No Evidence Supporting Genocide Finding in ICTY Srebrenica Verdicts - April 6, 2011


Written by: Andy Wilcoxson


The purpose of this paper is to examine the International Criminal Tribunal for the former Yugoslavia’s (ICTY) finding, which was later adopted by the International Court of Justice, that Bosnian-Serb forces committed the specific offense of genocide in the eastern Bosnian town of Srebrenica when they overran the enclave in July of 1995.


The scope of this article is limited to the issue of genocide. Issues of historical context, the scale of the massacre, and crimes other than genocide that may or may not have been committed are important to developing a proper understanding of what occurred in Srebrenica and why it happened, but those issues are not the topic of this article.


The Definition of Genocide


In order to determine whether the evidence supports a finding of genocide, one must first understand what genocide is, and what it isn’t.


Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as follows:


In the present Convention, 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;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.


The ICTY appeals chamber holds that “As a specific intent offense, the crime of genocide requires proof of intent to commit the underlying act and proof of intent to destroy the targeted group, in whole or in part.” [1]


The Popovic trial chamber further elaborated, “What distinguishes genocide is genocidal intent – the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ … The words ‘as such’ underscore that something more than discriminatory intent is required for genocide; there must be intent to destroy, in whole or in part, the protected group.”[2]


The Krstic trial chamber noted that “The victims of genocide must be targeted by reason of their membership in a group. This is the only interpretation coinciding with the intent which characterizes the crime of genocide. The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such.”[3]


It follows that mass killings and extra-judicial executions can not, in and of themselves, be classified as genocide unless the motivation behind the killings is the destruction of the victims’ national, ethnical, racial or religious group as such.


If the victims are targeted for any reason other than their membership in a protected group then the unlawful killing, no matter how widespread it may be, can not accurately be described as “genocidal”.


As the Krstic trial chamber noted, “the Genocide Convention does not protect all types of human groups. Its application is confined to national, ethnical, racial or religious groups.”[4]


Therefore, if the victims of a mass-execution are targeted because of their actual or suspected membership in a military or paramilitary force, and not because of their national, ethnic, racial or religious affiliation, then the killings, no matter how heinous they are, can not be accurately classified as genocide.


The Protected Group in Srebrenica


In Srebrenica, the ICTY has ruled that Bosnian-Muslims are a protected group under the Genocide Convention, and that the specific group targeted for destruction in Srebrenica was the “Bosnian Muslims of Srebrenica” or the “Muslims of Eastern Bosnia”, as “part” of the Bosnian-Muslim people.[5]  


In order for the Tribunal’s finding of genocide to stand-up, it must prove, beyond reasonable doubt, that the victims of the Srebrenica massacre were targeted because they were Bosnian-Muslims, and not for any other reason.


If the massacre victims were targeted because of their real or suspected membership in the Army of Bosnia Herzegovina then the massacre, although still a war crime, wasn’t an act of genocide because the target was the military force, and not the Bosnian-Muslim ethnic group itself.  



The Basis of the ICTY’s Finding of Genocide


In criminal law, there are two types of evidence, direct evidence and circumstantial evidence. The evidence the tribunal relies upon to establish genocidal intent with regard to Srebrenica is circumstantial.[6]


The Popovic trial chamber defines circumstantial evidence as follows: “Circumstantial evidence is evidence of circumstances surrounding an event or an offence from which a fact at issue may be reasonably inferred.” The chamber cautioned that “Where an inference is drawn from circumstantial evidence to establish a fact on which a conviction relies, that inference must be the only reasonable one that could be drawn from the evidence presented.”[7]


The Popovic chamber adopted the reasoning that “‘By its nature, [genocidal] intent is not usually susceptible to direct proof’ because ‘[o]nly the accused himself has first-hand knowledge of his own mental state, and he is unlikely to testify to his own genocidal intent.’ Absent direct evidence, the intent to destroy may be inferred [from other facts and circumstances].”[8]


The Krstic appeals judgment states that “The main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community … The killing of the military aged men was, assuredly, a physical destruction, and given the scope of the killings the Trial Chamber could legitimately draw the inference that their extermination was motivated by a genocidal intent.”[9]


The reasoning employed by the Popovic Trial chamber is almost identical. They held that “It is clear from the evidence that the Bosnian Serb Forces intended to kill Bosnian Muslim able-bodied males from Srebrenica on a massive scale … The Trial Chamber finds that the killing of all of the male members of a population is a sufficient basis to infer the intent to biologically destroy the entire group.”[10]


The Krstic trial chamber conceded that “Only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian Muslims to recapture the territory”[11] thus “The Chamber concludes that the intent to kill all the Bosnian Muslim men of military age in Srebrenica constitutes an intent to destroy in part the Bosnian Muslim group.”[12]


At this point it is prudent to recall the Popovic trial chamber’s admonition, “Where an inference is drawn from circumstantial evidence to establish a fact on which a conviction relies, that inference must be the only reasonable one that could be drawn from the evidence presented.”[13]


Because the Tribunal’s genocide convictions rest on circumstantial evidence, it is worth asking whether the only reasonable inference that can be drawn from the killing of able-bodied military-aged men during an ongoing war is that the perpetrator must have had specific genocidal intent to destroy the victims’ “national, ethnical, racial or religious group, as such”. One has to wonder if that is a reasonable inference at all, let alone the only reasonable one that can be drawn.


Clearly, a more reasonable inference is that the perpetrator intended to destroy actual or potential combatants in order to wipe out enemy resistance and thereby prevail in the ongoing conflict.  If one accepts that as a reasonable inference, then one can not accept that the Tribunal has proved the charge of genocide.


The Tribunal must prove that the victims were targeted specifically because they were Bosnian-Muslims, and not because of their membership in a military force, or for any purpose other than the destruction of the Bosnian-Muslim “national, ethnical, racial or religious group, as such”.


Tribunal Too Quick To Rule Out Military Motive for the Massacre


In order to determine whether the massacre victims were killed because of their ethno-religious affiliation or because of their military status, one must have a clear understanding of who the victims are.


The ICMP has been using DNA extracted from the remains of the massacre victims in order to ascertain their identity. According to their findings, 87.9% of the victims are Muslims and 89.8% are males between the ages of 16 and 60. The same pattern holds true for Muslim men -- about 90% of all identified Muslim men were 16-60 years old.[14]


When evaluating the question of genocidal intent it is noteworthy that, with relatively few exceptions, almost all of the massacre victims are Muslims. Equally noteworthy is the fact that, again with relatively few exceptions, almost all of the massacre victims are men between the ages of 16 and 60.


The significance of men between the age of 16 and 60 is that all of the men between the ages of 16 and 60 in Srebrenica had been drafted.[15]


The Tribunal glosses right over this. The Krstic trial chamber asserted that “The VRS may have initially considered only targeting the military men for execution. Some men from the column were in fact killed in combat and it is not certain that the VRS intended at first to kill all the captured Muslim men, including the civilians in the column. Evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians. Identification papers and personal belongings were taken away from both Bosnian Muslim men at Potocari and from men captured from the column; their papers and belongings were piled up and eventually burnt.”[16]


The Krstic appeals judgment added that “some of the victims were severely handicapped

and, for that reason, unlikely to have been combatants. This evidence further supports the Trial Chamber’s conclusion that the extermination of these men was not driven solely by a military rationale.”[17]


The Popovic “Trial Chamber notes that some young boys, elderly men and the infirm were amongst those killed and that no distinction was made between civilians and military men”[18]  


In support of its claim that no distinction was made between military men and civilians the Popovic Trial Chamber cited evidence that the prisoners “were not asked to give their names, nor were they interviewed by anyone”[19] and that “the members of the Bosnian Serb Forces did not seem to have a list with the names of the prisoners, and at no point during that night [at one of the execution sites] did they ask the prisoners for their names.”[20]


The argument being advanced is that because no effort was made to identify the prisoners, the Bosnian-Serb forces could not have known who was a soldier and who was a civilian. Therefore, the killing must have been done without any consideration of the military status of the victims.


That is specious reasoning. By adopting the same line of reasoning one could argue that because they did not identify the prisoners, the Bosnian-Serb forces could not have known whether they were Muslims or not, and if they didn’t know the ethno-religious affiliation of their victims, they could not have had genocidal intent.


Of course the Bosnian-Serbs knew that the inhabitants of Srebrenica were Muslims; therefore they had to know that the people they captured from Srebrenica were likely to be Muslims. However, Bosnian-Serb knowledge didn’t end there. They also knew that a military draft was in effect in Srebrenica, and that all of the men between the ages of 16 and 60 had been drafted and were likely to be soldiers. They didn’t need to check ID or make a list of prisoners in order to know, with at least some degree of certainty, the ethno-religious affiliation and the military status of their victims.


As stated by the Popovic Trial chamber, it is correct that “some young boys, elderly men and the infirm were amongst those killed,” but it is also correct that they comprise only a small share of the victims, which likely explains why the Krstic and the Popovic trial chambers chose terms like “military aged men” and “able bodied men” to describe the overall group of massacre victims.


The killing of a relatively small group of victims who were not able bodied or military aged does not prove that the military was not the intended target of the massacre. If one adopts that line of reasoning, then one must concede that the relatively small number of non-Muslim massacre victims has to prove that Bosnian-Muslims were not the intended target of the massacre and that genocide was not committed. The reasoning at issue is a double edged sword. It may support an inference of genocidal intent one way, but it refutes it in another and one can’t have things both ways.


Evidence against Genocide


Not only is there no evidence to support the Tribunal’s finding of genocidal intent with regard to Srebrenica, there is good evidence against it. Even the Prosecution’s own experts have testified that “military combatants or potential military combatants” were the intended target of the massacre.


Richard Butler, an expert witness employed by the Office of the Prosecutor testified during the Krstic trial that “people who didn’t qualify as military combatants or potential military combatants were not part of that plan [to execute the prisoners]. One of the unique things that I can use that helps me to support that theory is witness testimony that was brought before the Court earlier where on 13 July in the Sandici meadow, there was an awareness that they were looking to exclude out of the groups of people individuals who were not between the ages of 16 and 60. And that was an awareness by the soldiers at the lowest level.”[21]


Upon entering Srebrenica, the Bosnian-Serb forces did not massacre the Bosnian-Muslim women, children, or the elderly who came under their control. On the contrary, they arranged for them to be sent to safety in Muslim held territory. The Popovic trial chamber noted that “the Bosnian Muslim women, children, and the elderly were transported out of Potocari on buses and trucks, to ABiH-held territory near Kladanj. Each convoy was escorted by [Bosnian-Serb] Bratunac Brigade Military Police or members of the SBP.”[22]


If the Bosnian-Serb forces had intended to destroy the Bosnian-Muslim ethnic group, why would they spare the women, children, and the elderly? There are no other instances of genocide where the perpetrators spared the women and children.


The Krstic Appeals judgment offers speculation that “The decision not to kill the women or children may be explained by the Bosnian Serbs’ sensitivity to public opinion. In contrast to the killing of the captured military men, such an action could not easily be kept secret, or disguised as a military operation, and so carried an increased risk of attracting international censure.”[23]


This is pure speculation on the part of the trial chamber. There are other, far more plausible, explanations for the killing of the military men besides genocidal intent. The military men were combatants against the Bosnian-Serbs in an ongoing war. Clearly, that was the reason why they were targeted for destruction, not because of their ethnic affiliation. If targeting an enemy military force for destruction during an ongoing war constitutes evidence of genocidal intent, then genocide is a component of every war that has ever been fought in human history. It is an utterly ridiculous proposition.


The Krstic defense argued before the ICTY Appeals chamber that the genocide convictions should be thrown out because “the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.” Incredibly, the Appeals Chamber dismissed that argument on the grounds that “The absence of such statements is not determinative. Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.” [24]


The factual circumstances of the crime are that the executions targeted actual and potential combatants from a single town during an ongoing war. In spite of its claims to the contrary, it would seem that the Tribunal does require direct evidence of genocidal intent if its verdicts are to be taken seriously, but alas no such evidence exists.


[1] Krstic Appeal Judgment, Para 20

[2] Popovic Judgment, Para 820, 821

[3] Krstic Judgment, Para 561

[4] Krstic Judgment, Para 554

[5] Popovic Judgment, Para 839, 840 see also Krstic Judgment, Para. 591.

[6] Krstic Appeal Judgment, Para 81

[7] Popovic Judgment, Para 12

[8] Popovic Judgment, Para 823

[9] Krstic Appeal Judgment, Para 26, 27

[10] Popovic judgment, Para 805, 866

[11] Krstic judgment, Para 595

[12] Krstic judgment, Para 598

[13] Popovic Judgment; Para 12

[14] Ewa Tabeau and Arve Hetland, "Srebrenica Missing: The 2007 Progress Report on the DNA-Based Identification by ICMP", Demographic Unit Office of the ICTY Prosecutor, January 11, 2008

[15] Srebrenica War Presidency proclamation ordering the mobilization of the municipality, Popovic trial Exhibit 7D00057

[16] Krstic trial judgment; Para 547

[17] Krstic appeal judgment;  Para 26

[18] Popovic judgment; para 866

[19] Popovic judgment; para 401

[20] Popovic judgment; para 405

[21] Trial testimony of Richard Butler, Krstic trial transcript (July 21, 2000), Pg. 5511

[22] Popovic judgment; Para 332

[23] Krstic Appeals judgment; Para 31

[24] Krstic Appeals judgment; Para 34