The Prosecutor v. Radislav Krstic - Case No. IT-98-33-T
2 August 2001
Trial Chamber I (Judge Rodrigues [Presiding], Riad and Wald)
5(b) of the Statute - Definition of extermination - Article 4(2)(b) of the
Statute - Serious bodily or mental harm - Article 7(1) and (3) of the Statute
- Joint criminal enterprise - Cumulative charging and convictions.
General Radislav Krstic was indicted under Articles 7(1)1 and 7(3)2 of the Statute for genocide or complicity therein; persecution by means of murder, cruel treatment, acts of terror; destruction of personal property and forced transfer; extermination; murders within the meaning of Article 5 of the Statute3; murders within the meaning of Article 3 of the Statute4; deportation or the inhumane act of forced transfer based on his alleged role in the events which occurred following the attack of the Serbian forces in and around the Bosnian Muslim enclave of Srebrenica between 11 July and 1 November 1995.
When the attack was launched, General Radislav Krstic was allegedly the deputy commander of the Drina Corps, one of the corps which constituted the army of Republika Srpska often known as the VRS.
He was apprehended
by members of the Stabilisation Force on 2 December 1998.
The Trial Chamber found Radislav Krstic guilty of genocide, persecution for murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians, murder as a violation of the laws or customs of war, and sentenced him to 46 years' imprisonment.
The attack of the Serbian forces on the Srebrenica enclave followed several years of confrontation. Srebrenica is located in a part of eastern Bosnia, central Podrinje, which was of particular interest to both parties involved:
to the Bosnian Muslims because the town was predominantly Muslim before the conflict; because it is located between Tuzla to the north and Zepa to the south both of which were under Muslim control; because the fall of Srebrenica could have extremely negative consequences for Sarajevo under siege at the time.
to the Bosnian Serbs because the region known as central Podrinje was in the part of Bosnia bordering Serbia and it was important to establish the continuity of the territories under Serbian control in Bosnia, like in neighbouring Serbia; and, of course, for the opposite reasons of those of the Bosnian Muslims.
In 1992-1993, many clashes occurred between the Serbs and the Bosnian Muslims for control of the region. After several successful operations, the Bosnian Muslim army was confronted with a counter-offensive mounted by the Bosnian Serb army which finally reduced the enclave to about 150 km². In March 1993, siege was laid to Srebrenica and part of the population was transferred.
On 16 April 1993, the Security Council of the United Nations declared Srebrenica a "safe area" and an agreement signed by the parties turned it into a demilitarised zone to which a contingent of the United Nations Protection Force (hereinafter "UNPROFOR") was dispatched. However, the parties did not agree on the definition and interpretation of the notion of demilitarised zone. In particular, the Bosnian Muslims considered that only the town of Srebrenica itself was demilitarised and therefore the Bosnian Muslim army (hereinafter the "ABiH") sent weapons and munitions to the enclave.
Still, the situation remained relatively stable until January 1995 when the Bosnian Serbs adopted a more hard-line position particularly in respect of the supply of humanitarian aid.
On 8 March 1995, the Bosnian Serb President, Radovan Karadzic, issued the order under the name "Directive 7" to separate the enclaves of Srebrenica and Zepa. President Radovan Karadzic issued an order to the Drina Corps in which he stated the following: "[b]y well thought out combat operations, create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Zepa."5
On the basis of Directive 7, General Ratko Mladic also issued a directive on 31 March 1995 which he sent inter alia to the Drina Corps6. The Directive organised a large-scale attack known as "Sadejstvo-95" the objective of which was to defend the territory of Republika Srpska on all fronts and in particular to avoid "at any cost" the lifting of the siege of Sarajevo. General Ratko Mladic foresaw that whatever the result of the events and the escalation of the conflict, UNPROFOR land forces and NATO forces would probably not be engaged except in the cases when they came under direct physical threat. During the operation, he stated that the forces of the Republika Srpska army would collaborate in strategic camouflage and improvement of the tactical position by carrying out inter alia active combat operations [ ] around the Srebrenica, Zepa and Gorazde enclaves.
In the spring of 1995, the situation in Sarajevo deteriorated significantly. Humanitarian convoys were obstructed. Even the Dutch UNPROFOR contingent could not effect its normal troop rotation. Some of the observation posts reported a significant reinforcement of the nearby Serbian positions. The humanitarian situation became catastrophic. The 28th ABiH Division, i.e. the Bosnian Muslim army in the Srebrenica enclave, requested that the blockade be lifted. Harassment operations were launched against the Serbian positions. This is known as "Operation Skakavac" and, apparently, crimes were committed while it was being carried out, in particular on 26 June 1995 in the Serbian village of Visjnica. At the same time, the Bosnian Serb army was on the move. On 31 May 1995, it captured one of the UNPROFOR observation posts.
On 2 July 1995, the Drina Corps commander, General Zivanovic signed the orders for a planned attack on Srebrenica. On 6 July 1995, the attack was launched from south of the enclave. Thousands of Bosnian Muslims fled to the town. The Bosnian Serb forces encountered no resistance. On 9 July 1995, President Radovan Karadzic decided that under the prevailing conditions the town was to be taken. On 10 July 1995, the panicked Bosnian Muslim population began to flee toward the United Nations facilities in the town - Bravo company - or out of the town toward the north on the Bratunac road to Potocari. The commander of the Dutch Battalion often called Dutchbat asked for air support but did not receive it.
On 11 July 1995, General Ratko Mladic, Chief-of-Staff of the Bosnian Serb army, along with General Zivanovic, General Radislav Krstic and many other officers of the Republika Srpska Army (hereinafter the "VRS"), made a triumphant entry into a Srebrenica deserted by its inhabitants.
By the evening of 11 July 1995, Srebrenica was in the hands of the Bosnian Serb forces.
The inhabitants of Srebrenica and the refugees there fled en masse to the United Nations base in Potocari. The Bosnian Serb forces would soon learn that there were very few men in the milling crowd gathering around the UNPROFOR camp. In Potocari there were mostly women, children and old people.
There were very few men in Potocari. Because they took a different route one cannot know for sure who gave the orders or organised the departures. Whether members of the 28th Division or not, they assembled in the little villages of Jaglici and Susnjari north-west of Srebrenica and decided to flee through the woods toward Tuzla much further to the north in territory under Bosnian Muslim control. About ten to fifteen thousand men formed a column several kilometres long and left on foot through the woods.
However, General Ratko Mladic did not yet know that on 11 July 1995 when he called the Dutchbat commander Colonel Karremans to a meeting at the Hotel Fontana in Bratunac. Together with General Ratko Mladic were many VRS officers including General Zivanovic and not General Radislav Krstic. At 20.00 hours on 11 July 1995, General Ratko Mladic asked Colonel Karremans whether UNPROFOR could organise the transfer of the population. He also asked him to return with a representative of the Srebrenica population. The second meeting was held in the same hotel on that same day. It was about 23.00 hours. General Ratko Mladic was in attendance with General Radislav Krstic and without General Zivanovic. Colonel Karremans came with a teacher, Mr. Mandzic, who represented the population. This time, General Ratko Mladic's tone and attitude were much harder.
Another meeting was scheduled for the following day. It began around 10.00 on 12 July 1995. General Ratko Mladic attended it with General Radislav Krstic beside him. Colonel Popovic also attended. The Dutchbat representatives returned with Mr. Mandzic and two other "civilian representatives", i.e. Mrs. Omanovic, an economist; and Mr. Nuhanovic, a businessman. General Ratko Mladic again insisted that the condition for the survival of the Bosnian Muslims of Srebrenica was that they lay down their weapons. He said that he would supply the buses to transport the population but that the fuel would have to be provided by UNPROFOR. Everyone understood that the Bosnian Muslims were to leave the enclave. Last, General Ratko Mladic said that all the men in Potocari would be separated in order to identify any possible war criminals.
At around noon on 12 July 1995, General Radislav Krstic gave a filmed interview to a journalist from Serbia. Passing trucks and buses could be seen behind him. The women, children and old people got into the buses. The Bosnian Muslim men were being separated from the women, children and elderly.
The situation appeared extremely serious to the Bosnian Muslims who had sought refuge in Potocari. The witnesses described to the Trial Chamber the prevailing atmosphere of terror, the rapes and murders and the mistreatment so pervasive that some of the refugees committed suicide or attempted to do so.
In the evening of 13 July 1995, all the women, children and old people of Srebrenica were transferred. The Trial Chamber found that following the take-over of Srebrenica in July 1995, Bosnian Serb forces "had devised and implemented a plan to transport all of the Bosnian Muslim women, children and elderly out of the enclave."7 The men were systematically separated and forced to leave behind their meagre possessions, even their identification papers. They were taken to a white house several metres from the United Nations base and beaten. Some were taken behind the house and killed. The survivors were taken to various detention locations including Bratunac. Those who were able to get on the buses were stopped right before leaving the territory under VRS control and driven to other detention locations (bus, school, hangar).
During that time, the column, with most of the 28th Division armed forces at the head, tried to go through the forest and cross the East-West Bratunac-Konjevic Polje road. There were about ten to fifteen thousand men in the column. About one-third of the men were able to get through, including 3,000 of the 28th Division. The first of these arrived in Bosnian Muslim controlled territory on 16 July 1995. The others, subjected to shelling and automatic weapons fire, were captured or surrendered sometimes to the so-called UNPROFOR soldiers who were in fact none other than members of the Serbian forces using equipment stolen from Dutchbat. Some of these were killed immediately. Most were taken to collection centres like a meadow in Sandici or a football field in Nova Kasaba. A last group came into contact with the Serbian forces, initiated negotiations and could finally go to territory under Bosnian Muslim control.
In all, the Bosnian Serb forces captured 7,000 to 8,000 men and killed almost all of them. Therefore, the Trial Chamber was satisfied that the Bosnian Serb forces executed between 7,000 and 8,000 men8. Only very few survived and some of them testified before the Trial Chamber and described the horror of the mass executions which they miraculously escaped.
The mass executions began on 13 July 1995.
Some of the executions involved only a few individuals like the one in Jadar on the morning of 13 July 1995. In the afternoon of that day, another execution occurred at a relatively isolated place, the Cerska Valley. 150 bodies would be exhumed there on which 50 metal ties would be found, some of them still wrapped around the victims' wrists. Late in the afternoon, the Serbian forces indulged in a real killing spree. Between 1,000 to 1,500 of Bosnian Muslims were assembled in a warehouse in Kravica. The soldiers opened fire and lobbed in grenades. Those who tried to escape were killed immediately. The next day, the Serbian forces called out to any survivors. Some of those who responded were forced to sing Serbian songs and then executed. A large machine came to carry away the bodies and in so doing ripped off part of the warehouse doorframe. The experts would find traces of hair, blood and human tissue on the floor and walls.
On 13 and 14 July 1995, executions also occurred in Tisca, i.e. the place where the buses were to stop so that the Serbian forces could verify whether there were still men on board and if so force them to get off. They were then taken to a school and, after their hands were tied, to a field where they were executed.
On 14 July 1995, a thousand Bosnian Muslims were assembled in the Grbavci school gymnasium. Their eyes were blindfolded and they were taken by truck to a field where they were executed. Machines were already digging in the ground before the executions had been completed.
Other executions took place from 14 to 16 July 1995. A group of 1,500 to 2,000 Bosnian Muslims was being detained at the Petkovci school. They were taken to an execution site next to an artificial lake, the Petkovci dam. Their hands were tied and they were barefoot. They were executed with automatic weapons.
This would also be the fate of 1,000 to 1,200 men at the Branjevo military farm. The Trial Chamber heard the testimony of a former VRS soldier convicted by the Tribunal for his participation in that execution, Mr. Drazen Erdemovic9. The Bosnian Muslim men were brought in by truck, many with their hands tied, some wearing blindfolds. All but one were dressed in civilian clothing. The execution squad fired over and over again until, as Mr. Drazen Erdemovic said, their fingers hurt. The soldiers went to Pilica immediately afterwards. Several hundred Bosnian Muslims were locked up in the village cultural centre, the Pilica Dom. Mr. Drazen Erdemovic and several others refused to participate any further in the executions and sat down in the café across from the cultural centre from where they could hear the shots and explosions. No one survived. The investigators forced open the door to the cultural centre between 27 and 29 September 1996 and again on 2 October 1998 and discovered clear traces of the massacre and the conditions in which it had been perpetrated: bullet marks, traces of explosives, blood stains, bits of human remains, everywhere, high up on the walls and even under the stage of the theatre10. And a single forgotten identity document belonging to a Bosnian Muslim. Other executions took place in particular in Kozluk and Nezuk. The last mass execution appears to have occurred on 19 July 1995.
In all, the experts estimated that between seven and eight thousand Bosnian Muslim men were executed between 13 and 19 July 1995.
Despite the efforts made, very few mortal remains were found because in the fall of 1995 measures were taken in order to attempt to cover up the scale of the crimes.
The proof of what happened can be seen in particular in the aerial photographs provided to the Prosecutor. These photographs made it possible: to identify the number of mass grave sites at the time the executions were carried out and to note that other sites appeared after September 1995. The work of the experts also made it possible to confirm the data by comparing the older mass graves with the more recent ones since the latter are always located in regions with more difficult access than those of the first group. No particular care was taken when the bodies were moved and it was common to find bodies with missing limbs. There can therefore be no doubt about the deliberate desire to conceal the existence of mass graves and therefore the mass executions of civilians or persons no longer fit for combat.
Overall the Trial Chamber found that the forensic evidence presented by the Prosecution provided corroboration of survivor testimony that following the take-over of Srebrenica in July 1995, thousands of Bosnian Muslim men from Srebrenica had been "killed in careful and methodical mass executions."11 It also found that the Bosnian Serbs had "devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave."12
The role of General Krstic in the Srebrenica crimes
General Krstic was Commander of the Drina Corps in September and early October 1995 when the bodies of executed Bosnian Muslim men were removed from primary graves to more remote secondary mass gravesites13. The President of Republika Srpska, Radovan Karadzic, issued the decree naming the accused in this post on 14 July 1995 and stated that it took effect as of the day after14. Nonetheless, General Krstic behaved as Commander of the Drina Corps from the afternoon of 13 July 1995 and his orders were implemented accordingly15. The Trial Chamber concluded that General Krstic operated as the Drina Corps Commander from the evening of 13 July 1995 and that "the entire Corps recognised him as such."16 It further found "that General Krstic must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave."17 The Trial Chamber considered that he "thus played a leading role in the events that forced the terrorised population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed."18 It concluded "that General Krstic was well aware that the shelling of Srebrenica would drive tens of thousands of Bosnian Muslim civilians from the town into the small area of Potocari they thought 'safe' because of the UN base there."19 The Trial Chamber added that "[h]e must have known that, inevitably, basic needs for shelter, food, water and medicine at that site would prove overwhelming."20 It also found that General Krstic was fully apprised "of the VRS territorial goals in the Srebrenica enclave, which included cleansing the area of the Bosnian Muslim population."21
The Trial Chamber expressed the opinion that overwhelming evidence demonstrated that General Krstic had "played a significant role in the removal of the Bosnian Muslim civilians from Potocari."22 It found that General Krstic was fully apprised "of the catastrophic humanitarian situation confronting the Bosnian Muslim refugees in Potocari and that he was put on notice that the survival of the Bosnian Muslim population was in question following the take-over of Srebrenica."23 The Trial Chamber also found "that General Krstic ordered the procurement of buses for the transportation of the Bosnian Muslim population from Potocari on 12 and 13 July 1995, that he issued orders to his subordinates about securing the road along which the buses would travel to Kladanj [and that] he generally supervised the transportation operation."24
It nonetheless considered that in July 1995 the accused had "found himself squarely in the middle of one of the most heinous wartime acts committed in Europe since the Second World War."25 The Trial Chamber held that the plan to execute the Bosnian Muslim men had been "carried out within the zone of responsibility of the Drina Corps."26 It added that Drina Corps resources had been "utilised to assist with the executions from 14 July 1995 onwards."27 The Trial Chamber concluded that "[b]y virtue of his position as Drina Corps Commander, from 13 July 1995, General Krstic must have known about this."28
Moreover, it found that the evidence showed that General Krstic was fully aware of the events occurring in the Srebrenica area on 13 and 14 July 1995 and that on 15 July 1995 the accused had chosen "to further assist in the commission of the crimes."29
The Trial Chamber was satisfied that murders falling within the meaning of Articles 3 and 5 of the Statute were committed.
The Trial Chamber stated that the Tribunal had not yet defined the term "extermination". It referred to the definition in the Judgements of the International Criminal Tribunal for Rwanda30 and to Article 7(2)(b) of the Rome Statute establishing the International Criminal Court31 (hereinafter the "I.C.C.") which defines the crime in detail. The Trial Chamber surmised that the insertion of the provision means "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." It also referred to the Report of the I.C.C. Preparatory Commission on the Elements of the Crimes which states that "the perpetrator [should have] killed one or more persons" and that the conduct should have been committed "as part of a mass killing of members of a civilian population". Lastly, the Trial Chamber referred to the commentary on the International Law Commission Draft Code which distinguished extermination from 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'."
It noted that "extermination" could 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 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the "Genocide Convention") "but made up of only a relatively small number of people." The Trial Chamber concluded that "while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited."
In sum, it found "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."
In view of the evidence, the Trial Chamber found that a crime of extermination had been committed at Srebrenica.
Serious bodily or mental harm: the Trial Chamber found that serious bodily or mental harm for purposes of the actus reus in Article 4 of the Statute32 "is an intentional act or omission causing serious bodily or mental suffering." It added that "[t]he 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 Trial Chamber Judgement, the Trial Chamber stated "that serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation." It considered that the harm must result "in a grave and long-term disadvantage to a person's ability to lead a normal and constructive life." In subscribing to the above-mentioned case-law, the Trial Chamber held "that inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury."
In the instant case, it was "fully satisfied that the wounds and trauma suffered by those few individuals" who had managed to survive the mass executions did "constitute serious bodily and mental harm within the meaning of Article 4 of the Statute."
Cruel and inhumane treatment: the Trial Chamber considered that the VRS and other Serb forces had imposed cruel and inhumane treatment on a large number of Bosnian Muslims who had been "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." It concluded that the main fact for which the Prosecution alleged inhumane treatment though was "the forcible transfer of the Bosnian Muslim women, children and elderly outside the enclave of Srebrenica."
Deportation or forcible transfer
The Trial Chamber distinguished between deportation which "presumes transfer beyond State borders" and forcible transfer which "relates to displacements within a State." It found that since the Srebrenica civilians had been "displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law." The Trial Chamber therefore concluded "that the civilians assembled at Potocari and transported to Kladanj" had not been "subjected to deportation but rather to forcible transfer." It considered that "[t]his forcible transfer, in the circumstances of this case", still constituted "a form of inhumane treatment covered under Article 5" of the Statute.
The Trial Chamber referred to the definition of the crime given by Trial Chamber II in the Judgement rendered on 14 January 2000 in The Prosecutor v. Zoran Kupreskic et al.33. It also referred to the Judgement rendered by Trial Chamber III on 26 February 2001 in The Prosecutor v. Dario Kordic & Mario Cerkez34. In this case, Trial Chamber I was satisfied that a crime of persecution had been "committed from 11 July 1995 onward in the enclave of Srebrenica."
The issue to be determined was whether the offences had been "committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."
The Trial Chamber first emphasised "the need to distinguish between the individual intent of the accused and the intent involved in the conception and commission of the crime." It added that "[t]he gravity and the scale of the crime of genocide ordinarily presume that several protagonists were involved in its perpetration." The Trial Chamber considered that "[a]lthough the motive of each participant may differ, the objective of the criminal enterprise remains the same." It held that "[i]n 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." The Trial Chamber added that it was then necessary to establish whether the accused being prosecuted for genocide had "shared the intention that a genocide be carried out."
A group, as such: the Trial Chamber reiterated that although originally viewed as a religious group, the Bosnian Muslims had been "recognised as a 'nation' by the Yugoslav Constitution of 1963." It also reiterated that the evidence tendered at trial showed "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."
The Trial Chamber concluded "that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims." It held that the Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constituted "a part of the protected group under Article 4" thereof.
The Trial Chamber considered that "[t]he 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 had been 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 had clearly not died in combat, demonstrated that a purposeful decision had been "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 concluded that it remained to determine whether this discriminatory attack had "sought to destroy the group, in whole or in part, within the meaning of Article 4 of the Statute."
Intent to destroy the group in whole or in part: for the purpose of this case, the Trial Chamber adhered to the characterisation of genocide which encompasses "only acts committed with the goal of destroying all or part of a group." It referred to the Judgement of the Appeals Chamber on 5 July 2001 in the case The Prosecutor v. Goran Jelisic35, in which it had held that a plan of genocide need not have been formed. The Trial Chamber reiterated that, even if such a plan existed, it was not indispensable for time to have passed between its conception and implementation.
It further stated that it could not "determine the precise date on which the decision to kill all the military aged men" had been taken. Hence, the Trial Chamber could not "find that the killings committed in Potocari on 12 and 13 July 1995" had "formed part of the plan to kill all the military aged men." Nevertheless, it was "confident that the mass executions and other killings committed from 13 July onwards" had been part of this plan.
The Trial Chamber recognised "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 it held that "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 pointed 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 thus took "into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group."
In part: the Defence contended that the term "in part" referred "to the scale of the crimes actually committed". The Trial Chamber disagreed and considered that "by adding the term 'in part'", some of the Genocide "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 had been "carried out with the intent to destroy the group as such." It added that under the Genocide Convention, the term "in whole or in part" referred "to the intent, as opposed to the actual destruction". The Trial Chamber concluded "that any act committed with the intent to destroy a part of a group, as such" constituted an act of genocide within the meaning of the Genocide Convention.
It further referred to the Kayishema & Ruzindana Trial Chamber Judgement which had "stated that the intent to destroy a part of a group must affect a 'considerable' number of individuals" (para. 97) and to the Judgement handed down by Trial Chamber I of the International Criminal Tribunal for Rwanda on 7 June 2001 in the case The Prosecutor v. Ignace Bagilishema36 which had "also recognised that the destruction sought must target at least a substantial part of the group" (para. 64).
The Trial Chamber expressed 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 Genocide Convention, the Trial Chamber held that "they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such."
It concluded from the evidence that the VRS "sought to eliminate all of the Bosnian Muslims in Srebrenica as a community."
The Trial Chamber considered that the Bosnian Serb forces had known by the time they had "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." It found that "[i]ntent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group" was "further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari and the principal mosque in Srebrenica soon after the attack."
Lastly, the Trial Chamber considered that there was "a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves" which had later been "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 had been unable to have closure until the death of their men was finally verified.
The Trial Chamber found that by killing all the military aged men, the Bosnian Serb forces had "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."
It concluded "that the intent to kill all the Bosnian Muslim men of military age in Srebrenica" constituted "an intent to destroy in part the Bosnian Muslim group" within the meaning of Article 4 of the Statute "and therefore must be qualified as a genocide."
The Trial Chamber thus concluded that the Prosecution had "proven beyond all reasonable doubt that genocide, crimes against humanity and violations of the laws or customs of war" had been "perpetrated against the Bosnian Muslims, at Srebrenica, in July 1995."
Criminal responsibility of General Krstic
The Trial Chamber adhered "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) of the Statute is subsumed under Article 7(1) of the Statute37. It considered that "[t]he same applies to the commander who incurs criminal responsibility under the joint criminal enterprise38 doctrine through the physical acts of his subordinates."
The criminal responsibility of General Krstic for the crimes proved at trial: the Trial Chamber characterised "the humanitarian crisis, the crimes of terror and the forcible transfer of the women, children and elderly at Potocari as constituting crimes against humanity, that is, persecution and inhumane acts." It considered that the evidence established that General Krstic, along with others, had "played a significant role in the organisation of the transportation of the civilians from Potocari." The Trial Chamber further held that it had been established that General Krstic had known that this had been "a forcible, not a voluntary, transfer." It similarly concluded that General Krstic had been "fully aware of the ongoing humanitarian crisis at Potocari".
In light of these facts, the Trial Chamber expressed "the view that the issue of General Krstic's criminal responsibility for the crimes against the civilian population of Srebrenica occurring at Potocari [wa]s most appropriately determined under Article 7(1) [of the Statute] 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 [had] left the territory otherwise occupied by Serbian forces."
The Trial Chamber considered that the above-described facts compelled the inference that the political and/or military leadership of the VRS had "formulated a plan to permanently remove the Bosnian Muslim population from Srebrenica, following the take-over of the enclave." It added that from 11 through 13 July, the plan of what was colloquially referred to as "ethnic cleansing" had been "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." The Trial Chamber found that General Krstic had been "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." It concluded that the actus reus requirements for joint criminal enterprise liability had therefore been met.
The Trial Chamber held that the object of the joint criminal enterprise implemented at Potocari on 12 and 13 July had been "the forcible transfer of the Muslim civilians out of Srebrenica." It also found that the fact that General Krstic had had the intent for this crime was "indisputably evidenced by his extensive participation in it." Furthermore, the Trial Chamber considered that the humanitarian crisis that had prevailed at Potocari had been so closely connected to, and so instrumental in, the forcible evacuation of the civilians that it could not "but also have fallen within the object of the criminal enterprise."
The Trial Chamber was not "convinced beyond reasonable doubt that the murders, rapes, beatings and abuses committed against the refugees at Potocari" had also been "an agreed upon objective among the members of the joint criminal enterprise." However, it did not "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, the Trial Chamber found that "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, it considered that the VRS had "organised and implemented the transportation of the women, children and elderly outside the enclave" and that General Krstic had been "himself on the scene and exposed to firsthand knowledge that the refugees were being mistreated by VRS or other armed forces."
In sum, the Trial Chamber found 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 have accelerated "their fear and panic and ultimately their willingness to leave the territory." The Trial Chamber thus held that General Krstic incurred "liability also for the incidental murders, rapes, beatings and abuses committed in the execution of this criminal enterprise at Potocari."
It considered that General Krstic had known that these crimes had been "related to a widespread or systematic attack directed against the Bosnian Muslim civilian population of Srebrenica" and that his participation in them was "undeniable evidence of his intent to discriminate against the Bosnian Muslims." The Trial Chamber therefore found General Krstic "liable of inhumane acts and persecution as crimes against humanity."
General Krstic's criminal responsibility for the killing of the military aged Muslim men from Srebrenica: the Trial Chamber considered that the remaining issue was whether General Krstic had been "a member of the escalated joint criminal enterprise" to kill the military aged men and whether he had "thus incurred responsibility for genocide, including the causing of serious bodily and mental harm to the few men surviving the massacres." In this respect, it discussed the relationship between Articles 7(1) and 4(3) of the Statute, and between "genocide" under Article 4(3)(a) of the Statute and the alternative allegation of "complicity in genocide" under Article 4(3)(e) thereof. The Trial Chamber further determined whether General Krstic had also incurred "responsibility for the other crimes constituted by the killings, that is, persecutions, extermination and murder as crimes against humanity, and murder as a violation of the laws or customs of war." Lastly, the Trial Chamber considered whether the evidence suggested that General Krstic incurred "command responsibility for the crimes alleged under Article 7(3)" of the Statute.
It found that "[a]s the then Corps' Chief of Staff, 'the primary co-ordinator of the Corps' activities', 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."
On that basis alone, the Trial Chamber concluded that, by the evening of 13 July at the latest, General Krstic had known "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." It also considered that "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."
The Trial Chamber found that the Drina Corps had "rendered tangible and substantial assistance and technical support to the detention, killing and burial at these several sites between 14 and 16 July." It considered that the need for their involvement had been unavoidable because the Main Staff had "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." The Trial Chamber found it "inconceivable that the involvement of Drina Corps troops and equipment" could have taken "place without some - even if hasty - degree of planning" which, moreover, had "required the involvement of the top levels of command."
It considered that the evidence showed that, following the capture of Srebrenica, the Drina Corps Command had "continued to exercise regular command competencies over its subordinate troops." The Trial Chamber also found that the Corps' ordinary chain of command had not been "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." It further held that General Krstic had become "the de facto Corps Commander from the evening of 13 July onwards and de jure Corps Commander from 15 July onwards." In addition, the Trial Chamber considered that the evidence showed indisputably that as Commander of the Drina Corps, General Krstic had had "extensive formal powers over the assets and troops of the Drina Corps."
The Trial Chamber concluded that from the evening of 13 July General Krstic had "exercised 'effective control' over Drina Corps troops and assets throughout the territory on which the detentions, executions and burials" had been taking place. Furthermore it found that from that time onwards, General Krstic had "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 -the Trial Chamber considered that "General Krstic had already organised the military attack on Zepa and as Drina Corps Chief of Staff and Commander-to-be 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."
The Trial Chamber concluded beyond reasonable doubt that General Krstic had "participated in a joint criminal enterprise to kill the Bosnian Muslim military aged men from Srebrenica from the evening of 13 July onward" and that there could be no question that, from the time he had learned of the widespread and systematic killings and become clearly involved in their perpetration, he had "shared the genocidal intent to kill the men." It also concluded that this could not "be gainsaid given his informed participation in the executions through the use of Drina Corps assets."
Finally, the Trial Chamber 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 did "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 Trial Chamber considered that "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, it found that General Krstic had undeniably been "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 had participated in the genocidal acts of 'killing members of the group'" under Article 4(2)(a) of the Statute "with the intent to destroy a part of the group."
The Trial Chamber further determined that the ordeal inflicted on the men who had "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)" of the Statute. While the agreed objective of the joint criminal enterprise in which General Krstic had "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." The Trial Chamber considered that "General Krstic must have been aware of this possibility" and that he therefore incurred "responsibility for these crimes as well."
It found that General Krstic incurred "responsibility for the killings and causing of serious bodily and mental harm as a co-participant in a joint criminal enterprise to commit genocide."
The Trial Chamber reiterated that the Appeals Chamber had characterised "the notion of common design as a form of accomplice liability" in the Judgement rendered on 15 July 1999 in The Prosecutor v. Dusko Tadic39. In this case, the Trial Chamber interpreted the comment "as not part of the ratio decidendi of that Judgement" and did not believe that the "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)" of the Statute. The Trial Chamber saw "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." It seemed clear to the Trial Chamber "that 'accomplice liability' denotes a secondary form of participation which stands in contrast to the responsibility of the direct or principal perpetrators." It expressed "the view that this distinction coincides with that between 'genocide' and 'complicity in genocide' in Article 4(3)" of the Statute.
The Trial Chamber found that General Krstic had "fulfilled a key co-ordinating role in the implementation of the killing campaign." In particular, at a stage when his participation had clearly been indispensable, it considered that he had "exerted his authority as Drina Corps Commander and arranged for men under his command to commit killings." The Trial Chamber thus found that General Krstic had been "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, it held that "General Krstic must be considered a principal perpetrator of these crimes" and found him "guilty of genocide pursuant to Article 4(2)(a)" of the Statute.
The Trial Chamber also found General Krstic "guilty of murders as violations of the laws or customs of war", "murders as crimes against humanity and [ ] extermination."
Although the elements of Article 7(3) of the Statute were fulfilled, the Trial Chamber decided not to "enter a conviction to that effect because in its view General Krstic's responsibility for the participation of his troops in the killings" was "sufficiently expressed in a finding of guilt under Article 7(1)" thereof.
First, it concluded that General Krstic incurred responsibility under Article 7(1) of the Statute for inhumane acts (forcible transfer) and persecution (murder, cruel and inhumane treatment, terrorisation, destruction of personal property and forcible transfer). Second, the Trial Chamber concluded that the accused incurred responsibility under Articles 7(1) and 4(3)(a) of the Statute for genocide, under Article 7(1) of the Statute for the killings as extermination, murder and persecution as crimes against humanity, and murder as a violation of the laws or customs of war.
charging and convictions
The Trial Chamber referred to the Judgement of the Appeals Chamber on 20 February 2001 in The Prosecutor v. Zejnil Delalic et al.40 in which the Appeals Chamber laid down the test and the rules applicable to cumulative charging.
Relationship between offences under Articles 3 and 5 of the Statute: the Trial Chamber stated that murder under Article 3 of the Statute "requires a unique and materially distinct element in the form of a close nexus between the acts of the accused and an armed conflict." It also stated that offences under Article 5 of the Statute "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." The Trial Chamber held that because each category of offences contains an element not required by the other, the test was satisfied and it found "it permissible to enter a conviction under both Articles 3 and 5" of the Statute to punish the same murders.
Relationship between murder under Article 5 of the Statute and persecutions: the Trial Chamber considered that "[s]ince the offence of persecutions is more specific than the offence of murder, persecutions must be preferred." Accordingly, it entered "a conviction under the charge of persecutions" and dismissed "the charge of murder under Article 5 (a)" of the Statute.
Relationship between persecutions (forcible transfer) and other inhumane acts (forcible transfer): the Trial Chamber found that "[b]ecause 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." It also found that it was "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 dismissed "the separate charge of other inhumane acts (forcible transfer) under Article 5(i)" of the Statute. It considered that General Krstic could only be convicted for persecutions for the acts of forcible transfer that had taken place on 10 and 13 July 1995.
In sum, the Trial Chamber entered "convictions for charges of murder under Article 3" of the Statute "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."
Relationship between offences under Articles 3 (war crimes) and 4 (genocide) of the Statute and between Articles 3 (war crimes) and 5 (crimes against humanity) of the Statute: the Trial Chamber noted that "[m]urder as a war crime requires a close nexus between the acts of the accused and an armed conflict, which is not required by genocide." It considered that the test for separate convictions was satisfied. Accordingly, the Trial Chamber entered convictions "on both charges in respect of the same criminal conduct because genocide and murder under Article 3" of the Statute "each contain an additional element not required by the other."
Relationship between offences under Articles 4 (genocide) and 5 (crimes against humanity) of the Statute: the Trial Chamber considered that since the crimes of persecutions and genocide do not have a mutually distinct element, it was not possible to cumulate convictions for both. It reiterated that "[g]enocide requires a highly specialised intent in the destruction of a characterised group or part of a group [and that] the discriminatory intent in persecutions is less specific." The Trial Chamber thus retained "[g]enocide, the most specifically defined crime".
It also observed that genocide has a additional requirement distinct from extermination, in terms of the nature of the group targeted and that although "[g]enocide requires a highly specialised intent in the destruction of a characterised group or part of a group, extermination does not." The Trial Chamber concluded that genocide, the most specific crime, was to be retained.
It thus found that, based on the same conduct, it was "permissible to enter cumulative convictions under both Articles 3 and 4 and under both Articles 3 and 5" of the Statute.
The Trial Chamber concluded that it was "permissible to enter a conviction under persecutions (Article 5) and murder (Article 3)" of the Statute. In respect of the murder-type conduct, it was permissible to enter a conviction on both murder (Article 3 of the Statute) and genocide.
General practice on prison sentences in the former Yugoslavia: the Trial Chamber noted that genocide was the gravest offence under Yugoslav law, would have allowed the highest sentence, up to forty years, and that the sentence in this case would fall within the range of sentence afforded by the Federal Republic of Yugoslavia for the most severe war crimes.
Gravity of the crime: the Trial Chamber commented that "[t]aking into consideration the seriousness of the crime avoids excessive disparities in sentences imposed for the same type of conduct." It further noted "that genocide is the most serious crime because of its requirement of the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. In this sense, even though the criminal acts themselves involved in a genocide may not vary from those in a crime against humanity or a crime against the laws and customs of war", the Trial Chamber added that "the convicted person is, because of his specific intent, deemed to be more blameworthy." The Trial Chamber also held "that the number of victims and their suffering are relevant factors in determining the sentence and that the mistreatment of women or children" was "especially significant in the present case" in order to "assess the seriousness of the crimes in the light of their individual circumstances and consequences."
The Trial Chamber considered that the following elements were "all relevant in assessing the gravity of the crimes in this case": the circumstance of the victim detainees having been completely "at the mercy of their captors, the physical and psychological suffering inflicted upon witnesses to the crime, the 'indiscriminate, disproportionate, terrifying' or 'heinous' means and methods used to commit the crimes".
Personal situation of the accused: factors identified as potentially aggravating by the Trial Chamber were "the level of criminal participation, the premeditation and the motive of the convicted person." It stated that in determining a sentence, both Tribunals had "mentioned the three most direct forms of participation, 'planning, ordering, instigating', as possible aggravating circumstances in the case of a highly placed accused." The Trial Chamber stressed that so it is in the case of genocide. It found that the direct participation of a high level superior in a crime was an aggravating circumstance, although the degree depended "on the actual level of authority and the form of direct participation." The Trial Chamber pointed out that a person who abused or wrongly exercised power deserved "a harsher sentence than an individual acting on his or her own." It noted though that current case-law of the Tribunal did not evidence a discernible pattern "imposing sentences on subordinates that differ greatly from those imposed on their superiors."
The Trial Chamber referred to the sentence handed down by Trial Chamber I of the International Criminal Tribunal for Rwanda on 5 February 1999 in the case The Prosecutor v. Omar Serushago41 and considered that "[w]hen a genocide or a war crime, neither of which requires the element of premeditation, are in fact planned in advance, premeditation may constitute an aggravating circumstance."
The Trial Chamber held that "[i]n determining the appropriate sentence, a distinction is to be made between the individuals who allowed themselves to be drawn into a maelstrom of violence, even reluctantly, and those who initiated or aggravated it and thereby more substantially contributed to the overall harm." It emphasised that "reluctant participation in the crimes may in some instances be considered as a mitigating circumstance."
The Trial Chamber considered that premeditation is relevant "as an aggravating factor in the abstract but, based on the sequence of General Krstic's delayed participation in the genocidal scheme initiated by General Mladic and others", found that premeditation was "not applicable to the situation."
It noted that Article 42(2) of the Criminal Code of the Socialist Federal Republic of Yugoslavia, which provides that "the judge may determine whether 'there are mitigating circumstances which are such that they indicate that the objective of the sentence may be achieved equally well by a reduced sentence'", defines a mitigating circumstance. The Trial Chamber commented that indirect participation was "one circumstance that may go to mitigating a sentence." It reiterated that an act of assistance in the commission of a crime was "a form of participation in a crime often considered less serious than personal participation or commission as a principal and may, depending on the circumstances, warrant a lighter sentence than that imposed for direct commission." The Trial Chamber also reiterated that it may "take into account the particular personal circumstances of the accused at the time the crimes" were committed, "if they illustrate the character and the capacity of the convicted person to be reintegrated in society."
of General Krstic's sentence
The Trial Chamber reiterated that the commission of the crimes of murder, persecutions and genocide "would have justified the harshest of sentences in the former Yugoslavia." It found that the fact that General Krstic had occupied the highest level of VRS Corps commander was an aggravating factor because he had "utilised that position to participate directly in a genocide."
The Trial Chamber also noted that the conduct of General Krstic during the course of the trial had not been altogether forthcoming. General Krstic had testified under oath before the Trial Chamber. While this could be viewed as a sign of co-operation with the Tribunal, the evidence had clearly established that he had put up a false defence on several critical issues, most notably, his denial that he or anyone from the Drina Corps had been involved in the forcible transfer of Muslim women, children and elderly from Potocari; the date when he became commander of the Drina Corps or aware of the mass executions. General Krstic's manner had been one of obstinacy under cross-examination. He consistently refused to answer directly or forthrightly legitimate questions put to him by the Prosecution or the Judges. His overall conduct during the proceedings evidenced a lack of remorse for the role he played in the Srebrenica area in July 1995.
The Trial Chamber found "no other relevant circumstances. Although sympathetic to General Krstic's discomfort throughout the trial because of medical complications" he had suffered, the Trial Chamber considered that this circumstance was "not related to the objectives of sentence."
The Trial Chamber's assessment was that General Krstic was a professional soldier who had "willingly participated in the forcible transfer of all women, children and elderly from Srebrenica, but would not likely, on his own, have embarked on a genocidal venture"; however, he had allowed himself, as he had "assumed command responsibility for the Drina Corps, to be drawn into the heinous scheme and to sanction the use of Corps assets to assist with the genocide." After he had assumed command of the Drina Corps, on 13 July 1995, the Trial Chamber found that "he could have tried to halt the use of Drina Corps resources in the implementation of the genocide" and that his own commander, General Mladic, had been "calling the shots and personally supervising the killings." It added that General Krstic's participation in the genocide had primarily consisted "of allowing Drina Corps assets to be used in connection with the executions from 14 July onwards and assisting with the provision of men to be deployed to participate in executions" on 16 July 1995. The Trial Chamber considered that General Krstic had "remained largely passive in the face of his knowledge" of what had been going on. It underscored that he was guilty but that his guilt was palpably less than others who had devised and supervised the executions all through that week and who remain at large. The Trial Chamber reiterated that, when pressured, he had "assisted the effort in deploying some men for the task, but on his own would not likely have initiated such a plan. Afterwards, as word of the executions filtered in, he kept silent and even expressed sentiments lionising the Bosnian Serb campaign in Srebrenica. After the signing of the Dayton Accords, he co-operated with the implementers of the accord and continued with his professional career" although he had "insisted that his fruitless effort to unseat one of his officers", whom he had "believed to have directly participated in the killings", had "meant he would not be trusted or treated as a devoted loyalist by the Bosnian Serb authorities thereafter." The Trial Chamber concluded that his story was "one of a respected professional soldier who could not balk his superiors' insane desire to forever rid the Srebrenica area of Muslim civilians" and who had finally "participated in the unlawful realisation of this hideous design."
1. "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."
2. "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."
3. "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."
4. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
5. Para. 28.
6. Para. 29.
7. Para. 52.
8. Para. 84.
9. See The Prosecutor v. Drazen Erdemovic ("Pilica Farm"), Case No. IT-96-22-T, Trial Chamber I, Sentencing Judgement, 29 November 1996; Appeals Chamber, Judgement, 7 October 1997; Trial Chamber II, Sentencing Judgement, 5 March 1998, in which the Trial Chamber sentenced Drazen Erdemovic to 5 years' imprisonment.
10. Para. 245.
11. Para. 79.
12. Para. 87.
13. Para. 311.
14. Para. 316.
15. Para. 330.
16. Para. 331.
17. Para. 335. See also para. 121.
19. Para. 337.
22. Para. 338.
23. Para. 343.
24. Para. 347.
25. Para. 421.
29. Para. 423.
30. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998 (hereinafter the "Akayesu Trial Chamber Judgement"), paras. 591 and 592; The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-T, Trial Chamber I, 4 September 1998; The Prosecutor v. Clément Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T & ICTR-96-10-T, Trial Chamber II, 21 May 1999 (hereinafter the "Kayishema & Ruzindana Trial Chamber Judgement"); The Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-T, Trial Chamber I, 6 December 1999; The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Trial Chamber I, 27 January 2000.
31. "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."
32. "1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
2. Genocide means 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.
3. The following acts shall be punishable:
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide."
33. The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11), para. 621.
34. The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised in Judicial Supplement No. 23), para. 193.
35. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26), para. 48.
36. The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Trial Chamber I, Judgement, 7 June 2001 (hereinafter the "Bagilishema Trial Chamber Judgement").
37. See also Kayishema & Ruzindana Trial Chamber Judgement, para. 223; The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13), para. 337.
38. On the notion of joint criminal enterprise, see The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6); see also The Prosecutor v. Milorad Krnojelac ("Foca - KP Dom-Camp"), Case No. IT-97-25-PT, Trial Chamber II, Decision on Form of Second Amended Indictment, 11 May 2000 (summarised in Judicial Supplement No. 15); The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001 (summarised in Judicial Supplement No. 25).
39. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), para. 220 (emphasis added); see also The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Momir Talic for Provisional Release, 28 March 2001, in which the Trial Chamber distinguished "committing" from "common purpose liability" under Article 7(1) of the Statute (paras. 40 to 45).
40. The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised and analysed in Judicial Supplement No. 23), paras. 400 et seq.
41. The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-T, Trial Chamber I, Sentence, 5 February 1999, para. 30.