Srebrenica at 20: The ICTY Issues Long-Due Final Convictions
In the twilight of its life, the International Criminal Tribunal for the former Yugoslavia (ICTY) has been the subject of renewed attention as it issues final judgments in its most high-profile cases. Last year, marking the twentieth anniversary since the tragic events of July 1995 in Srebrenica, Bosnia (mass executions of Muslim men and forcible transfers of women, children, and elderly), the ICTY Appeals Chamber delivered, in the Popović et al. and Tolimir cases, the first final convictions of the primary perpetrators of the genocide.
While these judgments have received little attention in media or academic circles compared to the 2004 Krstić case—the first case to characterize the Srebrenica massacre as genocide—they are arguably more historic. In Popović and Tolimir, the ICTY Appeals Chamber convicted, for the first time, Bosnian-Serb Army officers for committing genocide; by contrast, General Krstić was convicted of aiding and abetting genocide. General Tolimir, whose life sentence was affirmed, was the highest-ranking Bosnian-Serb leader convicted by the ICTY. As head of the Bosnian-Serb Army’s Intelligence Unit, he was second in ranking only to General Mladić and was the latter’s “eyes and ears.” Tolimir is also the only ICTY judgment to enter convictions for the events in Žepa —the other Bosnian-Muslim “safe zone” overtaken in July 1995 by the Bosnian-Serbs, who expelled its population, without, however, engaging in mass killings as in Srebrenica.
Besides their historical importance, these judgments made significant contributions to international criminal law. This Insight briefly highlights these contributions, first to the law of genocide and then to the development of the doctrine of collective criminality known as joint criminal enterprise (JCE).
The Law of Genocide
Victims of Genocide
In both Tolimir and Popović, the Appeals Chamber held that the Muslims of the Žepa enclave were victims of genocide because they belonged to the targeted protected group, defined as the Muslims of Eastern Bosnia. This was so, according to the Appeals Chamber, even though Žepa’s Muslims did not directly suffer any genocidal act (killing, serious mental harm or conditions of life calculated to destroy them physically). In the words of the Appeals Chamber, the impact of a genocidal act is “not limited to those who were directly subjected to it, but also include[s]” all the members of the protected national, ethnical, racial, or religious group. This rather semantic distinction is important in a case of a multi-faceted ethnic-cleansing campaign that involves the commission of different crimes against different segments of the targeted population. When genocidal acts are committed against some members of the protected group, held the Appeals Chamber, then all members are victims of the crime of genocide. The Appeals Chamber thus recognized for the first time the suffering of members of a targeted group that are not directly impacted by a genocidal campaign as genocide. This represents quite a radical extension of the protective scope of genocide, which encompasses all members of a targeted group irrespective of whether they were immediately affected by genocidal acts.
In Tolimir, the Appeals Chamber addressed for the first time the commission of genocide through acts other than killings, defining the kind of criminal conduct that could qualify as “the crime of crimes.”
The Tolimir bench first affirmed that Srebrenica’s Muslims (the men separated from their families and murdered, as well as the women, children, and elderly forcibly transferred out of the enclave) suffered serious mental harm of a genocidal nature. According to the Appeals Chamber, acts inflicting mental harm qualify as genocide, if they cause “lasting” (not necessarily “permanent or irremediable”) harm, going beyond “minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat,” that is “of such a serious nature as to contribute or tend to contribute to the destruction of all or part of” the protected national, ethnic, racial or religious group. The Appeals Chamber determined that serious mental harm does not require “the permanent impairment of the mental faculties . . . through drugs, torture, or similar techniques,” as stated in the United States Genocide Convention Implementation Act of 1987. Other signatories to the Genocide Convention, held the Appeals Chamber, did not accept the U.S. understanding of serious mental harm as a genocidal act.
The Appeals Chamber also discussed another genocidal act listed in the Genocide Convention, namely, the deliberate imposition of conditions of life calculated to bring about the physical destruction of the protected group. The Appeals Chamber held that this act “covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group,” such as “deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.” The Appeals Chamber also emphasized that the Genocide Convention does not extend to acts of “cultural genocide” like “the destruction of historical, cultural and religious heritage.” Applying these principles, the Appeals Chamber held that only the forcible transfers of civilians—not the destruction of mosques or the mass murders—could, in theory, lead to conditions of life calculated to bring about the physical destruction of a protected group. The Appeals Chamber, however, held that the forced population expulsions from Srebrenica and Žepa, in particular, were not genocidal per se. According to the Appeals Chamber, those operations, despite their criminal nature, were not conducted under circumstances designed to cause the physical destruction (i.e., slow death) of the displaced Muslims and thus did not amount to genocide.
Genocide through Attacks on the Leadership
Tolimir was also the first case in which an international court found that the selective killings of the most prominent members of a protected group constituted genocide. The Trial Chamber found that three leaders of Žepa’s Muslim community—namely, the mayor, the head of civil protection, and the commander of the local Bosnian-Army brigade, all members of the War Presidency Council—were killed because of the impact of their disappearance on the survival of the local community. Thus, held the Trial Chamber, these isolated killings were genocidal.
The Appeals Chamber, in turn, acknowledged that genocide may be committed through selective attacks on the leaders of a group, targeted because of their significance for the group’s survival, but stressed that such acts should be assessed “in the context of . . . what happens to the rest of the group . . . at the same time or in the wake of” the attacks. Since the three Žepa leaders were detained and killed weeks after Žepa’s Muslims had been transferred to safe Bosnian territory, the Appeals Chamber held that those executions had no impact on the physical survival of Žepa’s Muslim community. Despite the ultimate disposition, the recognition of this type of genocide remains important as it confirms a long-advocated theory about genocide, previously confined to the academic sphere. The Appeals Chamber’s ruling expands the definition of genocide (and the stigma associated with it) to cover methods of destruction that do not target protected groups en masse and could have otherwise escaped severe punishment.
Finally, Popović reflects a rather strict understanding of the specific intent required for genocide. The Appeals Chamber upheld the acquittal of defendant Drago Nikolić, then Chief of Security for the Zvornik Brigade of the Bosnian-Serb Army, from charges of genocide. The Appeals Chamber held that Nikolić lacked the intent to commit genocide against Srebrenica’s Muslims, despite (i) his knowledge of the scale of the atrocities and their genocidal nature and (ii) his “key contributions” to the murders by planning and organizing detentions and executions of thousands of prisoners in multiple locations in his area of responsibility. The Appeals Chamber determined that given his lower rank and diminished authority, Nikolić was “blindly dedicated to the security services” and “doggedly pursue[d] the efficient execution of his assigned tasks in this operation, despite its murderous nature and the genocidal aim of his superiors,” without genocidal intent. The Appeals Chamber thus appeared to hold that the conscious and zealous participation of a lower-ranking officer in a genocidal campaign does not establish genocidal intent if the officer was following orders of his superiors and had little authority himself. In Tolimir, by contrast, the Appeals Chamber affirmed Tolimir’s genocidal intent, although Tolimir, unlike Nikolić, was not actively involved in the murderous campaign and only provided indirect assistance in facilitating and concealing the killings.
The recognition in Popović of the “superior orders” defense as a counter-indication of genocidal intent arguably contravenes Article 7(4) of the ICTY Statute. Under that provision, acting pursuant to superior orders “shall not relieve [an accused] of criminal responsibility.” Although the Appeals Chamber admitted that following orders does not excuse compliance with patently illegal commands, it also held that personal circumstances (such as a defendant’s lower rank) could negate genocidal intent, thus relieving the defendant of liability for genocide. On its face, this holding appears problematic under the ICTY Statute and may well be invoked in future cases in defense of low-ranking officers actively involved in the implementation of a genocidal plan.
Joint Criminal Enterprise
JCE as a mode of responsibility was devised in the first ICTY appeal judgment in order to extend primary liability to instances of group criminality, where multiple persons espouse the pursuit of a criminal plan, yet not all participate materially in the commission of the crimes encompassed by the plan. In such instances, all participants may be held liable as perpetrators of the resulting crimes.
Since Tadić, the JCE doctrine has undergone several expansions, each time capturing conduct with more attenuated physical links to a crime, but blameful enough to be categorized as “commission.” Participation in a JCE has become, by far, the mode of liability most commonly used to convict ICTY and ICTR defendants. The mens rea for JCE liability, however, has never changed: all JCE participants must share the same criminal intent to commit each and all of the crimes encompassed by the common plan.
Popović erodes this requirement. In Popović, the Appeals Chamber affirmed the existence of a JCE to murder Srebrenica’s Muslims, which encompassed the commission of war crimes, crimes against humanity (murder, extermination, and persecution through murder), and genocide. Indeed, two defendants were convicted of these crimes, including genocide, through their participation in this JCE. However, the Appeals Chamber upheld the conclusion that defendant Nikolić, also named as a participant in the JCE, lacked the intent to commit genocide, despite his knowledge of his accomplices’ intent and “blind dedication” to the murderous operation. In essence, the Appeals Chamber held that a defendant may be a JCE member without intending the commission of all the crimes falling within its scope and without harboring the same intent as the other JCE members. This quite revolutionary conclusion endorses the concept of a-la-carte participation in a JCE: a defendant may intend to commit (and be convicted of) some of the crimes covered by the JCE, but “opt out” of others without that causing the collapse of the common “enterprise” or undermining the Tribunal’s ability to enter JCE convictions against other participants, even for those JCE crimes no longer covered by a common mens rea.
This important shift in ICTY jurisprudence weakens the cornerstone requirement that all participants in a JCE must share the same intent. Such a broad understanding of JCE liability could have wider repercussions if accepted by other international courts.
The Popović and Tolimir judgments marked significant advances in international criminal law by refining the law on both the actus reus and the mens rea of genocide and casting the net of primary liability even further. Most importantly, in these cases the ICTY delivered justice to the victims of Europe’s worst atrocity since World War II by issuing final convictions, for the first time in its history, against some of Srebrenica’s principal genocidaires. The ICTY’s legacy of ending impunity for crimes of the greatest severity in the history of mankind will be carried on by its successor, the Mechanism for International Criminal Tribunals.
About the Author: Christos Ravanides is a Legal Officer in Chambers at the Mechanism for International Criminal Tribunals. The author was member of the legal team assigned to the Tolimir case, as deputy chef de cabinet to Judge Theodor Meron, presiding Judge of the case and then President of the ICTY. The analysis here only reflects the personal views of the author and not of Judge Meron, the ICTY, or the United Nations.
 Prosecutor v. Tolimir, Case No. IT-05-88/2-A, Appeal Judgment (Int’l Crim. Trib. for the Former Yugoslavia Apr. 8, 2015), http://www.icty.org/x/cases/tolimir/acjug/en/150408_judgement.pdf [hereinafter Tolimir]; Prosecutor v. Popović, Case No. IT-05-88-A, Appeal Judgment (Int’l Crim. Trib. for the Former Yugoslavia Jan. 30, 2015), http://www.icty.org/x/cases/popovic/acjug/en/150130_judgement.pdf [hereinafter Popović].
 Prosecutor v. Krstić, Case No. IT-98-33-A, Appeal Judgment, ¶¶ 134–144 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 19, 2004), http://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf; Tolimir, supra note 2, ¶¶ 483, 507, 560–77; Popović, supra note 2, ¶¶ 445, 472, 486.
 General Tolimir died in detention in The Hague on February 8, 2016. See Marlise Simons, Zdravko Tolimir, General Tied to Srebrenica Massacre, Dies at 67, N.Y. Times, Feb. 9, 2016, at A20, available at http://www.nytimes.com/2016/02/10/world/europe/zdravko-tolimir-general-tied-to-srebrenica-massacre-dies-at-67.html.
 Tolimir, supra note 2, ¶¶ 2, 309.
 Id. ¶¶ 376–77, 413–14.
 Id. ¶¶ 215–19, 233–36; Popović, supra note 2, ¶ 458.
 Tolimir, supra note 2, 215–19, 233–36; Popović, supra note 2, ¶ 458.
 Popović, supra note 2, ¶ 458.
 Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgment and Sentence, ¶ 16 (Sept. 4, 1998). See also Prosecutor v. Niyitegeka, Case No. ICTR-96-14-A, Appeals Judgment, ¶ 53 (July 9, 2004).
 Tolimir, supra note 2, ¶¶ 206–212.
 Id. ¶ 203 (quoting Prosecutor v. Seromba, Case No. ICTR-2001-66-A, Judgement, ¶ 46 (Mar. 12, 2008)).
 Id. ¶ 204 (quoting Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045, 18 U.S.C. §1091(a)(3) (1988)).
 Id. ¶ 204.
 Id. ¶ 226 (quoting Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment, ¶ 161 (Feb. 3, 2015), http://www.icj-cij.org/docket/files/118/18422.pdf.
 Id. ¶ 230 (quoting Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, 2007 I.C.J. Rep. 43, 186 ¶ 344 (Feb. 26).
 Id. ¶¶ 231–32.
 Id. ¶¶ 233–35.
 Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Trial Judgment, ¶¶ 778–82 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 12, 2012). .
 Tolimir, supra note 2, ¶¶ 261–62.
 Id. ¶¶ 265–70.
 See, e.g., U.N. Security Council, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, U.N. Doc. S/1994/674, ¶ 94 (May 27, 1994).
 Popović, supra note 2, ¶¶ 503–505, 520–21, 526–29.
 Id. ¶¶ 515–16, 527–29.
 Tolimir, supra note 2, ¶¶ 560–77.
 Popović, supra note 2, ¶¶ 515, 520.
 Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgment, ¶¶ 187–193 (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999) [hereinafter Tadić].
 See, e.g., Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Appeal Judgment, 25 February 2004, para. 97; Tadić, supra note 28, ¶¶ 196–201.
 See Prosecutor v. Popović, Case No. IT-05-88-T, Trial Judgment ¶¶ 1050, 1175–81, 1187–96, 1310–19, 1325–33 (Int’l Crim. Trib. for the Former Yugoslavia June 10, 2010); affirmed in Popović, supra note 2, ¶ 1445.
 Popović, supra note 2, ¶¶ 526–29, 997, 1028.
 The Extraordinary Chambers in the Courts of Cambodia has also recognized the main form of JCE as applicable in the cases before it. See Decision on the Appeals against the Co-Investigating Judges Order on Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC/OCIJ (PTC38), ¶¶ 72–73 (Extraordinary Chambers in the Courts of Cambodia May 20, 2010). Article 25(3)(d) of the Statute of the International Criminal Court (ICC) also reflects a mode of liability consistent with the JCE, although the ICC has not yet opined authoritatively on the import of this provision. See Rome Statute of the International Criminal Court, art. 25(3)(d), July 17, 1998, 37 I.L.M. 999.
 The Mechanism continues the jurisdiction of the ICTY and the ICTR and will adjudicate, inter alia, the appeals, if any, from judgments in pending ICTY trials. See U.N. Sec. Res. 1966, Annex 1 art. 1, Annex 2, art 2 (Dec. 22, 2010). The much awaited trial judgment in the Karadžić case will also be issued on March 24, 2015. See Prosecutor v. Karadžić, Case. No. IT-95-5/18-T, Scheduling Order (Int’l Crim. Trib. for the Former Yugoslavia Feb. 18, 2016), http://www.icty.org/x/cases/karadzic/tord/en/160218.pdf.