Landmark Krstic Verdict

Wednesday, 9 November, 2005

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Ana Uzelac

Relatives of thousands of Muslims executed after the fall of Srebrenica had waited for it with a mixture of expectation and dread - a court ruling that at last left no doubt about what happened after the capture of the enclave almost nine years ago.

“The appeals chamber.. calls the massacre at Srebrenica by its proper name: genocide,” presiding judge Theodore Meron said on April 19, delivering the final verdict in the case of Bosnian Serb general Radislav Krstic, whose troops rounded up men and boys from the enclave and took part in some of the subsequent executions of the captives.

It was the first time since the Nuremberg trials that a case of genocide on European soil had been established by an international court - the historical context brought out even stronger by the fact that the judge who read out the verdict was himself a Holocaust survivor.

In Sarajevo, a wife of an Srebrenica victim watched the news on the TV. “I was so relieved,” Zumra Sehomirovic told IWPR. “There are no doubts anymore: what happened to us then was a genocide.”

But when Meron finished delivering the verdict, the mood among the Srebrenica survivors was one of disappointment. Krstic, initially convicted of being a part of joint criminal enterprise to commit genocide, was now found guilty of only “aiding and abetting” the crime - his sentence accordingly cut from 46 to 35 years imprisonment.

“That was far less satisfying,” Sehomirovic said. “But still… nobody can call Srebrenica any other way anymore.”

The appeals chamber verdict is possibly the most important sentence so far delivered by the Hague tribunal. The judges have confirmed that the events of Srebrenica amounted to genocide, and spelled out in painstaking details the distinction between committing the crime and aiding and abetting it.

These two elements of the verdict are setting new standards of proof for the most serious crime under the tribunal’s jurisdiction, and enriching current jurisprudence on genocide, scholars agree.

The Krstic verdict could also significantly influence a number of other trials at the Hague court, most significantly that of former Yugoslav president Slobodan Milosevic, with observers suggesting that he may now find it harder to escape some sort of genocide conviction.

“This is a landmark case, which not only confirms the genocide charges for Srebrenica, but also deepens the legal understanding of the issue,” Eric Markusen, genocide scholar and senior researcher at the Danish Institute for International Studies, told IWPR.

“Just like murder can have many forms, and still be considered murder, genocide can also come in different forms, ranging from killing seven thousand men in the course of a few days, like happened in Srebrenica, to the nearly one million killed in Rwanda or the six millions that perished in the Holocaust.”

Some 7000 Muslim men and boys are believed to have been murdered in the days following the Serb takeover of the town on July 11, 1995. Many, like Zumra Sehomirovic’s husband, were separated from their families. They were told that they were being “screened” for involvement in war crimes, but they were never to be seen again.

Other male inhabitants of the town tried to escape, forming columns and marching through thick woods on the outskirts of Srebrenica in a bid to reach Muslim-controlled territory. Parts of Krstic’s Drina Corps helped round them up. Almost all of those it caught were later executed. The killings continued until July 19.

The Krstic defence team had argued that it was inaccurate to describe the expulsions and killings at Srebrenica as genocide because the number of victims did not warrant such a charge.

But the appeals chamber rebutted the claim, saying that although the population of Srebrenica “constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, [its] importance is not captured solely by its size….Because most of the Muslim inhabitants of [eastern Bosnia] 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.”

The defence also claimed that no genocide happened, because the Bosnian Serb army only targeted men of military age, and not women and children.

The appeals chamber, however, was not impressed by the argument, “The massacred men amounted to about one fifth of the overall Srebrenica community,” the judges said. “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 in Srebrenica.”

But while establishing that Srebrenica was genocide, the judges overturned the conviction of Krstic on charges of planning and committing genocide.

Analysing again the mountain of evidence presented at his trial, including testimonies, documents, videotapes and telephone intercepts, the judges failed to find enough proof of Krstic’s genocidal intent.

The judges, however, acknowledged that the genocide had been planned by some members of the Bosnian Serb high command, but stopped short of naming them.

The army chief, Ratko Mladic, had been charged with genocide in connection with Srebrenica, but is still at large.

As for Krstic, the judges concluded that he knew that without the Drina Corps, the Bosnian Serb army leadership “would not have been able to implement its genocidal plan”. Therefore, they said, “the criminal liability of Krstic is more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator”.

This part of the verdict initially provoked harsh criticism from some tribunal watchers, and one dissenting appeals chamber opinion. Judge Mohamed Shahabuddeen of Guyana said that from his understanding of the evidence, Krstic’s behaviour amounted to much more than just “aiding an abetting”.

The verdict, at the same time, has also added to the debate of whether senior army figures should be tried for individual or command responsibility for genocide. Had Krstic been charged with the latter, he may have been found guilty, as he needed simply to have known about his subordinate's intentions and done nothing to prevent them, said Ewen Allison, consultant in international humanitarian law and an attorney in Washington

But other scholars think the judges’ strict division between organisers and aiders and abettors of the Srebrenica massacre may yet turn out to be the biggest single contribution of the Krstic verdict to genocide jurisprudence.

“The problem with genocide is that there are usually relatively few direct perpetrators and active killers, and many more aiders and abettors,” said Eric Markusen. “And now the tribunal has both made it clear where the border lies between committing and aiding and abetting a genocide, and also made it clear that aiding and abetting is a severely punishable form of individual responsibility.”

“The message that the appeals chamber has sent out is that you can be individually responsible for genocide by aiding and abetting even if you did not share the genocidal intention,” Paul Seils, senior analyst with the New York-based International Centre for Transitional Justice, ICTJ, told the IWPR. “You can’t say anymore, 'I was just doing my job and although I knew the people I aided were committing genocide, I am not guilty'."

In this way, says Seils, “the door has been closed on escaping responsibility for genocide” for all those charged with it - both in connection with the Srebrenica massacres as well as with other atrocities in the Yugoslav wars. Seils said that from what has been presented in court so far in the Milosevic trial, it was obvious the defendant was in a position where he either planned and directed crimes or knew about them and failed to intervene.

“This could be classified as a command responsibility [for or] aiding and abetting genocide – something that after the Krstic verdict becomes easier to envisage,” he said.

In being found guilty of aiding and abetting, Krstic’s sentence was commuted. For the 56-year-old general, this means that he may not die behind bars - something that has angered Srebrenic survivors who supported the prosecutor’s demand for a life sentence.

“Life sentence would be more fair,” Sehomirovic said. “After all, we are also sentenced to carry our loss with us for the rest of our lives.”

Ana Uzelac is IWPR project manager in The Hague.