Genocide Without Intent: ICTY Expands Legal Definition of Genocide

In a March 19, 2004 decision in the case of Prosecutor vs. Radoslav Brdjanin, the ICTY Appeals Chamber clarified that a person can be found guilty of genocide even though that person does not have a specific intent to destroy an ethnic or religious group in whole or in part. All that is required is that the person enter into a joint criminal enterprise of which genocide is a reasonably foreseeable consequence and it occurs. The decision has important implications for Slobodan Milosevic.

The Court set down the legal rule in a decision overturning a Trial Chamber's acquittal of Radoslav Brdjanin for genocide. The lower court found there was insufficient evidence that Brdjanin, charged for his leading role in ethnic cleansing of the Bosnian Krajina, shared the specific intent to destroy a part of the Bosnian Muslims; therefore, he could not be guilty of genocide. The Appeals Chamber held that was a misstatement of the law and reinstated the genocide charge against Brdjanin.

According to the ICTY statute, genocide occurs when any of a list of specified crimes is committed with the 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.' The list of crimes includes killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. The statute punishes conspiracy, incitement and attempt to commit genocide as well as complicity in genocide and genocide itself.

The Appeals Chamber explained that a person can be held liable for criminal activity through various modes of liability, e.g.g. that of a direct perpetrator (one who kills someone else), as a commander who orders his subordinates to violate the law or fails to prevent or punish their crimes, one who facilitates (aids and abets) the commission of a crime, or as a participant in a joint criminal enterprise, among others. Further, there are three categories of joint criminal enterprise liability, as originally explained in the Tadic case: 1) co-perpetration 'where all participants in a common design possess the same criminal intent to commit a crime' and the crime is committed; 2. active and knowing participation in a system organized to commit a crime, where the crime is committed (a variant of #1); 3) sharing the common purpose of a joint criminal enterprise where crimes not part of that enterprise are foreseeable, and those crimes occur.

In Tadic, the Appeals Chamber applied this rule to the charge of persecution, also a specific intent crime. In Brdjanin, the Chamber has taken it one step further, applying the third category of joint criminal enterprise to genocide. Following this ruling, the Milosevic Trial Chamber applied third category joint criminal enterprise in its recent decision dismissing the Amici Curiae's motion for acquittal on genocide and complicity in genocide. The Court held the Prosecution had produced sufficient evidence to support a finding that the Accused is liable for genocide under either direct genocide liability (which requires shared intent to destroy a part of a group) or third category joint criminal enterprise liability (which requires only foreseeability).

The Appeals Chamber in Brdjanin explained the rule: 'The third category of joint criminal enterprise liability refers to criminal liability of an accused for crimes which fall outside of an agreed upon criminal enterprise, but which crimes are nonetheless natural and foreseeable consequences of that agreed upon enterprise.' It went on to say, 'Where that different crime [which falls outside the agreed crimes] is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4 (2) [murder, causing serious bodily or mental harm, etc.] would be committed and that it would be committed with genocidal intent.'

Denying the Amici's motion for acquittal on genocide and complicity in genocide, the Trial Chamber in the Milosevic case held, '[A] Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a joint criminal enterprise to commit other crimes than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise, and it was committed.'

In other words, Milosevic could be found guilty of genocide even if he did not share the intent of those who perpetrated it. To conclude that he is guilty of genocide under third category joint criminal enterprise liability, the Court must find: 1) two or more persons formed a group to commit a crime, such as forcible removal or deportation; 2) Milosevic was a member of the group and shared their intent to forcibly remove Muslims from certain areas in Bosnia; 3) Milosevic could foresee that other members of the group might commit genocide, in addition to forcible removal; 4) genocide was committed.

The Prosecution will have far less trouble proving Milosevic guilty of genocide under third category joint criminal enterprise liability, than it will establishing his guilt of genocide itself, where they must show he intended the destruction of a part of the Bosnian Muslims.