The term genocide is commonly seen within political and legal dialogues as describing atrocities of great ‘diversity, magnitude, and character’ (David Scheffer, ‘Genocide Atrocity Crimes‘ (2006) 1(3) Genocide Studies International 229).  In the Convention on the Prevention and Punishment of the Crime of Genocide, genocide attaches to specific acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (article 2).

Referring to the forcible transfer of Bosnian Muslims from Srebrenica, the International Criminal Tribunal for the former Yugoslavia (ICTY) held in the Prosecutor v Krstic (Krstic) that ‘an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively’ (at [6]–[8]).  In addition, in Prosecutor v Jelisic (Jelisic) the ICTY Trial Chamber argued that ‘it is widely acknowledged that the intention to destroy must target at least a substantial part of the group’ (at [82]).

Examination of the meaning of ‘intent’, ‘substantial part’ and ‘destruction of part of a group’ is crucial to deconstructing the act of genocide within the context of forcible transfer.  This post will seek to contribute to this area by exploring the act of genocide in Bosnia and Herzegovina and examining the ICTY’s characterisation of the forcible transfer of Bosnian Muslims from Srebenica in Krstic and Jelesic.

Genocide, the ICJ and the development of a ‘Greater Serbia’

In examining the concept of genocide and the intention of the Serbian leadership during the 1992 mass killings in the former Yugoslavia in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Genocide Case), the International Court of Justice (ICJ) held that Bosnia’s argument

does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership — to create a larger Serb State, by a war of conquest if necessary — did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion (at [372]).

This statement is concerning because it seems to suggest that forcible transfer is not a relevant consideration in determining whether or not genocide has taken place.  For this reason, among others, the ICJ’s acquittal of Serbia of the act of genocide has proved controversial (see, eg, Katherine Goldsmith, ‘The issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-based Approach’ (2010) 5(3) Genocide Studies and Prevention 238).

Vice President al-Khasawneh J issued a dissenting opinion in the Genocide Case, stating:

[c]oupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did not only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? If the Court cannot ignore that population transfer was one way of achieving the Strategic Goals, then why should it ignore that, in fact, the Bosnian Serbs used this method as one of many — including massive killings of members of the protected group (at [41]).

The destruction of a ‘substantial part’ of ‘part of a group’

As described above, genocide is the commission of a ‘prohibited act’ ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.  The prohibited acts are set out in article 2  and include, for example, killing or causing serious bodily or mental harm to members of the group.

The crime of genocide is  somewhat unique as it requires that two forms of mens rea or intent be established.  The first is that a person must commit a prohibited act with intent.  The second layer of intent is genocidal intent or dolus specialis, which is the intent to destroy the group. As provided in Prosecutor v Akayesu, the

[s]pecial intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged … [and] the crime of genocide lies in the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (at [498]).

In Jelisic, the ICTY discussed two ways in which genocidal intent may be established:

[i]t may consist of desiring the extermination of a large number of members of the group in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively’ (at [82]).

The Trial Chamber in Jelisic also ruled that the act of genocide may be conducted within a ‘limited geographic zone … limited to the size of a region or … a municipality’ (at [83]). This was revisited in Krstic, where the Trial Chamber  resolved that

the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue (emphasis added) (at [590]).

‘Part’ must be interpreted as a large or substantial part of the group at hand, and with the ability to have a significant impact on the entire group (at [43]). This test has been reformulated thus:

  • in Jelisic as ‘targeting at least a substantial part of the group’; and
  • in Prosecutor v Sikirica where the court found that there must exist intention to destroy a large number of a group that is relative to the entire population of that group, and as such, negatively impact the survival of that group.

How then does forcible transfer tie in with establishing the existence of intent to destroy whole or part of a group?

With regard to the situation in Srebrenica, the Court in Krstic held that whilst the act of forcible transfer is not itself a genocidal act, it may be taken into account as evidence of the existence of genocidal intent (at [33]).  Shahbuddeen J, in his partially dissenting opinion argued that

standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone, and that indeed is the basis on which the Appeals Chamber rejected the defence argument that it showed that there was no genocide. It was part — an integral part — of one single scheme to commit genocide, involving killings, forcible transfer and destruction of homes. In particular, it showed that the intent with which the killings were done was indeed to destroy the Srebrenica part of the Bosnian Muslim group. (at [35])

A more conservative approach was adopted by the Trial Chamber of the ICTY in Prosecutor v Brdjanin (Brdjanin).  The Court agreed with the view expressed in Kristic that while the act of forcible transfer does not itself constitute genocide, it does not give reason to prevent the use of this act being relied on as evidence to demonstrate intent.  However, the Trial Chamber qualified this rule by stipulating that it is not appropriate to use forcible transfer as substantial evidence of the actual destruction of a particular group, ‘since that would in effect mean the consideration, as it were through the back door, of forcible displacement as an underlying act’ (at [975)]).

In Brdjanin ,the Court was ultimately not satisfied that the forcible transfers of Bosnian Muslims and Bosnian Croats gave rise to specific intent.  It stated that

the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.  The extremely high number of Bosnian Muslim and Bosnian Croat men, women and children were forcibly displaced from [Autonomous Region of Krajina] … particularly when compared to the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated in Article 2(4)(a), (b) and (c) [of the Genocide Convention], does not support the conclusion that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is the only reasonable inference that may be drawn from the evidence (at [976]).

Conclusion

It is indisputable that establishing the crime of genocide is difficult.  This is due, in large part, to the difficulty of proving that genocidal intent was present in the mind of the perpetrators.  The act of forcible transfer — despite not being a ‘prohibited act’ — may assist a court to determine that there existed genocidal intent.  In certain situations, the forced transfer of persons belies a wider strategy to bring about the physical destruction of a race by removing a people from a region and thereby eliminating the residual possibility that the group could be reconstituted in the area.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne.