As promised last week, I have continued my discussion of Prosecutor v Krstic in this week’s post. This time, I go further into depth on why I believe the case is one of the most important in the jurisprudence of International criminal law.
Humanity’s propensity towards violence has been well documented throughout history, and we have a horrifying tendency to violate the right to existence of peoples we perceive to be ‘different’. Thankfully, things have changed since this trend reached its disgusting epitome during the Holocaust and the Japanese atrocities in the Far East during World War 2. The Genocide Convention[1], unanimously adopted by the UN in 1948 and in effect since 1951, was created to provide an offence which could be used to properly punish perpetrators and, thankfully, it remained unused for over 40 years. During this period, and during the operation of the International Criminal Tribunals for Rwanda and for the former Yugoslavia[2], there was considerable academic debate as to the threshold required for genocide to have occurred, before the Appeal Court’s decision in Krstic[3] settled the matter. This blog post will argue that the decision in Krstic preserved the intention and spirit of the offence of genocide, therefore ensuring the offence remained squarely focused on its objective during its latter applications. I will divide the post into two sections. It will first discuss the case itself, before examining its ramifications. The post will not discuss the constituent elements of the offence where they are not material to my argument, since I have done this elsewhere[4].
Prosecutor v Krstic[5]
The Srebrenica Massacre
Bosnia and Herzegovina saw some of the worst fighting of the Yugoslav wars, due to the rich ethnic makeup of the region. Srebrenica had been declared a safe zone by the UN Security Council in April 1993[6] after a particularly vicious campaign of ethnic cleansing and a prolonged siege of the town; part of this campaign can be attributed to the town’s importance to the Serbs, since without it they could not form a viable polity. Whilst the resolution on paper this meant the area would be “free from any armed attack or any other hostile act”[7], there was very little concrete success in the period between April 1993 and July 1995 on the UN’s part in their attempt to demilitarise the area. When the Serbs overran the zone between the 6th and 11th of July 1995, the UN protection force proved ineffective, and the area quickly fell.
The massacre itself took place over 11 days, between the 11th and 22nd of July 1995. Indiscriminate executions of men began almost immediately, before the perpetrators began to separate men of military age[8] from the women, children and elderly on the 12th. The men would then be slaughtered and buried in mass graves, whilst the rest were deported from the area, during which rape and indiscriminate murder was exceedingly common. The bodies would later be exhumed and mutilated, before being reburied elsewhere, so as to prevent identification by any Bosniaks who found them. The homes of the Bosniaks in the area, as well as their mosques and other key community centres, were all destroyed, and the rubble was often bulldozed after the fact.
In total, 8000 men were murdered during the Srebrenica massacre[9]. The international community quickly became aware of the massacre and moved, through the ICTY, to hold those accountable to justice.
Radislav Krstic
Radislav Krstic was a high-ranking officer in the Bosnian Serb army during the Yugoslav wars, and was successively Chief of Staff and then Commanding Officer of the Drina Corps, which contained the perpetrators of the Srebrenica Massacre. He was indicted by the ICTY on the 1st of November 1998 on multiple charges, including conspiracy to commit genocide and genocide itself; he was apprehended by NATO forces on the 2nd of December, and his trial began on the 7th. Krstic was found guilty of genocide, and conspiracy to commit genocide. The Trial Chamber found that the “Bosnian Muslims of Srebrenica… constitute part of the protected group”[10]. The Serbs could not fail to know that targeting of the men of military age meant that the Bosnian Muslims of Srebrenica could not sustain themselves there[11]; from this, intent was inferred. The accused was granted leave to appeal to the Appeal Chamber.
On appeal, Krstic’s conviction for genocide was overturned, mainly on the grounds that he lacked the requisite intent. They did, however, approve of the Trial Chamber’s approach to defining just what “in whole or in part” actually meant; in their discussion, the court found that where “a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial”[12]. Despite having one of his convictions overturned, Krstic was still sentenced to 33 years imprisonment, minus time served.
Ramifications
In my opinion, the Krstic decision is the most important judgement passed by the ICTY, and arguably the most important one passed by either the ICTY or ICTR[13]. As I will discuss below, it has preserved genocide’s core intention, and ensured that its scope is not unduly restricted.
Genocide, by its nature, must have a wide scope to remain effective. That is not to say, however, that the prosecution’s attempt in Krstic to have the Muslims of Srebrenica recognised as the protected group[14] was appropriate; it would have unacceptably widened the offence’s scope to such a degree as to detract from its legitimacy, which would decrease its importance. It means that, to properly hold criminals to account, genocide must be sufficiently wide.
This is achieved by the Appeal Chamber’s judgement[15]. This is sufficiently malleable to ensure that genocide can be legitimately applied to a multitude of situations. For instance, if I were to massacre all the men on North Sentinel island, which is known for its isolationism and refusal to mix with the outside world, this would be genocide under the Appeal Chamber’s decision. I clearly attacked a part of the group which is necessary for its survival- without the ability to procreate, the North Sentinelese would die off- and in a manner which suggests my intent to destroy the group.
Some academic commentators, however, believe that the numerical threshold for genocide was set too low by the Krstic decision[16]. I would strongly contend the idea there even needs to be a numerical threshold for the offence. Whilst early caselaw on the matter seemed to believe there was[17], this is clearly no longer the case as a result of Krstic; a small subsection the protected group, as illustrated by my example above, may be considered essential for its survival. If the requirement for a certain numerical threshold was introduced, it would also open trials to coming down to a simple discussion of numbers, which is the complete anti-thesis of their goal. Indeed, it would be immeasurably disrespectful to the victims, and would do little more than dehumanise them as their murderers wished to do.
From a practicality perspective, just how would this numerical threshold idea operate? Would it be based on the % of protected group’s population killed? Or would it be an absolute number, beneath which genocide could not occur? If it was the latter, how would this operate for those protected groups whose number is especially low- such as the North Sentinelese. Would they be ineligible for the protections offered by the Genocide Convention because of the size of their population? For reference, the population of Srebrenica in January 1993 was estimated by the prosecution to be between 38 and 42,000[18], whilst the overall population of Bosnian Muslims was around 1.4 million[19]; Srebrenica Muslims therefore made up approximately 2.9% of the Muslim population in Bosnia. Can the law really be said to be just and equitable if their suffering, their persecution, is ignored simply because of figures? Thankfully, the Krstic judgement prevents this.
Conclusion
In conclusion, Krstic is a landmark case in the development of the International criminal law and the law of genocide. Whilst it is controversial, it is a case which has, in my opinion, bettered the law and ensured that those who commit the most heinous crimes are accordingly held to justice. Furthermore, it has ensured that genocide has remained true to its intention as a criminal offence, which is to protect groups regardless of their size or influence by attributing their value to their constituent’s humanity, rather than their numerical size.
[1] As the The Convention on the Prevention and Punishment of the Crime of Genocide is colloquially referred to. It will be referred to by its colloquial name throughout this essay.
[2] Referred to throughout this essay as the ICTR and ICTY respectively
[3] Prosecutor v Krstic ICTY AC, 19 April 2004
[4] See https://ascottlegalblog.wordpress.com/2020/09/28/the-rohingya-crisis-a-legal-perspective/ for my description of this.
[5] ICTY TC 1, 2 August 2001; ICTY AC, 19 April 2004
[6] UNSC Resolution 819 16 April 1993. S/RES/819(1993)
[7] Ibid, para number 1.
[8] Commonly acknowledged to be 16-65, although the youngest victims appear to have been 14.
[9] https://www.bbc.co.uk/news/world-europe-53374935. Accessed 19/10/20
[10] Prosecutor v Krstic ICTY TC 1, 2 August 2001 para 560.
[11] Ibid paras 595-97
[12] Prosecutor v Krstic ICTY AC 19 April 2004 para 12
[13] Although Akayesu ICTR TC 1, 2 September 1998 vies closely for first.
[14] Prosecutor v Krstic ICTY TC 1, 2 August 2001 para 545
[15] Specifically, at para 12
[16] See, for instance, William Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgements of the International Criminal Tribunal for the Former Yugoslavia’ (2002) 25 Fordham International Law Journal 23.
[17] Such as Prosecutor v Jelasic ICTY TC 1, 14 December 1999
[18] Prosecutor v Krstic ICTY TC 1, 2 August 2001 para 592
[19] The court used http://www.unhabitat.org/habrdd/conditions/southeurope/bosnia.htm, accessed 26/03/2004, as a reference for this figure.
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