I cannot in good conscience condemn the perpetrators of the genocide in which my brother and my grandparents perished unless I also condemn the perpetrators of all other acts of genocide, including the genocide that took place at Srebrenica
November 22, 2017
This morning in The Hague, Judge Alphons Orie of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) delivered the judgment in Case IT-09-92-T, The Prosecutor v. Ratko Mladić. Finding Mladić guilty of genocide, extermination, murder, and other crimes against humanity and war crimes, the ICTY sentenced Mladić to life imprisonment.
The Oxford English Dictionary defines the human variant of a monster as, “A person of repulsively unnatural character, or exhibiting such extreme cruelty or wickedness as to appear inhuman; a monstrous example of evil…” Mladić is such a monster.
From 1992 until 1996, Mladić, who had previously been a career military officer in the Yugoslav People’s Army, was the commander of the army of the breakaway Serbian Republic of Bosnia and Herzegovina, better known simply as Republika Srpska. During these years, together with Republika Srpska President Radovan Karadžić, he orchestrated the brutal ethnic cleansing of Bosnian Muslims and Croats from territories they and other Serbian ultra-nationalists considered integral to a de facto “Greater Serbia.” Mladić also directed the shelling of Sarajevo from 1992 to 1995 which the ICTY Trial Chamber deemed to have spread terror throughout the Bosnian capital’s civilian population, took UN personnel hostage in violation of the laws or customs of war, and, most relevant to this article, perpetrated genocide against the Bosnian Muslim population of Sarajevo.
Sitting impassively in the courtroom for the first 45 minutes of Judge Orie’s summarizing of the judgment, clean shaven, his white hair neatly trimmed, dressed in a navy blue suit, white shirt, and red tie, Mladić did not look like a monster, a genocidaire if you will, but then again, neither did Adolf Eichmann in his glass both in Jerusalem.
After approximately 42 minutes, Mladić’s counsel asked if the Tribunal could take a recess so that the defendant could use the rest room. When the session resumed, Judge Orie announced that Mladić had been removed to another room where he could follow the proceedings on a screen.
Some background to the Yugoslav wars of the 1990s, which included the genocide perpetrated at Srebrenica, is relevant here. In his 1936 political reportage, Inside Europe, John Gunther wrote that what was then the Kingdom of Yugoslavia, created in the aftermath of World War I out of Balkan regions of the defunct Ottoman and Austro-Hungarian Empires, was made up of “some 13,500,000 powerful and truculent Serbs, Croats, Slovenes, Slavones, Macedonians, Montenegrins, Bosnians, [and] Dalmatians.” Many if not most of these different national groups had centuries-old histories of deeply rooted animosity toward one another.
Between 1945 and 1980, the independent communist and former anti-fascist partisan leader Josip Broz Tito kept Yugoslavia’s internal domestic tensions largely under control. Within a decade of Tito’s death, however, the nationalist Serbian president Slobodan Milošević pushed the envelope with respect to Serbian domination of the country, relegating to the dustbin a delicate balance of power that had been maintained since the end of World War II.
In April of 1989, a New York Times editorial accused Milošević of inflaming “ancient ethnic hatreds for the sake of his own political ambitions.” Since becoming Serbia’s Communist Party boss, the editorial wrote, Milošević had “pressed a relentless political campaign, complete with mass rallies, fiery rhetoric and bureaucratic purges, all aimed at making Serbia, and its party leader, supreme in a reshaped Yugoslavia.”
“We must secure unity in Serbia if we wish, as the largest and most populous republic, to dictate the further course of events,” Milošević declared in 1991. “These are the questions of borders, essential state questions. The borders, as you know, are always dictated by the strong, never by weak ones.” Karadžić and Mladić were among those Bosnian Serbs who were determined to establish a pan-Serbian hegemony in the Serbian part of Bosnia and Herzegovina.
In 1991, Slovenia and Croatia were the first two Yugoslav republics to secede, with Croatia’s secession resulting in a brutal seven-month war. The following year, when Bosnia and Herzegovina—whose ethnic make-up was 43 percent Muslim, 35 percent Orthodox Serb, and 18 percent Roman Catholic Croat—followed suit, the Republika Srpska came into being, with catastrophic consequences for Bosnia’s Muslim and Croat minorities. In response to the atrocities that were being committed openly against civilians in what had been Yugoslavia, the United Nations Security Council on May 25, 1993—two years before the Srebrenica massacre—established the ICTY, whose charter gave it jurisdiction over a series of crimes, including genocide and crimes against humanity.
Following their indictments by the ICTY in 1995, both Karadžić and Mladić went into hiding. Karadžić was eventually captured in July of 2008 and extradited to The Hague to stand trial before the ICTY. In March 2016, he was convicted on multiple counts of war crimes, crimes against humanity and genocide. Mladić in turn was seized by the Serbian police on May 26, 2011, in the village of Lazarevo some 90 kilometers from Belgrade, and flown to The Hague five days later. Mladić’s trial began on May 16, 2012.
The Mladić indictment charged him with the commission of genocide, as well as persecution, extermination, murder, deportation, other inhumane acts, both individually and as part of a criminal conspiracy with Karadžić and others. According to the indictment, “By using the word ‘committed’… the Prosecutor does not mean that the accused physically committed any of the crimes charged personally. ‘Committed,’ in the context of the accused’s liability under Article 7(1), refers to his participation in a joint criminal enterprise.”
Article 7 of the ICTY Statute provides that the fact that any charged criminal acts were committed by a defendant’s subordinate does not relieve such defendant of criminal responsibility if the defendant “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.” Mladić has now been held accountable for genocide, crimes against humanity, and war crimes perpetrated in Bosnian and Herzegovina, both directly and by virtue of his command authority over the troops that carried out the carnage.
The first of the two genocide counts in the indictment, which relates to “a joint criminal enterprise to permanently remove Bosnian Muslims and Bosnian Croats from the territories of [Bosnia and Herzegovina] claimed as Bosnian Serb territory,” charged Mladić with “conduct that manifested an intent to destroy in part the national, ethnical and/or religious groups of Bosnian Muslims and/or Bosnian Croats as such” with respect to Bosnian municipalities other than Srebrenica. As had been the case with Karadžić, the Trial Chamber convicted Mladić of extermination and murder— crimes against humanity—on this count, but not of genocide. The second genocide count—on which Mladić was found guilty—charged that he had “participated in a joint criminal enterprise to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys of Srebrenica and forcibly removing the women, young children and some elderly men from Srebrenica.”
The gruesome facts that earned Srebrenica, a town in eastern Bosnia, its place alongside Auschwitz-Birkenau, Jasenovac, Musa Dagh, and Butare, bear repeating.
Auschwitz-Birkenau, of course, was the most notorious of the Nazi death and concentration camps where the Holocaust of European Jewry was perpetrated during World War II. Jasenovac was the concentration camp in the “Independent State of Croatia” where between 77,000 and 99,000 Serbs, Jews and Roma were murdered by the Croatian fascist Ustasha between 1941 and 1945. Musa Dagh is the region of the Ottoman Empire where several thousand Armenians resisted for 53 days in 1915 against the efforts to destroy them in what has become known as the Armenian Genocide. Butare is the Rwanda préfecture, or province, where it is estimated that 220,000 Tutsis were slaughtered by their Hutu neighbors and compatriots during that country’s 1994 Genocide.
On April 16, 1993, the U.N. Security Council designated “Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act.” The Srebrenica “safe area” was under the protection of a United Nations Protection Force. This designation was reinforced by the Security Council on May 6, 1993, in a second resolution. Defying the international community, Republika Srbska troops under Mladić’s command took control of Srebrenica in early July of 1995. Over the course of several days beginning on July 12, between 7,000 and 8,000 Bosnian Muslim men and boys were murdered. The actual number of the dead has yet to be established. A February 12, 2000 report to the ICTY determined that “a minimum of 7,475 persons from the Srebrenica enclave are missing and presumed dead.” More recently, the International Commission on Missing Persons has estimated the number of missing at around 8,000, and international human rights advocate Ewelina U. Ochab has set the number of dead at 8,372. In 2005, United Nations Secretary-General Kofi Annan described what occurred at Srebrenica as “a terrible crime—the worst on European soil since the Second World War.”
Judge Orie described one element of the genocide: “From the 12th to the 14th July, 1995, [Republika Srbska troops] organized the transport of approximately 25,00 Bosnian Muslims, mostly women, children, and elderly, out of Srebrenica enclave to territory under the control of the army of Bosnia and Herzegovinain convoys of buses and trucks. Bosnian Serb soldiers systematically separated Bosnian Muslim men of military age who were trying to get on board. Some of the separated males were as young as 12 years old, and some older than 60 years. The separations were frequently aggressive. The people being transferred were told that the Bosnian Muslim men would follow later. They never followed.”
The Bosnian Muslim men and boys were taken to nearby detention centers where they were executed. Judge Orie continued: “The Chamber found that many of these men and boys were cursed, insulted, threatened, forced to sing Serb songs, and beaten while awaiting their execution. Bosnian Serb forces… systematically murdered several thousand Bosnian Muslim men and boys, the vast majority over just a few days from the 12th to the 17th of July, 1995.”
With respect to the count of the indictment charging Mladić with genocide for the mass killings at Srebrenica, Judge Orie said: “The Chamber found that the prohibited acts as set out in the legal definition of genocide, that is, killing and causing serious bodily and mental harm, were committed by the physical perpetrators against the Bosnian Muslims of Srebrenica. The Chamber then examined the specific intent of the physical perpetrators. As explained in detail in the Judgment, the Chamber found that the physical perpetrators intended to destroy the Bosnian Muslims in Srebrenica, a substantial part of the protected group. The Chamber therefore found that the crimes of genocide, persecution, extermination, murder, and the inhumane act of forcible transfer were committed against Bosnian Muslims in and around Srebrenica.”
There are different types of genocidaires, all equally guilty but performing different roles. At one extreme are the political instigators of the crime—Adolf Hitler or Joseph Goebbels for example—whose bigoted ideology sparked the Nazis’ “Final Solution of the Jewish Question” but who never set foot in a death camp or witnessed a mass killing of Jews. Karadzic falls into this category. At the other extreme are the individuals who directly perpetrated the crimes. This latter grouping includes SS doctors such as Joseph Mengele who performed the selections at Auschwitz-Birkenau and the SS personnel who herded Jews into the gas chambers, as well as the likes of the Croatian Franciscan friar Fra Tomislav Filipović, also known as Fra Sotona (“Brother Satan”), the brutal commander of the Jasenovac camp.
Mladić falls squarely into the latter category. Regardless of whether or not he pulled an actual trigger himself, The ICTY Trial Chamber found that he ordered the mass killings to take place and orchestrated them. On July 11, 1995, he was filmed in Srebrenica. “We give this town to the Serb people as a gift,” he declared. Derogatorily referring to Muslims as “Turks,” he continued: “The time has come to take revenge on the Turks in this region.” After this television footage was shown at the opening of Mladić’s trial, prosecutor Peter McCloskey told the tribunal, “Over the next five days after this ominous remark about revenge, Mladić’s troops captured and systematically murdered thousands of Srebrenica’s men and boys.”
Despite the ICTY’s unequivocal determination to the contrary, we are likely before too long to hear loud voices contending that the atrocities of which Mladić has been convicted do not constitute genocide. Some of the naysayers will be politically motivated. Others misstate its definition. Still others do not seem to grasp that genocide is a defined legal term and not an amorphous abstract concept.
Three points are critical here: First, genocide, as set forth in the Convention, is a carefully defined cause of action crafted so as to allow for judicial flexibility in its interpretation. Second, it is a fundamental error to consider genocide a more serious or more heinous crime than other crimes against humanity such as “extermination”. And third, where the facts fit the definition of genocide, it is a profound moral disservice to attempt to deprive its victims of the designation.
Before discussing the crime of genocide in the context of both Mladić’s conviction and the Srebrenica massacre, it is important to understand the development of the law of genocide over the course of the past 73 years, since the term was first used in a book by a Polish-Jewish refugee named Raphael Lemkin.
On August 24, 1941, following the German invasion of the Soviet Union, Prime Minister Winston S. Churchill said in a radio broadcast: “Since the Mongol invasions of Europe in the sixteenth century there has never been methodical, merciless butchery on such a scale or approaching such a scale. And this is but the beginning… We are in the presence of a crime without a name.” In August 1945, the atrocities perpetrated against civilian populations throughout Nazi-occupied Europe were designated as “crimes against humanity” in the Charter for the International Military Tribunal (IMT). This new criminal cause of action encompassed “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population,” as well as “persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.”
Meanwhile, Lemkin had coined the term “genocide” in his 1944 book, Axis Rule in Occupied Europe. “By ‘genocide,’” Lemkin wrote, “we mean the destruction of a nation or of an ethnic group… Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.”
In a subsequent 1946 article, Lemkin expanded the meaning of genocide to include racial and religious groups, and he then lobbied the delegates at the first UN General Assembly to declare genocide as a crime under international law, which it did in a resolution adopted unanimously on December 11, 1946.
Two years later, on December 9, 1948, the General Assembly adopted the Convention for the Prevention and Punishment of the Crime of Genocide. Article II of the Convention provides that “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.”
This wording, which also appears in the respective statutes of the International Criminal Tribunal for Rwanda, and the International Criminal Court (ICC), is the only relevant definition of genocide under international law.
For the next 44 years, genocide as a criminal cause of action remained largely an abstraction. On May 25, 1993, however, in response to reports of the atrocities that were being openly perpetrated in the Balkans, the UN Security Council formally established “an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian laws committed in the territory of the former Yugoslavia” since 1991. This would become the first international criminal tribunal since the IMT at Nuremberg. In the same resolution, the Security Council adopted a report of the UN Secretary-General that included Genocide as a separate cause of action in the jurisdictional framework for the ICTY, alongside Crimes against Humanity, war crimes, and violations of the Geneva Conventions.
The ICTY Statute uses the same definition of genocide as does the Genocide Convention. The same wording, which is cited above, also appears in the respective statutes of the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). It is the only relevant definition of genocide under international law.
Accordingly, I must respectfully disagree with my friend Professor Steven T. Katz who wrote that genocide must be defined as the “destruction of all human beings who belong to a particular ethnic, national or religious group without exception.” As will be discussed more fully below, an intent to destroy part of a protected group as such clearly satisfies the requirements of the Convention. Katz made essentially the same point in his book, The Holocaust in Historical Context, Vol. 1, where he also sought to expand the definition of genocide to incorporate attempts “to murder in its totality any… political, social, gender or economic group.” While intellectually provocative, that argument is also legally irrelevant. To adapt a popular contemporary expression, the Genocide Convention is what it is–not less, and certainly not more.
At the same time, incidentally, I firmly believe that genocide is no more heinous a crime than crimes against humanity as defined in the IMT Charter. Crimes against humanity, including murder, extermination, enslavement, rape, and torture committed against civilian populations, are set forth as a separate criminal cause of action in the ICTY, ICTR and ICC Statutes, with no suggestion that they are any less gruesome, any less barbaric, or any less evil than genocide. Mass killings, mass rapes, and exterminations are no less monstrous because they happen not to meet the legal definition of genocide.
Specifically, the fact that Mladic—like Karadzic before him—was convicted of extermination rather than genocide for the mass killings in the various municipalities other than Srebrenica in no way lessens his guilt or somehow makes him a less odious creature.
I once wrote that the Holocaust stood alone in time as an aberration of history. I stand by that statement to the extent that it reflects the transnational and multinational scope of the Hitlerian “Final Solution of the Jewish Question.” Never before—and certainly not since—were millions of men, women, and children belonging to a given ethnic, national or religious group transported from countries across an entire continent to death camps equipped with gas chambers and crematoria. Never before—and certainly not since—was the machinery of annihilation as vast and as multi-faceted as it was in the Third Reich and throughout Nazi-occupied Europe between June 1941, when mass killings of Jews began after the German invasion of the Soviet Union, and May 8, 1945—V-E Day—when World War II in Europe came to an end.
That does not mean, however, and should never be interpreted as implying, that other genocides and crimes against humanity are of any lesser severity. Every genocide is an equally heinous crime, whether the victims are Jews, Armenians, Tutsis, Bosniaks, Yezidis, Rohingya, or members of any other protected group. The fact that that the chosen instrument of death is a machete or machine gun rather than a gas chamber does not make an atrocity or series of atrocities any less atrocious. Nor does the fact that a genocide lasted months rather than years, as in Rwanda, or days rather than months, as at Srebrenica, make its perpetration any less reprehensible. It is the underlying nature of the crime—the intent to destroy a designated group as such—that makes every genocide, and every comparable crime against humanity for that matter, a crime that shocks our consciousness. Engaging in comparative suffering is a counter-productive and morally repugnant exercise.
To date, nineteen individuals—including Mladić, Karadžić, and Milošević, who died in custody at The Hague before his case came to verdict—have been charged before the ICTY in connection with Srebrenica. Of these, six—again including Mladić and Karadžić—have been convicted of genocide. In addition, at least eight others were convicted of genocide for their roles at Srebrenica by the War Crimes Chamber of the Court in Bosnia-Herzegovina. And in a landmark ruling, the International Court of Justice (ICJ) also held that Srebrenica constituted a genocide.
And yet, on July 8, 2015, Russia vetoed a British-sponsored United Nations Security Council resolution that would have condemned the Srebrenica massacre as a “crime of genocide.” Ambassador Vitaly Churkin, Russia’s Permanent Representative to the United Nations, disparaged the proposed resolution as “not constructive, confrontational and politically motivated.”
Ambassador Churkin is not alone in holding such views.
In 2012, Serbian President Tomislav Nikolić said on Montenegrin State Television that “There was no genocide in Srebrenica,” acknowledging only that, “”In Srebrenica, grave war crimes were committed by some Serbs.”
Ephraim Zuroff, the director of the Simon Wiesenthal Center’s Israel office, told the Belgrade-based newspaper Politika in June 2015 that he did not believe that what happened at Srebrenica “fit the description or definition of genocide and I think that the decision to call this genocide was adopted for political reasons.”
In a separate interview on Sputnik Serbia radio, Zuroff said that, “It is necessary to be very careful while using the concept of ‘genocide.’ I do not deny that the Serbian forces killed Muslims in Srebrenica, this should not have happened, and those responsible must be brought to justice. But there was no genocide in Srebrenica since the Serbs initially released women and children. And then the process of politicization of the tragedy began.”
And as recently as April of this year, Mladen Grujičić, the Serb Mayor of Srebrenica, publicly denied that a genocide had occurred there.
I respectfully but firmly believe as a matter of law that Churkin, Zuroff, and the others are wrong. As Ambassador Peter Wilson, the United Kingdom’s Permanent Representative at the UN, declared following Churkin’s veto, “that genocide occurred at Srebrenica… is a legal fact, not a political judgment.”
In a March 2004 talk at the US Holocaust Memorial Museum on Genocide in International Law, the noted international criminal and human rights law scholar William Schabas squarely confronted the core issue that has concerned many with respect to Srebrenica—namely, how the killing of less than 8,000 could be considered a genocide. The wholesale murder of between 500,000 and 1,000,000 million Tutsis was, in his words “a really clear cut case of genocide.” On the other hand, and, I might add, understandably, Schabas was bothered by what he called “micro-genocide,” that is, again in his words, “a really horrendous massacre but it’s not on the scale of Rwanda or the Holocaust.”
The fact, however, is that the scale of a possible genocide is not determinative. Nehemiah Robinson, the director of the Institute of Jewish Affairs of the World Jewish Congress who to this day is recognized as one of the leading authorities on the Genocide Convention, wrote in his 1960 Commentary on the Convention (a somewhat modified version of a monograph he had first published in 1949) that “the intent to destroy a multitude of persons of the same group because of their belonging to this group, must be classified as genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial… It will be up to the courts to decide in each case whether the number was sufficiently large.”
In other words, there are no arbitrary or objective parameters by which to determine whether a given atrocity is sufficiently large in scale to qualify as a genocide. Rather, the courts must assess each situation separately and, to at least some extent, subjectively.
The ICTY has done so repeatedly, beginning with its 2001 trial judgment in Prosecutor v. Radislav Krstić, which was affirmed by the Appeals Chamber in 2004.
The Krstić Appeals Chamber unequivocally held that the number of victims was not a determinative factor in concluding whether or not a genocide had occurred:
The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial…
In the same judgment, the ICTY Appeals Chamber affirmed the Trial Chamber’s conclusion that the Srebrenica massacre was indeed a genocide because it was an essential element of the intent to destroy the Muslim population of Eastern Bosnia as a whole. This, according to the Appeals Chamber was accomplished by the combination of murdering the 7,000 – 8,000 men and boys, and the forced transfer out of the area of the Bosnian Muslim women and elderly:
The size of the Bosnian Muslim population in Srebrenica prior to its capture by [Republika Srpska] forces in 1995 amounted to approximately forty thousand people. This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region. Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size. … Control over the Srebrenica region was … essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian people. Because most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population.
According to the Appeals Chamber in Krstić,
Srebrenica was important due to its prominence in the eyes of both the Bosnian Muslims and the international community. The town of Srebrenica was the most visible of the “safe areas” established by the UN Security Council in Bosnia. By 1995 it had received significant attention in the international media. In its resolution declaring Srebrenica a safe area, the Security Council announced that it ‘should be free from armed attack or any other hostile act.’ This guarantee of protection was re-affirmed by the commander of the UN Protection Force in Bosnia (UNPROFOR) and reinforced with the deployment of UN troops. The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.
The Krstić Appeals Chamber went on to hold that in reaching the conclusion that a genocide had taken place, the Trial Chamber had been entitled to consider the “long-term impact that the elimination of seven to eight thousand men from Srebrenica would have on the survival of that community.” The Appeals Chamber further affirmed the Trial Chamber’s finding that:
Given the patriarchal character of the Bosnian Muslim society in Srebrenica, the destruction of such a sizeable number of men would ‘inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.’ Evidence introduced at trial supported this finding, by showing that, with the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.
“This,” the Krstić Appeals Chamber concluded, “is the type of physical destruction the Genocide Convention is designed to prevent.”
The Krstić Appeals Chamber also affirmed the Trial Chamber’s consideration of the non-lethal elements of the Srebrenica massacre. It concluded, for example, that that the “forcible transfer” of the women, children and elderly from Srebrenica could be considered “an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself.”
In 2007, in its Judgment in a proceeding brought by Bosnia and Herzegovina against Serbia and Montenegro, the ICJ adopted the ICTY’s conclusion in Krstić and concluded that “the acts committed at Srebrenica… were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995.”
In 2010, in holding yet again that a genocide had been perpetrated at Srebrenica, the ICTY Trial Chamber in Prosecutor v. Popović, Beara, et al listed the underlying acts that supported this finding. In addition to “killing members of the group” (Article II (a) of the Genocide Convention and Article 4 (2) (a) of the ICTY Charter), the Trial Chamber found that the killing operation at Srebrenica also “inflicted serious bodily and mental harm on the Muslims of Eastern Bosnia,“ both on those who were ultimately killed and those who survived the killing operation, as well as on the surviving family members and loved ones of those killed (Article II (b) of the Genocide Convention and Article 4 (2) (b) of the ICTY Charter). In January 2015, The ICTY Appeals Chamber affirmed the Trial Chamber’s Popović judgment.
It must also be noted that in its April 2015 Judgment in Prosecutor v. Zdravko Tolimir, yet another ICTY Appeals Panel reaffirmed–in my opinion decisively and unambiguously–that “the killing of at least 5,749 Bosnian Muslim men from Srebrenica” constituted a genocidal actus reus, perpetrated with the requisite genocidal intent. The Appeals Panel in Tolimir also affirmed the Trial Chamber’s holdings that (a) the infliction of serious bodily or mental harm on these Muslim men and boys prior to their being executed constituted a separate act of genocide; and (b) that the “the suffering of the women, children, and elderly forcibly transferred from Srebrenica amounted to serious mental harm under Article 4 of the [ICTY] statute” – that is to say, one of the acts constituting genocide under both the ICTY Charter and the Genocide Convention.
With respect to the deportation of the Bosnian Muslim women, children and elderly of Srebrenica, the Appeals Chamber in Tolimir stated that, “serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life so as to threaten the physical destruction of the group in whole or in part.”
In the same vein, last year’s four-volume, 2,581 page Karadžić Judgment listed the factors underlying the Trial Chamber’s genocide conviction, including:
Bosnian Muslims constituted a protected group for purposes of Article 4 of the Statute [the Genocide Article].
At least 5,115 Bosnian Muslim males were killed by Bosnian Serb forces, and these Bosnian Muslim males were members of the protected group for purposes of Article 4 (2) (a) of the Statute.
The “suffering endured” by these Bosnian Muslim males “in the final days and hours before they were killed by Bosnian Serb forces constituted serious bodily or mental harm.”
“The Bosnian Serb forces caused serious bodily and mental harm to the Bosnian Muslim males who managed to survive the killings and lived to testify,” and further that in addition to the aforementioned serious bodily or mental harm suffered by these surviving Bosnian Muslim males, “their respective close encounters with death have had long-lasting effects on their respective abilities to lead normal and constructive lives.”
The “mental harm” caused “as a result of the killing of the men and boys and the forcible removal of the remainder of Bosnian Muslims has had long-lasting effects on the respective abilities of the surviving women, children, and some elderly men to live normal and constructive lives.”
The “only reasonable inference” to be drawn from the killing of the Bosnian Muslim men and boys of Srebrenica “is that members of the Bosnian Serb Forces orchestrating this operation intended to destroy the Bosnian Muslims in Srebrenica as such.”
The Republika Srpska forces “must have been aware of the detrimental impact that the eradication of multiple generations of men would have on the Bosnian Muslims in Srebrenica in that the killing of all able-bodied males while forcibly removing the remainder of the population would have severe procreative implications for the Bosnian Muslims in Srebrenica and thus result in their physical extinction.”
Even though “the Bosnia Muslim population in Srebrenica constituted a numerically small percentage of the Bosnian Muslim population, the enclave’s seizure was of particular strategic importance due to its geographic proximity to Serbia, its symbolic stature as a refuge for Bosnian Muslims, and the fact that its elimination despite its status as a safe area would be demonstrative of the potential fate of all Bosnian Muslims.? Accordingly, the Karadžić Trial Chamber found that “the Bosnian Muslims in Srebrenica constituted a substantial part of the Bosnian Muslim population.”
The ICTY has now followed suit in convicting Mladić of genocide and sentencing him to life imprisonment for his crimes. The actual Mladić Judgment is certain to be the subject of careful future scrutiny, but the summary delived by Judge Orie leaves no doubt that it is consistent with the ICTY’s prior genocide determinations.
In other words, as discussed above, a succession of courts have now held that a genocide was perpetrated at Srebrenica. As Nehemiah Robinson correctly noted, once the term genocide became a legal term, its interpretation was a matter for the courts, and the courts have spoken clearly and unambiguously.
Ultimately, however, and equally important, there are also moral considerations—a moral imperative, as it were—that compel the conclusion that the Srebrenica massacre was a genocide.
On the night of August 3-4, 1943, my brother, my mother’s son, was murdered in one of the Birkenau gas chambers together with his father and his—our—grandparents.
I cannot in good conscience condemn the perpetrators of the genocide in which my brother and my grandparents perished unless I also condemn the perpetrators of all other acts of genocide, including the genocide that took place at Srebrenica.
I cannot in good conscience mourn my brother as a victim of genocide unless I similarly mourn all other victims of genocide, including the victims at Srebrenica.
Several years ago, one of my students in my class on the law of genocide and World War II war crimes trials at Cornell Law School was Adisada Dudic, who had spent three years as a child in Bosnian refugee camps with her mother and sisters.
“My home country is destroyed,” Adisada wrote in her paper for my course, “my family members are scattered all over the world, thousands of Bosnian women and girls were raped and ravaged, thousands of Bosnian men and boys were tortured in concentration camps and buried in mass graves, and so many of my people were slaughtered by an enemy hand that was out to get every single person that self-identified as a Bosnian Muslim.”
It is unconscionable and reprehensible for anyone to tell Adisada that the horrors to which her fellow Bosnian Muslims—including members of her own family—were subjected at Srebrenica did not constitute a genocide, just as it is unconscionable and reprehensible for anyone to deny the genocide in which my brother, my grandparents, and millions of other European Jews were annihilated.
Reacting to Churkin’s July 2015 veto of the Srebrenica resolution, Adisada said: “You are basically telling people who watched their loved ones die that the person they buried never existed. That their life never mattered. That kind of insult is what victimizes the survivors to this day—an unapologetic dismissal of their pain. People just want their grief to be acknowledged and for the crime to be called its proper name.”
Recognizing other genocides for what they are in no way diminishes remembrance of the Holocaust. On the contrary, understanding that other racial, ethnic, religious or national groups can be subjected to unbridled hatred and atrocities provides a shared understanding of suffering. When the director of the Johannesburg Holocaust & Genocide Centre shared her family’s Holocaust experiences with a survivor of the Rwandan Genocide, he realized for the first time that there were others in the world who appreciated the enormity of what he had gone through. This is as it should be. Refusing to call a genocide a genocide belittles its victims’ agony.
Just as we remember and commemorate the Holocaust as a genocide, the dead of other genocides, including the Srebrenica Genocide, deserve the dignity and justice of having the enormity of the crimes that took their lives duly recognized by the international community.
Menachem Z. Rosensaft is General Counsel of the World Jewish Congress, and teaches about the law of genocide at the law schools of Columbia and Cornell Universities. He is the editor of the recently published The World Jewish Congress, 1936-2016.