Bosnian Genocide

"This article refers to genocide during the 1992-1995 Bosnian War. Other cases of genocide in the same region during World War II are covered in other articles."

The term Bosnian Genocide is used to refer either to the genocide committed by Bosnian Serb forces in Srebrenica in 1995, [Staff. " [http://news.bbc.co.uk/1/hi/world/europe/1907122.stm Bosnian genocide suspect extradited] ", BBC, 2 April 2002] or to ethnic cleansing that took place during the 1992-1995 Bosnian War. [http://www.echr.coe.int/echr/ European Court of Human Rights] - [http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=1448788&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=63590&highlight= Jorgic v. Germany Judgment] , July 12 2007. § 47] [ [http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SE00134:@@@D&summ2=m& CRS Summary: A resolution expressing the sense of the Senate regarding the massacre at Srebrenica in July 1995] . See clause (2)]

In the 1990s, several authorities, in line with a minority of legal scholars, asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide. These included a resolution by the United Nations General Assembly and three convictions for genocide in German courts, the convictions based upon a wider interpretation of genocide than that used by international courts. [ECHR Jorgic v. Germany Judgment, July 12 2007. § 47,107,108] In 2005, the United States Congress passed a resolution declaring that "the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide". [ [http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.res.00134: A resolution expressing the sense of the Senate regarding the massacre at Srebrenica in July 1995] ]

However, in line with a majority of legal scholars, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ) have ruled that, in order for actions to be deemed genocide, there must be physical or biological destruction of a protected group and a specific intent to commit such destruction. To date only the Srebrenica massacre has been found to be an act of genocide by the ICTY, a finding upheld by the ICJ. [ECHR Jorgic v. Germany Judgment §47,112]

Individuals accused of genocide during the Bosnian war

About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date, after several plea bargains and some convictions that were successfully challenged on appeal, only Radislav Krstic has been found guilty of complicity in genocide in an international court.

Three have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights.

On 29 July 2008 the State Court of Bosnia and Herzegovina found Milenko Trifunovic, Brano Dzinic, Aleksandar Radovanovic, Milos Stupar, Slobodan Jakovljevic Branislav Medan and Petar Mitrovic guilty of genocide their part in the Srebrenica massacre, [Staff Associated Press [http://ap.google.com/article/ALeqM5gzMf5TP25p8ZMtqw04RJd6aaOYcwD927LEIG0 7 Bosnian Serbs guilty of genocide in Srebrenica] ] [Staff. " [http://news.bbc.co.uk/1/hi/world/europe/7531413.stm Bosnian Serbs jailed for genocide] ", BBC, 29 July 2008] Milorad Trbic a former members of the Bosnian Serb security forces is currently on trial in Bosnia and Herzegovina indicted on several charges including genocide.

Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. On 11 March 2006, he died during his trial where he was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina. No verdict was returned. The ICTY has issued a warrant for the arrest of Radovan Karadzic and Ratko Mladic on several charges including genocide. Karadzic was arrested in Belgrade on 21 July 2008, and was transferred into the ICTY custody in the Hague nine days later on 30 July.Staff. [http://news.bbc.co.uk/1/hi/world/europe/7532281.stm Karadzic flown to Hague tribunal] , BBC, 30 July 2008] To date Mladic has evaded arrest and remain at large.

United Nations

On 18 December 1992, the "United Nations General Assembly resolution 47/121" in its preamble deemed ethnic cleansing to be a form of genocide stating:

On 12 July 2007, in its judgement on the "Jorgic v. Germany" case, the European Court of Human Rights noted that:

International Criminal Tribunal for the Former Yugoslavia

In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide. [The International Criminal Tribunal for the Former Yugoslavia found in [http://www.worldlii.org/int/cases/ICTY/2001/8.html Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001)] that genocide had been committed. (see paragraph 560 for name of group in English on whom the genocide was committed). It was upheld in " [http://www.worldlii.org/int/cases/ICTY/2004/7.html Prosecutor v. Radislav Krstic - Appeals Chamber - Judgment - IT-98-33 (2004) ICTY 7 (19 April 2004)] "] In the unanimous ruling "Prosecutor v. Krstić", the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), located in The Hague, reaffirmed that the Srebrenica massacre was genocide [ICTY "Prosecutor v. Krstic" [http://www.un.org/icty/krstic/Appeal/judgement/krs-aj040419e.pdf] ] , the Presiding Judge Theodor Meron stating:

In September 2006, former Bosnian Serb leader Momcilo Krajisnik was found guilty of multiple instances of crimes against humanity, but while the ICTY judges found that there was evidence that crimes committed in Bosnia constituted the criminal act of genocide ("actus reus"), they did not establish that the accused possessed genocidal intent, or was part of a criminal enterprise that had such an intent ("mens rea"). [Staff. " [http://www.un.org/icty/pressreal/2006/p1115-e.htm Momcilo Krajisnik convicted of crimes against humanity, acquitted of genocide and complicity in genocide] ", A press release by the ICTY in The Hague, 27 September 2006 JP/MOW/1115e]

United States resolutions H.199 and S.134

On 27 June 2005, during the 109th Congress, the United States House of Representatives passed a resolution (H. Res. 199 sponsored by Congressman Christopher Smith with 39 cosponsors) commemorating the 10th anniversary of the Srebrenica genocide. [ [http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.res.00199: Expressing the sense of the House of Representatives regarding the massacre at Srebrenica in July 1995] ] The resolution, as amended, was passed with an overwhelming majority of 370 - YES votes, 1 - NO vote, and 62 - ABSENT.Washington Post. " [http://projects.washingtonpost.com/congress/109/house/1/votes/322/ Votes Database: Bill: H RES 199] " 27 June 2005] The resolution is a bipartisan measure commemorating July 11, 1995-2005, the tenth anniversary of the Srebrenica massacre. [http://foreignaffairs.house.gov/archives/109/21401.PDF Markup Committee on International Relations House of Representatives (pdf)] , 109th Congress, H. Res. 199 and H.R. 2601, May 26, 2005, Serial No. 109–87. p. 13] The Senate version, S.Res.134, was introduced by Senator Gordon Smith and was agreed to in the Senate on 22 June 2005 without amendment and with unanimous consent. [ [http://thomas.loc.gov/cgi-bin/query/z?c109:S.RES.134: Bill Number S.RES.134 for the 109th Congress] ] [ [http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.res.00134: A resolution expressing the sense of the Senate regarding the massacre at Srebrenica in July 1995] ] The summaries of the resolutions are identical, with the exception of the name of the house passing the resolution:quote|Expresses the sense of the [House of Representatives] / [Senate] that that: :(1) the thousands of innocent people executed at Srebrenica in Bosnia and Herzegovina in July 1995, along with all individuals who were victimized during the conflict and genocide in Bosnia and Herzegovina from 1992 to 1995, should be remembered and honored; :(2) the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide; :(3) foreign nationals, including U.S. citizens, who have risked, and in some cases lost, their lives in Bosnia and Herzegovina should be remembered and honored; :(4) the United Nations (U.N.) and its member states should accept their share of responsibility for allowing the Srebrenica massacre and genocide to occur, and seek to ensure that this does not happen in future crises; :(5) it is in the U.S. national interest that the responsible individuals should be held accountable for their actions; :(6) persons indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) should be apprehended and transferred to The Hague without further delay, and countries should meet their obligations to cooperate with the ICTY; and :(7) the United States should support the independence and territorial integrity of Bosnia and Herzegovina and peace and stability in southeastern Europe.| CRS Summary [Christopher Smith [http://chrissmith.house.gov/lawsandresolutions/hres199.htm H.Res. 199, Expressing the Sense of the House of Representatives Regarding the Massacre at Srebrenica in July 1995. Accessed 31 January 2008] [ [http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SE00134:@@@D&summ2=m& CRS Summary: A resolution expressing the sense of the Senate regarding the massacre at Srebrenica in July 1995] ] [ [http://www.opencongress.org/bill/109-sr134/show S.Res.134 A resolution expressing the sense of the Senate regarding the massacre at Srebrenica in July 1995] , [http://www.opencongress.org www.opencongress.org] . Accessed 31 January 2008]

International Court of Justice

On February 26, 2007 the International Court of Justice (ICJ), in the "Bosnian Genocide Case" concurred with the ICTY's earlier finding that the Srebrenica massacre constituted genocide: [cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/02/26/international/i033600S38.DTL&type=politics|title=Courte: Serbia failed to prevent genocide, UN court rules|date=2007-02-26|publisher=Associated Press]

ICJ President Rosalyn Higgins noted that there is a lot of evidence to prove that crimes against humanity and war crimes had been committed in Bosnia and Herzegovina such as widespread killings, the siege of towns, mass rapes, torture, deportation to camps and detention centers. The International Court of Justice does not have jurisdiction over them, because this case deals "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term". [cite web|year=|url=http://www.sense-agency.com/en/stream.php?sta=3&pid=9273&kat=3|title=Sense Tribunal: SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE] [ICJ: Bosnian Genocide Case: Summary of the Judgment of 26 February 2007 [http://www.icj-cij.org/docket/index.php?sum=667&code=bhy&p1=3&p2=2&case=91&k=f4&p3=5] ] [cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/02/26/international/i033600S38.DTL&type=politics|title=Courte: Serbia failed to prevent genocide, UN court rules|date=2007-02-26|publisher=Associated Press] Moreover, the Court found "that Serbia has not committed genocide" nor "conspired to" or "incited the commission of genocide". It did however, find that Serbia had failed "to take all measures within its power to prevent genocide in Srebrenica" and to comply fully with the ICTY by failing to transfer Ratko Mladić to the custody of the ICTY in the Hague and that Serbia must in future transfer to the Hague all ICTY indited individuals, who reside under Serbian jurisdiction. [ [http://www.icj-cij.org/presscom/index.php?pr=1897&pt=1&p1=6&p2=1 ICJ press release 2007/8] 26 February 2007]

European Court of Human Rights

The Higher Regional Court of Dusseldorf, Germany, in September 1997, handed down a genocide conviction against Nikola Jorgić, a Bosnian Serb who was the leader of a paramilitary group located in the Doboj region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica. [ [http://www.preventgenocide.org/punish/GermanFederalCourt.htm Federal High Court of Germany: Translation of Press Release into English Nr. 39 on 30 April 1999: Federal High Court makes basic ruling on genocide] , [http://www.preventgenocide.org/aboutus/ Prevent Genocide International] ]

In a judgement issued on 12 July 2007, the European Court of Human Rights (ECHR) in the "Jorgic v. Germany" case (Application no. 74613/01), reviewed the German court's judgements against Jorgic. In rejecting Jorgic's appeal, the ECHR affirmed that the German court's ruling was consistent with an interpretation of the Genocide Convention foreseeable at the time Jorgic committed the offence in 1992. However, the ECHR highlighted that the German court's ruling, based upon German domestic law, had interpreted the crime of genocide more broadly than and in a manner since rejected by international courts. [ [http://www.echr.coe.int/echr/ European Court of Human Rights] - [http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=1448788&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=63590&highlight= Jorgic v. Germany Judgment] , July 12 2007. § 18,98,99] Under the wider definition that the German judiciary upheld, the ethnic cleansing carried out by Jorgić was a genocide because it was an intent to destroy the group as a social unit, and although the majority of scholars took the view that German genocide law should interpret genocide as the physical-biological destruction of the protected group, "a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit." [ECHR Jorgic v. Germany Judgment, July 12 2007. § 36 but also §§ 18,47,99,103,108]

In the case of "Prosecutor v. Krstic" (2 August 2001), the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide." [ECHR Jorgic v. Germany Judgment, July 12 2007. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580] On 19 April 2004, this determination was upheld on appeal: "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ..." although like the lower court, the appeal court also ruled that ethnic cleansing might with other evidence lead to an inference of genocidal intent. [ECHR Jorgic v. Germany Judgment, July 12 2007. § 43 citing the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A §§ 25,33] On 14 January 2000, the ICTY ruled in the "Prosecutor v. Kupreškić and Others" case that the Lašva Valley ethnic cleansing campaign in order to expel the Bosnian Muslim population from the region was persecution, not genocide per se [ECHR Jorgic v. Germany Judgment, July 12 2007. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751] The ECHR noted the opinion of the International Court of Justice ruling in the Bosnian Genocide Case that ethnic cleansing is not in and of itself genocide. [ECHR Jorgic v. Germany Judgment, July 12 2007. §45 citing Bosnia and Herzegovina v. Serbia and Montenegro ("Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide") the International Court of Justice (ICJ) found under the heading of "intent and 'ethnic cleansing'" § 190]

In reference to legal writers, the ECHR also noted: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"ECHR Jorgic v. Germany Judgment, July 12 2007. § 47]

The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ..., is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable", [ECHR Jorgic v. Germany Judgment, July 12 2007. § 105] so "In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic] , if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.", [ECHR Jorgic v. Germany Judgment, July 12 2007. § 113] and for this reason the court rejected Jorgic assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany. [ECHR Jorgic v. Germany Judgment, July 12 2007. § 116]

Controversy

There is a significant disagreement between the Bosnian and Serbian side about the possibility or scope of genocide in Bosnia during the Bosnian War that has made this a controversial and contentious issue.The Bosnian community assert that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.van den Biesen."Application of the Convention on the Prevention and Punishment of the Crime of Genocide, General Concluding Observation". International Court of Justice. 24 April 2006, para. 1-12. [http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyframe.htm] ]

The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the "Dusko Tadic case". In the judgment delivered in July 1999, the Appeals Chamber found that the Army of Republika Srpska was "under overall control" of Belgrade and the Yugoslav Army, which meant that they had funded, equipped and assisted in coordination and planning of military operations. Had the International Court of Justice accepted this finding of the Tribunal, Serbia would have been found guilty of complicity in the Srebrenica genocide. Instead it concluded that the Appeals Chamber in the Tadic case "did not attempt to determine the responsibility of a state but individual criminal responsibility". Paradoxical as it may be, the outcome of this legal suit filed back in March 1993 arrived too early for Bosnia and Herzegovina. Radovan Karadzic arrest came over a year after the ICJ gave its judgement, and Ratko Mladic, also accused of Bosnian genocide, has yet to be arrested. Slobodan Milosevic died during the trial and three trials of former Serbian officials have just started. [SENSE Tribunal: ICTY - THE MISSING LINK: [http://www.sense-agency.com/en/stream.php?sta=3&pid=9279&kat=3] ]

Although the ICTY prosecutors had access to them during the trials, some of the minutes of wartime meetings of Yugoslavia’s political and military leaders, were not made public as the ICTY accepted the Serbian argument that to do so would damage Serbia's national security. Although the ICJ could have subpoena the documents directly from Serbia, it did not do so and relied instead on those made public during the ICTY trials. Two of the ICJ judges criticised this decision in strongly worded dissents. Marlise Simons reporting on this in the New York Times, states that "When the documents were handed over [to the ICTY] , the lawyers said, a team from Belgrade made it clear in letters to the tribunal and in meetings with prosecutors and judges that it wanted the documents expurgated to keep them from harming Serbia’s case at the International Court of Justice. The Serbs made no secret of that even as they argued their case for 'national security,' said one of the lawyers, adding, 'The senior people here [at the ICTY] knew about this.'" Simons continues that Rosalyn Higgins the the president of the ICJ, declined to comment when asked why the full records had not been subpoenaed, saying that "The ruling speaks for itself". Diane Orentlicher, a law professor at American University in Washington, commented "Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference." , and William Schabas, a professor of international law at the University of Ireland in Galway, suggested that as a civil rather than a criminal court, the ICJ was more used to relying on materials put before it than aggressively pursuing evidence which might lead to a diplomatic incident. [Marlise Simons. [http://www.nytimes.com/2007/04/09/world/europe/09archives.html?_r=2&oref=slogin&oref=slogin Genocide Court Ruled for Serbia Without Seeing Full War Archive] , New York Times, 9 April 2007 ]

Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that women and children were largely spared and that only military age men were targeted. [The Politics of the Srebrenica Massacre, Z Net, 7 July 2007, by Edward S. Herman [http://www.zmag.org/content/showarticle.cfm?ItemID=8244] ] ["The real story behind Srebrenica", "Globe and Mail", July 14, 2005. [http://www.mail-archive.com/serbian_way@antic.org/msg00008.html] ] This view is not supported by the findings of the ICJ or the ICTY. [ICTY, "Prosecutor vs Krstic, Trial Chamber Judgement", Case No. IT-98-33-T, paras 43–46. [http://www.un.org/icty/krstic/jug33-e.htm] ]

ee also

*Bosniaks
*Command responsibility
*Genocides in history
*Republika Srpska

References

Further reading

* [http://www.nybooks.com/articles/989 America and the Bosnia Genocide] by Mark Danner New York Review of Books, Volume 44, Number 19, December 4, 1997
* [http://www.yale.edu/gsp/former_yugoslavia/index.html Yale University] - Bosnia Genocide Studies Program
* [http://www.aegistrust.org/ Aegis Trust (genocide prevention trust)] An independent international organisation dedicated to eliminating genocide
* [http://srebrenica.brightside.nl/srebrenica/ Srebrenica - a 'Safe haven'] Netherlands Institute for War Documentation, Srebrenica - a 'Safe haven', an extensive Dutch government report on events in eastern Bosnia and the fall of Srebrenica.
* [http://www.sciam.com/article.cfm?chanID=sa008&articleID=00017173-6251-14E3-A1A983414B7F0000&pageNumber=2&catID=4 Missing No Longer - International commission forges ahead to identify genocide victims] , "Scientific American", 1 August 2006
* [http://www.ppu.org.uk/genocide/g_bosnia.html Genocide-Bosnia] at Peace "Pleddge Union Information" website

External links

* [http://www.unitedhumanrights.org/Genocide/bosnia_genocide.htm United Human Rights Council - Bosnian Genocide]


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