Milosevic's Guilt: Proven or Not? The Law Part III - Genocide & Complicity in Genocide

Genocide is a unique crime under Tribunal jurisprudence. It is a crime committed against a group. Individuals are targeted solely because they are part of the group. Killing, sexual violence including rape, torture, interrogations with beatings and threats of death, inhumane or degrading treatment, as well as starvation, expulsion from homes and denial of medical treatment are some of the underlying acts that can be used to commit genocide. Most notably, the thing that sets genocide apart from most other crimes is the requirement that the ones perpetrating it have a specific intent to destroy, in whole or in part, a national, racial, religious or ethnical group. It is not enough to show that the perpetrators intended to kill members of an ethnic group, for example. The prosecutor must show their intention was to destroy the group – in whole or in part.

In pertinent part, the ICTY Statutory section on genocide (Article 4) reads as follows:

1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
2. 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 . . . .
3. the following acts shall be punishable:
a. genocide
. . .
e. complicity in genocide

A recent Trial Chamber decision (Stakic) provided an analysis of the crime of genocide, concluding in that case there was insufficient proof that a genocidal campaign existed in Prijedor. In its decision, the Court discussed the underlying acts that might constitute genocide where special intent to destroy is proven. “Killing”, it said, must be intentional, but not necessarily premeditated. “Causing serious bodily or mental harm” means acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury. “The harm need not be permanent and irremediable.”

The acts envisaged by part c) – “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” -- include, but are not limited to, methods of destruction apart from killings such as subjecting the group to a subsistence diet, systematic expulsion from homes and denial of the right to medical services. Also included are situations that would lead to a slow death, such as “lack of proper housing, clothing and hygiene or excessive work or physical exertion.” Finally, the Court reminded the parties that “cultural genocide” was excluded from the Genocide Convention, which is the basis for the ICTY genocide provision. Moreover, neither deportation nor dissolution of a group is sufficient to constitute the type of destruction contemplated by the law.

Returning to identification of a group, the ICTY has held that “There is no numeric threshold of victims necessary to establish genocide.” Nevertheless, the phrase that has caused jurists the most trouble is “destruction of a group in whole or in part.” Both the ICTY and the ICTR (International Criminal Tribunal for Rwanda) have held that an intention to destroy a part of a protected group that resides within a limited geographical area is sufficient for genocide. The Stakic Court, in following that interpretation, noted that it did so “with some hesitancy.” “The Trial Chamber is aware that this approach might distort the definition of genocide if it is not applied with caution,” the Stakic court concluded.

The Trial Chamber in Krstic found that an intent to destroy the Bosnian Muslim males of military age in the Srebrenica municipality qualified as genocidal intent. The issue is before the Appeals Chamber. The Stakic Court concluded, “The Trial Chamber notes that according to the jurisprudence of this Tribunal, the intent to destroy a group may, in principle, be established if the destruction is related to a significant section of the group, such as its leadership.'

Importantly, the Stakic Court maintained that “It is generally accepted, particularly in the jurisprudence of both this Tribunal and the Rwanda Tribunal, that genocidal dolus specialis (specific intent) can be inferred either from the facts, the concrete circumstances, or ‘a pattern of purposeful action.’” In other words, the perpetrators need not verbally express an intent to destroy all Bosnian Muslims in a particular municipality or region. It may be sufficient that a large number are killed, others are imprisoned under conditions that make survival difficult, the homes, food, crops, animals and other means of making a living are destroyed, leaving people who have not been killed or imprisoned with no means of survival.

Just as genocide is a crime against a group, it is a crime generally perpetrated by more than one individual, including perpetrator(s) at the policy or command level. In the Milosevic case, for example, the Accused has been charged with “committing” genocide by means of his participation in a joint criminal enterprise. Under the ICTY statute, the purpose of the JCE must be destruction of a protected group in whole or in part. Those involved in the JCE as co-perpetrators must share the same genocidal intent. As the Stakic Court made clear, it is not enough that genocide is a natural and foreseeable consequence of a different common purpose, e.g. ethnic cleansing.

A harder question is whether a superior can be held liable for genocide committed by his subordinates. At a minimum, the prosecution would have to establish that the superior knew that his subordinates were planning or about to commit genocide. His failure to do anything to stop them could make him a co-perpetrator. In this situation, his omission to act arguably shows his intent that the crime be carried out. It is unlikely a superior could be held responsible solely for failure to punish genocide that he learns about after the fact, because he would lack the specific intent necessary to commit the crime.

For Milosevic to be convicted of genocide, therefore, the prosecution must establish that genocide occurred. Based on its theory of joint criminal enterprise, it must establish that genocide was at least one purpose of the JCE and that participants (co-perpetrators of the JCE) shared that purpose. It is a high standard to meet.

Milosevic has also been charged with complicity in genocide. To find him guilty on this charge, genocide must still be proved, but the prosecution need not prove that Milosevic shared the genocidal intent of the principal perpetrators of the crime. It is sufficient to show that he was aware of the genocidal intent of the principal perpetrators or co-perpetrators. In complicity, his role is one of an aider and abettor. “Aiding and abetting genocide refers to ‘all acts of assistance or encouragement that have substantially contributed to, or have had a substantial effect on, the completion of the crime of genocide.’”

If the Appeals Chamber ultimately rules in the Krstic case that genocide did not occur in Srebrenica, it could affect a finding in the Milosevic trial, which will be bound by the law as interpreted by the Appeals Chamber. Without additional facts than those presented in Krstic, a genocide conviction for Srebrenica would be foreclosed to the Milosevic court, as would a conviction for complicity, since there can be no complicity in genocide unless genocide has occurred.

Unlike Krstic, however, Milosevic has been charged with genocide over a broader area, including Srebrenica, Bijeljina, Bratunac, Sarajevo and Zvornik. Because of time limitations, the Prosecution decided not to present proof of genocide involving twelve additional municipalities which were included in this indictment. It is not totally clear from the indictment whether the Prosecution considers these municipalities representative of a wider genocide throughout Bosnia or whether it considers that only the Bosnian Muslims in the named municipalities were targeted for genocide. Given the pending appeal of the geographic application of genocide in the Krstic case, the difference may prove significant. At present, there is no indication when the Appeals Chamber might issue its decision in the Krstic case.

A closer reading of the indictment supports the view that the Prosecution has not alleged a series of separate genocides in the named municipalities, but is treating them as emblematic of a genocidal campaign against the Bosnian Muslims. With reference to the named groups, the indictment provides, 'The destruction of these groups was effected by: . . . The widespread killing of thousands of Bosnian Muslims . . . during and after the take-over of territories within Bosnia and Herzegovina, including those listed above . . . .' [emphasis added] The manner of carrying out genocide is alleged to have included targeting educated and leading members of the group for execution, executing almost all captured Bosnian Muslim men after the fall of Srebrenica, killing thousands and causing serious bodily and mental harm to thousands of Bosnian Muslims during their confinement in detention facilities, continuously subjecting detainees to inhumane acts, such as murder, sexual violence, torture and beatings, or forcing them to witness them, and detaining thousands of Bosnian Muslims 'under conditions of life calculated to bring about the partial physical destruction of those groups, namely through starvation, contaminated water, forced labour, inadequate medical care and constant physical and psychological assault.'

Under this indictment, the above crimes and their widespread nature, if proven, are not only evidence of how genocide was carried out but evidence that what was done was in fact genocide.