ANALYSIS OF THE ICTY APPEALS CHAMBER JUDGEMENT
IN THE RADISLAV KRSTIC CASE
www.slobodan-milosevic.org - April 28, 2004
What follows is an analysis of that Appeals Chamber judgement. The paragraph numbers cited in this paper are the paragraph numbers from that judgement.
Genocide is defined as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” (para 6)
Radislav Krstic was charged with genocide against the Bosnian Muslims, in particular the Bosnian Muslims of Srebrenica. (para 7 & 15)
In order to claim that genocide had occurred at Srebrenica the tribunal had to say that the VRS intended to destroy a substantial portion of the Srebrenica Bosnian Muslims. (para 10 & 12)
The appeals chamber upheld the trial chamber’s claim that “the intent to kill the men (of military age) amounted to an intent to destroy a substantial part of the Bosnian Muslim group.” (para 20)
In the appeals judgement it is noted in paragraph 19 that “the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Radislav Krstic and some members of the VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica”
In paragraph 26 it says that “The main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.” Of course this is a misnomer because not all men of military age were massacred, nor were they all alleged to have been massacred.
In the judgement they almost totally ignore the fact that there was a military conflict in Srebrenica, and that all men of military age in Srebrenica had been mobilized into the 28th Infantry Division of the B-H Army. But this seems to be an irrelevancy as far as the tribunal is concerned anyway. The very term genocide has been manipulated to the point that it is now something that can occur by practically by accident in almost any military conflict.
In paragraph 225 we are informed that “the existence of a plan or policy is not a legal ingredient of the crime of genocide.” This is a lucky thing for the tribunal because according to paragraph 34, “the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.”
And in paragraph 226 we are informed that “the perpetrator’s genocidal intent will almost invariably encompass civilians, but that is not a legal requirement of the offence of genocide.”
Under this sort of an insane definition, practically anybody that engages in a military conflict can be found guilty of genocide where a large number of the opposing side’s military personnel are killed.
What the tribunal did here was they focused on an excessively narrow portion of the population, observed that a large but undefined number of them were allegedly killed, and then it defined the term genocide so loosely that it could include combatants. Only after this manipulation were they able to claim that genocide had occurred in Srebrenica.
While the tribunal is guilty of conducting a farcical “trial” and drawing conclusions that only a moron could reach; Krstic’s defense team is not without its share of the blame.
Krstic’s lawyers failed to contest the prosecution’s claim that 7,000 to 8,000 Bosnian Muslim men from Srebrenica were executed by the VRS. Krstic’s defense, rather than attempting to force the prosecutor to prove his insane claim, simply passed the blame onto Gen. Mladic.
According to paragraph 84 of the appeals judgement “The parties agreed that General Mladic was the main figure behind the killings.”
Because nobody bothered to contest that these sorts of killings had happened in the first place, the tribunal was able to use Krstic’s contact with Mladic to build a circumstantial case that took the line of “Mladic committed this crime. Krstic was in frequent contact with Mladic, therefore Krstic must have been involved too.”
In paragraph 135 of the appeal’s judgement the tribunal admits that, “there was no evidence that the Drina Corps devised or instigated any of the [uncontested] atrocities.” In fact the judgement even says in paragraph 132 that Krstic took steps to ensure the safety of Bosnian Muslim civilians and that he issued orders that they should be protected.
The prosecution claims, with absolutely no hard proof, that between 7,000 and 8,000 Bosnian Muslims were executed by the VRS. This is a story that makes absolutely no sense. In paragraph 100 it says that the prosecution’s military expert considered a VRS scheme to execute the Srebrenica Muslims to be “unfathomable in military terms.” According to him, Muslim prisoners captured by the VRS could have been used as a bargaining chip in an exchange for Serbian prisoners captured by the ABiH.
The Nature of the Proceedings
The court proceedings were not fair to Krstic. The prosecution would not allow Krstic's defense to see certain exculpatory material outside of its office, nor would it allow the defense to even make copies of the documents it needed (para 194). When the prosecution did provide documents it did so in a manner that buried the relevant documents in a sea of irrelevant documents (para 189). The prosecution did not provide its witness statements to the defense because it was ordered by the tribunal not to (para 208). In short, all measures were taken by the tribunal to ensure that Radislav Krstic would not receive a fair trial.
Not even the tribunal could conceal the fact that it had convicted an innocent man. In paragraph 239 of the judgement they admit that: "Radislav Krstic and the Drina Corps under his command did not personally commit any crimes against the Bosnian Muslim civilians, other than assist in the organisation of the forcible transfer [sic]. Notably, it was established that Krstic was only present in Potocari for an hour or two at the most, and there was no evidence that he actually witnessed any of the crimes being committed against the Bosnian Muslim civilians, or that his subordinates in the Drina Corps directly witnessed them and reported to Krstic. Furthermore, the Trial Chamber accepted that the transfer of the Bosnian Muslim civilians organised by the Drina Corps was a disciplined and orderly operation, and that Krstic specifically ordered that no harm was to befall the Bosnian Muslim civilians being transferred forcibly. [sic.]"
The tribunal convicted Krstic on a technicality. Even though they admit that Krstic didn't know that the alleged executions were allegedly occurring they still found a way to convict him. In paragraph 150 of the judgement they explain that "it was unnecessary for the Trial Chamber to conclude that Radislav Krstic was actually aware that those other criminal acts were being committed; it was sufficient that their occurrence was foreseeable to him and that those other crimes did in fact occur."
Apparently, Krstic is guilty because he isn't some sort of psychic who can predict the future. He issued orders to protect civilians and so the tribunal concluded that he should have been able to forecast that a massacre would occur, when even the prosecution's own military expert described such an action as "unfathomable."
And to top this off, no evidence was presented to substantiate the prosecutor's claims that between 7,000 and 8,000 Muslim men were ever executed in the first place. The failure of Krstic's defense team to adequately contest that assertion doesn't by any means prove that it's true.
As for the so-called "forcible transfers" that the tribunal is talking about, these are apparently the transfers organized by the VRS for the population who wished to leave Srebrenica. The tribunal even cites Mladic's speech in the judgement where he says “you can either survive or disappear … For your survival, I request: that all your armed men who attacked and committed crimes – and many did – against our people, hand over their weapons to the Army of the Republika Srpska … on handing over weapons you may … choose to stay in the territory … or, if it suits you, go where you want. The wish of every individual will be observed, no matter how many of you there are.”
It seems that the transfer of those Muslims who decided to leave is the "forcible transfer" that the tribunal is alluding to.
Because Krstic was in contact with Mladic, and because Krstic supplied the VRS main staff with the assistance that it requested, the tribunal sentenced Krstic to 35 years in prison for aiding and abetting the genocide that they, without any proof, claim that Mladic perpetrated.
Hopefully Slobodan Milosevic will take a
lesson from Krstic's experience and strongly contest the prosecution's
assertions about Srebrenica. Milosevic should force the tribunal to lay its
cards on the table, and make them try and prove the obscene accusations that
they're making against General Mladic.
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