War generally affects the entire population, male and female. Yet within the portrayal of war, men are usually portrayed as the aggressors and perpetrators, and women as the helpless victims. Most of the literature on women and warfare, or women and genocide, analyses the role of women from a victim-centred perspective.
On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.
Fitness to Stand Trial
In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:
- have the capacity to plead;
- understand the nature of the charges;
- understand the course of proceedings;
- understand the details of the evidence;
- be able to instruct counsel;
- understand the consequences of the proceedings; and
While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.
The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.
The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.
Consequences of Unfitness
After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.
Continued Detention with Mandatory Treatment
The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at ). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.
Release from Detention with Judicial Supervision
On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:
- That she reside at a specified home address;
- That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
- That she surrender her passport and national identification;
- That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
- That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
- That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.
(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at ).
Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.
Esther Pearson is an Assistant Editor of the ILA Reporter.
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 –). 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 ).
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 ).
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 ).
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 ).
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 ).
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 ). 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 ).
‘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 ). 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 ). 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 )
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 ).
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.
In February, the International Court of Justice handed down its decision in Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) and concluded that Croatia and Serbia did not commit genocide during the events of 1991–95 after the break up of the Socialist Federal Republic of Yugoslavia (SFRY). The proceedings were brought by the Republic of Croatia in 1999, with Serbia filing a counter-claim in 2010, resulting in a 16 year court case and a lengthy judgement (with an outcome considered by one commentator as virtually inevitable) that ultimately dismissed both parties claims of genocide. Whilst many commentators question the point of the case (neither Serbia and Croatia wanted to withdraw due to political pressure) and lawyers on both sides privately expressed little expectation of winning prior to judgment, the decision does provide some interesting comments on the application of the Genocide Convention and is a reminder of the narrowness of the legal definition of genocide.
After the break up of the SFRY, approximately 20,000 people are thought to have died and millions displaced, during the 1991–95 conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) has not charged any former leaders from Serbia or Croatia with genocide. It has previously ruled that genocide occurred in Bosnia at Srebrenica (where 8,000 Bosnians were killed over a number of days), but found that Serbia was guilty of failing to prevent genocide and punish the perpetrators.
Notable legal arguments
The claim was brought under the Genocide Convention, and the Court found that the crime of genocide consists of the actus reus (physical element) and mens rea (mental element) which must constitute dolus specialis (specific intent). Regarding intent, the Court stated that
‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’ is the essential characteristic of genocide, which distinguishes it from other serious crimes.
It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved. (at paragraph 132)
Croatia argued that its attacks were not indiscriminate and did not violate international law. Serbia argued that even if attacks had been conducted in compliance with international humanitarian law, they could still constitute the actus reus of genocide. The Court however, stated that they would not ‘rule, in general or abstract terms, on the relationship between the Convention and international humanitarian law’ (at paragraph 153) and held that they did not have the power to determine disputes relating to obligations under customary international law (or international humanitarian law or international human rights law).
The Court considered Croatia’s claim and found that members of the ethnic group (in its pleadings Croatia defined the group as the Croat national or ethnical group on Croatian territory not contested by Serbia) had been killed by or suffered serious mental or bodily harm from Serb forces, constituting the actus reus element. Other claims put forward by Croatia, such as deprivation of food and medical care, were not established by Croatia and therefore did not constitute the actus reus element.
The Court found that members of the Serbian group had been killed or suffered serious mental or bodily harm, also constituting the actus reus element. However, other claims put forward by Serbia of looting and the destruction of property, did not constitute the actus reus element.
Ultimately, dolus specialis was missing from both parties’ claims. The Court said at paragraph 440 that such intent must be ‘the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group’. This ‘only reasonable inference’ requirement sets a high bar, and the Court found that Serbia’s assault on Vukovar was to expel the Croats, not destroy, and Croatia’s expulsion of Serbs in Krajina was also missing the specific intent to destroy.
Serbia also put forward an argument about ICTY case law, contending that decisions by the Appeals Chamber of the ICTY should not be given more weight than the Trial Chamber’s. Serbia used the Gotovina case as an example: the Trial Chamber was unanimous in their conviction, but the Appeals Chamber acquitted by a majority of three to two, meaning that a majority across the Gotovina case judged Croatian forces guilty. Unsurprisingly, the Court rejected Serbia’s argument and found at paragraph 471 that they must give greater weight to the Appeals Chamber Judgement, whilst ‘ultimately retaining the power to decide the issues before it on the facts and the law’.
The Court also discussed the weight to be given to charges of the ICTY. Serbia considered that the Court should accord it some degree of probative value, but Croatia said that as the Prosecutor has discretion to determine what charges to bring, that does not mean that there is no evidence for the existence of a different charge. The Court did state however that they could not
fail to note that the indictment in the case of the highest ranking defendant of all, former President Milosevic, did include charges of genocide in relation to the conflict in Bosnia and Herzegovina, whereas no such charges were brought in the part of the indictment concerned with the hostilities in Croatia. (at paragraph 187)
Judge Trindade’s dissent (which was almost as long as the judgment itself, and concluded with a quadragesimus quintus point summary) should be noted, as he largely used the principle of humanity as a basis for arguing that the acts constituted genocide. There is a detailed analysis by Professor Dov Jacobs of that dissent here, which notes the irony of using ‘facts and values’ to conclude that genocide occurred, when ‘values’ and ‘conscience’ are used by many as justification for genocide.
The judgment cannot be appealed and the Court’s final statement at paragraph 523 encourages ‘the Parties to continue their co-operation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability to in the region’. Croatia became a member of the European Union in 2013 and now supports Serbia’s application for membership. However, one obstacle to Serbia’s application is the resolution of wartime issues, including the extradition case of Australian citizen Daniel Snedden, wanted in Croatia for crimes committed during 1991–93.
High Court the final avenue for Australian war crimes suspect Daniel Snedden
A former ICTY prosecution witness against the late Serbian President Slobodan Milosevic, Daniel Snedden (also known as Dragan Vasiljkovic) is wanted by Croatian authorities on charges of three war crimes offences alleged to have occurred during his time commanding a ‘special purpose’ Serbian paramilitary unit between 1991 and 1993. Mr Snedden is alleged to have commanded troops who tortured and killed prisoners of war and to have commanded an assault where civilians were killed.
Mr Snedden has been held in Australia and has challenged his extradition for over eight years, with the Federal Court dismissing the latest appeal. Mr Snedden’s lawyers are filing an application to the High Court to review procedural fairness and the Minister’s interpretation of the Geneva Conventions. Mr Snedden’s lawyer, Dan Mori (who previously represented David Hicks), said that his main concern is that Mr Snedden will not be protected by the Geneva Convention upon return to Croatia. Mr Mori has previously said that he was intrigued by Mr Snedden’s case
because it raises issues about the fairness of having an extradition process that does not require the requesting country to provide any evidence. So, based on a 15-page document, someone has been locked up for almost eight years.
The High Court application is not likely to be determined for a number of months.
Sarah Fitzgerald is a solicitor at an international law firm in Sydney. She has previously interned at the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia.