRS troops were actively threatening and injuring the Bosnian Muslim civilians of Srebrenica. The negotiations between the Bosnian Muslim “representative”, Nesib Mandzic, and General Mladic at the second meeting in the Hotel Fontana on 11 July attest to the intimidating conditions in which the Bosnian Muslim civilians were evacuated.¹¹⁸³ The Trial Chamber has already found that, despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight.¹¹⁸⁴

     (c) The fact of the transfer within the borders of Bosnia-Herzegovina

531. The Bosnian Muslim women, children and elderly assembled at Potocari were forcibly transferred to Kladanj, an area in the territory of Bosnia-Herzegovina controlled by the ABiH, in order to eradicate all trace of Bosnian Muslims in the territory in which the Bosnian Serbs were looking to establish their own State. However, Bosnia-Herzegovina was the only State formally recognised by the international community at the time of the events. Since the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law.

532. The Chamber therefore concludes that the civilians assembled at Potocari and transported to Kladanj were not subjected to deportation but rather to forcible transfer. This forcible transfer, in the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5.
     F. Persecutions

533. General Krstic is accused of persecutions, a crime against humanity, on the basis of his alleged participation in:

     a. the murder of thousands of Bosnian Muslim civilians, including men, women, children , and elderly persons;

     b. the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings;

     c. the terrorising of Bosnian Muslim civilians;

     d. the destruction of personal property of Bosnian Muslims; and

     e. the deportation or forcible transfer of Bosnian Muslims from the Srebrenica enclave.¹¹⁸⁵

534. The Trial Chamber has already discussed generally some of these offences referred to by the Prosecutor. It will now turn more specifically to the offences not previously covered, bearing in mind that the crime of persecutions has been defined, in the Kupreskic Judgement, as “the gross or blatant denial, on discriminatory grounds , of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”.¹¹⁸⁶

535. The Tribunal’s case-law has specified that persecutory acts are not limited to those acts enumerated in other sub-clauses of Article 5¹¹⁸⁷ or elsewhere in the Statute,¹¹⁸⁸ but also include the denial of other fundamental human rights, provided they are of equal gravity or severity.¹¹⁸⁹ Furthermore, the Tribunal’s case-law emphasises that “discriminatory acts charged as persecution must not be considered in isolation, but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed ‘inhumane’ .¹¹⁹⁰

536. The Trial Chamber has previously determined that a widespread and systematic attack was launched against the Bosnian Muslim population of Srebrenica from 11 July onwards, by reason of their belonging to the Bosnian Muslim group.

537. The humanitarian crisis in Potocari, the burning of homes in Srebrenica and Potocari, the terrorisation of Bosnian Muslim civilians, the murder of thousands of Bosnian Muslim civilians, in Potocari or in carefully orchestrated mass scale executions, and the forcible transfer of the women, children and elderly out of the territory controlled by the Bosnian Serbs, constitute persecutory acts.

538. The Trial Chamber is thus satisfied that a crime of persecution, as defined in the indictment, was committed from 11 July 1995 onward in the enclave of Srebrenica.
     G. Genocide

539. General Krstic is principally charged with genocide and, in the alternative , with complicity in genocide¹¹⁹¹ in relation to the mass executions of the Bosnian Muslim men in Srebrenica between 11 July and 1 November 1995.¹¹⁹²

540. Article 4(2) of the Statute defines genocide as:

     any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

     (a) killing members of the group;

     (b) causing serious bodily or mental harm to members of the group;

     (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

     (d) imposing measures intended to prevent births within the group;

     (e) forcibly transferring children of the group to another group.

541. The Trial Chamber must interpret Article 4 of the Statute taking into account the state of customary international law at the time the events in Srebrenica took place. Several sources have been considered in this respect. The Trial Chamber first referred to the codification work undertaken by international bodies. The Convention on the Prevention and Punishment of the Crime of Genocide¹¹⁹³ (hereinafter "the Convention"), adopted on 9 December 1948,¹¹⁹⁴ whose provisions Article 4 adopts verbatim, constitutes the main reference source in this respect. Although the Convention was adopted during the same period that the term "genocide" itself was coined, the Convention has been viewed as codifying a norm of international law long recognised and which case-law would soon elevate to the level of a peremptory norm of general international law (jus cogens ).¹¹⁹⁵ The Trial Chamber has interpreted the Convention pursuant to the general rules of interpretation of treaties laid down in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. As a result, the Chamber took into account the object and purpose of the Convention in addition to the ordinary meaning of the terms in its provisions. As a supplementary means of interpretation, the Trial Chamber also consulted the preparatory work and the circumstances which gave rise to the Convention. Furthermore, the Trial Chamber considered the international case-law on the crime of genocide, in particular, that developed by the ICTR. The Report of the International Law Commission (ILC) on the Draft Code of Crimes against Peace and Security of Mankind¹¹⁹⁶ received particular attention. Although the report was completed in 1996, it is the product of several years of reflection by the Commission whose purpose was to codify international law, notably on genocide : it therefore constitutes a particularly relevant source for interpretation of Article 4. The work of other international committees, especially the reports of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights,¹¹⁹⁷ was also reviewed. Furthermore, the Chamber gave consideration to the work done in producing the Rome Statute on the establishment of an international criminal court, specifically, the finalised draft text of the elements of crimes completed by the Preparatory Commission for the International Criminal Court in July 2000.¹¹⁹⁸ Although that document post-dates the acts involved here, it has proved helpful in assessing the state of customary international law which the Chamber itself derived from other sources. In this regard, it should be noted that all the States attending the conference, whether signatories of the Rome Statute or not, were eligible to be represented on the Preparatory Commission. From this perspective, the document is a useful key to the opinio juris of the States. Finally, the Trial Chamber also looked for guidance in the legislation and practice of States, especially their judicial interpretations and decisions.

542. Article 4 of the Statute characterises genocide by two constitutive elements :

     - the actus reus of the offence, which consists of one or several of the acts enumerated under Article 4(2);

     - the mens rea of the offence, which is described as the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

     1. Actus reus

543. The Trial Chamber has discussed above the murders and serious bodily and mental harm alleged by the Prosecution and has concluded they have been proved. It has been established beyond all reasonable doubt that Bosnian Muslim men residing in the enclave were murdered, in mass executions or individually. It has also been established that serious bodily or mental harm was done to the few individuals who survived the mass executions.
     2. Mens rea

544. The critical determination still to be made is whether the offences were committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

545. The Prosecution contends that the Bosnian Serb forces planned and intended to kill all the Bosnian Muslim men of military age at Srebrenica and that these large scale murders constitute genocide.¹¹⁹⁹ The Defence does not challenge that the Bosnian Serb forces killed a significant number of Bosnian Muslim men of military age but disagrees a genocidal intent within the meaning of Article 4 has been proved.

546. 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. The evidence shows that the mass executions mainly took place between 13 and 16 July, while executions of smaller scale continued until 19 July. All of the executions systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers. The military aged men who fled to Potocari were systematically separated from the other refugees . They were gathered in the “White House” and were forced to leave their identification papers and personal belongings outside the house. While opportunistic killings occurred in Potocari on 12 and 13 July,¹²⁰⁰ most of the men detained in the White house were bussed to Bratunac, from the afternoon of 12 July throughout 13 July,¹²⁰¹ and were subsequently led to execution sites. Additionally, the VRS launched an artillery attack against the column of Bosnian Muslim men marching toward Tuzla soon after it became aware of its existence.¹²⁰² A relentless search for the men forming the column started on 12 July and continued throughout 13 July. The few survivors qualified the search as a “man hunt” that left hardly any chance of escape.¹²⁰³ Attack resumed on 14 and 15 July against the third of the column that had managed to cross the asphalt road between Konjevic Polje and Nova Kasaba on 11-12 July.¹²⁰⁴ As the pressures on the VRS mounted during the fatal week of 11-16 July, negotiations were undertaken between the Bosnian Muslim and Bosnian Serb sides and a portion of the Bosnian Muslim column was eventually let through to government-held territory .¹²⁰⁵ The most logical reason for this was that most of the VRS troops had been relocated to Zepa by this time and , due to lack of manpower to stop the column, the Zvornik brigade was forced to let them go.¹²⁰⁶ Overall, however , as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing.¹²⁰⁷

547. The VRS may have initially considered only targeting the military men for execution .¹²⁰⁸ Some men from the column were in fact killed in combat and it is not certain that the VRS intended at first to kill all the captured Muslim men, including the civilians in the column.¹²⁰⁹ Evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians. Identification papers and personal belongings were taken away from both Bosnian Muslim men at Potocari and from men captured from the column; their papers and belongings were piled up and eventually burnt.¹²¹⁰ The strength of the desire to capture all the Bosnian Muslim men was so great that Bosnian Serb forces systematically stopped the buses transporting the women, children and the elderly at Tisca and checked that no men were hiding on board.¹²¹¹ Those men found in the buses were removed and subsequently executed.¹²¹² Admittedly, as the Defence has argued, some wounded men were authorised to leave the Srebrenica enclave under the escort of UNPROFOR. A report of 13 July, however , indicates that the VRS agreed to their evacuation only because of the presence of UNPROFOR and in order to show to the media that non-combatants were properly treated.¹²¹³ Except 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. They were led to sites located in remote places for execution. The men, sometimes blindfolded , barefoot or with their wrists bound behind their backs, were lined up and shot in rounds. Others were jammed into buildings and killed by rounds of automatic rifles or machine gunfire, or with hand grenades hurled into the buildings.¹²¹⁴ Bulldozers usually arrived immediately after the execution was completed, to bury the corpses.¹²¹⁵ Soldiers would sometimes start digging the graves while the executions were still in progress.¹²¹⁶ Bosnian Serb soldiers would come back to the execution sites a few hours later and check that no one had been left alive.¹²¹⁷ 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.

548. The Prosecution contends that evidence demonstrates an intent to destroy part of a group as such,¹²¹⁸ which is consonant with the definition of genocide. Conversely, the Defence maintains that the intent to kill all the Bosnian Muslim men of military age living in Srebrenica cannot be interpreted as an intent to destroy in whole or in part a group as such within the meaning of Article 4 of the Statute.

549. As a preliminary, the Chamber emphasises the need to distinguish between the individual intent of the accused and the intent involved in the conception and commission of the crime. The gravity and the scale of the crime of genocide ordinarily presume that several protagonists were involved in its perpetration. Although the motive of each participant may differ, the objective of the criminal enterprise remains the same. In such cases of joint participation, the intent to destroy, in whole or in part, a group as such must be discernible in the criminal act itself, apart from the intent of particular perpetrators. It is then necessary to establish whether the accused being prosecuted for genocide shared the intention that a genocide be carried out.

550. Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular kind of human group, as such, by certain means. Those are two elements of the special intent requirement of genocide:

     - the act or acts must target a national, ethnical, racial or religious group;

     - the act or acts must seek to destroy all or part of that group.¹²¹⁹

     (a) A group, as such

551. The parties agreed that genocide must target not only one or several individuals but a group as such.¹²²⁰

552. United Nations General Assembly resolution 96 (I) defined genocide as “a denial of the right of existence of entire human groups”.¹²²¹ On the same issue, the Secretariat explained:

     The victim of the crime of genocide is a human group. It is not a greater or smaller number of individuals who are affected for a particular reason but a group as such .¹²²²

     In 1951, following the adoption of the Genocide Convention, the International Court of Justice observed that the Convention looked “to safeguard the very existence of certain human groups and […] to confirm and endorse the most elementary principles of morality”.¹²²³ The ILC also insisted on this point in 1996:

     The group itself is the ultimate target or intended victim of this type of massive criminal conduct. [...] the intention must be to destroy the group ‘as such’, meaning as a separate and distinct entity.¹²²⁴

     The Akayesu Judgement¹²²⁵ and the Kayishema and Ruzindana Judgement¹²²⁶ upheld this interpretation.

553. The Convention thus seeks to protect the right to life of human groups, as such. This characteristic makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, in particular persecution, where the perpetrator selects his victims because of their membership in a specific community but does not necessarily seek to destroy the community as such.¹²²⁷

554. However, the Genocide Convention does not protect all types of human groups . Its application is confined to national, ethnical, racial or religious groups .

555. National, ethnical, racial or religious group are not clearly defined in the Convention or elsewhere. In contrast, the preparatory work on the Convention and the work conducted by international bodies in relation to the protection of minorities show that the concepts of protected groups and national minorities partially overlap and are on occasion synonymous. European instruments on human rights use the term “national minorities”,¹²²⁸ while universal instruments more commonly make reference to “ethnic, religious or linguistic minorities”;¹²²⁹ the two expressions appear to embrace the same goals.¹²³⁰ In a study conducted for the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1979, F. Capotorti commented that “the Sub-Commission ?on Prevention of Discrimination and Protection of Minoritiesg decided, in 1950, to replace the word 'racial’ by the word 'ethnic’ in all references to minority groups described by their ethnic origin”.¹²³¹ The International Convention on the Elimination of All Forms of Racial Discrimination ¹²³² defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”.¹²³³ The preparatory work on the Genocide Convention also reflects that the term “ethnical ” was added at a later stage in order to better define the type of groups protected by the Convention and ensure that the term “national” would not be understood as encompassing purely political groups.¹²³⁴

556. The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the second word war, as “national minorities”, rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.

557. A group’s cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits. As in the Nikolic ¹²³⁵ and Jelisic¹²³⁶ cases, the Chamber identifies 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.

558. Whereas the indictment in this case defined the targeted group as the Bosnian Muslims, the Prosecution appeared to use an alternative definition in its pre-trial brief by pleading the intention to eliminate the “Bosnian Muslim population of Srebrenica ” through mass killing and deportation.¹²³⁷ In its final trial brief, the Prosecution chose to define the group as the Bosnian Muslims of Srebrenica,¹²³⁸ while it referred to the Bosnian Muslims of Eastern Bosnia in its final arguments.¹²³⁹ The Defence argued in its final brief that the Bosnian Muslims of Srebrenica did not form a specific national, ethnical, racial or religious group. In particular , it contended that “one cannot create an artificial ‘group’ by limiting its scope to a geographical area”.¹²⁴⁰ According to the Defence, the Bosnian Muslims constitute the only group that fits the definition of a group protected by the Convention.¹²⁴¹

559. Originally viewed as a religious group, the Bosnian Muslims were recognised as a “nation” by the Yugoslav Constitution of 1963. The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group. Conversely, no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims. The only distinctive criterion would be their geographical location, not a criterion contemplated by the Convention. In addition, it is doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims. Indeed, most of the Bosnian Muslims residing in Srebrenica at the time of the attack were not originally from Srebrenica but from all around the central Podrinje region. Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group.

560. The 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. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4. The question of whether an intent to destroy a part of the protected group falls under the definition of genocide is a separate issue that will be discussed below.

561. The Prosecution and the Defence, in this case, concur in their belief that the victims of genocide must be targeted by reason of their membership in a group.¹²⁴² This is the only interpretation coinciding with the intent which characterises the crime of genocide. The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such. As the ILC noted:

     […] the intention must be to destroy a group and not merely one or more individuals who are coincidentally members of a particular group. The […] act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group.¹²⁴³

562. As a result, there are obvious similarities between a genocidal policy and the policy commonly known as ''ethnic cleansing''. In this case, acts of discrimination are not confined to the events in Srebrenica alone, but characterise the whole of the 1992-95 conflict between the Bosnian Serbs, Muslims and Croats. The Report of the Secretary-General comments that “a central objective of the conflict was the use of military means to terrorise civilian populations, often with the goal of forcing their flight in a process that came to be known as 'ethnic cleansing' ”.¹²⁴⁴ The Bosnian Serbs’ war objective was clearly spelt out, notably in a decision issued on 12 May 1992 by Momcilo Krajisnik , then President of the National Assembly of the Bosnian Serb People. The decision indicates that one of the strategic objectives of the Serbian people of Bosnia-Herzegovina was to reunite all Serbian people in a single State, in particular by erasing the border along the Drina which separated Serbia from Eastern Bosnia, whose population was mostly Serbian.¹²⁴⁵

563. The accused himself defined the objective of the campaign in Bosnia during an interview in November 1995, when he explained that the Podrinje region should remain “Serbian for ever, while the Eastern part of Republika Srpska and the Drina river w?ouldg be an important meeting point for the entire Serbian people from both sides of the Drina”.¹²⁴⁶

564. In this goal, the cleansing of Bosnian Muslims from Srebrenica had special advantages. Lying in the central Podrinje region, whose strategic importance for the creation of a Bosnian Serb Republic has frequently been cited in testimony,¹²⁴⁷ Srebrenica and the surrounding area was a predominantly Muslim pocket within a mainly Serbian region adjoining Serbia.¹²⁴⁸ Given the war objectives, it is hardly surprising that the Serbs and Bosnian Muslims fought each other bitterly in this region from the outbreak of the conflict.¹²⁴⁹

565. Many attacks were launched by both parties against villages controlled by the other side in the region. The Bosnian Muslim forces committed apparent violations of humanitarian law directed against the Bosnian Serb inhabitants of the region, especially from May 1992 to January 1993.¹²⁵⁰ In response, operations were conducted by the Bosnian Serb forces, notably, a large -scale attack launched in January 1993. The attack forced the Bosnian Muslim population from the surrounding villages to flee to the areas of Srebrenica and Zepa. As a result, the population of Srebrenica climbed from 37,000 in 1991 to 50,000 or 60 ,000 in 1993 while, at the same time, the territory shrank from 900 to 150 square km.¹²⁵¹ A significant majority of the Muslim population, residing in the territory of the Drina Corps’ zone of responsibility, had already been displaced by April 1993. By that date, the Bosnian Serb forces had ethnically cleansed the towns and villages of Zvornik, Sekovici, Kalesija, Bratunac, Vlasenica, Kladanj, Olovo, Han Pijesak, Rogatica and Sokolac .¹²⁵² The over-populated municipality of Srebrenica was then subjected to constant shelling before the Security Council decided, on 16 April 1993, to declare the enclave a safe area.¹²⁵³ Despite a period of relative stability, the living conditions remained dreadful. The Security Council Mission, set up pursuant to resolution 819, described Srebrenica on 30 April 1993 as an “open jail” ¹²⁵⁴ and stated that 50% of the dwellings had been demolished. The Mission further lamented the Bosnian Serb forces’ harassment of the humanitarian convoys heading for Srebrenica and the obstacles confronted in transporting the sick and wounded out of the enclave .¹²⁵⁵ Until 1995, the water and electricity networks were unusable, having been either destroyed or cut. There was an extreme shortage of food and medicines.¹²⁵⁶

566. Even before the offensive of July 1995 and as early as January 1995, the Bosnian Serb forces tried to prevent the humanitarian convoys from getting through to the enclave.¹²⁵⁷ The Trial Chamber has previously described the catastrophic humanitarian situation which was born out of the policy of systematically hampering humanitarian convoys.¹²⁵⁸ In particular, several persons died from starvation on 7 and 8 July 1995 and a report from the command of the 28th Division, dated 8 July 1995, warned that the civilian population would very soon be forced to flee the enclave if it wished to survive .¹²⁵⁹

567. However, the Trial Chamber has found that, on its face, the operation Krivaja 95 did not include a plan to overrun the enclave and expel the Bosnian Muslim population .¹²⁶⁰ The Trial Chamber heard credible testimony on the chronic refusal of Bosnian Muslim forces to respect the demilitarisation agreement of 1993.¹²⁶¹ Defence witnesses accused the Bosnian Muslim forces of using the safe area as a fortified base from which to launch offensives against the Bosnian Serb forces. In particular, on 26 June 1995, several weeks prior to the offensive of the VRS on Srebrenica, the Bosnian Muslim forces launched an assault from the enclave on the Serbian village of Visnica 5km away.¹²⁶² Such acts could well have motivated an attack designed to cut communications between the enclaves of Zepa and Srebrenica.

568. The operation, however, was not confined to mere retaliation. Its objective , although perhaps restricted initially to blocking communications between the two enclaves and reducing the Srebrenica enclave to its urban core, was quickly extended . Realising that no resistance was being offered by the Bosnian Muslim forces or the international community, President Karadzic broadened the operation’s objective by issuing, on 9 July, the order to seize the town.¹²⁶³ By 11 July, the town of Srebrenica was captured, driving 20,000 to 25,000 Muslim refugees to flee towards Potocari. Operation Krivaja 1995 then became an instrument of the policy designed to drive out the Bosnian Muslim population. The humanitarian crisis caused by the flow of refugees arriving at Potocari, the intensity and the scale of the violence, the illegal confinement of the men in one area, while the women and children were forcibly transferred out of the Bosnian Serb held territory , and the subsequent death of thousands of Bosnian Muslim civilian and military men, most of whom clearly did not die in combat, demonstrate that a purposeful decision was taken by the Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason of their membership in the Bosnian Muslim group. It remains to determine whether this discriminatory attack sought to destroy the group, in whole or in part, within the meaning of Article 4 of the Statute.

     (b) Intent to destroy the group in whole or in part

     (i) Intent to destroy

569. The Prosecution urges a broad interpretation of Article 4’s requirement of an intent to destroy all or part of the group. It contends that the acts have been committed with the requisite intent if “?the accusedg consciously desired ?hisg acts to result in the destruction, in whole or in part, of the group, as such; or he knew his acts were destroying, in whole or in part, the group, as such; or he knew that the likely consequence of his acts would be to destroy, in whole or in part, the group, as such”.¹²⁶⁴ The Prosecution is of the opinion that, in this case, General Krstic and others “consciously desired their acts to lead to the destruction of part of the Bosnian Muslim people as a […] group”.¹²⁶⁵

570. Conversely, the Defence claims that the perpetrator of genocide must “have the specific intent to destroy the [...] group” and concludes that “the dolus specialis constitutes a higher form of premeditation”.¹²⁶⁶

571. The preparatory work of the Genocide Convention clearly shows that the drafters envisaged genocide as an enterprise whose goal, or objective, was to destroy a human group, in whole or in part. United Nations General Assembly resolution 96 (I) defined genocide as “the denial of the right of existence of entire human groups”.¹²⁶⁷ The draft Convention prepared by the Secretary-General presented genocide as a criminal act which aims to destroy a group, in whole or in part,¹²⁶⁸ and specified that this definition excluded certain acts, which may result in the total or partial destruction of a group, but are committed in the absence of an intent to destroy the group.¹²⁶⁹ The International Law Commission upheld this interpretation and indicated that “ a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequence of the prohibited act”.¹²⁷⁰ The International Court of Justice insisted, in its Opinion on the Legality of the Threat or Use of Nuclear Weapons,( footnote 1271 ) that specific intent to destroy was required and indicated that “the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above”.¹²⁷² The ICTR adopted the same interpretation. In The Prosecutor v. Jean Kambanda, the Trial Chamber stated: “the crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent ‘to destroy in whole or in part, a national, ethnic, racial or religious group as such’”.¹²⁷³ In Kayishema , Ruzindana, the Trial Chamber also emphasised that “genocide requires the aforementioned specific intent to exterminate a protected group (in whole or in part)”.¹²⁷⁴ Moreover, the Chamber notes that the domestic law of some States distinguishes genocide by the existence of a plan to destroy a group.¹²⁷⁵ Some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequence is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act.¹²⁷⁶ Whether this interpretation can be viewed as reflecting the status of customary international law at the time of the acts involved here is not clear. For the purpose of this case, the Chamber will therefore adhere to the characterisation of genocide which encompass only acts committed with the goal of destroying all or part of a group.

572. Article 4 of the Statute does not require that the genocidal acts be premeditated over a long period.¹²⁷⁷ It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation. For instance, an armed force could decide to destroy a protected group during a military operation whose primary objective was totally unrelated to the fate of the group. The Appeals Chamber, in a recent decision, indicated that the existence of a plan was not a legal ingredient of the crime of genocide but could be of evidential assistance to prove the intent of the authors of the criminal act(s).¹²⁷⁸ Evidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardised coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men.¹²⁷⁹

573. The Trial Chamber is unable to determine the precise date on which the decision to kill all the military aged men was taken. Hence, it cannot find that the killings committed in Potocari on 12 and 13 July 1995 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 13 July onwards were part of this plan .

574. The manner in which the destruction of a group may be implemented so as to qualify as a genocide under Article 4 must also be discussed. The physical destruction of a group is the most obvious method, but one may also conceive of destroying a group through purposeful eradication of its culture and identity resulting in the eventual extinction of the group as an entity distinct from the remainder of the community.

575. The notion of genocide, as fashioned by Raphael Lemkin in 1944, originally covered all forms of destruction of a group as a distinct social entity.¹²⁸⁰ As such, genocide closely resembled the crime of persecution. In this regard, the ILC stated, in its 1996 report, that genocide as currently defined corresponds to the second category of crime against humanity established under Article 6(c) of the Nuremberg Tribunal’s Statute, namely the crime of persecution.¹²⁸¹ There is consensus that the crime of persecution provided for by the Statute of the Nuremberg Tribunal was not limited to the physical destruction of the group but covered all acts designed to destroy the social and/or cultural bases of a group . Such a broad interpretation of persecution was upheld inter alia in the indictment against Ulrich Greifelt et al., before the United States Military Tribunal in Nuremberg. The accused were charged with implementing a systematic programme of genocide which sought to destroy foreign nations and ethnic groups. The indictment interpreted destruction to mean not only the extermination of the members of those groups but also the eradication of their national characteristics .¹²⁸² It should be noted that this interpretation was supported by the working group established to report on the human rights violations in South Africa in 1985. While recognising that the Convention literally covered only the physical or material destruction of the group, the report explained that it was adopting a broader interpretation that viewed as genocidal any act which prevented an individual "from participating fully in national life ", the latter being understood "in its more general sense".¹²⁸³

576. Although the Convention does not specifically speak to the point, the preparatory work points out that the “cultural” destruction of a group was expressly rejected after having been seriously contemplated.¹²⁸⁴ The notion of cultural genocide was considered too vague and too removed from the physical or biological destruction that motivated the Convention. The ILC noted in 1996:

     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 “destruction”, which must be taken only in its material sense, its physical or biological sense.¹²⁸⁵

577. Several recent declarations and decisions, however, have interpreted the intent to destroy clause in Article 4 so as to encompass evidence relating to acts that involved cultural and other non physical forms of group destruction.

578. In 1992, the United Nations General Assembly labelled ethnic cleansing as a form of genocide.¹²⁸⁶

579. The Federal Constitutional Court of Germany said in December 2000 that:

     the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group [...] the intent to destroy the group [...] extends beyond physical and biological extermination [...] The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group.¹²⁸⁷

580. The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that , despite recent developments, 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. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well , attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group.

     (ii) “In part”

581. Since in this case primarily the Bosnian Muslim men of military age were killed , a second issue is whether this group of victims represented a sufficient part of the Bosnian Muslim group so that the intent to destroy them qualifies as an “ intent to destroy the group in whole or in part” under Article 4 of the Statute.

582. Invoking the work of the ILC and the Jelisic Judgement, the Prosecution interprets the expression “in whole or in part” to mean a “substantial” part in quantitative or qualitative terms.¹²⁸⁸ However, the Prosecution states that “it is not necessary to consider the global population of the group. The intent to destroy a multitude of persons because of their membership in a particular group constitutes genocide even if these persons constitute only part of a group either within a country or within a region or within a single community”.¹²⁸⁹ The Prosecution relies on, inter alia, the Akayesu Judgement which found the accused guilty of genocide for acts he committed within a single commune and the Nikolic Decision taken pursuant to Rule 61, which upheld the characterisation of genocide for acts committed within a single region of Bosnia-Herzegovina, in that case, the region of Vlasenica.¹²⁹⁰ The Prosecution further cites the Jelisic Judgement which declared that “international custom admit?tedg the characterisation of genocide even when the exterminatory intent only extend?edg to a limited geographic zone”.¹²⁹¹

583. The Defence contends that the term "in part" refers to the scale of the crimes actually committed, as opposed to the intent, which would have to extend to destroying the group as such, i.e. in its entirety.¹²⁹² The Defence relies for this interpretation on the intention of the drafters of the Convention, which it contends was confirmed by the subsequent commentary of Raphael Lemkin in 1950 before the American Congress during the debates on the Convention's ratification¹²⁹³ and by the implementing legislation proposed by the United States during the Nixon and Carter administrations .¹²⁹⁴ That is, any destruction, even if only partial, must have been carried out with the intent to destroy the entire group, as such.

584. The Trial Chamber does not agree. Admittedly, by adding the term “in part”, some of the Convention’s drafters may have intended that actual destruction of a mere part of a human group could be characterised as genocide, only as long as it was carried out with the intent to destroy the group as such.¹²⁹⁵ The debates on this point during the preparatory work are unclear, however, and a plain reading of the Convention contradicts this interpretation. Under the Convention , the term ''in whole or in part'' refers to the intent, as opposed to the actual destruction, and it would run contrary to the rules of interpretation to alter the ordinary meaning of the terms used in the Convention by recourse to the preparatory work which lacks clarity on the issue. The Trial Chamber concludes that any act committed with the intent to destroy a part of a group, as such, constitutes an act of genocide within the meaning of the Convention.

585. The Genocide Convention itself provides no indication of what constitutes intent to destroy “in part”. The preparatory work offers few indications either. The draft Convention submitted by the Secretary-General observes that “the systematic destruction even of a fraction of a group of human beings constitutes an exceptionally heinous crime”.¹²⁹⁶ Early commentaries on the Genocide Convention opined that the matter of what was substantial fell within the ambit of the Judges’ discretionary evaluation. Nehemia Robinson was of the view that the intent to destroy could pertain to only a region or even a local community if the number of persons targeted was substantial.¹²⁹⁷ Pieter Drost remarked that any systematic destruction of a fraction of a protected group constituted genocide.¹²⁹⁸

586. A somewhat stricter interpretation has prevailed in more recent times. According to the ILC, the perpetrators of the crime must seek to destroy a quantitatively substantial part of the protected group:

     It is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group .¹²⁹⁹

     The Kayishema and Ruzindana Judgement stated that the intent to destroy a part of a group must affect a “considerable” number of individuals.¹³⁰⁰ The Judgement handed down on Ignace Bagilishema, on 7 June 2001, also recognised that the destruction sought must target at least a substantial part of the group .¹³⁰¹

587. Benjamin Whitaker's 1985 study on the prevention and punishment of the crime of genocide holds that the partial destruction of a group merits the characterisation of genocide when it concerns a large portion of the entire group or a significant section of that group.

     'In part' would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership .¹³⁰²

     The “Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992)” (hereinafter “ Report of the Commission of Experts ”) confirmed this interpretation, and considered that an intent to destroy a specific part of a group, such as its political, administrative, intellectual or business leaders, “may be a strong indication of genocide regardless of the actual numbers killed”. The report states that extermination specifically directed against law enforcement and military personnel may affect “a significant section of a group in that it renders the group at large defenceless against other abuses of a similar or other nature”. However, the Report goes on to say that “the attack on the leadership must be viewed in the context of the fate of what happened to the rest of the group. If a group suffers extermination of its leadership and in the wake of that loss, a large number of its members are killed or subjected to other heinous acts, for example deportation, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose”.¹³⁰³

588. Judge Elihu Lauterpacht, the ad hoc Judge nominated by Bosnia-Herzegovina in the case before the International Court of Justice regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide, spoke similarly in his separate opinion.¹³⁰⁴ Judge Lauterpacht observed that the Bosnian Serb forces had murdered and caused serious mental and bodily injury to the Bosnian Muslims and had subjected the group to living conditions meant to bring about its total or partial physical destruction . He went on to take into account “the forced migration of civilians, more commonly known as ‘ethnic cleansing’” in order to establish the intent to destroy all or part of the group. In his view, this demonstrated the Serbs’ intent “to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina”. Judge Lauterpacht concluded that the acts which led to the group's physical destruction had to be characterised as “acts of genocide” since they were “directed against an ethnical or religious group as such, and they (were( intended to destroy that group, if not in whole certainly in part, to the extent necessary to ensure that that group (would( no longer occup(y( the parts of Bosnia-Herzegovina coveted by the Serbs”.¹³⁰⁵

589. Several other sources confirm that the intent to eradicate a group within a limited geographical area such as the region of a country or even a municipality may be characterised as genocide. The United Nations General Assembly characterised as an act of genocide the murder of approximately 800 Palestinians¹³⁰⁶ detained at Sabra and Shatila, most of whom were women, children and elderly.¹³⁰⁷ The Jelisic Judgement held that genocide could target a limited geographic zone.¹³⁰⁸ Two Judgements recently rendered by German courts took the view that genocide could be perpetrated within a limited geographical area. The Federal Constitutional Court of Germany, in the Nikola Jorgic case, upheld the Judgement of the Düsseldorf Supreme Court,¹³⁰⁹ interpreting the intent to destroy the group “in part” as including the intention to destroy a group within a limited geographical area.¹³¹⁰ In a Judgement against Novislav Djajic on 23 May 1997, the Bavarian Appeals Chamber similarly found that acts of genocide were committed in June 1992 though confined within the administrative district of Foca.¹³¹¹

590. The Trial Chamber is thus left with a margin of discretion in assessing what is destruction “in part” of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups , as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue. In this regard, it is important to bear in mind the total context in which the physical destruction is carried out.

591. The parties have presented opposing views as to whether the killings of Bosnian Muslim men in Srebrenica were carried out with intent to destroy a substantial part of the Bosnian Muslim group. It should be recalled that the Prosecution at different times has proposed different definitions of the group in the context of the charge of genocide. In the Indictment, as in the submission of the Defence, the Prosecution referred to the group of the Bosnian Muslims, while in the final brief and arguments it defined the group as the Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia. The Trial Chamber has previously indicated that the protected group, under Article 4 of the Statue, should be defined as the Bosnian Muslims.

592. The Prosecution first argues that “causing at least 7,475 deaths of mainly Bosnian Muslim men in Srebrenica, the destruction of this part of the group, which numbered in total approximately 38,000 to 42,000 prior to the fall”,¹³¹² constitutes a substantial part of the group not only because it targeted a numerically high number of victims, but also because the victims represented a significant part of the group. It was common knowledge that the Bosnian Muslims of Eastern Bosnia constituted a patriarchal society in which men had more education, training and provided material support to their family. The Prosecution claims that the VRS troops were fully cognisant that by killing all the military aged men, they would profoundly disrupt the bedrock social and cultural foundations of the group. The Prosecution adds that the mass executions of the military aged men must be viewed in the context of what occurred to the remainder of the Srebrenica group. The offensive against the safe area aimed to ethnically cleanse the Bosnian Muslims¹³¹³ and progressively culminated in the murder of the Bosnian Muslim men as well as the evacuation of the women, children and elderly.¹³¹⁴ In the Prosecution’s view, the end result was purposeful, as shown by the longstanding plan of Republika Sprska to eliminate the Bosnian Muslims from the area. Specifically , Radovan Karadzic, in Directive 7 of 7 March 1995,¹³¹⁵ ordered the Drina Corps to “[...] create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Zepa ”.¹³¹⁶ General Krstic and his superiors also manifested genocidal intent by using inflammatory rhetoric and racist statements that presented the VRS as defending the Serbian people from a threat of genocide posed by “Ustasha-Muslim hords”.¹³¹⁷ According to the Prosecution, “by killing the leaders and defenders of the group and deporting the remainder of it, the VRS and General Krstic had assured that the Bosnian Muslim community of Srebrenica and its surrounds would not return to Srebrenica nor would it reconstitute itself in that region or indeed, anywhere else”.¹³¹⁸ The Prosecution points us to the terrible impact the events of 11-16 July had upon the Bosnian Muslim community of Srebrenica : “what remains of the Srebrenica community survives in many cases only in the biological sense, nothing more. It’s a community in despair; it’s a community clinging to memories; it’s a community that is lacking leadership; it’s a community that’s a shadow of what it once was”.¹³¹⁹ The Prosecution concludes that “the defendant’s crimes have not only resulted in the death of thousands men and boys, but have destroyed the Srebrenica Muslim community ”.¹³²⁰

593. The Defence argues in rejoinder that, “although the desire to condemn the acts of the Bosnian Serb Army at Srebrenica in the most pejorative terms is understandably strong”, these acts do not fall under the legal definition of genocide because it was not proven that they were committed with the intent to destroy the group as an entity.¹³²¹ First, the killing of up to 7,500 members of a group, the Bosnian Muslims, that numbers about 1,4 million people, does not evidence an intent to destroy a “substantial” part of the group . To the Defence, the 7,500 dead are not even substantial when compared to the 40,000 Bosnian Muslims of Srebrenica.¹³²² The Defence also points to the fact that the VRS forces did not kill the women, children and elderly gathered at Potocari but transported them safely to Kladanj , as opposed to all other genocides in modern history, which have indiscriminately targeted men, women and children.¹³²³ The Defence counters the Prosecution’s submission that the murder of all the military aged men would constitute a selective genocide, as the VRS knew that their death would inevitably result in the destruction of the Muslim community of Srebrenica as such.¹³²⁴ According to the Defence , had the VRS actually intended to destroy the Bosnian Muslim community of Srebrenica , it would have killed all the women and children, who were powerless and already under its control, rather than undertaking the time and manpower consuming task of searching out and eliminating the men of the column.¹³²⁵ The Defence rejects the notion that the transfer of the women, children and elderly can be viewed cynically as a public relations cover-up for the planned execution of the men. First, it says the decision to transfer the women, children and elderly was taken on 11 July, i.e. before the VRS decided to kill all the military aged men. Further, the Defence points out, by the time the evacuation started, the world community was already aware of, and outraged by, the humanitarian crisis caused by the VRS in Srebrenica, and the VRS was not concerned with covering up its true intentions.¹³²⁶ The Defence also argues that the VRS would have killed the Bosnian Muslims in Zepa, a neighbouring enclave, as well, if its intent was to kill the Bosnian Muslims as a group.¹³²⁷ Furthermore, the Defence claims that none of the military expert witnesses “could attribute the killings to any overall plan to destroy the Bosnian Muslims as a group ”.¹³²⁸ To the Defence, a true genocide is almost invariably preceded by propaganda that calls for killings of the targeted group and nothing similar occurred in the present case. Inflammatory public statements made by one group against another – short of calling for killings - are common practice in any war and cannot be taken as evidence of genocidal intent.¹³²⁹ The Defence argues that, despite the unprecedented access to confidential material obtained by the Prosecution, none of the documents submitted, not even the intercepted conversations of VRS Army officers involved in the Srebrenica campaign, show an intent to destroy the Bosnian Muslims as a group.¹³³⁰ The Defence contends that the facts instead prove that the VRS forces intended to kill solely all potential fighters in order to eliminate any future military threat . The wounded men were spared.¹³³¹ More significantly, 3,000 members of the column were let through after a general truce was concluded between the warring parties.¹³³² The Defence concludes that the killings were committed by a small group of individuals within a short period of time as a retaliation for failure to meet General Mladic’s demand of surrender to the VRS of the BiH Army units in the Srebrenica area. The Defence recognises that “the consequences of the killings of 7,500 people on those who survived are undoubtedly terrible”. However, it argues that these consequences would remain the same, regardless of the intent underlying the killings and thus “do not contribute to deciding and determining what the true intent of the killing was”.¹³³³ The Defence concludes that “there is no proof and evidence upon which this Trial Chamber could conclude beyond all reasonable doubt that the killings were carried out with the intent to destroy, in whole or in part, the Bosnian Muslims as an ethnic group”.¹³³⁴

594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community. Within a period of no more than seven days, as many as 7,000- 8,000 men of military age were systematically massacred while the remainder of the Bosnian Muslim population present at Srebrenica , some 25,000 people, were forcibly transferred to Kladanj. The Trial Chamber previously described how the VRS attempted to kill all the Bosnian Muslim men of military age , regardless of their civilian or military status; wounded men were spared only because of the presence of UNPROFOR and the portion of the column that managed to get through to government-held territory owed its survival to the fact that the VRS lacked the military resources to capture them.

595. Granted, only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces could 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. Furthermore, the Bosnian Serb forces had 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, an impact the Chamber has previously described in detail.¹³³⁵ The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari¹³³⁶ and the principal mosque in Srebrenica soon after the attack.¹³³⁷

596. Finally, there is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas , thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified.

597. The strategic location of the enclave, situated between two Serb territories , may explain why the Bosnian Serb forces did not limit themselves to expelling the Bosnian Muslim population. By killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever re-establish itself on that territory.¹³³⁸

598. The Chamber concludes that the intent to kill all the Bosnian Muslim men of military age in Srebrenica constitutes an intent to destroy in part the Bosnian Muslim group within the meaning of Article 4 and therefore must be qualified as a genocide.

599. The Trial Chamber has thus concluded that the Prosecution has proven beyond all reasonable doubt that genocide, crimes against humanity and violations of the laws or customs of war were perpetrated against the Bosnian Muslims, at Srebrenica , in July 1995. The Chamber now proceeds to consider the criminal responsibility of General Krstic for these crimes in accordance with the provisions of Article 7 of the Statute.
     H. Criminal Responsibility of General Krstic
     1. Introduction

600. The Prosecution alleges that General Krstic is criminally responsible for his participation in the crimes charged in the indictment, pursuant to Article 7(1) of the Statute,¹³³⁹ which states that:

     A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

601. The Trial Chambers of the ICTY and the ICTR and the Appeals Chamber of the ICTY have identified the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute.¹³⁴⁰ The essential findings in the jurisprudence may be briefly summarised as follows :

     - “Planning” means that one or more persons design the commission of a crime at both the preparatory and execution phases;¹³⁴¹

     - “Instigating” means prompting another to commit an offence;¹³⁴²

     - “Ordering” entails a person in a position of authority using that position to convince another to commit an offence;¹³⁴³

     - “Committing” covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law;¹³⁴⁴

     - “Aiding and abetting” means rendering a substantial contribution to the commission of a crime;¹³⁴⁵ and

     - “Joint criminal enterprise” liability is a form of criminal responsibility which the Appeals Chamber found to be implicitly included in Article 7(1) of the Statute . It entails individual responsibility for participation in a joint criminal enterprise to commit a crime;¹³⁴⁶

602. Since the Prosecution has not charged any specific head of criminal responsibility under Article 7(1) of the Statute,¹³⁴⁷ it is within the discretion of the Trial Chamber to convict the Accused under the appropriate head within the limits of the Indictment and fair notice of the charges and insofar as the evidence permits.¹³⁴⁸ As to joint criminal enterprise liability, in its Final Trial Brief the Defence contends that it is not open to the Trial Chamber to apply this doctrine because it has not been pleaded in the Indictment. The Trial Chamber rejects this submission . The Prosecutor’s Pre-trial Brief discussed this form of liability, specifically in the context of ethnic cleansing;¹³⁴⁹ the Defence acknowledged this pleading in its Pre-trial Brief and did not object to the concept itself but only to some details of the legal submissions on the matter .¹³⁵⁰ Moreover, the Trial Chamber finds that the “nature and cause of the charge against the accused” pleaded in the indictment contains sufficient references to his responsibility for the alleged crimes committed in concert with others.¹³⁵¹

603. The Prosecution “also, or alternatively” alleges that General Krstic incurs “command responsibility” for the crimes charged in the Indictment pursuant to Article 7(3) of the Statute.¹³⁵² Pursuant to this provision:

     The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

604. According to the case law,¹³⁵³ the following three conditions must be met before a person can be held responsible for the acts of another person under Article 7(3) of the Statute:

     - The existence of a superior-subordinate relationship;

     - The superior knew or had reason to know that the criminal act was about to be or had been committed; and

     - The superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

605. The facts pertaining to the commission of a crime may establish that the requirements for criminal responsibility under both Article 7(1) and Article 7(3) are met. However , the Trial Chamber adheres to the belief that where a commander participates in the commission of a crime through his subordinates, by “planning”, “instigating ” or “ordering” the commission of the crime, any responsibility under Article 7( 3) is subsumed under Article 7(1).¹³⁵⁴ The same applies to the commander who incurs criminal responsibility under the joint criminal enterprise doctrine through the physical acts of his subordinates.
     2. The criminal responsibility of General Krstic for the crimes proved at trial

606. The Trial Chamber will now turn to the criminal responsibility of General Krstic for the crimes proved at trial. The following discussion distinguishes between two sets of crimes:

     - The humanitarian crisis and crimes of terror committed at Potocari and the subsequent forcible transfer of the women, children and elderly; and

     - The mass executions of the military-aged Muslim men from Srebrenica.

     (a) General Krstic’s responsibility for the crimes committed at Potocari

607. The Trial Chamber characterises the humanitarian crisis, the crimes of terror and the forcible transfer of the women, children and elderly¹³⁵⁵ at Potocari as constituting crimes against humanity, that is, persecution¹³⁵⁶ and inhumane acts.¹³⁵⁷

608. The evidence establishes that General Krstic, along with others, played a significant role in the organisation of the transportation of the civilians from Potocari. Specifically, the Trial Chamber has concluded that, on 12 July, General Krstic ordered the procurement of buses and their subsequent departure carrying the civilians from Potocari. At some later stage, he personally inquired about the number of buses already en route. The Trial Chamber has also found that General Krstic ordered the securing of the road from Luke to Kladanj up to the tunnel where the people on the buses were to disembark. It has further been established that General Krstic knew that this was a forcible, not a voluntary, transfer.¹³⁵⁸

609. The Trial Chamber has similarly concluded that General Krstic was fully aware of the ongoing humanitarian crisis at Potocari as a result of his presence at the hotel Fontana meeting, on 11 July at 2300 hours, where General Mladic and Colonel Karremans of Dutchbat discussed the urgency of the situation, and, at the meeting on 12 July, when General Mladic decided that the VRS would organise the evacuation of the Bosnian Muslim women, children and elderly. Following this meeting, General Krstic was present himself at Potocari, for one to two hours, thus he could not help but be aware of the piteous conditions of the civilians and their mistreatment by VRS soldiers on that day.¹³⁵⁹

610. In light of these facts, the Trial Chamber is of the view that the issue of General Krstic’s criminal responsibility for the crimes against the civilian population of Srebrenica occurring at Potocari is most appropriately determined under Article 7(1) by considering whether he participated, along with General Mladic and key members of the VRS Main Staff and the Drina Corps, in a joint criminal enterprise to forcibly ''cleanse'' the Srebrenica enclave of its Muslim population and to ensure that they left the territory otherwise occupied by Serbian forces.

611. According to the Appeals Chamber in the Tadic Appeal Judgement, for joint criminal enterprise liability to arise, three actus reus elements require proof:¹³⁶⁰

     (i) A plurality of persons;

     (ii) The existence of a common plan, which amounts to or involves the commission of a crime provided for in the Statute; the Appeals Chamber specified that¹³⁶¹

     There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

     (iii) Participation of the accused in the execution of the common plan,¹³⁶² otherwise formulated as the accused’s “membership” in a particular joint criminal enterprise.¹³⁶³

612. The facts described in the preceding paragraphs compel the inference that the political and/or military leadership of the VRS formulated a plan to permanently remove the Bosnian Muslim population from Srebrenica, following the take-over of the enclave. From 11 through 13 July, this plan of what is colloquially referred to as “ethnic cleansing” was realised mainly through the forcible transfer of the bulk of the civilian population out of Potocari, once the military aged men had been separated from the rest of the population. General Krstic was a key participant in the forcible transfer, working in close co-operation with other military officials of the VRS Main Staff and the Drina Corps.¹³⁶⁴ The actus reus requirements for joint criminal enterprise liability therefore have been met.

613. In defining the intent requirement, or mens rea, of joint criminal enterprise liability, the Appeals Chamber has distinguished between crimes committed in the execution of the agreed upon objectives of the criminal enterprise and crimes upon which the participants had not agreed but which were a natural and foreseeable consequence of the plan.¹³⁶⁵ In this regard , the Trial Chamber notes that Trial Chamber II interpreted the relevant portion of the Tadic Appeal Judgement as follows:¹³⁶⁶

     The state of mind of the accused to be established by the prosecution accordingly differs according to whether the crime charged:

     (a) was within the object of the joint criminal enterprise, or

     (b) went beyond the object of that enterprise, but was nevertheless a natural and foreseeable consequence of that enterprise.

     If the crime charged fell within the object of the joint criminal enterprise , the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime. If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness , he participated in that enterprise.

614. In order to determine whether General Krstic had the requisite mens rea for responsibility to arise under the joint criminal enterprise doctrine, the Trial Chamber must determine which crimes fell within and which fell outside the agreed object of the joint criminal enterprise to ethnically cleanse the Srebrenica enclave.

615. The object of the joint criminal enterprise implemented at Potocari on 12 and 13 July was firstly the forcible transfer of the Muslim civilians out of Srebrenica . That General Krstic had the intent for this crime is indisputably evidenced by his extensive participation in it. Furthermore, the humanitarian crisis that prevailed at Potocari was so closely connected to, and so instrumental in, the forcible evacuation of the civilians that it cannot but also have fallen within the object of the criminal enterprise. When General Krstic marched triumphantly into Srebrenica alongside General Mladic on 11 July, he saw the town completely empty and soon found out, at least by the evening, that a huge number of the inhabitants had fled to Potocari and were crowded together in the UN compound and surrounding buildings. Although , by his own claim, he was the organiser of the military operation on Srebrenica , he had taken no action to provide food or water, nor to guarantee the security of the civilians inhabitants of the town. The Trial Chamber finds that General Krstic subscribed to the creation of a humanitarian crisis as a prelude to the forcible transfer of the Bosnian Muslim civilians. This is the only plausible inference that can be drawn from his active participation in the holding and transfer operation at Potocari and from his total declination to attempt any effort to alleviate that crisis despite his on the scene presence.

616. The Trial Chamber is not, however, convinced beyond reasonable doubt that the murders, rapes, beatings and abuses committed against the refugees at Potocari were also an agreed upon objective among the members of the joint criminal enterprise . However, there is no doubt that these crimes were natural and foreseeable consequences of the ethnic cleansing campaign. Furthermore, given the circumstances at the time the plan was formed, General Krstic must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and the sheer lack of sufficient numbers of UN soldiers to provide protection. In fact, on 12 July, the VRS organised and implemented the transportation of the women, children and elderly outside the enclave ; General Krstic was himself on the scene and exposed to firsthand knowledge that the refugees were being mistreated by VRS or other armed forces.

617. In sum, the Trial Chamber finds General Krstic guilty as a member of a joint criminal enterprise whose objective was to forcibly transfer the Bosnian Muslim women, children and elderly from Potocari on 12 and 13 July and to create a humanitarian crisis in support of this endeavour by causing the Srebrenica residents to flee to Potocari where a total lack of food, shelter and necessary services would accelerate their fear and panic and ultimately their willingness to leave the territory. General Krstic thus incurs liability also for the incidental murders, rapes, beatings and abuses committed in the execution of this criminal enterprise at Potocari.

618. Finally, General Krstic knew that these crimes were related to a widespread or systematic attack directed against the Bosnian Muslim civilian population of Srebrenica; his participation in them is undeniable evidence of his intent to discriminate against the Bosnian Muslims. General Krstic is therefore liable of inhumane acts ¹³⁶⁷ and persecution¹³⁶⁸ as crimes against humanity.

     (b) General Krstic’s criminal responsibility for the killing of the military-aged Muslim men from Srebrenica

619. The Trial Chamber has made findings that, as of 13 July, the plan to ethnically cleanse the area of Srebrenica escalated to a far more insidious level that included killing all of the military-aged Bosnian Muslim men of Srebrenica. A transfer of the men after screening for war criminals - the purported reason for their separation from the women, children and elderly at Potocari - to Bosnian Muslim held territory or to prisons to await a prisoner exchange was at some point considered an inadequate mode for assuring the ethnic cleansing of Srebrenica. Killing the men, in addition to forcibly transferring the women, children and elderly, became the object of the newly elevated joint criminal enterprise of General Mladic and VRS Main Staff personnel . The Trial Chamber concluded that this campaign to kill all the military aged men was conducted to guarantee that the Bosnian Muslim population would be permanently eradicated from Srebrenica and therefore constituted genocide.

620. The issue that remains to determine is whether General Krstic was a member of the escalated joint criminal enterprise to kill the military-aged men and whether he thus incurred responsibility for genocide, including the causing of serious bodily and mental harm to the few men surviving the massacres. In this respect, the Trial Chamber will discuss the relationship between Article 7(1) and Article 4(3), and between “genocide” in Article 4(3)(a)¹³⁶⁹ and the alternative allegation of “complicity in genocide” in Article 4(3)(e).¹³⁷⁰ The Trial Chamber further will determine whether General Krstic also incurs responsibility for the other crimes constituted by the killings, that is, persecutions,¹³⁷¹ extermination¹³⁷² and murder¹³⁷³ as crimes against humanity, and murder as a violation of the laws or customs of war.¹³⁷⁴ Lastly, the Trial Chamber will consider whether the evidence suggests that General Krstic incurs command responsibility for the crimes alleged under Article 7(3).

     (i) Participation in the genocidal joint criminal enterprise to kill the military-aged men

621. The Trial Chamber has concluded that General Krstic was involved in organising the buses for the transportation of the women, children and elderly from Potocari throughout 12 July. He personally saw that the military-aged men were being segregated at Potocari and that they were being detained at the White House in sordid conditions . He must have observed, further, that contrary to General Mladic’s statement at the Hotel Fontana meeting, no genuine efforts were taking place to screen the men for war criminals. General Krstic knew, also on 12 July, that the buses exiting from Potocari were being stopped at Tišca where any men who had managed to get aboard were pulled off and taken to detention sites.¹³⁷⁵ On 13 July, when he was preparing the military operation at Zepa which commenced the next day, General Krstic found out that thousands of Srebrenica men fleeing in the column through the woods toward Tuzla had been captured on the territory of the Drina Corps. As the then Corps’ Chief of Staff, “the primary co-ordinator of the Corps’ activities”,¹³⁷⁶ General Krstic must have been aware that no adequate measures were being taken to provide for shelter, food, water and medical care for several thousand captured men and that no arrangements or negotiations were ongoing for their prisoner-of-war exchange .¹³⁷⁷

622. On that basis alone, the Trial Chamber must conclude that, by the evening of 13 July at the latest, General Krstic knew that the Muslim men were being executed at a number of separate sites and that none had been allowed to enter government held territory along with the women, children and elderly. General Krstic could only surmise that the original objective of ethnic cleansing by forcible transfer had turned into a lethal plan to destroy the male population of Srebrenica once and for all.

623. In terms of General Krstic’s participation in the killing plan, the evidence has established that, from 14 July onwards, Drina Corps troops took part in killing episodes. The facts in relation to the Drina Corps’ participation at each site may be summarised as follows:

     - Zvornik Brigade units scouted for sites at Orahovac presumably to be used for detention and execution on 13 and 14 July;¹³⁷⁸ furthermore, Zvornik Brigade personnel were present at Orahovac immediately prior to, and during the killings; Zvornik Brigade military equipment was engaged in tasks relating to the burial of the victims from Orahovac between 14 and 16 July;¹³⁷⁹

     - Drivers and trucks from the 6th Infantry Battalion of the Zvornik Brigade were used to transport the prisoners from the detention site at Petkovci Dam to the execution sites on 15 July; the Zvornik Brigade Engineer Company was assigned to work with earthmoving equipment to assist with the burial of the victims from Petkovci Dam ;¹³⁸⁰

     - Members of the Bratunac Brigade assisted in the killings on the site of the Branjevo Farm on 16 July; Drina Corps military police were engaged in guarding the Muslim prisoners in the buses that took them from several detention places to the Farm and Zvornik Brigade equipment was engaged in activities relating to the burial of the victims; Colonel Popovic, the Drina Corps’ Assistant Commander for Security , was involved in organising fuel to transport the Muslim prisoners to the execution sites at Branjevo Farm and the allocation of fuel was co-ordinated through the Drina Corps Command;¹³⁸¹

     - The Bratunac Brigade assisted with the executions that took place at the Pilica Cultural Dom on 16 July;¹³⁸² and

     - Zvornik Brigade engineering work on 16 July was traced to the burial of bodies in the Kozluk grave.¹³⁸³

624. Thus, the Drina Corps rendered tangible and substantial assistance and technical support to the detention, killing and burial at these several sites between 14 and 16 July. The need for their involvement was unavoidable because the Main Staff had limited assets and resources of its own and had to utilise the Drina Corps resources and expertise for complicated operations like these detentions, executions and burials on Drina Corps territory.¹³⁸⁴ It is inconceivable that the involvement of Drina Corps troops and equipment could take place without some - even if hasty - degree of planning which, moreover, required the involvement of the top levels of command.

625. The evidence shows that, following the capture of Srebrenica, the Drina Corps Command continued to exercise regular command competencies over its subordinate troops. The Corps’ ordinary chain of command was not suspended as a result of the direct involvement of the Main Staff or the security organs in certain aspects of the Srebrenica follow up operation. The Trial Chamber has further held that General Krstic became the de facto Corps Commander from the evening of 13 July onwards and de jure Corps Commander from 15 July onwards.¹³⁸⁵

626. Three military experts submitted reports and testified before the Trial Chamber on the responsibilities and authorities of the Commander of the Drina Corps in July 1995. The Prosecution called its in-house expert Richard Butler, as well as Major General F.R. Dannatt of the British Army.¹³⁸⁶ Professor Dr R. Radinovic, a retired General in the JNA, provided expert evidence for the Defence.¹³⁸⁷

627. The experts based their opinions on certain military regulations which the Army of Republika Srpska (VRS) adopted from the former Yugoslav National Army (JNA ),¹³⁸⁸ as well as Republika Srpska legislation. These instruments define the responsibilities and corresponding authorities of VRS Corps Commanders.

628. According to Article 65 of the JNA Rules for Land Forces Corps (Provisional ), the VRS Corps Commander:

     bears the responsibility for the accomplishment of a mission. He takes decisions , gives assignments to his subordinates, organises co-ordination and co-operation , and controls the implementation of decisions.

     The Commander accomplishes this through the exercise of “command and control”, which Article 63 of the JNA Rules for Land Forces Corps (Provisional) defines as:

     conscious and organised activities of the Commander of the Corps and the bodies of command, aimed at engaging and unifying the actions and activities of all units , commands, headquarters and other entities of All People’s Defence and social self -protection in the zone of operation, as well as equipment used in combat, for the purpose of achieving the set goals in the optimal way.

     Article 6 of the JNA Regulations on the Responsibilities of the Land Army Corps Command in Peacetime further provides that:

     The right to command units and institutions of [the Corps] is under the exclusive responsibility of the Commander. Units and institutions outside the Corps’ organic compound, those temporarily subordinated, are commanded and controlled by the Commander only within the limits of stipulated authorities.

     According to General Krstic himself, the principle of “command and control” is “ fundamental not only to military operations but also to the work of the commands and staffs in control and command of units”.¹³⁸⁹ General Krstic testified that he was well-versed in this principle and experienced in its execution.¹³⁹⁰ Furthermore , although General Radinovic contested that the Instructions on How the 4th Corps Command is to Operate When Carrying out Priority Assignments in Peacetime and Wartime apply to the VRS Drina Corps,¹³⁹¹ he agreed with the following portion of the Butler Report which quotes from these Instructions:¹³⁹²

     [The Corps Commander] is personally, directly and legally empowered to ‘lead the operations of the Corps Command, assign tasks to his subordinate officers, ensure that they are carried out, and bear full responsibility for their completion.’

629. The military regulations confer the widest powers on the Corps Commander in order to enable him to carry out his command responsibilities. According to Article 173 of the RS Law on the Army,¹³⁹³ command in the army is based on:

     the principles of a unified command regarding the use of forces and means, single authority, obligations to enforce decisions, command and orders issued by superior officers.

     Article 4 of the RS Law on the Army defines a “Superior Officer” as:

     a person in command of a military unit or a person managing a military institution […], and in command of personnel serving in the military unit or institution, in compliance with the law and other regulations issued by the competent body.

     The concept of “Superior Officer” is further defined in the Interim Provisions on the Service in the Army of the Serb Republic.¹³⁹⁴ Paragraph 17 of these Provisions provides that:

     Members of the Army shall carry out the orders of their superiors without demur, in full, accurately and punctually.

630. These sources show indisputably that as Commander of the Drina Corps, General Krstic had extensive formal powers over the assets and troops of the Drina Corps .¹³⁹⁵ The trial record confirms that General Krstic exercised many of these powers from the evening of 13 July on - in matters affecting the entire Drina Corps, not just the Zepa operation - once General Mladic had appointed him as Commander:¹³⁹⁶

     - On the evening of 13 July, General Krstic signed a search order as “Commander”, which the Trial Chamber accepts to mean “Commander of the Drina Corps”, as opposed to “Commander of the Zepa operation”;¹³⁹⁷

     - Witness II stated that “at Zepa [i.e. from 14 July]…everybody addressed General Krstic as Commander, meaning Corps Commander”;¹³⁹⁸

     - A Radio intercept, at 2236 hours on 14 July, between “Malinic” (the commander of the Military Police Battalion of the 65th Protection Regiment) and an unidentified individual contains a statement by the latter that:¹³⁹⁹

     he [Krstic] [will] look into it, and will assign someone to co-ordinate it […] I’m up to speed…Zivanovic told me. Well, in short, now I have told Krle about that, about what should/be/done. I suggested what he should do, so he’ll do something…

     - The authority of General Zivanovic - the outgoing Corps Commander - is seen to be fast fading away. Although he exercised a few command functions on 14 July, in an intercept at 0935 hours on that day, General Zivanovic disclosed that he was slowly “packing his backpack” and that “they” (presumably the Main Staff) had already asked him to go somewhere else.¹⁴⁰⁰

631. The Trial Chamber concludes that from the evening of 13 July, General Krstic exercised “effective control” over Drina Corps troops and assets throughout the territory on which the detentions, executions and burials were taking place. The Trial Chamber finds furthermore that from that time onwards, General Krstic participated in the full scope of the criminal plan to kill the Bosnian Muslim men originated earlier by General Mladic and other VRS officers. In fact, by 13 July - when the mass killings started - General Krstic had already organised the military attack on Zepa and as Drina Corps Chief of Staff and Commander-to-be¹⁴⁰¹ he had to make provision for Drina Corps resources to be applied in the clean-up activities following the fall of Srebrenica. On 14 July, while some of his Drina Corps troops were participating in the Zepa operation, other troops under his effective control were engaged in capturing and assisting in the execution of Muslim men from Srebrenica.

632. On 15 July, General Krstic’s participation in the killing plan reached an aggressive apex. According to an interchange intercepted early that day, Colonel Beara - a Main Staff officer whom General Krstic himself identifies as personally engaged in supervising the killings - requests General Zivanovic to arrange for more men to be sent to him. General Zivanovic states he can not “arrange for that anymore ” and refers Colonel Beara to General Krstic.¹⁴⁰² Colonel Beara subsequently urgently requests General Krstic’s assistance in the “distribution of 3,500 parcels”, a code term repeatedly used in military communications to signify captured Bosnian Muslim men that are slated to be killed. General Krstic suggests that Colonel Beara solicit help from several units, including the Bratunac and Milici Brigades in the Drina Corps, and the MUP. Colonel Beara replies that these units were not available, saying: “I don’t know what to do. I mean it, Krle ”. The intercept strongly implies that when the MUP troops declined to carry out the killings, General Krstic agreed to fill the breach, stating: “I’ll see what I can do”.¹⁴⁰³ General Krstic arranged for Bratunac Brigade members to assist in the killings at the Branjevo Farm and the Pilica Dom the next day.¹⁴⁰⁴

633. The Trial Chamber concludes beyond reasonable doubt that General Krstic participated in a joint criminal enterprise to kill the Bosnian Muslim military-aged men from Srebrenica from the evening of 13 July onward. General Krstic may not have devised the killing plan, or participated in the initial decision to escalate the objective of the criminal enterprise from forcible transfer to destruction of Srebrenica’s Bosnian Muslim military-aged male community, but there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men. This cannot be gainsaid given his informed participation in the executions through the use of Drina Corps assets.

634. Finally, the Trial Chamber has concluded that, in terms of the requirement of Article 4(2) of the Statute that an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively , the military aged Bosnian Muslim men of Srebrenica do in fact constitute a substantial part of the Bosnian Muslim group, because the killing of these men inevitably and fundamentally would result in the annihilation of the entire Bosnian Muslim community at Srebrenica. In this respect, the intent to kill the men amounted to an intent to destroy a substantial part of the Bosnian Muslim group. Having already played a key role in the forcible transfer of the Muslim women, children and elderly out of Serb-held territory, General Krstic undeniably was aware of the fatal impact that the killing of the men would have on the ability of the Bosnian Muslim community of Srebrenica to survive, as such. General Krstic thus participated in the genocidal acts of “killing members of the group” under Article 4(2)(a) with the intent to destroy a part of the group.

635. The Trial Chamber has further determined that the ordeal inflicted on the men who survived the massacres may appropriately be characterised as a genocidal act causing serious bodily and mental harm to members of the group pursuant to Article 4(2)(b). While the agreed objective of the joint criminal enterprise in which General Krstic participated was the actual killing of the military aged Bosnian Muslim men of Srebrenica, the terrible bodily and mental suffering of the few survivors clearly was a natural and foreseeable consequence of the enterprise. General Krstic must have been aware of this possibility and he therefore incurs responsibility for these crimes as well.

636. General Krstic thus incurs responsibility for the killings and causing of serious bodily and mental harm as a co-participant in a joint criminal enterprise to commit genocide. However, the Prosecution has alleged alternatively that General Krstic incurs responsibility for “genocide” under Article 4(2) and 4(3)(a), or for “complicity in genocide” under Article 4(3)(e). This requires a brief discussion as to the relationship between these provisions.

637. The Prosecution’s submissions on this matter are limited to the distinction between “genocide” and “complicity in genocide” under Article 4(3). The Prosecution submits that the mens rea requirement for both forms of participation entails genocidal intent. The Prosecution further contends that this is not incompatible with the Akayesu Judgement of ICTR Trial Chamber I, according to which complicity in genocide is defined to include aiding and abetting the commission of genocidal acts with the knowledge of the principal’s genocidal intent even if that intent is not shared. The Prosecution submits that “knowledge” of the genocidal intent accompanied by substantial contribution to the genocidal plan or enterprise amounts to a shared intent.¹⁴⁰⁵

638. The Defence, on the other hand, submits that “Complicity is a form of accomplice liability and exists upon proof that a person planned, instigated or ordered an act or otherwise aided and abetted its performance.”¹⁴⁰⁶ To be liable as an accomplice in genocide, it must be established that the accused rendered a substantial contribution to the commission of the act in the awareness of the principle’s genocidal intent. Thus, according to the Defence, to establish that General Krstic was an accomplice in genocide, the Prosecution need not prove that he had genocidal intent.¹⁴⁰⁷

639. The Trial Chamber’s view on the relationship between the heads of criminal responsibility in Article 7(1) and Articles 4(3)(a) and (e) is as follows.

640. Article 7(1) entails a general provision on individual criminal responsibility applicable to all crimes in the Statute. Article 4(3) provides for heads of responsibility in relation to genocide only; it is taken verbatim from Article III of the Genocide Convention. Article 4(3) provides for a broad range of heads of criminal responsibility, including heads which are not included in Article 7(1), such as “conspiracy to commit genocide” and “attempt to commit genocide”.¹⁴⁰⁸ By incorporating Article 4(3) in the Statute, the drafters of the Statute ensured that the Tribunal has jurisdiction over all forms of participation in genocide prohibited under customary international law.¹⁴⁰⁹ The consequence of this approach, however, is that certain heads of individual criminal responsibility in Article 4(3) overlap with those in Article 7(1).

641. The question whether participation in a joint criminal enterprise under Article 7(1) corresponds to “genocide” or “complicity in genocide”, pursuant to Article 4(3), has not yet been answered in the case law.¹⁴¹⁰

642. In the Tadic Appeal Judgement, the Appeals Chamber referred to “the notion of common design as a form of accomplice liability”,¹⁴¹¹ a phrase upon which Trial Chamber II subsequently relied to distinguish “committing ” from “common purpose liability” under Article 7(1).¹⁴¹² However, this Trial Chamber views the comment in the Tadic Appeal Judgement as not part of the ratio decidendi of that Judgement and does not believe that Tadic characterisation means that any involvement in a joint criminal enterprise automatically relegates the liability of an accused to that of “complicity in genocide” in Article 4(3)(e).¹⁴¹³ In the Celebici Appeal Judgement, the Appeals Chamber reaffirmed the meaning of the plain language of Article 7 (1) that “liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices”,¹⁴¹⁴ and the Kordic and Cerkez Trial Chamber stated that “(t(he various forms of participation listed in Article 7(1) may be divided between principal perpetrators and accomplices.”¹⁴¹⁵ In short, the Trial Chamber sees no basis for refusing to accord the status of a co-perpetrator to a member of a joint genocidal enterprise whose participation is of an extremely significant nature and at the leadership level.

643. It seems clear that “accomplice liability” denotes a secondary form of participation which stands in contrast to the responsibility of the direct or principal perpetrators . The Trial Chamber is of the view that this distinction coincides with that between “genocide” and “complicity in genocide” in Article 4(3). The question comes down to whether, on the face of the case, a participant in the criminal enterprise may be most accurately characterised as a direct or principal perpetrator or as a secondary figure in the traditional role of an accomplice.

644. In the present case, General Krstic participated in a joint criminal enterprise to kill the military-aged Bosnian Muslim men of Srebrenica with the awareness that such killings would lead to the annihilation of the entire Bosnian Muslim community at Srebrenica. His intent to kill the men thus amounts to a genocidal intent to destroy the group in part. General Krstic did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key co-ordinating role in the implementation of the killing campaign. In particular, at a stage when his participation was clearly indispensable, General Krstic exerted his authority as Drina Corps Commander and arranged for men under his command to commit killings . He thus was an essential participant in the genocidal killings in the aftermath of the fall of Srebrenica. In sum, in view of both his mens rea and actus reus, General Krstic must be considered a principal perpetrator of these crimes .¹⁴¹⁶

645. General Krstic is guilty of genocide pursuant to Article 4(2)(a).

     (ii) Participation in the other crimes constituted by the killings

646. The Trial Chamber finds that, by his participation in the joint criminal enterprise to kill the military-aged Bosnian Muslim men from Srebrenica, General Krstic is also guilty of murders as violations of the laws or customs of war. Furthermore , as he cannot but have been aware that these murders were related to a widespread or systematic attack against the Bosnian Muslim civilian population of Srebrenica , General Krstic is also guilty of murders as crimes against humanity and - in view of the object of the joint criminal enterprise to kill all the military-aged Bosnian Muslim men of Srebrenica - extermination. Finally, General Krstic is guilty of murders as acts of persecution: his intent to discriminate against the Bosnian Muslim population of Srebrenica is his participation in the killings of all the Bosnian Muslim men and the transfer of all the women, children and elderly from the territory of the Drina Corps.

     (iii) Responsibility for the killings under Article 7(3)

647. The evidence also satisfies the three-pronged test established by the jurisprudence for General Krstic to incur command responsibility under Article 7(3) for the participation of Drina Corps personnel in the killing campaign.¹⁴¹⁷

648. First, General Krstic exercised effective control over Drina Corps troops involved in the killings.¹⁴¹⁸ Second, in terms of mens rea, not only was General Krstic fully aware of the ongoing killing campaign and of its impact on the survival of the Bosnian Muslim group at Srebrenica, as well as the fact that it was related to a widespread or systematic attack against Srebrenica’s Bosnian Muslim civilian population, but the Drina Corps (and Main Staff) officers and troops involved in conducting the executions had to have been aware of the genocidal objectives. Third, General Krstic failed to prevent his Drina Corps subordinates from participating in the crimes or to punish them thereafter.

649. In respect to this last issue, the Trial Chamber finds that General Krstic’s effective control enabled him to prevent Drina Corps officers and troops from participating in the commission of crimes. Further, as to General Krstic’s ability to punish subordinates, the Trial Chamber considers that, on 13 May 1992, President Karadzic issued his Order on the Application of the Rules of the International Law of War in the Army of the Serbian Republic of Bosnia and Herzegovina.¹⁴¹⁹ General Krstic testified that he was aware of the obligation enshrined in paragraph 2 of this Order,¹⁴²⁰ namely that :

     It is the duty of the competent superior officer to initiate proceedings for legal sanctions against individuals who violate the rules of the international law of war.

     The Guidelines for Determining Criteria for Criminal Prosecution, issued by the Military Prosecutor’s Office of the Main Staff of the Armed Forces of Republika Srpska,¹⁴²¹ state in relation to “criminal offences against humanity and international law” that:

     officers in all units must accept the obligation to draft reports on all incidents which might be regarded as criminal offences […] In these cases, the commands have a duty to inform, among others, the military prosecutor’s office, which will, after making an assessment, take appropriate action in keeping with the law and prosecution policy.

     In a similar fashion, General Radinovic testified, with regard to units not subordinated to the Drina Corps, that:¹⁴²²

     [i]f, in the command system and the system of informing, the command of the Drina Corps found out that these units committed something that was proscribed under regulations , then they would be obliged, the Drina Corps, and the command system would be obliged to act in accordance or exactly the same way that any officer or any member of an army would behave when they found out that somebody was acting against rules and regulations, meaning that procedures would have to be initiated and investigations which would be required in such a particular case.

     General Radinovic also stated that, if an officer becomes aware that persons in the highest level in command are responsible for a violation of the law, this officer is duty bound to report the violation to the civil authorities above the army.¹⁴²³

650. The Trial Chamber has found that General Krstic did not punish a single Drina Corps officer or soldier who participated in the killings in the aftermath of the fall of Srebrenica.¹⁴²⁴ General Krstic testified that, after the commission of these crimes, he only found out about the involvement of one Drina Corps officer. He unsuccessfully tried to have this person replaced and, as a result, was himself subsequently targeted by the Security Services for special surveillance. General Krstic testified that, at the time, he feared for his safety and that of his family.¹⁴²⁵ He stated under cross-examination that:¹⁴²⁶

     I must acknowledge here before you and this Trial Chamber that not in my wildest dreams was I able to undertake any measures. We weren’t allowed to talk about anything like that let alone take steps against a commanding officer, regardless of my knowledge that he or somebody else had perhaps committed a war crime. […] It was my intention to report war crimes but that was not a possibility. I was not able to do so. […] First of all, for security reasons, the security and safety of my family.

651. However, Mr. Butler, the Prosecutor’s military expert, testified that VRS Corps Commanders did switch jobs throughout the war and that he had found no evidence that officers in general were operating in a climate of fear.¹⁴²⁷ Moreover, in the case of General Krstic, the fact is that he was publicly extolled by both General Mladic and President Karadzic for his leadership role in the conquest of the Srebrenica enclave, months after the massacres occurred. General Krstic also appeared on public platforms as an enthusiastic supporter of General Mladic in the following year and indeed signed a plea to President Karadzic to keep General Mladic on as Commander of the Main Staff of the VRS.¹⁴²⁸ These facts tend to demonstrate General Krstic’s solidarity with, rather than his fear of, the highest military and civilian echelons of the Republika Serpska.

652. Although the elements of Article 7(3) have thus been fulfilled, the Trial Chamber will not enter a conviction to that effect because in its view General Krstic’s responsibility for the participation of his troops in the killings is sufficiently expressed in a finding of guilt under Article 7(1).

     (c) Conclusions on General Krstic’s criminal responsibility

653. The Trial Chamber’s findings on the issue of cumulative convictions are discussed below. At this point, the Trial Chamber concludes that General Krstic incurs criminal responsibility for his participation in two different sets of crimes that occurred following the attack of the VRS on Srebrenica in July 1995.

     Firstly, on the basis of the humanitarian crisis and crimes of terror at Potocari and the forcible transfer of the women, children and elderly from Potocari to Bosnian Muslim held territory, from 11 to 13 July, General Krstic incurs responsibility under Article 7(1) for inhumane acts (forcible transfer, count 8 of the Indictment ) and persecution (murder, cruel and inhumane treatment, terrorisation, destruction of personal property and forcible transfer, count 6 of the Indictment).

     Secondly, on the basis of the killing of the military aged Muslim men from Srebrenica and the causing of serious bodily and mental harm to the men surviving the massacres : General Krstic incurs responsibility under Article 7(1) and Article 4(3)(a) for genocide (count 1), General Krstic also incurs responsibility under Article 7(1) for the killings as extermination (count 3), murder (count 4) and persecution (count 6) as crimes against humanity, and murder as a violation of the laws or customs of war (count 5).

654. Having pronounced on the crimes for which General Krstic may be held criminally responsible, the Trial Chamber now turns to address the issue of cumulative charging and convictions in order to decide upon which of these crimes, based on the same underlying conduct, it will enter convictions.
     I. Cumulative charging and convictions

655. The Prosecutor and the Defence made submissions on the issue. They disagree on the standards regarding when an accused can be convicted of more than one offence under a single or several Article(s) of the Statute for the same underlying conduct .
     1. Applicable Law

656. The Statute provides no guidance on cumulative convictions. The Rules indicate that the “Trial Chamber shall vote on each charge contained in the indictment.”¹⁴²⁹ As recently amended,¹⁴³⁰ they further state that the Trial Chamber “shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently , unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused”.¹⁴³¹

657. The jurisprudence of the Tribunal is however of assistance in the matter. In the Celebici case, the Appeals Chamber pronounced on the issue of cumulative charging and convictions in respect of Article 2 (Grave Breaches of the Geneva Conventions ) and Article 3 (Violations of the Law and Customs of the War) violations.¹⁴³² In the Jelisic case, the Appeals Chamber adopted the same approach as in the Celebici Appeals Judgement, in relation to charges under Articles 3 and 5.¹⁴³³ Both the Prosecutor and the Defence made submissions in this case based on the rulings of the Appeals Chamber in the Celebici case.¹⁴³⁴

     (a) Cumulative Charging

658. The Prosecution submits that “cumulative charging is allowed and customary under ICTY jurisprudence”.¹⁴³⁵ The present Trial Chamber has already decided that “cumulative charging under different sub-sections of Article 5 is permissible”.¹⁴³⁶

659. With regard to other cumulative charging under Articles 3, 4 and 5, the Trial Chamber adopts the approach taken by the Appeals Chamber in the Celebici case, which decided that:

     Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition , cumulative charging constitutes the usual practice of both this Tribunal and the ICTR.¹⁴³⁷

660. As a result, it is possible for the accused to be found guilty of more than one crime on the basis of the same criminal conduct. It thus becomes important to determine when more than one conviction is punishable under the Tribunal’s jurisprudence and tenets of fundamental fairness.

     (b) Cumulative Convictions

661. On the basis of the facts contained in paragraphs 21 to 26 of the Indictment , General Krstic has been charged by the Prosecution with genocide under Article 4,¹⁴³⁸ also with murder under Article 5 (a), extermination under Article 5 (b), murder under Article 3 and persecutions under Article 5 (h).¹⁴³⁹ The Indictment also alleges facts in paragraphs 4, 6, 7, 11, 24.1, 24.3-24.6, 24.8, 24.9 and 24 .11 on the basis of which it charges persecutions under Article 5 (h) and deportation under Article 5 (d) (or, in the alternative, other inhumane acts in the form of forcible transfer under Article 5 (i)). After stating the submissions made by the Prosecution and the Defence on this issue, the Trial Chamber will set out the test it will utilise.

     (i) Submissions of the Parties

662. The Prosecutor argues that “[u]nder the Celebici framework, the Trial Chamber may choose to focus its attention on a “Count 4, Murder as a Crime Against Humanity” (under Article 5 of the Statute) conviction over a “Count 5, Murder as a Violation of the Laws or Customs of War (under Article 3 of the Statute) conviction because murder under Article 5 requires a materially distinct element not contained in murder under Article 3”.¹⁴⁴⁰ The Prosecutor makes no other arguments as to the relation between other crimes cumulatively charged in the Indictment.

663. The Defence contends that under the Celebici framework, Article 3 and Article 5 both have materially distinct elements, but in contrast, acknowledges that General Krstic can be convicted of both offences.¹⁴⁴¹ However, the Defence is of the view that “the dissenting opinion of Judges Hunt and Bennouna more correctly define(s) the test for multiple convictions”, because “only elements relating to the conduct and mental state of the accused should be taken into account when applying the “different elements” test”.¹⁴⁴² The Defence further states that “if the formulation of the dissent is applied to Counts 4 and 5 of the Amended Indictment, both charging murder, only one conviction could be imposed”.¹⁴⁴³ Finally, the Defence submits that charges specified to be in the alternative cannot be cumulative , such as charges contained in Counts 1 and 2, (genocide or complicity in genocide ) and in Counts 7 and 8 (deportation or forcible transfer).¹⁴⁴⁴ The Defence does not make any submission as to the relation between other crimes cumulatively charged in the indictment (e.g. genocide, extermination and persecutions ).

     (ii) The Test Laid down by the Appeals Chamber in the Celebici Case (« the Test »)

664. The Appeals Chamber in the Celebici case held that cumulative convictions are permissible to punish the same criminal conduct if the following two prong test is met:

     [… M]ultiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.¹⁴⁴⁵

     The Appeals Chamber further stated that:

     […] the Chamber must decide in relation to which offence it will enter a conviction . This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element , then a conviction should be entered only under that provision.¹⁴⁴⁶

665. Thus, the first inquiry to be made is whether, under the definitions of the separate offences, the accused may be found liable for more than one offence based upon the same conduct. If this is so, the Trial Chamber will then determine whether the definition of each offence provision has a materially distinct element not contained in the other. For instance, the Appeals Chamber in the Celebici case held that “the offence of wilfully causing great suffering under Article 2 contains an element not present in the offence of cruel treatment under Article 3 : the protected person status of the victim. Because protected persons necessarily constitute individuals who are not taking an active part in the hostilities, the definition of cruel treatment does not contain a materially distinct element […]”.¹⁴⁴⁷ In so ruling, the Appeals Chamber in the Celebici case reasoned that the requirement of Article 3 that victims not be taking an active part in the hostilities is not materially distinct from the requirement of Article 2 that victims are protected persons. Thus, cumulative convictions could not be entered under both Article 2 for wilfully causing great suffering and Article 3 for cruel treatment.

666. A subsidiary question is which requirements of the offences definitions must be compared. As mentioned above, the Statute requires that both war crimes and crimes against humanity be committed during an armed conflict but, according to the jurisprudence of the Tribunal, whereas Article 3 requires that the acts of the accused be committed in close connection with an armed conflict, this is not a substantive requirement for the applicability of Article 5.¹⁴⁴⁸ The Appeals Chamber, in the Jelisic case, did rule that Articles 3 and 5 of the Statute each contain a unique, materially distinct element not contained in the other, that is Article 3 requires a close nexus to an armed conflict and Article 5 requires that the act or omission be committed as part of a widespread or systematic campaign against a civilian population. In this sense, the Trial Chamber will consider only substantive requirements when comparing offences.

667. Finally, if the application of this first prong of the Test requires that the Trial Chamber render only one conviction, the Trial Chamber will, in accordance with the second prong of the Test, select the most specific applicable criminal provision. For instance, applying the second prong of the Test, the Appeals Chamber in the Celebici case held that because the offence of wilfully causing great suffering sanctioned by Article 2 is more specific than the offence of cruel treatment sanctioned by Article 3, the Article 2 offence must be preferred, and the Article 3 offence must be dismissed.
     2. Application of the Test to the Concurrent Offences Specified in the Indictment

668. The Trial Chamber has found that General Krstic participated, first, in the campaign of terror that followed the attack on Srebrenica from 10 to 13 July 1995 and which led to the forcible transfer of Bosnian Muslim civilians and, secondly , in the murders of Bosnian Muslim military aged men, which took place from 13 July to 19 July 1995.

669. The Test will be applied to the cumulatively charged offences characterising each criminal conduct proved, first to offences charged under different Articles of the Statute, and then to different offences charged under Article 5.

     (a) The Concurrent Offences Characterising “the campaign of terror” in Potocari and the Subsequent Forcible Transfer of the Bosnian Muslim Civilians from 10 to 13 July 1995

670. Paragraphs 4, 6, 7, 11 and 22 to 26 of the Indictment describe, inter alia , how thousands of Bosnian Muslim civilians, fled to Potocari, were terrorised and/or murdered there and were thereafter transported by buses and trucks, under the control of the VRS, to areas outside the enclave of Srebrenica. Counts 1, 3 to 6, and 8 characterise the acts described in these paragraphs as genocide, extermination , murder under Articles 3 and 5, persecutions and deportations (or, in the alternative , inhumane acts in the form of forcible transfer). With regard to the offence of persecutions, Count 6 of the Indictment states that persecutions were committed not only through murder but also through “the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings”, “the terrorising of Bosnian Muslim civilians”, “the destruction of personal property of Bosnian Muslims” and “the deportation or forcible transfer of Bosnian Muslims”. Murder is thus but one of the sub-crimes of the offence of persecutions.

671. The Trial Chamber has found that the events between 10 to 13 July 1995 in Potocari are appropriately characterised as murders and as persecutions committed through murder, cruel and inhumane treatment (including severe beatings), terrorising, destruction of personal property of Bosnian Muslim civilians and forcible transfer. While the cruel and inhumane treatments (including severe beatings), terrorising and destruction of personal property of the Bosnian Muslim civilians are solely covered by the persecutions count (Count 6), the murders committed at this time can also be legally characterised as murders under Article 3 and 5 (Counts 4-5) and persecutions (Count 6). The forcible transfer at this time can be characterised as a persecution committed by means of inhumane acts (Count 6) and as a separate Article 5 offence of other inhumane acts (Count 8).¹⁴⁴⁹

672. The Chamber has not found the accused guilty of genocide, complicity of genocide and extermination under Counts 1, 2 and 3 for the acts committed in Potocari from 10 to 13 July 1995 and has decided that the forcible transfers are most appropriately considered under other inhumane acts rather than deportation.

673. Thus, the Trial Chamber will apply the Test with a view to determining whether convictions for the offence of murder, under both Articles 3 and 5, and persecutions (Article 5 (h)), committed through murder, are permissible and whether convictions under both persecutions (Article 5 (h)), committed through other inhumane acts ( forcible transfer), and other inhumane acts (Article 5 (i)), committed through forcible transfer, may be used to punish the same criminal conduct.

     (i) Relationship between Offences under Article 3 and Offences under Article 5

674. The Test is first applied to determine whether murder sanctioned by Article 3 requires a materially distinct constituent element not required by murder sanctioned by Article 5 and vice versa, with a view to determining whether convictions under both the offence of murder under Article 3 and offences under Article 5, punishing the same conduct, is permissible. The application of the Test involves a comparison between the elements of the crimes as defined by the Trial Chamber. Murder as a war crime is any illegal and intentional act or omission, which caused the death of a non-combatant person, and was committed in close connection with an armed conflict . Article 5 punishes any prohibited intentional acts or omissions committed within an armed conflict as part of a general and systematic attack upon a civilian population . Murder under Article 3 requires a unique and materially distinct element in the form of a close nexus between the acts of the accused and an armed conflict. Offences under Article 5 require a unique and materially distinct element in the form of a requirement that they be perpetrated as part of a widespread or systematic attack upon a civilian population. Because each category of offences contains an element not required by the other, the Test is satisfied and the Trial Chamber finds it permissible to enter a conviction under both Articles 3 and 5 to punish the same murders.

     (ii) Relationship between Murder under Article 5 and Persecutions

675. The Test must also be applied to determine whether murder sanctioned by Article 5 (a) requires a materially distinct element not required by persecutions sanctioned by Article 5 (h) and vice versa. Thus, the Chamber has to determine whether entering both convictions under the offence of murder under Article 5 and persecutions perpetrated through murder under Article 5, to punish the same conduct, is permissible . Murder under Article 5 (a) punishes any illegal and intentional act or omission , which caused the death of one or more persons and was committed in an armed conflict , as part of a widespread or systematic attack upon a civilian population. Article 5(h) persecutions punishes any illegal and intentional act or omission, which has wronged one or more persons and was committed in an armed conflict, as part of a widespread or systematic attack upon a civilian population for political, racial or religious reasons. Persecutions require a discriminatory intent as an additional element not required by murder under Article 5. Because the offence of persecution requires a unique materially distinct element vis-à-vis murder under Article 5 ( a), the Test is not met. The second prong of the Test must be applied. Since the offence of persecutions is more specific than the offence of murder, persecutions must be preferred. The Trial Chamber, accordingly, enters a conviction under the charge of persecutions and dismisses the charge of murder under Article 5 (a).

     (iii) Relationship between Persecutions (forcible transfer) and Other Inhumane Acts (forcible transfer)

676. The offence of persecutions has been defined above. The offence of other inhumane acts is defined as any intentional act or omission, which caused injury to a human being in terms of physical or mental integrity, health or human dignity.¹⁴⁵⁰ The offence of persecutions requires a unique additional material element not required by the offence of other inhumane acts in the form of a requirement that the offence of persecutions must have been perpetrated on the basis of a discriminatory intent , the offence of other inhumane acts has no counterpart of a distinct material element . The Test is not satisfied and the second prong of the Test must be applied. Because persecutions require a unique additional materially distinct element vis -à-vis other inhumane acts (forcible transfer), the offence of persecutions applies with more specificity to the situation at hand. The Trial Chamber finds that it is not permissible to enter convictions both under persecutions by way of forcible transfer and under other inhumane acts (forcible transfer) to punish the same conduct . The Trial Chamber therefore dismisses the separate charge of other inhumane acts (forcible transfer) under Article 5 (i). General Krstic can only be convicted for persecutions (count 6) for the acts of forcible transfer that took place on 10 and 13 July 1995.

     (iv) Conclusions

677. In sum, the Trial Chamber enters convictions for charges of murder under Article 3 and for charges of persecution, murders, terrorising the civilian population, destruction of personal property, and cruel and inhumane treatment committed from 10 to 13 July 1995 in Potocari.

678. The Trial Chamber will now apply the Test on cumulative offences with regard to the second category of murders charged against General Krstic, namely the killings that occurred between 13 and 19 July 1995.

     (b) The Concurrent Offences Characterising the Murders Committed Against the Bosnian Muslim Civilians from 13 to 19 July 1995

679. Paragraphs 21 to 25 of the indictment describe, inter alia, how thousands of Bosnian Muslim men were arrested by the Bosnian Serb forces, led to execution sites and executed. It has been decided that these acts fulfil the requirements of genocide sanctioned by Article 4, as well as murder under Article 3, murder under Article 5, extermination and persecutions under Article 5. For the reasons stated above,¹⁴⁵¹ the Test is applicable only insofar as the offence of persecutions is perpetrated through murders.

     (i) Relationship Between Offences under Article 3 (war crimes) and Article 4 (genocide ) and between Article 3 (war crimes) and Article 5 (crimes against humanity)

680. The Trial Chamber has already found that it is permissible to enter convictions on charges of murder under both Article 3 and Article 5 to punish the same criminal conduct.¹⁴⁵²

681. The same reasoning applies to the relationship between murder under Article 3 and genocide under Article 4. The relationship between genocide and murder as a war crime can be characterised as follows. The offence of genocide requires a special intent to destroy a national, ethnical, racial or religious group (or part thereof). Murder as a war crime requires a close nexus between the acts of the accused and an armed conflict, which is not required by genocide. The Test for separate convictions is satisfied. Accordingly, convictions must be entered on both charges in respect of the same criminal conduct because genocide and murder under Article 3 each contain an additional element not required by the other.

     (ii) Relationship Between Offences under Article 4 (genocide) and Article 5 (crimes against humanity)

682. The Trial Chamber notes that Article 4 (genocide) demands proof of elements not required by Article 5 (crimes against humanity). Article 5 offences demand proof that they have been perpetrated in an armed conflict, as part of a widespread or systematic attack upon a civilian population. With regard to the first requirement that Article 5 offences be committed in an armed conflict, it has been held that the requirement of an armed conflict is not a substantive requirement for this purpose .¹⁴⁵³ The other Article 5 requirement that the acts be perpetrated against a civilian population prevents isolated or random acts being characterised as crimes against humanity.¹⁴⁵⁴ Similarly, the notion of an intent to destroy a “group” in genocide would rule out isolated or random acts being characterised as genocide. However, the limitation to certain types of “group” as defined in the crime of genocide is far more specific than the “civilian population” defined in the crimes against humanity. The requirement in Article 5 that the crimes be part of a widespread or systematic attack against a civilian population is comprised within the genocide requirement that there be an intent to destroy a specified type of group. As discussed above, acts of genocide must be committed in the context of a manifest pattern of similar conduct, or themselves constitute a conduct that could in itself effect the destruction of the group, in whole or part, as such. Thus, Article 5’s exclusion of random or isolated acts also characterises genocide. ¹⁴⁵⁵

683. While murder under Article 5 (a) does not require any additional materially distinct element than what is contained in the definition of extermination and persecutions , extermination under Article 5 (b) and persecutions under Article 5 (h) both contain an additional element, which must be considered with regard to Article 4 of the Statute. The Preparatory Commission for the ICC defined extermination as the killing of one or more persons as part of a mass killing of civilians.¹⁴⁵⁶ Persecutions is defined as any illegal and intentional act or omission which, as part of a massive or systematic attack on a civilian population, has wronged one or more individuals for political, racial or religious reasons.

684. The offences of genocide and persecutions both require proof of a special intent , respectively an intent to destroy a particular type of group (or part of that group) as such and an intent to discriminate against persons on political, racial or religious grounds. Clearly, genocide has a distinct, mutual element in the form of its requirement of an intent to destroy a group, altogether, in whole or in part , over and above any lesser persecutory objective. The offence of persecutions, on the other hand, contains no element of intent or implementation that would not be subsumed in the destruction requirement of genocide. The Test is not satisfied . Since the crimes of persecutions and genocide do not have a mutually distinct element, it is not possible to cumulate convictions for both. When the application of the first prong demonstrates that it is impermissible to convict an accused of two offences based on the same conduct, the second prong of the Test must be applied to determine for which offence the accused should be convicted. Genocide requires a highly specialised intent in the destruction of a characterised group or part of a group, the discriminatory intent in persecutions is less specific. Genocide , the most specifically defined crime, is to be retained.

685. Extermination requires an intentional killing of one or more persons as part of the mass killing of a civilian population. Genocide, though it might also be committed by a single or a few murders, needs proof that the perpetrator intended to destroy a national, ethnical, racial or religious group, or part of the group , as such.¹⁴⁵⁷ Thus, while neither crime has a substantiality threshold as such in term of the actual killings perpetrated , both require that the killings be part of an extensive plan to kill a substantial part of a civilian population. But genocide has a distinct additional requirement , in terms of the nature of the group targeted. In extermination, the killings may be indiscriminate. Thus, in this case, at least, where genocide is committed by killings, it cannot be supplemented by extermination for the same underlying acts . Because the Test is not satisfied, it is impermissible to convict the accused of the two offences of extermination and genocide based on the same conduct and the second prong of the Test must be applied to determine for which offence the accused should be convicted. Genocide requires a highly specialised intent in the destruction of a characterised group or part of a group, extermination does not. Genocide, the most specific crime, is to be retained.

686. The Trial Chamber thus finds that, based on the same conduct, it is permissible to enter cumulative convictions under both Articles 3 and 4 and under both Articles 3 and 5. But it is not permissible to enter cumulative convictions based on the executions under both Articles 4 and 5. The Article 4 offence, as the most specific offence, is to be preferred.
     3. Conclusions

687. In conclusion, the Trial Chamber finds that, in respect of the conduct attributed to General Krstic which took place from 10 to 13 July 1995, it is permissible to enter a conviction under persecutions (Article 5) and murder (Article 3), i.e., to retain Counts 5 and 6. In respect of the murder-type conduct, which took place from 13 to 19 July 1995, it is permissible to enter a conviction on both murder (Article 3) and genocide, i.e., Counts 5 and 1.

688. As a result of the foregoing discussions, General Krstic is to be found guilty of:

     - genocide;
     

     - persecutions; and
     - murder

689. Finally, the Trial Chamber turns to the question of the appropriate sentence to be imposed on General Krstic in respect of the convictions entered.