The Radislav Krstic Judgment of the International Criminal Tribunal for the Former Yugoslavia Essay

Introduction

Srebrenica is located in eastern Bosnia near the border with Serbia and is historically a Muslim enclave. It was also conferred the status of a ‘safe area’ by the United Nations for the purpose of protecting civilians from the armed conflict transpiring around the area of Bosnia and Herzegovina at that time.

Due to Srebrenica’s geographical and strategic importance, its predominantly Muslim population stood in the way of the formation of a larger Serb entity that would include major parts of Bosnia and Herzegovina. Thus, on July 6, 1995, the Bosnian Serb forces, under the command of General Ratko Mladic, executed Operation Krivaja 95 which “was aimed at reducing the “safe area” of Srebrenica to its urban core and was a step towards the larger VRS goal of plunging the Bosnian Muslim population into humanitarian crisis and, ultimately, eliminating the enclave. (Kristic p.40)”

Srebrenica then fell under Serbian control on July 11, 2009, as a result of which thousands of its Bosnian Muslim residents fled to Potocari to seek protection inside the UN compound. Because of the sheer number of refugees and the lack of food and water, the conditions of the people were deplorable. On July 12 and 13, the Serbs began to “ethnically cleanse” the area, and approximately 25,000 Bosnian Muslims, most of them women, children, and elderly, were uprooted and loaded onto overcrowded buses by the Bosnian Serb forces and transported to other territories (Kristic p.16).

The men however were separated and were put in various detention camps. Some of this was done under the guise of screening out war criminals with the reassurance that those found would be traded as prisoners of war (Kristic p.53). However, as a result of this detention, a number of Bosnian Muslims took to the woods in order to join up with the Army of Bosnia Herzegovina (ABiH) in an attempt to go to other Bosnian-Muslim held territory (Kristic p.18). The Bosnian Serb Army (VRS) however was able to capture a good number of them.

The killings of Bosnian Muslims began individually and in small groups, but then escalated to large-scale execution on July 13, 1995. These organized executions occurred in different areas and usually began by detaining the men in empty warehouses or schools and then transporting them to isolated execution sites where they were lined up and shot. It is estimated that around 7,000 to 8,000 unarmed prisoners were executed within the space of a few days (Kristic p.1).

The Drina Corps was the specific subunit of the VRS that was tasked with handling the situation in Srebrenica. It was originally formed in November 1992, with the specific objective of “improving” the situation of Bosnian Serb people living in the Middle Podrinje region, to which Srebrenica belonged (Kristic p.32). Subsequently, it was found that all the crimes in Srebrenica had occurred in areas controlled by the Drina Corps.

The accused Radislav Krstić was a General-Major in the VRS. He also was a member of the VRS Main Staff (Drumbi 1) and had been appointed commander of the Drina Corps by Radovan Karadžić, the President of the Republica Srpska and Supreme Commander of the VRS. He was also known to have been present in the meetings held at Hotel Fontana in which General Mladic, in front of representatives from the UN and the Bosnian Muslim community, intimidated the latter into agreeing with the plan to transport the refugees to other territories (Kristic p.44). Because of this command responsibility and presence at critical times, Krstic was charged with genocide and crimes against humanity before the International Criminal Tribunal for the former Yugoslavia

Indictment

There are two sets of crimes attributed to General Krstic and various other perpetrators:

1. “The humanitarian crisis and crimes of terror committed at Potocari and the subsequent forcible transfer of the women, children and elderly; and,
2. The mass executions of the military age Muslim men from Srebrenica (Kristic par 606).”

General Krstic was charged with genocide or alternatively, complicity to commit genocide; “crimes against humanity, including extermination, murder, persecution and deportation or, alternatively, inhumane acts such as forcible transfer and murder, as a violation of the laws or customs of war” (ICTY Statute Art 7). Responsibility was attributed to him for these acts as a result of his individual participation (ICTY Statute Art 7) including joint criminal enterprise, and also through command responsibility (ICTY Statute Art 7 par 2) because, allegedly, troops under his command were involved in the crimes.

Criminal Responsibility

First, the prosecution proposed that General Radislav Krstic is liable directly for the abovementioned crimes. Jurisprudential pronouncements state that liability may be attributed to the perpetrator who has participated in, or performed, the following:

1. planning;
2. instigating;
3. ordering;
4. committing;
5. aiding and abetting.

Thereafter, it was proposed that he is liable through “joint criminal enterprise.” This was defined as a form of criminal responsibility that entails individual responsibility for participation in a joint criminal enterprise to commit a crime (Tadic par 185-229 and Brdanin et al.) It is implicitly included in Article 7(1) of the Statute (Kristic par 601)

Finally, the prosecution also alternatively proposed that Krstic is liable under command responsibility pursuant to Article 7(3) of the Statute (ICTY).

Individual and Joint Criminal Responsibility

As to the allegation of joint criminal enterprise, citing the decision of the Appeals Chamber in Prosecutor v. Tadic, the following were the determined requisites for the existence of a “joint criminal enterprise:”

1. “A plurality of persons;
2. The existence of a common plan, which amounts to, or involves the commission of, a crime provided for in the Statute;
3. Participation of the accused in the execution of the common plan, otherwise formulated as the accused’s “membership” in a particular joint criminal enterprise (Tadic par 43).”

As to the second requisite Tadic further specified that: “[T]here is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialize extemporaneously and be inferred from the fact that a plurality of persons acts in unison to puts into effect a joint criminal enterprise. (Tadic par 227)”

Was the men’s rea of this particular form of responsibility existing in General Krstic’s case? The Chamber ruled in the affirmative.

As evidenced by the testimonies and other proofs presented, the meeting in Fontana became the crucial point from which liability under “joint criminal enterprise” can be tackled. Here, General Mladic echoed the objective of President Karadzic who believed that “plunging the Bosnian Muslim residents into a humanitarian crisis was an integral component of the long-term VRS strategy for Srebrenica (Kristic par 120).”

The findings indicate that the “joint criminal enterprise” involves the first objective which was to forcibly transfer Muslim civilians out of Srebrenica, implemented on the 12th and 13th of July that year. These also show that General Krstic intended to commit acts pursuant to these when he actively participated in the fulfillment of these objectives. For example, on 12 July 1995, General Krstic ordered: (1) that buses be procured; (2) that the buses must carry the civilians from Potocari; (Kristic par 606) and (3) that the road from Luke to Kladanj up to the tunnel where the people were to disembark should be quarantined or cordoned off (Kristic par 340-344).

It was further resolved that those acts such as murder, rape, beatings, and abuses, although not contemplated in the Fontana meeting, are actually necessary consequences of the primary objective. Pertinently the Chamber opined that “there is no doubt that these crimes were natural and foreseeable consequences of the ethnic cleansing campaign (Kristic par 616). This is pursuant to the doctrine put forth in the Tadic Appeal decision that differentiated the treatment between those objectives agreed upon and those that are not agreed upon but come about as natural and necessary consequences of the objectives stating thusly: “If the crime charged fell within the object of the joint criminal enterprise, the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime. If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness, he participated in that enterprise” (Tadic par 228).

The Chamber observed the circumstances that evidenced the awareness of these natural and necessary consequences by stating: “General Krstic must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and the sheer lack of sufficient numbers of UN soldiers to provide protection.” In fact, on 12 July, the VRS organized and implemented the transportation of the women, children, and elderly outside the enclave; General Krstić was himself on the scene and exposed to firsthand knowledge that the refugees were being mistreated by VRS or other armed forces.

The Chamber found General Krstic guilty as a member of a joint criminal enterprise with the aim “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 endeavor by causing the Srebrenica residents to flee to Potocari where a total lack of food, shelter, and necessary services would accelerate their fear and panic and ultimately their willingness to leave the territory.” General Krstić thus incurs liability also for the incidental murders, rapes, beatings, and abuses committed in the execution of this criminal enterprise at Potocari.”

Command Responsibility

The aggravating circumstance of command responsibility was laid on the accused because the incidents of July 1995 imputed as genocide occurred solely, as previously mentioned, in the territory controlled by the Drina Corps of which the accused was first Chief of Staff and subsequently, Commander-in-Chief.

Citing various case laws (Blaškic Judgement, par. 294 and Kunarac et al. Judgement, par 395), the Chamber enumerated the requirements that should concur for command responsibility to exist as a means of incurring criminal liability. The elements are the following:

• The existence of a superior-subordinate relationship;
• “The superior knew or had reason to know that the criminal act was about to be or had been committed” (Ibid.); and,
• The superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

To clarify, the Trial Chamber added that it adheres “to the belief that where a commander participates in the commission of a crime through his subordinates, by “planning”, “instigating” or “ordering” the commission of the crime, any responsibility under Article 7(3) is subsumed under Article 7(1).” (Kristic Par 605 also Kayishema and Ruzindana Judgement, par. 223 and Blaškic Judgement, par. 337).

At first, the Defense interposed that Krstic had no knowledge of the “humanitarian crisis” that led to the evacuation of the Bosnian Muslims and their maltreatment. However, the Chamber ruled that the facts evince that General Krstic had knowledge of just such a “humanitarian crisis” at Potocari. The Trial Chamber concluded that based on the evidence presented, Krstic was present at the July 11 and July 12 meetings (Kristic Par 609) that involved the discussions and planning to meet the objective of driving away from the Bosnian Muslims.

Liability for Genocide

General Krstic was charged with genocide and, alternatively, complicity in genocide. The main allegation of criminal acts involves the mass executions of the Bosnian Muslim men in Srebrenica within the period starting from 11 July 1995 until 1 November 1995.

The pertinent provision is Article 4(2) of the ICTY Statute which states that genocide is committed by:

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

1. killing members of the group;
2. causing serious bodily or mental harm to members of the group;
3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. imposing measures intended to prevent births within the group; and,
5. forcibly transferring children of the group to another group” (ICTY Statute, also Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948)

Genocide is characterized by two constitutive elements: the actus reus or the acts committed and the men’s rea or the genocidal intent.

The Trial Chamber, as proven by the prosecution, found that there were not only numerous abuses against the Bosnian Muslims but that there were mass executions as well. Those who did not die suffered further abuse. These facts were proven through the testimonies of survivors, statements of the people involved, images, and the like. The question remains: Was the requisite men’s rea existing?

There is a particular intent required in the crime of genocide. It is “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (ICTY Statute Art 4 and Rome Statute Art 6).”

Defendant interposed the defense that there was no such genocidal intent even though they do not deny the mass killings. The position of the Defense is unmeritorious. “All of the executions systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers.” The Bosnian Muslims were specifically segregated in the guise of looking for ‘potential war criminals,’ However, these Bosnian Muslims, whose numbers extended to the thousands, were massacred.

The Chamber pertinently made the following observations

“The military-aged men who fled to Potocari were systematically separated from the other refugees. They were gathered in the ‘White House’ and were forced to leave their identification papers and personal belongings outside the house. While opportunistic killings occurred in Potocari on 12 and 13 July, most of the men detained in the White House were bussed to Bratunac, from the afternoon of 12 July throughout 13 July, and were subsequently led to execution sites. Additionally, the VRS launched an artillery attack against the column of Bosnian Muslim men marching toward Tuzla soon after it became aware of its existence. A relentless search for the men forming the column started on 12 July and continued throughout 13 July. The few survivors qualified the search as a ‘man hunt’ that left hardly any chance of escape. At 1203 hours, on 14 and 15 July, the attack resumed against the third of the column that had managed to cross the asphalt road between Konjevic Polje and Nova Kasaba on 11-12 July. As the pressures on the VRS mounted during the fatal week of 11-16 July, negotiations were undertaken between the Bosnian Muslim and Bosnian Serb sides and a portion of the Bosnian Muslim column was eventually let through to government-held territory. The most logical reason for this was that most of the VRS troops had been relocated by this time and, due to lack of manpower to stop the column, the Zvornik brigade was forced to let them go.

Overall, however, as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing” (Kristic par 43-47, 58, 59, 62, 65, 66, 83, and 85).

The defense again interposed that the intent to kill certain age groups of Bosnian Muslims did not show intent to kill.

The Chamber ruled in the manner set forth hereunder. The gravity of the crime of genocide usually entails more than one perpetrator. Hence it is important to emphasize that the individual motives of each perpetrator may differ yet the determinative factor as to the existence of the men’s rea of genocide is the collective criminal enterprise.

Genocide is “a denial of the right of existence of entire human groups” (United Nations General Assembly resolution 96 (I). “The group itself is the ultimate target or intended victim of this type of massive criminal conduct. [T]he intention must be to destroy the group ‘as such’, meaning as a separate and distinct entity.” (ILC Draft Code, p. 88). For example, murder of a single individual may constitute genocide if the crime was done with the intent or for the furtherance of the objective to destroy in whole or in part the group to which the murder victim belongs (Akayesu Judgement, par. 522; See also Kayishema, Ruzindana Judgement, par. 99). According to the Chamber, this is the reason why genocide is such an “exceptionally grave crime.”

To distinguish this from persecution, where a victim is abused because of his membership in a particular group, the perpetrator and abuser does not have the specific intent of destroying the group wholly or partially, but simply singles out an element because of such membership (Kupre Judgement par. 636 and Jelisi Judgement par. 79).

How are the victims singled out as a group sought to be destroyed? Referring to other jurisprudential doctrines, the Chamber observed that the criterion is the “stigmatization of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics” (Nikoli par. 70).

Here the Chamber found from the evidence that the Bosnian Muslims were singled out by existing stigmatization against them. The Chamber concluded that their group was identified not geographically but simply by the fact that they are “Bosnian Muslims.”

In summary, the Trial Chamber found General Krstic guilty of genocide because the following was established:

1. The factual antecedents that proved the massacres and systematic abuses against the Bosnian Muslims;
2. The intent as inferred from the singling out of the Bosnian Muslims coupled with the objective to create a “humanitarian crisis” to drive them away; and,
3. The participation of Krstic as commanding officer in the July incidents.

His criminal liability was classed under a) individual criminal responsibility through the orders that he issued and his failure to address the sufferings caused by the military against the Bosnian Muslims; and, b) command responsibility, considering also the joint criminal enterprise existing between and among his co-perpetrators.

References

Prosecutor v. Radislav Krstic (Trial Judgement), International Criminal Tribunal for the former Yugoslavia (ICTY), 2001, Web.

Prosecutor v. Radislav Krstic (Appeal Judgement), IT-98-33-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 2004, Web.

Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 1999, Web.

Prosecutor v. Radoslav Brdjanin (Trial Judgement), IT-99-36-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 2004, Web.

Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 2000, Web.

Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 2001, Web.

The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International Criminal Tribunal for Rwanda (ICTR), 1999, Web.

The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 1998, Web.

Prosecutor v. Momir Nikolic (Sentencing Judgement), IT-02-60/1-S, International Criminal Tribunal for the former Yugoslavia (ICTY), 2003, Web.

Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Rome Statute a.k.a. Statute of the International Criminal Court.

ILC Draft Code pp.88.

UN GA Resolution 96.

Convention on the Prevention and Punishment of Genocide 1948.