Srebrenica as genocide? The Krstic decision and the language of the unspeakable.

• Author: Southwick, Katherine G.
• Position: Radislav Krstic

In August 2001, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down the tribunal's first genocide conviction. In this landmark case, Prosecutor v. Radislav Krstic, the trial chamber determined that the 1995 Srebrenica massacres--in which Bosnian Serb forces executed 7,000-8,000 Bosnian Muslim men--constituted genocide. This Note acknowledges the need for a dramatic expression of moral outrage at the most terrible massacre in Europe since the Second World War. However, this Note also challenges the genocide finding. By excluding consideration of the perpetrators' motives for killing the men, such as seeking to eliminate a military threat, the Krstic chamber's method for finding specific intent to destroy the Bosnian Muslims, in whole or in part, was incomplete. The chamber also loosely construed other terms in the genocide definition, untenably broadening the meaning and application of the crime. The chamber's interpretation of genocide in turn has problematic implications for the tribunal, enforcement of international humanitarian law, and historical accuracy. Thus highlighting instances where inquiry into motives may be relevant to genocide determinations, this Note ultimately argues for preserving distinctions between genocide and crimes against humanity, while simultaneously expanding the legal obligation to act to mass crimes that lack proof of genocidal intent.

1. INTRODUCTION

   Even those unfamiliar with the conflict that consumed the former Yugoslavia in the 1990s have heard of Srebrenica. If nothing else, the word "Srebrenica" carries a pall of tragedy. Uttered with a mixture of historical import and regret, it has become a euphemism for unspeakable events.

   Only a court of law could provide the detachment necessary to examine the facts of what occurred near the small town in southeastern Bosnia-Herzegovina in July 1995. The United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 to prosecute serious violations of international humanitarian law in the region since 1991. (1) In an August 2001 decision, Prosecutor v. Radislav Krstic, one of the tribunal's three trial chambers set forth a comprehensive account of the tragedy. The chamber found that following the takeover of the town, Bosnian Serb forces executed between 7,000 and 8,000 military-aged Bosnian Muslim men. (2) In addition, the Serb forces transported away from the area nearly all the Bosnian Muslim women, children, and elderly. (3) Finding that these actions resulted in "the physical disappearance of the Bosnian Muslim population at Srebrenica," (4) the trial chamber concluded that the Serb forces had committed genocide. For his involvement in the killings, Radislav Krstic, the Serb officer on trial, was sentenced to forty-six years imprisonment, one of the longest sentences imposed by the tribunal, (5) though the ICTY Appeals Chamber reduced the sentence to thirty-five years in April 2004. (6) Although the Genocide Convention came into force in 1948, this was the first-ever conviction by the ICTY for "the crime of crimes." (7) On April 19, 2004, the ICTY Appeals Chamber affirmed the trial chamber's finding that genocide occurred at Srebrenica. (8)

   This Note concerns a court's effort to find words to confer meaning on unspeakable events. Naming the crimes and ascertaining criminal responsibility, as the Krstic trial chamber was tasked to do, (9) are important to allaying some of the survivors' enduring anguish and expressing international moral outrage. This process also seeks to generate legal precedent that will guide future conduct in war. As Judge Patricia Wald, a former ICTY judge, states, "It is only by accretion of case law interpreting ambiguous parts of treaties or 'customary law' that coherent, consistent and predictable norms of international humanitarian law are established that can govern the future behavior of leaders in war time." (10) By applying words to the unspeakable, to "events [that] ... defy description in their horror," (11) the Krstic decision, like all cases at the ICTY, sought to render justice to the victims, create precedent to deter similar events, and promote reconciliation in the former Yugoslavia. (12)

   On close examination, however, the Krstic decision is problematic, suggesting that the good intentions behind prosecuting crimes of mass violence should be subject to certain constraints. While the conviction of Krstic himself invites a thorough study, (13) this Note primarily seeks to examine the court's legal finding that the Srebrenica massacres constituted genocide. This Note proposes that the trial chamber's application of genocide to the events at Srebrenica, while plausibly consistent with some aspects of genocide law, was flawed.

   According to the International Law Commission, "the distinguishing characteristic" (14) of the crime of genocide is the element of specific intent, which requires that certain acts be "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (15) By excluding consideration of the perpetrators' motives for killing the military-aged men, such as seeking to eliminate a military threat as the defense alleged, the Krstic chamber's standard for establishing specific intent to destroy the Bosnian Muslims, in whole or in part, was incomplete. In addition, stretching the meaning of certain terms in the definition, such as a group "in part" and "destroy," also suggests a misapplication of the word "genocide." In effect, adopting an interpretation of genocide that cannot and will not be universally applied, the chamber untenably broadened the meaning of the term. To the extent that this landmark finding influences modern interpretations of genocide, crimes against humanity, and war crimes, this Note proposes that limiting the finding to crimes against humanity--thus maintaining clearer distinctions between these sets of crimes--would have better served the authority of the international tribunal, the development of international humanitarian law, and the capacity of other states to comprehend and respond effectively to future instances of mass violence.

   This Note is divided into five parts. Based on the factual findings of the trial chamber, the second Part contains a background description of the Yugoslav war and events leading up to the takeover of the southeastern Bosnian town of Srebrenica. The third Part critically analyzes the chamber's application of Article 4 to the events in Srebrenica in July 1995, arguing that the chamber's reasoning problematically distorts the meanings of intent, a group "in part," and "destroy" in the genocide definition. The fourth Part develops the implications of the genocide finding in Krstic for the international tribunal, humanitarian law, the security policies of international organizations and foreign governments, and broader concepts related to the nature of suffering and historical accuracy. Finally, in the fifth Part, this Note argues for a more restricted application of the genocide definition so as to preserve distinctions between genocide and crimes against humanity, thus encouraging standards of interpretation that may be more universally and fairly applied. Simultaneously, a legal obligation to act should be expanded to crimes against humanity. These distinctions, along with expanded obligations, will best serve the practical and principled goals of international criminal and humanitarian law.

2. BACKGROUND OF EVENTS AT SREBRENICA

   In order to assess the chamber's application of law to the Srebrenica atrocities, it is important to situate the takeover of Srebrenica within the Yugoslav conflict. The war involved the breakup of the Socialist Federal Republic of Yugoslavia, which existed from 1945 until 1990. During this half-century, Yugoslavia was made up of six republics: Bosnia and Herzegovina (Bosnia), Croatia, Macedonia, Montenegro, Serbia, and Slovenia. While one ethnic group predominated in most of these republics--the Slovenes in Slovenia, the Croats in Croatia, and the Serbs in Serbia, for instance--Bosnia was distinctly multi-ethnic. Before the 1990s war, the republic was forty-four percent Muslim, thirty-one percent Serb, and seventeen percent Croat. (16) Though Muslims, Serbs, and Croats are all ethnic Slavs, (17) their religious and cultural differences, in addition to historical periods of inter-group strife (one of the most bitter of which came to pass during the Second World War (18)), have served to reinforce separate group identities.

   The forty years of relative stability created by Marshal Tito's emphasis on state unity (19) began to crumble in the late 1980s, when an economic crisis, combined with the general decline of Eastern European communism, intensified nationalism and subsequent separatism among the republics, especially in Serbia, prompting other republics to declare independence. In spite of international recognition of the Yugoslav republics' newly drawn borders in 1991 and 1992, a struggle for territorial control ensued among the Muslims, Serbs, and Croats in Bosnia. Fighting was particularly fierce between the Bosnian Serb forces (VRS) and the Army of Bosnia-Herzegovina (ABiH) in the eastern part of the republic, close to Serbia. (20)

   Srebrenica sits in the Central Podrinje region of eastern Bosnia, just fifteen kilometers from the Serbian border. This was an area of significant strategic importance for the Bosnian Serbs, who sought "to eliminate the Drina River as a border between 'Serb states.'" (21) As a military expert for the defense stated during the Krstic trial, "Without the area of Central Podrinje, there would be no Republic Srpska, there would be no territorial integrity of Serb ethnic minorities; instead the Serb population would be forced to accept the so-called enclave status in their ethnic territories." (22) In order to...