Srebrenica as Genocide? the Krstic Decision and the Language of the Unspeakable
Southwick, Katherine G., Yale Human Rights and Development Law Journal
In August 2001, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down the tribunal's first genocide conviction. In this landmark case, Prosecutor v. Radislav Krstic, the trial chamber determined that the 1995 Srebrenica massacres--in which Bosnian Serb forces executed 7,000-8,000 Bosnian Muslim men--constituted genocide. This Note acknowledges the need for a dramatic expression of moral outrage at the most terrible massacre in Europe since the Second World War. However, this Note also challenges the genocide finding. By excluding consideration of the perpetrators' motives for killing the men, such as seeking to eliminate a military threat, the Krstic chamber's method for finding specific intent to destroy the Bosnian Muslims, in whole or in part, was incomplete. The chamber also loosely construed other terms in the genocide definition, untenably broadening the meaning and application of the crime. The chamber's interpretation of genocide in turn has problematic implications for the tribunal, enforcement of international humanitarian law, and historical accuracy. Thus highlighting instances where inquiry into motives may be relevant to genocide determinations, this Note ultimately argues for preserving distinctions between genocide and crimes against humanity, while simultaneously expanding the legal obligation to act to mass crimes that lack proof of genocidal intent.
Even those unfamiliar with the conflict that consumed the former Yugoslavia in the 1990s have heard of Srebrenica. If nothing else, the word "Srebrenica" carries a pall of tragedy. Uttered with a mixture of historical import and regret, it has become a euphemism for unspeakable events.
Only a court of law could provide the detachment necessary to examine the facts of what occurred near the small town in southeastern Bosnia-Herzegovina in July 1995. The United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 to prosecute serious violations of international humanitarian law in the region since 1991. (1) In an August 2001 decision, Prosecutor v. Radislav Krstic, one of the tribunal's three trial chambers set forth a comprehensive account of the tragedy. The chamber found that following the takeover of the town, Bosnian Serb forces executed between 7,000 and 8,000 military-aged Bosnian Muslim men. (2) In addition, the Serb forces transported away from the area nearly all the Bosnian Muslim women, children, and elderly. (3) Finding that these actions resulted in "the physical disappearance of the Bosnian Muslim population at Srebrenica," (4) the trial chamber concluded that the Serb forces had committed genocide. For his involvement in the killings, Radislav Krstic, the Serb officer on trial, was sentenced to forty-six years imprisonment, one of the longest sentences imposed by the tribunal, (5) though the ICTY Appeals Chamber reduced the sentence to thirty-five years in April 2004. (6) Although the Genocide Convention came into force in 1948, this was the first-ever conviction by the ICTY for "the crime of crimes." (7) On April 19, 2004, the ICTY Appeals Chamber affirmed the trial chamber's finding that genocide occurred at Srebrenica. (8)
This Note concerns a court's effort to find words to confer meaning on unspeakable events. Naming the crimes and ascertaining criminal responsibility, as the Krstic trial chamber was tasked to do, (9) are important to allaying some of the survivors' enduring anguish and expressing international moral outrage. This process also seeks to generate legal precedent that will guide future conduct in war. As Judge Patricia Wald, a former ICTY judge, states, "It is only by accretion of case law interpreting ambiguous parts of treaties or 'customary law' that coherent, consistent and predictable norms of international humanitarian law are established that can govern the future behavior of leaders in war time. …