‘In Case of Genocide’: Defining Genocide
at the ICTY
Elisa Asscheman
Abstract. This article gives an overview of the problems that were encountered at the ICTY during
genocide prosecutions, due to the definitional debates on the concept of genocide. On the hand of
prominent definitions the core issues of the definitional debate will be analyzed. With the help of
primary sources from the International Criminal Tribunal of the former Yugoslavia the influences of
these debates and of the Genocide Convention will be discussed. The first part of this article outlines
the historical development of the concept of genocide. The second part will be focused on the
Yugoslavia tribunal and the effects of the trials on the definitional conundrum.
Final essay, Criminal Minds: A Cultural History of Crime and Punishment, Research seminar III
Elisa Asscheman: 3503895
23 January 2012
Supervisor: Dr. W. Ruberg
0
TABLE OF CONTENTS
Introduction
2.
1. What is genocide?
4.
1.1 Lemkin’s definition
4.
1.2 UN Genocide Convention
5.
1.3 Conceptual debates
6.
1.3.1 Annihilation
7.
1.3.2 Intent
8.
1.3.3 Mode of destruction
9.
1.3.4 Agent of destruction
10.
1.3.5 Victim group
10.
1.4 Chapter conclusion
2. The ICTY and its conflicting jurisprudence
11.
12.
2.1 Statute
12.
2.2 ‘Crimes against humanity’ versus ‘Genocide’
13.
2.3 ‘Complicity in Genocide’ versus ‘Aiding and Abetting Genocide’
15.
2.4 Chapter conclusion
15.
3. Genocide prosecutions at the ICTY
17.
3.1 Goran Jelisić – the ‘Serb Adolf’
17.
3.2 Radislav Krstić – the ‘Pioneer’
19.
3.3 Milomir Stakić – the ‘developer’
21.
3.4 Chapter Conclusion
22.
Conclusion
24.
Bibliography
26.
1
INTRODUCTION
‘We are in the presence of a crime without a name’1 are the historic words of the British Prime Minister
Winston Churchill on August 24 1941, referring to the mass killings of Jews in the Second World War.
Although mass killings were nothing new in history, the intensity of Nazi violence against the Jews in
this war shocked the West. Many people believed that the term mass killing was not sufficient to refer
to such an intensive of annihilation of a national group. Not long after the war ended the term
‘genocide’ was coined by Lemkin and in 1948 the UN adopted the ‘Genocide Convention on the
Prevention and Punishment of the Crime of Genocide’. The Genocide Convention was adopted with
the hope that something horrible as the Holocaust would never happen again. More than sixty years
later, we know better. Srebrenica, Rwanda and Darfur are all examples of genocides that were not
prevented. It is assumed that the West is more successful in the punishment of genocide with the adhoc tribunals of Rwanda and the former Yugoslavia. However, the punishment of genocide has not
been as successful as hoped.
Definitional issues are the main cause of the problems with the intervention and punishment of
genocide. Many scholars have been very critical on how genocide is defined in the Genocide
Convention. Some scholars even argue that the definition is too narrow and should be replaced by a
broader one. These debates make it hard to analyze what exactly constitutes genocide, which may
cause difficulties in convicting genocidal killers. The International Criminal Tribunal of the Former
Yugoslavia (ICTY) was the first tribunal that encountered these problems. It was established in 1993, a
year before the International Criminal Tribunal of Rwanda was established. Therefore, the legal team
was the first to draft a statute after the adoption of the Genocide Convention. However, this is not the
only reason why the ICTY is an interesting case study. The Srebrenica massacre has always been
considered one of the most extreme cases of violence in the Bosnian War and it was soon labeled as
genocide. This led to a debate in which the question ‘was it genocide?’ was central. 2 Is it possible that
the international tribunals may end this continuing debate about what constitutes genocide? In other
words, what was the contribution of the International Criminal Tribunal of the former Yugoslavia in
defining the concept of genocide?
Despite many critical reflections on the definition of genocide, literature on the ICTY’s effects
on international law is not extensive. Some articles have investigated how the ICTY dealt with
international law in practice, using an empirical analysis.3 Nonetheless, these kind of articles are not
abundant. There is also some literature that discusses the workings of the ICTY. Remarkable is that
this often lacks a critical view on the failures of the ICTY. This is the same with the literature on the
1
British Library of Information, Prime Minister Winston Churchill’s broadcast to the world about the meeting
with President Roosevelt (24 August 1941).
2
J.S. Landay, ‘A Serb on trail: What’s Genocide’(13 July 1998),
http://www.csmonitor.com/1998/0713/071398.us.us.2.html (5 January 2012).
3
R. Cryer, ‘The Interplay of Human Rights and Humanitarian Law: The Approach of the ICTY’, Journal of conflict
and security law 14 (1 December 2009) 511-527.
2
Genocide Convention. Many books and articles have been written on the historical development of this
concept. There are also many critical articles on the Genocide Convention and the prevention of
genocide. Especially with the current Darfur situation this topic has become very up-to-date.
Nonetheless, I was intrigued that the word ‘punishment’ that is formulated in the title of the Genocide
Convention was somehow neglected in the literature. Therefore, this paper is a valuable contribution
to the field of Genocide Studies.
Moreover, the social relevance of this paper is substantial. The general assumption is that adhoc tribunals are established to bring some comfort to victims and surviving relatives. The desired
result is to bring peace, reconciliation and justice. Strikingly, many genocidal killers were acquitted on
the accounts of genocide and their sentence was ‘‘dumbed down’…to crimes against humanity’4.
Therefore, many victims feel cheated and the sphere of impunity remains. This paper will show the
importance of a definition. A definition must not only be correctly interpreted, but must also have
clearly definitional boundaries to keep its effectiveness.5 Only then can the prosecution of genocidal
killers be successful and thus bring reconciliation and peace.
This paper is an analysis of the use of the Genocide Convention in the ICTY. The main
research goal is to understand what the contribution of the ICTY was in defining the concept of
genocide. To understand more about the contribution of the ICTY, I will first discuss the historical
development of the concept genocide in chapter 1. Besides, the definitional debate will be discussed
by looking at five prominent definitions. In chapter 2 some aspects of the jurisprudence of the ICTY
will be discussed. The legal team had to make a clear distinction between crimes against humanity,
genocide and other criminal acts related to genocide. This chapter will have a theoretical approach.
Nonetheless, this chapter will be focused on the interpretation of the legal team rather than providing a
clear cut explanation of the legal terms. Important to keep in mind is that this theoretical approach is
often subject to changes when applied in practice. Therefore, chapter 3 will have a practical approach.
The goal in this chapter is to analyze to what extent the definitional components from chapter 1 have
been discussed.
The secondary literature that I have studied in order to analyze the contribution of the ICTY is
mainly focused on the definitional debate. There is one source in particular that has been the basis for
this research, namely the research of Scott Straus: Contested meanings and conflicting imperatives: a
conceptual analysis of genocide. Straus developed ‘five conceptual axes on which definitions differ’ 6.
However, the most valuable sources for this research were the primary sources. Especially, the Trial
Judgment documents of Jelisić, Krstić and Stakić have been a great contribution for answering my
main question. These sources were able to show the ICTY’s interpretation of the Genocide
Convention more clearly than secondary sources were.
4
P.M. Wald, ´Genocide and Crimes against Humanity´, Washington University Global Studies Law Review 6:62
(2007) 621- 633, 633.
5
A. Alvarez, Genocidal Crimes (New York 2010) 6-7.
6
S. Straus, ‘Contested meanings and conflicting imperatives: a conceptual analysis of genocide’, Journal of
Genocide Research (2001) 349-375, 349.
3
1. WHAT IS GENOCIDE?
Leo Kuper once wrote in his seminal 1981 text of genocide studies: ‘the word is new, the concept is
ancient.’7 Indeed, genocidal events are not typical events of the twentieth century. When looking back
into the past, there are many accounts of genocidal events. Several people argue that some verses of
the Bible also indicate that genocide existed long before the twentieth century. One of those is the
verse Samuel: ‘Now go and strike Amalek and devote to destruction all that they have. Do not spare
them, but kill both man and woman, child and infant, ox and sheep, camel and donkey.’ 8 Other, more
recent, examples are the Vendee uprising in 1793 and the Zulu genocide between 1810 and 1828. 9
Despite this history of mass killings, it was not until after the Second World War that a name was
invented for these mass killings of national groups.
Chapter 1.1 will be focused on the historical development of the word genocide. It took
Lemkin, who coined the word genocide, a lot of effort to convince legal scholars that the impunity gap
of genocide should be closed. Eventually he convinced the UN of drafting a convention that would
prevent and punish genocide. This development will be discussed in chapter 1.2. The adoption of the
Genocide Convention was met with a lot of critique. These debates on the concept of genocide will be
analyzed in chapter 1.3.
1.1 LEMKIN’S DEFINITION
Although many mass killings have occurred in the past, the Holocaust was considered to be so cruel
that the word mass killings seemed not sufficient to describe what had happened. Eventually, it was
Polish lawyer Rapheal Lemkin, who coined the word ‘genocide’ in 1944. The word was an aggregation
of the Greek word ‘genos’ (meaning race or tribe) and ‘cide’ (killing). 10
It was a long struggle for Lemkin to make the international legal world accept his efforts to
criminalize mass killings of national groups. Long before the Second World War erupted, Lemkin was
already interest in the history of mass killings. After much study he was shocked by the contradiction
that existed between national law and international law. In national law a man is guilty when he kills
another man. Why are the genocidal killers set free? Is the killing of a million men a lesser crime than
one man?11
In 1933 he staged an activist intervention in which he wanted to criminalize barbarity and
vandalism. Due to the focus of these concepts on group protection, they would be a perfect addition to
international law. Barbarity was defined as the ‘premeditated destruction of national, racial, religious
7
A. Jones, Genocide a Comprehensive Introduction (Oxon 2011) 3.
The Telegraph, ‘Top 10 worst Bible passasges’(1 September 2009),
http://www.telegraph.co.uk/news/religion/6120373/Top-10-worst-Bible-passages.html (20 December 2011)
9
Jones, Genocide, 6-7.
10
J. Dülffer, ‘The UN and the Origins of the Genocide Convention 1946-1948’, in: C. Safferling and E. Conze, The
Genocide Convention Sixty Years After Its Adoption (The Hague 2010), 55-81, 55-56.
11
Jones, Genocide, 9.
8
4
and social collectivities’.12 Vandalism was formulated as the ‘destruction of cultural works’.13 However,
Lemkin struggled with his vocabulary in the international legal environment, due to a lack of knowledge
of the English language. Therefore, he invented a whole new word for the concept in 1944, namely
´genocide´.
Lemkin defined genocide as ‘the destruction of a nation or of an ethnic group’. 14 In addition,
genocide constituted a coordinated plan aimed at the annihilation of groups. In the most general
sense, physical destruction constitutes genocide. However, as said before, Lemkin argued that social
and cultural destruction are also techniques of group annihilation. After years of lobbying at the United
Nations, where his reputation was considerable, Lemkin was asked as an expert to help formulate a
convention.15
1.2 UN GENOCIDE CONVENTION
The United Nations was established in the wake of the Second World War. Its aim was to prevent
future wars between countries, but also to provide a platform to start dialogues between countries.
One of its first breakthrough achievements was the adoption of the United Nations Genocide
Convention on the Prevention and Punishment of the Crime of Genocide. This convention was
adopted in 1948 with the help of Raphael Lemkin.16
Lemkin’s definition had much influence on the final outcome of the convention. His conviction
that genocide needed to be punished in times of war as well as in times of peace was realized in
Article I of the Convention:
‘Article I. The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to punish.’ 17
In the subsequent article of the Convention, namely Article II, the acts that are considered to constitute
genocide are enumerated:
‘Article II. 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 a 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.’18
12
Jones, Genocide, 9.
D. Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’, in: D. Bloxham and A. Dirk Moses, The
Oxford Handbook of Genocide Studies (New York 2010) 19-41, 33.
14
Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’, 33.
15
Ibidem, 34-35.
16
Dülffer, ‘The UN and the Origins of the Genocide Convention 1946-1948’, 55-56.
17
International Committee of the Red Cross, ‘Convention on the Prevention and Punishment of the Crime of
Genocide’ (9 December 1948), http://www.icrc.org/ihl.nsf/full/357?OpenDocument (22 December 2011).
18
International Committee of the Red Cross, ‘Convention on the Prevention and Punishment of the Crime of
Genocide’ (9 December 1948), http://www.icrc.org/ihl.nsf/full/357?OpenDocument (22 December 2011).
13
5
Obviously, ‘(a) killing members of the group’ is the first in the enumeration, because this is the
clearest example of a genocidal act. However, the convention placed more emphasis on biological
extermination than Lemkin did in his definition. Examples of biological extermination are: ‘(d) Imposing
measures to prevent births‘ and the’ (e) transfer of children to another group’. Lemkin did not specify
these techniques of destruction in his definition. Nonetheless, he did outline such techniques of
destruction in his book Axis Rule in Occupied Europe.19 Therefore, (d) and (e) are also the result of
Lemkin’s definition. The only component in the enumeration that differs from Lemkins’ definition is ‘(b)
inflicting mental harm’, which is probably one of the few additions that the UN made in the Convention.
Lemkin does not mention anything about serious mental harm in his book Axis Rule. Furthermore, the
UN also deviated from Lemkin’s definition in Article III in which the punishable acts are enumerated:
‘Article III. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and indirect incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.’20
Strikingly, not only genocide itself has become punishable, but also planning a genocide can be
punished. ‘(c) Direct and public incitement to commit genocide’ is relatively easy to prove. However,
the other components in the enumeration, (b); (d); (e), are much more difficult to prove. This will be
discussed in chapter 2.3
After the convention was drafted, it received a lot of critique on the definition of genocide. One
of those critiques was focused on the victim group. The victim group was initially formulated as ‘a
group of human beings’. However, worried about debates that would question what constitutes a
group, the UN eventually formulated the victim group as ‘national, ethnical, racial or religious group’. 21
This resulted in many discussions amongst scholars about the exclusion of political groups. Some
consider the definition in the Genocide Convention to narrow, while others believe it is still defined too
broadly. Therefore, the drafting of the Convention was just the beginning of a long worldwide debate.
1.3 CONCEPTUAL DEBATES
Debates amongst scholars grew after the establishments of the field of Genocide Studies in the 1970s
and 1980s. Soon, there were more than fifty definitions in the field. It seems that no scholar agrees on
the definition of genocide. Scott Straus, a political scientist, wrote an article in the Journal of Genocide
Research about these debates, namely: ‘Contested meanings and conflicting imperatives: A
19
Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’, 34-35.
International Committee of the Red Cross, ‘Convention on the Prevention and Punishment of the Crime of
Genocide’ (9 December 1948), http://www.icrc.org/ihl.nsf/full/357?OpenDocument (22 December 2011).
21
Dülffer, ‘The UN and the Origins of the Genocide Convention 1946-1948’, 61.
20
6
conceptual analysis of genocide’. Strauss developed five components on which prominent definitions
mostly differ. These components are annihilation, intent, mode of destruction, agent and victim group.
In order to clarify the differences between most definitions I will analyze five different
definitions of five prominent scholars. The definitions are somewhat randomly picked, but those that I
have chosen to use, make the differences between the definitions evident. The components that
Straus developed will be used as guidelines in this analysis. The five definitions I will discuss are the
following
Peter Drost (1959): ‘Genocide is the deliberate destruction of physical life of individual
human beings by reason of their membership of any human collectivity as such.” 22
John L. Thompson and Gail A. Quets (1987): ‘Genocide is the extent of destruction of a
social collectivity by whatever agents, with whatever intentions, by purposive actions
which fall outside the recognized conventions of legitimate warfare.’23
Frank Chalk and Kurt Jonassohn (1990): ‘Genocide is a form of one sided mass killings in
which a state or authority intends to destroy a group, as that group and members in it are
defined by the perpetrator.’24
Helen Fein (1993): ‘Genocide is sustained purposeful action by a perpetrator to physically
destroy a collectivity directly or indirectly, through interdiction of the biological and social
reproduction of group members, sustained regardless of the surrender or lack of threat
offered by the victim.’25
Irving L. Horowitz (1996):’Genocide is herein defined as a structural and systematic
destruction of innocent people by a state bureaucratic apparatus’. 26
I will now analyze these definitions in five different paragraphs. Every chapter is focused on one of the
components. Important to keep in mind is that I will make a distinction between a hard approach and
soft approach in every chapter. The hard approach must be understood as a more narrow definition
that is less open for interpretation and more specifically defined. The soft approach is the opposite of
the hard approach, because these definitions are often not very specific and subjected to
interpretation.
1.3.1 ANNIHILATION
The first component is annihilation. When looked up in The Oxford Dictionary one can find that
annihilation means “the action or process of reducing to nothing, or of blotting out of existence.” The
word has its roots in the Latin word nihil which means ´ nothing´. Why is the component annihilation
important for the definition of genocide? Genocide is not just an ordinary form of mass violence, but
rather a specifically directed form of mass violence. Genocide is an attempt to destroy a group of
22
P. Drost, The Crime of State, Volume II Genocide (Leiden 1959) 125.
Jones, Genocide, 17.
24
F. Chalk and K. Jonassohn, The History of Sociology of Genocide: Analyses and Case Studies (London 1990) 23.
25
Jones, Genocide, 18.
26
Ibidem, 19.
23
7
human beings. However, there is some substantial difference in how scholars use the component
‘annihilation’ in their own definition.27
On the one hand, there is a group of scholars who take a soft approach in defining group
annihilation. One of those scholars is Peter Drost. He does not specify group annihilation in his
definition. Instead, the group annihilation is formulated as the ‘destruction of individual human beings’
(7). Therefore, group annihilation is not the core idea of Drost’s definition. This is also the case in the
definition of Horowitz. He defines group annihilation as the ‘destruction of innocent people’ (7). Clearly,
both scholars argue that genocide is not directed at a specific group, but rather at people belonging to
a group. Therefore, total group annihilation is not necessary, since the destruction of a part of a group
also constitutes genocide.
On the other hand, there are also scholars who do define total group annihilation in their
definition. Chalk & Jonassohn have defined group annihilation as ‘to destroy a group’ (7), which is the
most explicit formulation of group annihilation of the five former definitions. However, Fein also
explicitly defines group annihilation as ‘to physically destroy a collectivity’ (7). Both scholars clearly
focus on the destruction of a group, instead of on individuals. Thompson & Quets made their definition
even more specific by adding ‘destruction of a social collectivity (7)’ in their definition. What makes this
definition even more convincing is that not every group that is destructed qualifies as genocide. Cattle
can also be seen as a group. Is the killing of all cows also genocide? This would never be seen as
genocide. Therefore, just a little emphasis on social groups makes a definition much stronger.
There is a dichotomy in the definitions of scholars concerning group annihilation. One group of
scholars believes that total group annihilation is a necessary condition for genocide, which is
considered a hard approach. The other group of scholars believe that some nuances need to be made
in the definitions. Most often total group annihilation is not achieved. Therefore the killing of a part of a
group may also be seen as genocide, which is considered a soft approach.
1.3.2 INTENT
The second component is intent. While there is disagreement over component ‘group annihilation’, this
seems to have disappeared with the component ‘intent’. It has never happened that someone
accidentally killed a whole group. Therefore, almost every scholar uses this component in his/her own
definition. In the five aforementioned definitions all scholars incorporated the component ‘intent’.
Nonetheless, there are minor differences in how the scholars conceptualized this
component.28 Both Thompson & Quets and Fein have conceptualized intent as ‘purposeful action’ (7).
Kurt & Jonassohn defined it as ‘intends’ (7) and Drost as ‘deliberate’ (7). Horowitz conceptualized
intent somewhat differently than the rest of the scholars discussed before. He formulated intent as
‘structural and systematic’ (7). This does not necessarily mean that the actions were intended or
purposeful. However, when something is described as systematic it is mostly done according to a fixed
27
28
S. Straus, ‘Contested meanings and conflicting imperatives’, 360.
Ibidem, 360.
8
plan. Looking back at Lemkin’s definition, he claimed that genocide was ´coordinated´ and ´previously
prepared´.29 Therefore, Horowitz also conceptualizes intent in his definition.
1.3.3 MODE OF DESTRUCTION
The third component is ‘mode of destruction’. Lemkin argued that there are multiple modes of
destruction in genocide. A few examples are cultural, political, social, economic, biological and mental
destruction.30 Obviously, Lemkin defines the mode of destruction very broadly. This is a result of
Lemkin’s focus on the Second World War, in which the Nazis also used enslavement, torture and
other modes of destruction to annihilate the Jews, gypsies and disabled people. While Lemkin argued
that the Slavs also faced genocide in the working camps of the Second World War, other scholars
argue that only the extermination of the Jews was genocide. Therefore, the mode of destruction is a
crucial component in determining what cases constitute as genocide.
31
Again, on the one hand there is a hard approach. Three out of the five aforementioned
scholars argued that the mode of destruction can only constitute genocide when there is physical
destruction. Drost argues that the mode of destruction is the ´destruction of physical life´ (7). This can
be interpreted as killing. Kurt & Jonassohn argue that genocide is ‘one-sided mass killings’ (7). Both
definitions focus on the physical destruction of groups. Other modes of destruction are excluded.
Horowitz also argues that ´destruction of innocent people´ (7) is the mode of destruction in genocide.
Although he does not really specify physical destruction in his definition, he later on argues that
genocide is the ´physical dismemberment and liquidation of people´. 32
A totally different approach is, again, the soft approach. As argued, Lemkin was an advocate
of this approach, because he wanted to include many modes of destruction in his definition. Fein is
one of the scholars who followed his example. She argues that a collectivity may be destroyed ‘directly
or indirectly, through interdiction of biological and social reproduction’ (7). The destruction of a
collectivity directly may be seen as physical destruction. Indirectly destroying a collectivity may include
all other modes of destruction as Lemkin defined them, like starvation, enslavement and religious
prosecution.33
Thompson & Quets use a soft approach. Nevertheless, they defined the mode of destruction
more broadly. They argue that any action that ‘falls outside the recognized conventions of legitimate
warfare’ (7) constitutes genocide. I do not want to attempt to explain the theory of just war fare, in
which the rules of legitimate warfare are explained, but I will provide some general assumptions. Acts
of war should be directed towards the enemy combatant. Therefore, civil casualties must always be
prevented as much as possible. Besides, prisoners of war should always get fair treatment and, most
importantly, soldiers may not use weapons or methods of warfare that cause great suffering.34 This
29
Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’, 33.
Ibidem, 33.
31
Straus, ‘Contested meanings and conflicting imperatives´, 361.
32
Jones, Genocide, 19.
33
Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’, 33.
34
Het Nederlandse Rode Kruis, De vier Verdragen van Genève en de drie Aanvullende Protocollen (Nijmegen
2006) 261-263.
30
9
means that rape and torture fall outside the conventions of legitimate warfare. Therefore, Thompson &
Quets have chosen to use a soft approach in defining the mode of destruction.
Fein and Thompson & Quets are scholars who use a soft approach in defining the mode of
destruction. They argue that there are many more ways to destroy a group than just physical
destruction. However, there are also many scholars who argue that only mass murders constitute
genocide like Drost, Horowitz and Kurt & Jonassohn.
1.3.4 AGENT OF DESTRUCTION
The fourth component is the agent of destruction. Some researchers do not define the agent in their
definition. Does it matter who the agent of destruction is? Since genocide is a coordinated plan it is
likely that it goes hand in hand with state involvement. Systematic destruction requires coordinated
planning and many resources, which can be best provided by the state. 35
Scholars who agree with this argumentation are Kurt & Jonassohn who say that a collectivity
is destroyed by a ’state or authority’ (7). Nevertheless, the state or authority is mostly not the
perpetrator of genocidal acts, but is the agent that encourages people to act on behalf of the state and
to destroy a collectivity. Horowitz also defines the agent as ´state bureaucratic apparatus´ (7). This can
be interpreted in the same way as the definition of Kurt & Jonassohn.
However, there are many scholars who have not defined the agent of destruction. Fein, Drost
and Thompson & Quets belong to that group of scholars. This can be seen as a soft approach. There
is nothing wrong with that approach, because non-state actors can also mobilize people to eliminate a
population.
Again, there is a division into a hard and a soft approach. Most researches do not define the
agent of destruction, just like the UN did not specify an agent in the Genocide Convention. Fein, Drost
and Thompson & Quets also did not define the agent. However, Kurt & Jonassohn and Horowitz
argued that the agent of destruction could be a state or authority.
1.3.5 VICTIM GROUP
The fifth and also last component is the victim group. Since the concept of genocide was coined by
Lemkin, people were debating about the question what would constitute the victim group. Due to his
focus on the Second World War, Lemkin argued that the victim group was either a national or ethnic
group. After the Genocide Convention was drafted there was a lot of critique on the exclusion of
political groups. Eversince, this component has remainedthe most complicated definitional question. 36
The UN Genocide Convention defined the victim group as a ‘national, ethnical, racial or
religious group’. Although this seems like a soft approach, because the UN included many groups in
their definition, it is rather a narrow definition.
However, the five formerly mentioned scholars all have chosen to use a soft approach in
defining the victim group. Namely, they defined the victim group as a collectivity. Kurt & Jonassohn
35
36
Straus, ‘Contested meanings and conflicting imperatives´, 365.
Jones, Genocide, 21.
10
argue that the victim group is ‘a group, as that group and membership in it are defined by the
perpetrator’ (7). Fein defined it as ‘collectivity’ (7), Drost as ‘human collectivity’ (7) and Thompson &
Quets as ‘social collectivity’ (7). One of the scholars that differ a little from the rest is Horowitz. He
defines the victim group as ‘innocent people’ (7). However, the characteristic of genocide is that it is
aimed at individuals in a specific group and not just at individuals. Therefore, Horowitz his approach in
defining the victim group is probably a too soft approach.
1.4 CHAPTER CONCLUSION
The roots of the word genocide can be found in 1944. Raphael Lemkin struggled for years to give the
word more recognition. Due to his social contacts with some UN delegates he managed to inspire
those delegates to draft a convention. This eventually led to the United Nations Genocide Convention
on the Prevention and Punishment of the Crime of Genocide in 1948. However, it created friction in
the scholarly world, since no scholar seemed to agree on the definition of the word genocide.
The conceptual debate consists of two approaches, the soft approach and the hard approach.
On the one hand, the hard approach requires total group annihilation and the mode of destruction is
only focused on physical killing. Besides, the agent of destruction is clearly defined as a state or
authority and the victim group is also specifically defined. On the other hand, there is also a soft
approach which is much freer of interpretation. In this approach group annihilation does not
necessarily mean destruction of a whole group and the mode of destruction includes a whole range of
possibilities. Besides, the agent is not defined and the victim group can be any collectivity. The only
component that all scholars seem to agree on is the component intent. The definitions are often a
combination of soft and hard approaches. Important to keep in mind is that this distinction can only be
made on the level of components and not on the whole definitions.
11
2. THE ICTY AND ITS CONFLICTING JURISPRUDENCE
For a long time, scholars kept on debating on the definition of the word genocide, but disagreements
remained. Nevertheless, they would soon be challenged to use their knowledge in practice.
It was in 1992 that the Bosnian War broke out in Bosnia and Herzegovina (BiH). The war was
a result of the breakup of Yugoslavia. What began as a territorial struggle soon ended in an ethnical
conflict between Bosnian Serbs, Croats and Bosniaks (Muslim Serbs). On a daily basis, atrocities took
place and international law was continuously violated. This eventually led to the establishment of the
International Criminal Tribunal of the Former Yugoslavia in 1993. The tribunal was supposed to send a
signal that would end the sphere of impunity. Nevertheless, it was unable to prevent the Srebrenica
massacre in 1994 where approximately 7000 Muslim men of military age were murdered by Serbs.37 It
was the first time since the adoption of the Genocide Convention that it needed to be interpreted by an
International Tribunal. The ICTY had some difficulties with the interpretation of the Genocide
Convention. Somehow it had to find a way to deal with the Genocide Convention and its debates.
Therefore, the ICTY may have contributed to the development of defining the concept of genocide.
In order to understand more about the interpretation of the ICTY on the Genocide Convention
and the debates, this chapter will be more focused on the theoretical aspects. Therefore, it is very
interesting to look at the problems that were encountered during the drafting of the statute and
theoretical problems that were encountered during the trials. Chapter 3 will be, unlike this chapter,
more focused on the practical approach. I will first explain more about the statute of the ICTY in
chapter 2.1. Subsequently, the problems the ICTY encountered with some of the legal concepts will be
discussed. Chapter 2.2 will be focused on the differences between ‘crimes against humanity’ and
‘genocide’. In chapter 1.2 I argued that Article 3(e) ‘complicity in genocide’ was hard to prove in court
cases. Therefore, this problem will be discussed in chapter 2.3, which is focused on the difference
between ‘complicity in genocide’ and ‘aiding and abetting genocide’.
2.1 STATUTE
The UN Security Council (UN SC) had expressed its concerns about widespread violations of
International Humanitarian Law in BiH multiple times in its resolutions. This eventually resulted in a
request for an international Tribunal in resolution 808 (1993). The statute of this tribunal had to be
drafted by an international legal team within 60 days. 38 However, the drafting of the ICTY´s statute
raised legal and political questions.
Firstly, the legal team had a limited time period to draft the statute. Normally, such an
international body should be established through a treaty in which states can negotiate the legal
instruments, structures and procedures of the international body. However, due to the time pressure
the UN SC put on the legal team, it had to ignore the normal state of affairs and draft a statute on its
37
J.S. Landay, ‘A Serb on trail: What’s Genocide’ (13 July 1998),
http://www.csmonitor.com/1998/0713/071398.us.us.2.html (5 January 2012).
38
UN Security Council, resolution 808 (22 February 1993) 2.
12
own with the help of Secretary-General Boutros- Ghali. Most parts of the Statute were copied from UN
resolutions, including the Genocide Convention. (See chapter 1.2 for details). 39
Secondly, state sovereignty remained the biggest challenge for the tribunal. If the tribunal
would have been established by a treaty, the states of BiH would also have to sign and ratify it.
However, no guarantees could be made that they would do that. Therefore, the establishment of the
ICTY had to be imposed on them, which technically violates state sovereignty. The only way in which
the establishment of the ICTY could be justified was by framing the situation in BiH as a threat to
international peace. Only in cases of a threat to international peace the UN SC may act under Chapter
VII, which is a binding mandate.40 As a result, the UN SC expressed its concerns about international
peace multiple times in different resolutions.41
Although the plan seemed controversial, people felt that it was legally justified to establish an
international tribunal by these means. However, establishing the ICTY and drafting a statute was just a
minor problem compared to the rest that would come. It was now up to the legal team of the ICTY to
interpret many articles drafted in the statute.
2.2 ’CRIMES AGAINST HUMANITY´ VERSUS ´GENOCIDE´
One of the first problems the ICTY encountered was determining the differences between crimes
against humanity and genocide. During the ICTY prosecutions there were many war criminals who
were initially indicted for genocide, but were eventually convicted for crimes against humanity. This is
due to both the similarities that exist between the definition of crimes against humanity and genocide
and the restricted definition of genocide
Crimes against humanity are defined by the ICTY’s statute as follows:
Article 5
Crimes against humanity
The international Tribunal shall have the power to prosecute persons responsible for the following
crimes when committed in armed conflict, whether international or internal in character, and
directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts. 42
39
R. Zacklin, ´Some Major Problems in the Drafting of the ICTY Statute´, Journal of International Criminal Justice
2(2) (2004) 361-367, 362-263.
40
F. Grunfeld and A. Smeulders, International Crimes and other Gross Human Rights Violations. A multi- and
Interdisciplinary Textbook (Leiden 2011) 376.
41
UN Security Council, resolution 808 (22 February 1993) 2.
42
UN ICTY, Updated Statute of the International Criminal Tribunal for the former Yugoslavia (September 2009)
6.
13
The first thing that is worth noticing is the characterization of crimes against humanity as
a wartime product. They are crimes ‘committed in armed conflict’. This is different from
genocidal crimes, which can be committed in times of peace as well as in times of war.
Nonetheless, the widespread character of atrocities is mostly a sign that genocide might be
underway.43 Besides, the Srebrenica massacre happened within the environment of a war.
Therefore, this obvious distinction between wartime and peacetime was therefore not relevant
during the prosecutions in the ICTY.
Secondly, many acts that are considered crimes against humanity can also be considered
as genocidal acts. Extermination is the first in the enumeration that can also be seen as a
genocidal act. Torture and rape can also be interpreted in more ways than crimes against
humanity. These acts can cause great suffering to the victims and eventually lead to ‘serious
bodily or mental harm to members of the group’ (5). Rape can even have biological
consequences, if carried out as a widespread campaign. It then can be prosecuted under Article
4 of the statute under the punishable act ‘inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part’ (5). 44 Also worth noting is the policy of
ethnic cleansing. Ethnic cleansing is the act of removing an ethnic group from an area or region.
Clearly, this resembles the punishable act deportation which is listed under 5(d). Besides, even
the UN General Assembly labeled ‘ethnic cleansing as a form of genocide’.45 Nonetheless,
these abovementioned acts are often considered as crimes against humanity. 46
There are several reasons why crimes against humanity are distinct from genocidal
acts. Firstly, Article 5 of the statute states that crimes against humanity are directed against ‘any
civilian population’. The Genocide Convention, which is Article 4 of the ICTY statute, specifically
defines the protected groups. Genocidal acts are directed against people in a group because
they belong to that group. On this basis, one can make a distinction between Article 4 and
Article 5 of the statute. Secondly, the matter of intent is very important in making the distinction
between the two articles. In order to convict a war criminal for genocide, it must be proved that
the perpetrator possessed a specific intent to destroy the group. In international law this is
called the dolus specialis. This means that rape, torture or killings of members of a group can
only constitute genocide if it is proved that a perpetrator’s actions were supposed to contribute
to a more widespread campaign of group destruction.47 Clearly, this mental element (mens rea)
of specific intent is hard to establish during trials. However, some acts can be indicators of this
dolus specialis, such as the systematic targeting of the same group, the nature of these acts
and the measures taken against one specific group.48
43
Jones, Genocide, 539.
D. Scheffer, ‘Rape as Genocide’ (3 November 2008), http://www.nytimes.com/2008/12/03/opinion/03ihtedscheffer.1.18365231.html (12 January 2012).
45
Prosecuter v. Radislav Krstic, Trial Judgement, IT-98-33-T, 2 august 2001, para 578.
46
Jones, Genocide, 539.
47
Wald, ´Genocide and Crimes against Humanity´, 623- 627.
48
Jones, Genocide, 539.
44
14
2.3 ’COMPLICITY IN GENOCIDE´ VERSUS ´AIDING AND ABETTING GENOCIDE´
The second problem was making the distinction between the crime of complicity in genocide and the
crime of aiding and abetting genocide.
A person accused of complicity in genocide lacks a specific intent to destroy a group.
Genocide may merely be a result of his actions. Nevertheless, according to article III (e) of the
Genocide Convention the act of complicity in genocide is punishable. This punishable act is also
included in the statute of the ICTY. In international law, complicity in genocide has three elements.
Those elements are (1) the commission of a crime; (2) the accomplices and (3) the accomplice’s
intention. In this case, the perpetrator may be an accomplice of the crime, but might not have been
aware of the overall plan of genocide.49
Therefore, the tribunals had to develop jurisprudence in order to punish the real masterminds
behind the crimes, those who aided and abetted. Persons guilty of aiding and abetting genocide had
the intent to facilitate the execution of genocide, but were not directly involved. This crime was not
formulated in the Genocide Convention and is therefore also not formulated in Article 4 (genocide) of
the statute. However, this crime was formulated in Article 7 of the ICTY’s statute under the name
‘Individual criminal responsibility’.50 One important element that is stated in this article is that one who
aided and abetted created an environment and provided the materials with the intent to facilitate
genocide.51
Intent is the most important element in making the distinction between the two acts. Although
most legal scholars agreed on the notion that intent was a required component in genocide, the
question of specific intent caused problems in the ICTY. Clearly, complicity in genocide requires a
lesser intent than aiding and abetting genocide. However, the tribunal seems to have abandoned this
theoretical approach and argued that one who commits complicity in genocide has the same specific
intent as one who aids and abets. This conclusion may be due to the enormous amount of strong
evidence required to convict a war criminal of genocide. It remains extremely hard to demonstrate a
specific intent in these cases.52
2.4 CHAPTER CONCLUSION
Almost 50 years after the adoption of the Genocide Convention it would be applied for the first time in
1993. The ICTY got the doubtful honor to interpret the Genocide Convention and deal with all the
49
D. Greenfield, ‘The crime of complicity in genocide: how the international criminal tribunals for Rwanda and
Yugoslavia got it wrong, and why it matters’, The Journal of Criminal law & criminology 98 (USA 2008) 921-952,
925.
50
United Nations ICTY, Updated Statute of the International Criminal Tribunal for the former Yugoslavia
(september 2009), 6.
51
N. HB. Jǿrgensen, ‘Complicity in Genocide and the Duality of Responsibility’, in: B. Swart, A. Zahar and G.
Sluiter (ed.), The Legacy of the International Criminal Tribunal of the former Yugoslavia (Oxford 201) 247- 274,
263-266.
52
Greenfield, ‘The crime of complicity in genocide’, 925.
15
definitional debates. This eventually resulted in the ICTY statute in which many documents were
copied from UN resolutions, including the Genocide Convention in Article 4. However, it resulted into
some problems. Firstly, the legal team encountered difficulties in making the distinction between
crimes against humanity and genocide. Some acts that are considered crimes against humanity can
also constitute genocide. The narrow definition of genocide in Article 4 made it possible to acquit many
genocidal killers and convict them for crimes against humanity. Secondly, the ICTY had difficulties with
the difference between complicity in genocide and aiding and abetting genocide. Someone who aids
and abets has to carry a specific intent, while someone who is complicit may not even have had a
genocidal purpose. However, the evidence necessary to prove genocidal intent is extraordinarily high.
The ICTY did not longer make this specific distinction of intent. Important to keep in mind is that intent
is the most important component in determining the gravity of a sentence at a conviction.
16
3. GENOCIDE PROSECUTIONS AT THE ICTY
The drafting of the ICTY statute was accompanied by some difficulties. However, the biggest
challenge had yet to come. It was in 1998 that the ICTY had to deal with its first genocide prosecution.
Obviously, it was accompanied by a lot of media attention. The failure of the international community
to prevent the Srebrenica massacre now had to be altered in a successful punishment of the
genocide. It was the case of Goran Jelisić that had to prove the effectiveness of the Genocide
Convention for the first time. This case and many others were interesting for the academic world. The
ICTY had to deal with legal difficulties, which also had and still have relevance for the academic world.
A law, such as the Genocide Convention, can only become clearer through its usage. 53 Genocide
cases in the ICTY may have major consequences for the definition of genocide. Therefore, it is
interesting to look at the extent to which the Genocide Convention was a guidance for the trial
judgments of genocidal killers. Did the legal team remain close to the formulation of the Convention, or
was it sometimes interpreted more broadly?
As said before, this chapter will have a more practical approach. Despite thorough
examination of the legal team during the drafting of the statute, reality proved that the interpretation of
Article 4 remained difficult. Chapter 3.1 will be focused on the case of Goran Jelisić. Subsequently,
chapter 3.2 will analyze the case of Radislav Krstić. In chapter 3.3 the case of Milomir Stakić will be
analyzed. All chapters will have the following structure: every case will be introduced. Thereafter,
every component that was analyzed in chapter 1.3 will be discussed. However, this time I will not
analyze how scholars formulated these components, but how the ICTY interpreted these components
during the trials. Lastly, I will conclude on what grounds the genocidal killers were convicted or
acquitted.
I will use the Trial Judgment documents from the ICTY, available online, to analyze how the
ICTY dealt with the definition of genocide. These are primary sources. Therefore, it is important to
realize that there are some disadvantages when using this specific kind of source. Firstly, there are
many references to evidence, but no data is available in the source. Therefore, the extent of the
atrocities has to be interpreted based on the arguments available in the Trial Judgment. Secondly,
considering that these cases are for a large part designed to bring reconciliation for the victims, they
have a sentimental tone. Taking these two disadvantages together, it is hard to establish my own
opinion. Therefore the next analysis will be an attempt to take an objective approach.
3.1 GORAN JELISIĆ
The first genocide prosecution since the adoption of the Genocide Convention began in 1998. It was
the case of Goran Jelisić who had held a position of authority at Luka detention camp. This improvised
detention camp was in Brčko, a town in a municipality in north-eastern BiH. Inhumane treatment,
torture and murders were common events in these camps. After Jelisić was arrested, he was indicted
53
Jǿrgensen, ‘Complicity in Genocide and the Duality of Responsibility’, 247.
17
on three accounts for his involvement in atrocities at this camp. Firstly, killing members of a group, this
was considered genocide and was prosecuted under Article 4. Secondly, murder; cruel treatment and
plunder. The last indictment was murder and inhumane acts. His trial took place at 14 December
1999.54
In this judgment there is clearly some confusion as to how to define the victim group. Although
the judges refer to the Genocide Convention now and then, they do not want to attempt to define a
group with ‘objective and scientifically irreproachable criteria’.55 Rather, they believe that it is more
appropriate to define a national, ethnical and racial group from the point of view of the perpetrator,
those who ‘wish to single that group out from the rest of the community’.56 This is similar to how Chalk
and Jonassohn defined the victim group in chapter 1.3. The other approach the Trial Chamber
considered was the negative approach in which the victim group is identified by the perpetrator as not
belonging to the group the perpetrator belongs to. However, the Chamber argues that stigmatization is
an important component of genocide. Therefore, the victim group was the Bosnian Muslim population,
defined by the perpetrator as an ethnically different group.
Secondly, the prosecution adds something new to the annihilation component. The Genocide
Convention used a soft approach by formulating the phrase ´in whole or in part´. The Prosecution
argued that it must be understood as the ‘destruction of a significant portion of the group from either a
quantitative or qualitative standpoint… to destroy a group would therefore have to affect either a major
part of the group or a representative fraction thereof’.57 The Chamber concludes with the help of the
Commission of Experts that the ‘character of the attack on the leadership must be viewed in the
context of the fate of what happened to the rest of the group’58. The killing of men in a small region
may have disastrous consequences for the rest of the group if these men were of great importance in
this particular group. It therefore does not matter that the destruction of a part of the group is limited to
a geographical zone as small as a region or municipality, such as Brčko.
Thirdly, the question of the agent of destruction was considered. Although Jelisić presented
himself as the chief commander of Luka camp, the Trial Chamber was not convinced that he was in
fact the top of command. They even considered that Jelisić was acting beyond the powers that were
entrusted to him. Without information on the hierarchy of command they argued that ‘it will be very
difficult in practice to provide proof of the genocidal intent of an individual if the crimes committed are
not widespread and if the crime charged is not backed by an organization or a system’.59
Obviously, this brought up the question of intent. As said before, in order to prove a genocidal
intent an overload of evidence is necessary. In the case of Jelisić the Trial Chamber focused on the
component annihilation and the agent of destruction to prove the genocidal intent. They argued that
victim reports showed that Jelisić had a disturbed personality and the killings were therefore not an
54
ICTY, Case sheet information Goran Jelisić, IT-95-10.
Prosecuter v. Goran Jelisic, Trial judgment, IT-95-10-T, 14 December 1999, para 70.
56
Ibidem, para 70.
57
Ibidem, para 81.
58
Ibidem, para 82.
59
Ibidem, para 101.
55
18
expression of genocidal intent. Besides, the killings were carried out arbitrarily rather than with a clear
intention to destroy a group.
The conclusion of the Trial Chamber was that the dolus specialis was not established beyond
reasonable doubt. The accused was therefore acquitted of the crime of genocide. Nevertheless, he
was convicted for all his other indictments. Although the accused was not convicted on the account of
genocide, the Trial Judgment was a valuable contribution to defining the legal definition of genocide.
The case addressed four out of the five components, namely annihilation, victim group, agent of
destruction and intent.
3.2 RADISLAV KRSTIĆ
One of the most groundbreaking cases was the conviction of Radislav Krstić. He was the first war
criminal to be convicted of genocide in the ICTY. Krstić was the chief-of-staff of the Bosnian Serb
Army (VRS). He was the leader of operation ‘Krivaja ‘95’, an operation that led to the fall of
Srebrenica. After the village was fallen, these troops continued with an ethnic cleansing policy. 20.000
to 25.000 Muslims from the area of Srebrenica were forcibly transferred to Potočari. Subsequently,
thousands of Bosnian Muslim civilian and military men died, most of them clearly did not die in
combat. It was argued that Krstić knew of this genocidal intent of the VRS, because he allowed that
resources were used from the Drina Corps. Therefore he was making a substantial contribution to the
massacre of Srebrenica. Krstić was arrested on 2 December 1998. On 7 December 1998 he had his
first appearance and heard his indictments. He was indicted with genocide and many crimes against
humanity, such as extermination; murder; persecutions on political, racial and religious grounds;
deportation and inhumane acts. However, he pleaded not guilty on all charges. His Trial Judgment
took place on 2 August 2001. What becomes very clear in this judgment is that former genocide
cases, like the case of Jelisić have influenced the perception of some components. 60
Firstly, there is no longer debate on how to define the victim group. In this Trial Judgment the
Trial Chamber actually refers to the Jelisić case in order to define the victim group: ‘As in the…Jelisić
case[s], the Chamber identifies the relevant group by using as a criterion the stigmatization of the
group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or
religious characteristics’.61 Yet again, it is argued that the victim group must be defined the same way
as the perpetrator does. However, the protected victim group must be a national, ethnical, racial or
religious group in order to constitute genocide.
Secondly, the debate about the focus on a geographical area remained vivid. This debate is
mainly focused on the component annihilation. Whereas the Prosecution defined the targeted group
as the ‘Bosnian Muslim population of Srebrenica’62, the Defence argued that ‘one cannot create an
artificial group by limiting its scope to a geographical area’63. Eventually, the Trial Chamber concluded
that evidence proved that the targeted people viewed themselves as Bosnian Muslims rather than as
60
ICTY, Case sheet information Radislav Krstić, IT-98-33.
Prosecuter v Radislav Krstic, Trial Judgement, IT-98-33-T, 2 august 2001, para 557.
62
Ibidem, para 557.
63
Ibidem, para 557.
61
19
the Bosnian Muslim population of Srebrenica. Therefore, the victims of Srebrenica constituted a part of
the protected group under Article 4 of the ICTY statute. Besides, Srebrenica lay in the Podrinje region,
whose ‘strategic importance for the creation of a Bosnian Serb Republic has frequently been cited in
testimony’.64 On top of that, the Trial Chamber felt that the ‘selective killing of all the military aged
men’65 eliminated the possibility that the Bosnian Muslims in Srebrenica could ever reestablish
themselves on that territory. Therefore, using the knowledge obtained from the Jelisić case,
annihilation in a genocidal plan can be limited to a small region like Srebrenica and still be considered
genocide.
Thirdly, the component ‘mode of destruction’ is very important in this case and is discussed
thoroughly. The Trial Chamber noted that ‘physical destruction of a group is the most obvious
method’.66 However, the Prosecution argued that besides the killings, the policy of ethnic cleansing in
Srebrenica was also part of the genocidal plan. According to the Prosecution, a group can also be
destroyed by eradicating the culture and identity of the group. 67 Nonetheless, the Trial Chamber
pointed out that the Genocide Convention deliberately does not include cultural destruction, since it
was considered too vague. Therefore the Trial Chamber concluded that it must rely on the principle of
nullum crimen sine lege, which means no crime without a law. The Chamber is therefore required to
accept the limitations of the Genocide Convention and only use physical and biological destruction as
evidence. However, the Trial Chamber does point out that where there is physical and biological
destruction, there are often also attacks on cultural property. Therefore, cultural destruction can be
considered as evidence for intent to destroy a group physically and biologically. 68
Lastly, intent is also crucial for a conviction in this case. The Trial Chamber concluded that the
events in Srebrenica proved a genocidal intent. In just seven days 7000 to 8000 men of military age
were systematically killed by the VRS. The evidence derived from these killings showed that the VRS
wanted to eliminate a substantial part of the Bosnian Muslim group. The VRS could not have failed to
know, that these actions would have had a lasting impact upon the protected group. Secondly, the
Trial Chamber points out that the bodies of victims were concealed in mass graves. This caused
enormous distress and mental harm for the survivors, because this prevented the opportunity for any
decent burial according to the religious practices of the victim group. 69 Lastly, the VRS tried to prevent
the humanitarian convoys from getting to the enclave, which led to deaths from starvation.
70
The Trial Chamber therefore concluded that the Prosecution has ‘proven beyond all
reasonable doubt’71 that genocide has occurred in Srebrenica. This case is very interesting for multiple
reasons. Firstly, it was the first genocide conviction in the ICTY. Secondly, the influence of the Jelisić
case was visible in dealing with some components. Especially the component victim group profited
64
Ibidem, para 564.
Ibidem, para 597.
66
Ibidem, para 574.
67
Ibidem, para 574-575.
68
Ibidem, para 580.
69
Ibidem, para 594-596.
70
Ibidem, para 566.
71
Ibidem, para 599.
65
20
from this previous case. Thirdly, some components were defined for the first time by the ICTY during
this case, such as the component mode of destruction. The Trial Chamber decided to remain as close
as possible to the meaning of the Genocide Convention. Therefore, only biological and physical
destruction could constitute genocide. Lastly and most importantly, intent was again the most
important component that led to a conviction. The killing of all military aged men in Srebrenica and
other more widespread ethnic cleansing policies proved that the members of VRS knew that their
actions would contribute to a greater plan and would have a lasting impact on the protected group.
Therefore the dolus specialis was proved and Krstić was found guilty of genocide.
3.3 MILOMIR STAKIĆ
The third case that will be discussed is the case of Milomir Stakić. He was a leading figure in the
government of the Prijedor region. In the course of the Bosnian war this region was planned to be
ethnically cleansed. This campaign was led by Stakić. He ordered the deportation of approximately
20.000 non-Serbs out of the area. Stakić was also one of the leaders who helped with the
establishment of the detention camps Omarska, Keraterm and Trnopolje, in which detainees were
abused and tortured. He was indicted on three accounts. The first account was genocide. The second
account was murder; extermination; persecutions; deportation and inhumane acts, which are all
crimes against humanity. The third was murder as a violation of the laws or customs of war. Stakić
was arrested on 23 March 2001 and his Trial Judgment was on 31 July 2003. This case has not
earned a special place in the history of the ICTY. Nevertheless, it is a valuable case, because the Trial
Chamber makes some nuances in regard to the components that were discussed in the previous
cases of Jelisić and Krstić.72
Firstly, the Trial Chamber argues that the victim group was defined too broadly in the Jelisić
case. It emphasized that ‘a targeted group may be distinguishable on more than one basis’ 73.
Therefore, the negative approach that was considered in the Jelisić case was seen to be inconsistent
with the ICTY statute according to the Trial Chamber of the Stakić case. The positive approach, which
was eventually used in both the Jelisić case and the Krstić case, may still be used in further judgments
of genocidal killers. That approach requires multiple distinctions for the victim group. 74
Secondly, a more valuable nuance is made with the component ‘annihilation’. The Trial
Chamber does emphasize that it is not necessary to prove a de facto destruction of the victim group,
because it is the dolus specialis that constitutes the crime genocide. However, the Trial Chamber of
the Stakić case argues that the sentence ‘in whole or in part’, must not be interpreted too broadly.
Previous cases have too quickly accepted that regional mass killings can also constitute genocide.
Therefore, the Trial Chamber ‘with some hesitancy follows the jurisprudence of the
Yugoslavia…Tribunal[s]’75. Nevertheless, the Trial Chamber is ´aware that this approach might distort
72
ICTY, Case sheet information Milomir Stakić, IT-97-24.
Prosecuter v. Milomir Stakić, Trial Judgment, IT-97-24-T, 31 July 2003, para 512.
74
Ibidem, para 512.
75
Ibidem, para 523.
73
21
the definition of genocide if it is not applied with caution´ 76. Although the use of a broad interpretation
of annihilation is not rejected, some important nuances have been made to this component.
As in any case, the most important element was the establishment of the dolus specialis.
Therefore, this component was dealt with in the same way as the other two cases. Nonetheless, it is
still interesting to see on what grounds the Trial Chamber tried to prove a genocidal intent. According
to the Trial Chamber, the dolus specialis can be ‘inferred either from the facts, the concrete
circumstances, or a pattern of purposeful action’ 77. Some evidence was more convincing than others.
The most decisive evidence was that the structures were in place in the form of the detention camps.
Besides, these camps had the ability to destroy a large part of the Bosnian Muslim community.
However, of the 23.000 people that were ´registered as having passed through the Trnopolje camp,
the total number of killings in the Prijedor municipality did not exceed 3000´.
78
Despite the opportunity
to physically destroy a large part of the Bosnian Muslim community in the region of Prijedor, it did not
happen. Therefore, the genocidal intent of Stakić has not been proved and he was acquitted of
genocide.
Altogether, the case of Stakić shows that even within a tribunal, where unity should exist, the
definitional debate remains controversial. Stakić was acquitted because the evidence showed that the
dolus specialis was not present. Besides, there were many questions concerning the components
victim group and annihilation. Eventually, there was a solution for these definitional issues. However, it
is important that these questions do not keep coming back; a definitive solution should be developed.
3.4 CHAPTER CONCLUSION
To what extent was the Genocide Convention a guidance for these three genocide cases? Strikingly,
the ICTY slightly went along with the definitional debate. Looking back at the Genocide Convention in
chapter 1.2 the Convention seems a strictly pragmatic approach. When analyzing it, it is really hard to
interpret the definition in this Convention softer than it really is. Nevertheless, many scholars have
broadened the definition, just as the ICTY did. That is actually not a strange result. Dealing with the
scale of these atrocities, the concept of genocide suddenly becomes real and very close to our
personal understanding. As a result, the ICTY has made some adjustments to the Genocide
Convention during the trials.
One of these adjustments has been made to the component victim group. The Trial Chamber
kept the national, ethnic, racial and religious groups as protected groups. However, the Trial Chamber
did argue that the perpetrator was the one who defined what constituted the group. That led to the
question of annihilation. Some misunderstanding existed on the words ‘in whole or in part’ of the
Genocide Convention and Article 4 of the statute. The Trial Chamber eventually concluded that
destroying a part of the group can also constitute genocide, as long as it is a significant part of the
protected group. Some nuances were made during the Stakić trial. There was also a debate about the
mode of destruction. Although the Trial Chamber diverged from the Genocide Convention in the
76
Ibidem, para 523.
Ibidem, para 526.
78
Ibidem, para 553.
77
22
previously mentioned components, this component was interpreted with a hard approach. Only
physical and biological destruction were seen to constitute genocide. However, cultural destruction
should be interpreted as a warning sign for physical and biological destruction. The fourth component
that has also been discussed is the agent of destruction. The Genocide Convention does not mention
anything about the agent, but scholars did debate about the agent of destruction. The ICTY does not
believe that a genocidal campaign can be organized as a widespread campaign by an individual.
Therefore, the Trial Chamber argued that the agent is at all times an organization or well-organized
authority. The last component is intent. This is the component on which all scholars seem to agree.
According to the statute, the difference between crimes against humanity and genocide is that the
latter is carried out with a specific intent (dolus specialis). Proving the genocidal intent was therefore
the most important task of the legal team in order to convict a genocidal killer. Whether mass killings
were carried out with a specific intent was proved with the help of the other components.
The Stakić case showed that the ICTY also experienced some definitional debates in the
tribunal during the cases. Nonetheless, keeping in mind that ‘The law on genocide… is becoming
clearer through its usage’79, it contributed to a wider understanding of genocide partly due to some
decisive decision of the Trial Chamber at Stakićs’ Trial Judgment. Therefore, the development of the
understanding of these components is an important and responsible task for the ICTY.
79
Jǿrgensen, ‘Complicity in Genocide and the Duality of Responsibility, 248.
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CONCLUSION
It has taken a slow 40 years before the Genocide Convention was tested for the first time. Despite its
failures to prevent the massacres in Srebrenica and Rwanda, the ICTY had the ability to interpret the
Genocide Convention and create some clarity in international law.
Many books have been written on the definitional debates circling the concept of genocide.
There are also many critical articles on the Genocide Convention and the prevention of genocide.
Nonetheless, literature on the ICTY’s effects on international law is not extensive. Besides, there
exists a gap in the literature on the aspect of the punishment of genocide. That intrigued me and I
therefore asked myself: What was the contribution of the International Criminal Tribunal of the Former
Yugoslavia in defining the concept genocide?
In 1944 the word genocide was coined for the first time by Raphael Lemkin who defined it as
‘the destruction of a nation or of an ethnic group’. This resulted in the adoption of the UN Genocide
Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Nonetheless, many
different definitions exist in the field of Genocide Studies. What became evident through a definitional
analysis is that there is a distinction between a hard approach and a soft approach. Scholars that use
a hard approach often use a narrow definition. The annihilation component requires total group
annihilation and the mode of destruction is purely focused on the physical killing of a group. Besides,
the agent of destruction is clearly defined as a state or authority. On top of that, the victim group is
often specifically defined. On the other side, some scholars use a soft approach in which group
annihilation does not necessarily mean destruction of a whole group. Secondly, the component mode
of destruction can include a whole range of possibilities. Besides, the agent is not defined and the
victim group can be any collectivity. The only component on which there is no definitional debate is the
component ‘intent’. All scholars seem to agree that such a widespread and systematic crime can only
exist if the perpetrator had the intent to destroy a whole group.
These debates created a lot of confusion on the concept of genocide and when the ICTY had
to draft its statute it had to deal with these interpretations. The legal team had to make clear the
distinction between genocide and crimes against humanity. Besides they also had to make a
distinction between complicity in genocide and aiding & abetting genocide. Intent was an important
element in making the distinction between those legal concepts. Clearly, genocide is characterized by
the component intent.
The ICTY intended to use the Genocide Convention as a guideline during the Trial Judgments.
Interestingly, sometimes the Trial Chamber went along with the definitional debate. Firstly, the Trial
Chamber kept in mind that the protected victim groups under the Convention were only national,
ethnic, racial and religious groups, but emphasized that perpetrator was the one who defined what
constituted the group. Secondly, concerning the component annihilation, the Trial Chamber concluded
that the destruction of a part of the group can also constitute genocide, as long as it is a significant
part of the protected group. Thirdly, the Trial Chamber argued that concerning the mode of destruction
only physical and biological destruction constitutes genocide. Fourthly, according to the Trial Chamber
24
the agent of destruction is suspected to be an organization or well-organized authority at all times.
Lastly, the most important task of the Trial Chamber was to prove a genocidal intent in order to convict
a genocidal killer. What was remarkable in these cases was that the other components served as
evidence for a genocidal intent.
Almost every component that was discussed in chapter 1.3 was analyzed by the Trial
Chamber. Especially the components victim group and annihilation have undergone a change in their
meaning within international law. Using this knowledge it might be possible to formulate a new
definition of genocide. The victim group might be defined by the ICTY as: ‘a national, ethnic, racial or
religious group, as long as it is defined by the perpetrator as such a group’. The component
annihilation can be formulated as’: ‘to destroy a significant part of the group’. The conceptualization of
the component mode of destruction did not change. Therefore, this will be formulated as ‘physically or
biologically’. The component agent of destruction will be defined as: ‘organization or system’. The
component intent was of vital importance during the trials and must be included in the definition. Taken
all together, the definition on genocide will become: ‘genocide is the intentional physical or biological
destruction by an organization or system of a significant part of a national, ethnical, racial or religious
group as long as this group is defined by the perpetrator as such.’ Obviously, this is a significant
difference with the formulation of genocide in the Genocide Convention: ‘ genocide means any of the
following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious
group, as such’(5).
It is clear that all trial cases discussed influenced the conceptualization of the components. It
is therefore plausible to assume that this trend has continued with other genocide prosecutions. These
cases have shown how the Genocide Convention should be interpreted by an international tribunal.
This will give some guidelines for future genocide prosecutions that will be held in the International
Criminal Court or other international tribunals. Assuming that the law of genocide becomes clearer
through its usage, it can be concluded that the ICTY made a great contribution.
25
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