ANALYSIS: Srebrenica Genocide Judgement

For the first time, the Hague tribunal has passed a judgement establishing that the crimes committed in the former Yugoslavia constitute genocide.

General Radislav Krstic, the former commander of the Bosnian Serb army's Drina corps, was sentenced to 46 years in prison for his role in the crime of crimes - committed at Srebrenica July 1995. In its detailed summary of the verdict, the trial chamber made clear that while Krstic did not plan or order the genocide, once the decision was taken, he was an active participant in carrying it out. As presiding Judge Almiro Rodrigues concluded at the August 2 hearing, "In July 1995, General Krstic, you agreed to evil."

It took four attempts for the Office of the Prosecutor to achieve this historic result. The first trial for genocide, in summer 1998, was interrupted after only three weeks, following the death of defendant Milan Kovacevic, charged for genocide in Prijedor and the notorious camps in Omarska, Keraterm and Trnopolje. In the next two cases, the 1999 trial of Goran Jelisic for killings in Brcko, and the 2001 case against Keraterm camp commander Dusko Sikirica, the court concluded that the prosecution had failed to prove genocidal intent. (For an archive of previous Tribunal Update reports on these cases, see http://www.iwpr.net/index.pl?tribunal_case_files.html.)

The high standard of evidence is to prove beyond a reasonable doubt that an accused acted, in the terms of the genocide convention, "with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such". In the Krstic case, the trial chamber found that what began as yet another instance of ethnic cleansing indeed ended as genocide.

Operation Krivaja 95, as the attack on Srebrenica by the Drina corps was code-named, was not confined to mere retaliation against Bosniak (Muslim) forces using the UN safe area as a base for attacks on Serb forces and Serb villages. The initial aim of the operation was to cut off the lines of communication between Srebrenica and the nearby enclave of Zepa (also under UN protection), and to reduce the enclave to the town centre of Srebrenica.

That aim was achieved quickly and easily. Serbian forces encountered no significant resistance either from Bosnian army forces or international troops, in this case the Dutch UNPROFOR battalion in the enclave itself. There was no NATO "close air support".

Realising that nothing stood in their way, Bosnian Serbs forces expanded the aim of the operation to seize the town itself. Based on the evidence, the trial chamber concluded that a decision was taken to "cleanse" Srebrenica, to "drive out all the Bosnian Muslims from the enclave, including the women, children and old people".

According to the judges, it was not unreasonable for men to be separated out, since as war prisoners they could subsequently serve as a bargaining chips, which had frequently been the case throughout the conflict in the former Yugoslavia.

But, Judge Rodrigues explained, "For reasons the trial chamber has been unable to clarify, the decision was then taken to kill all the men of fighting age." With this decision, "the original objective of ethnic cleansing . . . turned into a lethal plan to destroy the male population of Srebrenica once and for all".

The prosecution readily proved that mass crimes representing the so-called "material elements" of genocide were committed in Srebrenica on July 10-19, 1995, in what the judgement calls "nine days of hell". The defence did not dispute that thousands of Muslim men were killed or suffered serious bodily or mental harm, after the entry of Serb forces into the enclave.

Nor did the defence challenge the fact that the victims, Muslim men, were chosen because of their membership in a particular national or ethnic group.

The key issue of dispute, however, was whether this could in fact be deemed genocide under the definition of the crime. The prosecution asserted that the more than 7,500 men killed constituted a "substantial" part of this national group - around one-fifth of the total Muslim population in Srebrenica before the attack.

The defence countered that this number was not a large proportion of the group, in light of the overall population of Bosnian Muslims of 1.4 million.

The decisive factor in the judges' considerations was the link between the systematic executions of Muslim men, July 13-19, and the forcible transfer, July 12-13, of some 25,000 women, children and old people who had gathered in the UN base at Potocari after the fall of the enclave.

It was the combination of these two operations that constituted genocide. As the judges concluded, Bosnian Serb forces "could not have failed to know" that the killings of the men and the forced transfer of the others "would inevitably result in the physical disappearance of the Bosnian Muslims of Srebrenica". By these acts, the Bosnian Serb forces "effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever re-establish itself on that territory".

Having confirmed that genocide occurred, the still greater challenge for the prosecution, however, was to prove that the accused general not only had an active role in these events but also that he participated with specific genocidal intent - i.e., with the aim of destroying, in part, an ethnic group as such.

Unlike top Bosnian Serb leaders Radovan Karadzic and General Ratko Mladic, who left behind plenty of written and oral traces of their views, which could, at least in the case of Srebrenica, confirm their intentions, the prosecution found few pieces of direct evidence clearly indicating Krstic's genocidal designs.

One such piece of evidence was the taped intercept of a radio communication in which Krstic appears to order Major Dragan Obrenovic (also arrested for genocide in Srebrenica) to "kill them all". But the judges emphasised that this tape was not included in the record upon which it made its judgement.

Nevertheless, as the trial chamber stated, "There can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men."

This conclusion is based on various evidence demonstrating that Krstic was on the scene and, as a commander, was fully aware of what was taking place. As Judge Rodrigues intoned several times to the defendant, "You were there".

The evidence presented by the prosecution confirmed that Krstic was present in Srebrenica, Potocari and Bratunac in the critical period of July 11-12. Confiscated orders, combat reports and other military documents show that he assumed de facto control of the Drina corps on the evening of July 13 and immediately issued his first order as a commander. Numerous intercepts of telephone and radio communications from the Bosnian Serb army headquarters indicate that the general constantly received reports and gave orders relating to events in the territory under his responsibility.

In his summary, Judge Rodrigues went further, concluding that Krstic's specific responsibilities as commander ensured that he would have known of, and understood, the consequences of what was happening. Entering Srebrenica on July 11 with General Mladic, he found a "deserted town".

"Assuming that you did not already know, you must have wondered where the population had gone," insisted Rodrigues. As the original intention of the operation was to separate Srebrenica from Zepa and reduce the enclave to its urban area, it would have been "essential" for the general to have known the location at least of the Bosnian forces.

From that time on, Krstic accompanied Mladic to meetings at which he made highly threatening remarks and ordered the transfer of women, children and the elderly from Potocari. Krstic ordered buses to come to the UN base quickly, and was present when the men began to be separated out. "You could not not but have seen their physical condition," said the judge. "You could not but have heard the screams of the men who were taken to the building called the White House as they were being beaten."

Following Mladic's orders, after July 13, Krstic focused on preparations for the attack on Zepa, which began the next day. But he remained fully informed and involved in the events at Srebrenica, where troops under his control were moved on the night of July 14-15.

In a chilling passage, the judge recalled, "On 15 July in the morning, the security chief of the main staff called you and asked for your help in dealing with '3,500 packages'. You knew exactly what was meant by 'packages', General Krstic - Bosnian Muslims who were to be executed. You expressed your displeasure. That same officer told you that the MUP forces, the Interior Ministry police, did not want - no longer wanted - to do it. You said you would see what you could do. On 16 July, some of your subordinates, men from the Bratunac Brigade, participated in the mass executions at the Branjevo military farm."

The judges also rejected Krstic's defence that for fear of reprisals against himself or his family, he could not take any measures against a senior officer involved. Indeed, the trial chamber noted that "not a single soldier of the Drina corps was punished for the murder of one or several Bosnian Muslims".

This detailed and tightly argued judgement appears aware of its historic nature. Extended passages reflect on the nature of individual versus collective guilt, and stress the importance for the court and the Serb people of attaching specific names to specific crimes, so that such "evils" are not associated with Serbian identity.

In these terms, Krstic is condemned, but for a very specific role, "assisting with the provision of men to be deployed to participate in executions. . . . He remained largely passive in the face of his knowledge of what was going on: he is guilty, but his guilt is palpably less than others who devised and supervised the executions all through that week and who remain at large".

General Mladic, the judges conclude, "was calling the shots and personally supervising the killings" - a clear signal, based on the evidence that has been presented so far, of potential future convictions for genocide, and possibly still longer sentences, should the top Bosnian leaders be transferred to The Hague.

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.