Guilt for Genocide: How Broad Should It Be?
Guilt for Genocide: How Broad Should It Be?
Genocide law in the ICTY is in flux, according to a review of recent decisions. Behind the differing legal analyses is the fundamental question of who should be held responsible for the gravest of all crimes and to what degree. While it is clear that the inner circle bear primary responsibility for genocide, the legal liability of the numerous others whose contribution is necessary is less clear. One person alone cannot commit genocide. Nor can it be accomplished without the contributions of numerous others, from the logistical planners to the military suppliers to those who do the killing and terrorizing to those who stand and watch. Though all are necessary, not all are equally guilty. While some bear legal guilt, the guilt of others is moral, unreachable by the law.
The mission of the ICTY is to bring to justice only the most guilty. Yet even within that category there are degrees of guilt. The ICTY statute contains the skeleton of the crime – its definition and an outline of the ways in which it can be committed. It is up to the Tribunal to put flesh on that skeleton by applying it to the different factual contexts of individuals who have been charged with participation in genocide. The statute does not provide guidance on degrees of guilt, e.g. is one who passes on the order to kill thousands of Bosnian Muslim prisoners as guilty as the man who draws up the plans.
Much of the Tribunal’s discussion has centered on the accused’s intent. Whatever action he performed, did he do it with the specific intent to destroy at least a part of the Bosnian Muslims? Those who share the intent bear the greatest responsibility, the Tribunal seems to have concluded. Yet two recent decisions, one by an appeals panel and another by a trial chamber, call that conclusion into question.
In recent decisions various chambers of the ICTY have: 1) confirmed that genocide occurred at Srebrenica, though the principal perpetrators have not been specifically identified, 2) reduced the liability and the sentence of Radislav Krstic, Commander at Srebrenica, from 45 years for genocide to 35 years for aiding and abetting genocide; 3) reinstated genocide charges against Radoslav Brdjanin, Bosnian Serb political leader, for participating in a joint criminal enterprise from which genocide was a foreseeable, though not intended, outcome; 4) confirmed genocide charges against Slobodan Milosevic, a head of state with influence and allegedly de facto authority over Serb forces throughout the Balkans, under four theories of liability, two of which do not require a genocidal intent.
The Milosevic Trial Chamber was the latest and perhaps most startling decision about what constitutes genocide under the ICTY statute. As noted in CIJ's prior report, 'Genocide Without Intent,' June 22, 2004, Trial Chamber III held that Milosevic could be found guilty of genocide even if he didn't have genocidal intent if it is determined that he participated in a joint criminal enterprise to commit another crime (such as forcible expulsion), but other members of the enterprise committed genocide and this was entirely foreseeable.
Based on its reading of an Appeals Chamber decision in the Brdjanin case, the Trial Court also held that Milosevic could be found guilty of genocide as a superior to those who committed genocide, if he knew his subordinates were about to commit or had committed genocide and failed to prevent or punish them, though he did not share their intent to commit genocide. The ruling came as part of the Court's dismissal of the Amici Curiae's motion for acquittal of Milosevic on genocide and complicity in genocide charges.
The Amici argued, as have some legal commentators, that a finding of genocide is incompatible with liability as a superior since genocide requires a specific intent to destroy a group, in whole or in part, and liability as a superior requires no such intent. Trial Chamber III disagreed, dismissing the Amici's argument with a curt conclusion, 'On the basis of the Decision of the Appeals Chamber in Prosecutor v. Brdjanin, this submission is unmeritorious.' The Court was referring to the recent Appeals Chamber action reinstating the genocide charge against Radoslav Brdjanin, following his acquittal on that charge by a trial chamber.
In the Brdjanin case, the Appeals Chamber appeared to rule that a person can be guilty of genocide even if he didn't have the specific intent to destroy a part of the Bosnian Muslims. Referring to category three joint criminal enterprise, the Court wrote, 'Provided that the standard applicable to that head of liability, i.e. 'reasonably foreseeable and natural consequences' is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise.' The appellate panel noted that “the third category of joint criminal enterprise is no different than other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach.” The panel then cited two additional examples, aiding and abetting and responsibility as a commander (or superior). The Appeals Chamber reinstated the charge of genocide against Brdjanin.
The Appeals Chamber decision in Brdjanin appears to conflict with another appeals panel's decision a month later in the Krstic case, where the Court held there was not enough evidence to establish that Krstic shared the genocidal intent of those primarily responsible for the genocide (unnamed persons in the VRS Main Staff). His role was more appropriately characterised as that of an aider and abettor, the Court concluded. Here, aiding and abetting genocide takes on the character of a separate crime (or a lesser included offense), rather than a mode of committing genocide. As the Milosevic Trial Chamber interpreted the Brdjanin decision, however, an aider and abettor to genocide would be guilty of genocide, as would a superior and a member of a joint criminal enterprise with a different goal, but genocide as a foreseeable outcome.
The conflict in these decisions appears to come from different judicial approaches to the ICTY statute and whether certain acts are considered crimes or modes of committing crimes. In Brdjanin, the Appeals Chamber held that the trial chamber confused the mental element (mens rea) of the crime of genocide with 'the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused.' As subsequent cases show, the confusion persists.
The ICTY Statute provides for three categories of crimes: Article 3. Violations of the laws and customs of war; Article 4. Genocide; Article 5. Crimes Against Humanity. The Statute establishes the ways by which one can be held responsible for these crimes in Article 7(1): by planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any crime listed in Articles 3, 4, or 5. Article 7 (3) provides another mode of responsibility, that of a superior for the acts of a subordinate if the superior knew or had reason to know that the subordinate was about to commit one of the crimes in Articles 3-5 or had committed one of them and the superior failed to take necessary and reasonable measures to prevent the acts or punish the perpetrator after the fact. Establishing the mode by which one commits a crime does not require a showing of any specific intent. For example, one is guilty for ordering an attack on an undefended town based solely on his knowledge that the town was undefended (and his order to attack it).
Article 4 of the Statute defines the crime of genocide and lists the acts that become genocide when they are committed with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, etc. These acts would be considered criminal in and of themselves. When committed with genocidal intent, they become the crime of genocide.
Article 4(3) then goes on to list “acts” that are punishable: genocide, conspiracy to commit genocide, incitement to commit genocide, attempt to commit genocide and complicity in genocide. The Krstic Appeals Panel wrote that Article 4 is most naturally read to require that all these enumerated acts require the specific intent to destroy a group in whole or in part.
The confusion or disagreement is over whether the “acts” listed in Article 4(3) constitute separate crimes or whether they are modes of committing genocide. In other words, is one guilty of genocide by incitement or is one guilty of incitement to commit genocide? The Krstic Panel noted that there appears to be an overlap between the 'punishable forms of participating in genocide' under Article 4 (3) and the general modes of committing crimes under the statute in Article 7. When one considers attempt which rests on the fact that genocide is not carried out, the sensible view is that they are separate crimes. * But that does not take account of complicity and the Tribunal’s view of it.
In Krstic, the Appeals Panel compared complicity (under Article 4(3)) to aiding and abetting (under Article 7(1)). It held that complicity encompasses, but is broader than, aiding and abetting. While holding that aiding and abetting does not require a genocidal intent, it noted that there is authority to support a requirement for specific genocidal intent for complicity when it is broader than aiding and abetting.
When the Milosevic Trial Chamber considered this issue, it dismissed the Krstic Appeals Panel’s view, implying it was confined to the facts of that case, and, in any case, its discussion of complicity was dicta (not necessary for its decision and, therefore, not precedent which must be followed by the trial courts). In the Appeals Chamber’s opinion, based on its review of the evidence, Radislav Krstic was a man unwillingly caught up in evil around him. While he did not prevent the use of his troops and resources in contributing to that evil, neither did he have the intent to commit genocide.
Considering the Prosecution’s evidence thus far, the Milosevic Trial Chamber held that complicity and aiding and abetting, in this factual context,** could be equated. Thus, guilt for complicity would not require a finding of genocidal intent on Milosevic’s part. Indeed, the Trial Chamber went on to suggest, “[T]he proper characterisation of the Accused’s liability in this case may be complicity in genocide.” A final determination is premature, the Court wrote.
In the Milosevic case, the Trial Chamber considered four modes of potential liability for genocide and found the Prosecution had introduced sufficient evidence, if believed, to support all of them. The first mode is participation in a joint criminal enterprise whose aim is genocide (destruction of a part of the Bosnian Muslims as a group). It is the clearest case and requires specific intent. The second mode is category three joint criminal enterprise or the common purpose doctrine, which holds one responsible for foreseeable crimes by other members of the joint criminal enterprise, though one does not share their specific intent (in this case to commit genocide). The third mode is aiding and abetting, which requires knowing of the genocidal intent but not sharing it. The fourth mode is superior responsibility for genocide committed by one's subordinates. Under it, Milosevic need not have shared the genocidal intent. He need only have been aware that those he had either de facto or de jure control over had genocidal intent and committed genocide, which he failed to prevent or punish. The court seems to be saying that liability under any of these modes is the same as liability for genocide, regardless of intent.
Underlying this legal confusion is a developing (by no means unanimous) judicial view of who should be held responsible for this “crime of crimes.” From the viewpoint of the Appeals Panel that decided Krstic, “Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstic possessed the genocidal intent. Krstic, therefore, is not guilty of genocide as a principal perpetrator.” Nevertheless, the Court considered his crime of aiding and abetting genocide sufficiently serious to net him a 35 year sentence.
What the Trial Chamber in Milosevic appears to be saying by contrast is that one whose power and pursuit of power sets in motion the real possibility of genocide, who nevertheless takes that risk by continuing to provide the means to those who are intent on accomplishing it, who quite possibly could prevent it yet sits back and lets it happen, will be considered as guilty as those who intentionally set out to destroy the Bosnian Muslims, in substantial part. Under this view, such a person should be branded with the crime of genocide, not with a crime of apparent lesser import. This reading may be the key to understanding the Trial Chamber’s decision that Milosevic must answer charges of genocide and complicity in genocide even if it cannot be shown that he had the specific genocidal intent. A brief review of Brdjanin's role in the joint criminal enterprise supports this view, as Brdjanin was allegedly a primary implementor of the ethnic cleansing campaign that drove non-Serbs from the Banja Luka region of Bosnia, a campaign that included widespread murder, terror and property destruction. Unlike Krstic, he is alleged to have willingly and enthusiastically played his part. For that, he faces the charge of genocide.
While legal theory can be discussed in a vacuum, it takes on life when applied to individual fact situations. The guilt of two people convicted of the same crime may vary significantly. Where a statute does not provide for distinction by degree as the ICTY statute does not, judges will craft a way to take account of such differences – whether by length of sentence, characterisation of the crime or some other means. It appears that is just what the Tribunal is doing.
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*Another issue is when does an attempt become genocide, since genocide includes the intent to destroy in whole or in part. At some point destroying a certain number, percentage or element of a group crosses over from attempt to commit genocide to genocide.
*A forthcoming article will give a brief summary of the Trial Court's view of evidence that could support a finding of genocide or complicity in genocide.
.
The mission of the ICTY is to bring to justice only the most guilty. Yet even within that category there are degrees of guilt. The ICTY statute contains the skeleton of the crime – its definition and an outline of the ways in which it can be committed. It is up to the Tribunal to put flesh on that skeleton by applying it to the different factual contexts of individuals who have been charged with participation in genocide. The statute does not provide guidance on degrees of guilt, e.g. is one who passes on the order to kill thousands of Bosnian Muslim prisoners as guilty as the man who draws up the plans.
Much of the Tribunal’s discussion has centered on the accused’s intent. Whatever action he performed, did he do it with the specific intent to destroy at least a part of the Bosnian Muslims? Those who share the intent bear the greatest responsibility, the Tribunal seems to have concluded. Yet two recent decisions, one by an appeals panel and another by a trial chamber, call that conclusion into question.
In recent decisions various chambers of the ICTY have: 1) confirmed that genocide occurred at Srebrenica, though the principal perpetrators have not been specifically identified, 2) reduced the liability and the sentence of Radislav Krstic, Commander at Srebrenica, from 45 years for genocide to 35 years for aiding and abetting genocide; 3) reinstated genocide charges against Radoslav Brdjanin, Bosnian Serb political leader, for participating in a joint criminal enterprise from which genocide was a foreseeable, though not intended, outcome; 4) confirmed genocide charges against Slobodan Milosevic, a head of state with influence and allegedly de facto authority over Serb forces throughout the Balkans, under four theories of liability, two of which do not require a genocidal intent.
The Milosevic Trial Chamber was the latest and perhaps most startling decision about what constitutes genocide under the ICTY statute. As noted in CIJ's prior report, 'Genocide Without Intent,' June 22, 2004, Trial Chamber III held that Milosevic could be found guilty of genocide even if he didn't have genocidal intent if it is determined that he participated in a joint criminal enterprise to commit another crime (such as forcible expulsion), but other members of the enterprise committed genocide and this was entirely foreseeable.
Based on its reading of an Appeals Chamber decision in the Brdjanin case, the Trial Court also held that Milosevic could be found guilty of genocide as a superior to those who committed genocide, if he knew his subordinates were about to commit or had committed genocide and failed to prevent or punish them, though he did not share their intent to commit genocide. The ruling came as part of the Court's dismissal of the Amici Curiae's motion for acquittal of Milosevic on genocide and complicity in genocide charges.
The Amici argued, as have some legal commentators, that a finding of genocide is incompatible with liability as a superior since genocide requires a specific intent to destroy a group, in whole or in part, and liability as a superior requires no such intent. Trial Chamber III disagreed, dismissing the Amici's argument with a curt conclusion, 'On the basis of the Decision of the Appeals Chamber in Prosecutor v. Brdjanin, this submission is unmeritorious.' The Court was referring to the recent Appeals Chamber action reinstating the genocide charge against Radoslav Brdjanin, following his acquittal on that charge by a trial chamber.
In the Brdjanin case, the Appeals Chamber appeared to rule that a person can be guilty of genocide even if he didn't have the specific intent to destroy a part of the Bosnian Muslims. Referring to category three joint criminal enterprise, the Court wrote, 'Provided that the standard applicable to that head of liability, i.e. 'reasonably foreseeable and natural consequences' is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise.' The appellate panel noted that “the third category of joint criminal enterprise is no different than other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach.” The panel then cited two additional examples, aiding and abetting and responsibility as a commander (or superior). The Appeals Chamber reinstated the charge of genocide against Brdjanin.
The Appeals Chamber decision in Brdjanin appears to conflict with another appeals panel's decision a month later in the Krstic case, where the Court held there was not enough evidence to establish that Krstic shared the genocidal intent of those primarily responsible for the genocide (unnamed persons in the VRS Main Staff). His role was more appropriately characterised as that of an aider and abettor, the Court concluded. Here, aiding and abetting genocide takes on the character of a separate crime (or a lesser included offense), rather than a mode of committing genocide. As the Milosevic Trial Chamber interpreted the Brdjanin decision, however, an aider and abettor to genocide would be guilty of genocide, as would a superior and a member of a joint criminal enterprise with a different goal, but genocide as a foreseeable outcome.
The conflict in these decisions appears to come from different judicial approaches to the ICTY statute and whether certain acts are considered crimes or modes of committing crimes. In Brdjanin, the Appeals Chamber held that the trial chamber confused the mental element (mens rea) of the crime of genocide with 'the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused.' As subsequent cases show, the confusion persists.
The ICTY Statute provides for three categories of crimes: Article 3. Violations of the laws and customs of war; Article 4. Genocide; Article 5. Crimes Against Humanity. The Statute establishes the ways by which one can be held responsible for these crimes in Article 7(1): by planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any crime listed in Articles 3, 4, or 5. Article 7 (3) provides another mode of responsibility, that of a superior for the acts of a subordinate if the superior knew or had reason to know that the subordinate was about to commit one of the crimes in Articles 3-5 or had committed one of them and the superior failed to take necessary and reasonable measures to prevent the acts or punish the perpetrator after the fact. Establishing the mode by which one commits a crime does not require a showing of any specific intent. For example, one is guilty for ordering an attack on an undefended town based solely on his knowledge that the town was undefended (and his order to attack it).
Article 4 of the Statute defines the crime of genocide and lists the acts that become genocide when they are committed with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, etc. These acts would be considered criminal in and of themselves. When committed with genocidal intent, they become the crime of genocide.
Article 4(3) then goes on to list “acts” that are punishable: genocide, conspiracy to commit genocide, incitement to commit genocide, attempt to commit genocide and complicity in genocide. The Krstic Appeals Panel wrote that Article 4 is most naturally read to require that all these enumerated acts require the specific intent to destroy a group in whole or in part.
The confusion or disagreement is over whether the “acts” listed in Article 4(3) constitute separate crimes or whether they are modes of committing genocide. In other words, is one guilty of genocide by incitement or is one guilty of incitement to commit genocide? The Krstic Panel noted that there appears to be an overlap between the 'punishable forms of participating in genocide' under Article 4 (3) and the general modes of committing crimes under the statute in Article 7. When one considers attempt which rests on the fact that genocide is not carried out, the sensible view is that they are separate crimes. * But that does not take account of complicity and the Tribunal’s view of it.
In Krstic, the Appeals Panel compared complicity (under Article 4(3)) to aiding and abetting (under Article 7(1)). It held that complicity encompasses, but is broader than, aiding and abetting. While holding that aiding and abetting does not require a genocidal intent, it noted that there is authority to support a requirement for specific genocidal intent for complicity when it is broader than aiding and abetting.
When the Milosevic Trial Chamber considered this issue, it dismissed the Krstic Appeals Panel’s view, implying it was confined to the facts of that case, and, in any case, its discussion of complicity was dicta (not necessary for its decision and, therefore, not precedent which must be followed by the trial courts). In the Appeals Chamber’s opinion, based on its review of the evidence, Radislav Krstic was a man unwillingly caught up in evil around him. While he did not prevent the use of his troops and resources in contributing to that evil, neither did he have the intent to commit genocide.
Considering the Prosecution’s evidence thus far, the Milosevic Trial Chamber held that complicity and aiding and abetting, in this factual context,** could be equated. Thus, guilt for complicity would not require a finding of genocidal intent on Milosevic’s part. Indeed, the Trial Chamber went on to suggest, “[T]he proper characterisation of the Accused’s liability in this case may be complicity in genocide.” A final determination is premature, the Court wrote.
In the Milosevic case, the Trial Chamber considered four modes of potential liability for genocide and found the Prosecution had introduced sufficient evidence, if believed, to support all of them. The first mode is participation in a joint criminal enterprise whose aim is genocide (destruction of a part of the Bosnian Muslims as a group). It is the clearest case and requires specific intent. The second mode is category three joint criminal enterprise or the common purpose doctrine, which holds one responsible for foreseeable crimes by other members of the joint criminal enterprise, though one does not share their specific intent (in this case to commit genocide). The third mode is aiding and abetting, which requires knowing of the genocidal intent but not sharing it. The fourth mode is superior responsibility for genocide committed by one's subordinates. Under it, Milosevic need not have shared the genocidal intent. He need only have been aware that those he had either de facto or de jure control over had genocidal intent and committed genocide, which he failed to prevent or punish. The court seems to be saying that liability under any of these modes is the same as liability for genocide, regardless of intent.
Underlying this legal confusion is a developing (by no means unanimous) judicial view of who should be held responsible for this “crime of crimes.” From the viewpoint of the Appeals Panel that decided Krstic, “Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstic possessed the genocidal intent. Krstic, therefore, is not guilty of genocide as a principal perpetrator.” Nevertheless, the Court considered his crime of aiding and abetting genocide sufficiently serious to net him a 35 year sentence.
What the Trial Chamber in Milosevic appears to be saying by contrast is that one whose power and pursuit of power sets in motion the real possibility of genocide, who nevertheless takes that risk by continuing to provide the means to those who are intent on accomplishing it, who quite possibly could prevent it yet sits back and lets it happen, will be considered as guilty as those who intentionally set out to destroy the Bosnian Muslims, in substantial part. Under this view, such a person should be branded with the crime of genocide, not with a crime of apparent lesser import. This reading may be the key to understanding the Trial Chamber’s decision that Milosevic must answer charges of genocide and complicity in genocide even if it cannot be shown that he had the specific genocidal intent. A brief review of Brdjanin's role in the joint criminal enterprise supports this view, as Brdjanin was allegedly a primary implementor of the ethnic cleansing campaign that drove non-Serbs from the Banja Luka region of Bosnia, a campaign that included widespread murder, terror and property destruction. Unlike Krstic, he is alleged to have willingly and enthusiastically played his part. For that, he faces the charge of genocide.
While legal theory can be discussed in a vacuum, it takes on life when applied to individual fact situations. The guilt of two people convicted of the same crime may vary significantly. Where a statute does not provide for distinction by degree as the ICTY statute does not, judges will craft a way to take account of such differences – whether by length of sentence, characterisation of the crime or some other means. It appears that is just what the Tribunal is doing.
__________________________________________
*Another issue is when does an attempt become genocide, since genocide includes the intent to destroy in whole or in part. At some point destroying a certain number, percentage or element of a group crosses over from attempt to commit genocide to genocide.
*A forthcoming article will give a brief summary of the Trial Court's view of evidence that could support a finding of genocide or complicity in genocide.
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