Bosnian Genocide

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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, or to ethnic cleansing that took place during the 1992-1995 Bosnian War.

In the 1990's, 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. In 2005, the United States Congress passed a resolution declaring that "the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide".

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.

Individuals accused of genocide during the Bosnian war

About 30 people have been indicted for participating 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 others 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. Several former members of the Bosnian Serb security forces are 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 but to date they have 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. 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, the Presiding Judge Theodor Meron stating:

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. The resolution, as amended, was passed with an overwhelming majority of 370 - YES votes, 1 - NO vote, and 62 - ABSENT. The resolution is a bipartisan measure commemorating July 11, 1995-2005, the tenth anniversary of the Srebrenica massacre. 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. The summaries of the resolutions are identical, with the exception of the name of the house passing the resolution:

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:

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". 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.

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.

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.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.

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. 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. 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 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.

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"

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", 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.", 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.

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 side claims that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.

The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the Duško Tadić 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 Tadić 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 Karadžić and Ratko Mladić, accused of Bosnian genocide are not arrested yet. Slobodan Milošević died during the trial and three trials of former Serbian officials have just started.

The allegations about the ICTY Prosecution agreement with Belgrade authorities by which the transcripts of the meetings of Supreme Defense Council remained not disclosed to the public and the International Court of Justice appeared immediately after the International Court of Justice delivered its judgment in the Bosnia Herzegovina Vs. Serbia and Montenegro case. Geoffrey Nice, who was lead counsel for the prosecution at the Slobodan Milošević trial, notes in his letter that Carla Del Ponte personally agreed to a ‘deal’ with the Belgrade authorities to ‘protect’ the documents of the Supreme Defense Council relating to the role of Serbia in the wars in Croatia and Bosnia and Herzegovina. Those documents remained under seal. The public and the International Court of Justice thus had no access to them.

Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that allegedly women and children were spared and that only military age men were targeted which is not supported by evidence, because children were targeted too, and many women were raped according to ICTY finding.