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Vedad Gurda, PhD, assistant professor
Law Faculty of University of Tuzla
THE PROSECUTION OF GENOCIDE IN BOSNIA
AND HERZEGOVINA BEFORE INTERNATIONAL,
DOMESTIC AND NATIONAL COURTS OF OTHER
JURISDICTIONS
Abstract
The subject matter of this research paper is the crime of genocide
as the “crime of crimes”, its legal elements and prosecution in Bosnia
and Herzegovina before various judicial forums. The author gives an
overview of relevant judicial decisions of international judicial bodies such
as the International Criminal Tribunal for the Former Yugoslavia and the
International Court of Justice, as well as decisions of national courts of
Bosnia and Herzegovina and Germany ensued from criminal proceedings
instituted against a number of persons and states as the subjects of public
law. It is well-known to professional and general public that the international,
as well as the national courts of Bosnia and Herzegovina have qualied the
atrocities of apocalyptic proportions perpetrated in Srebrenica in July 1995
as the crime - the criminal offence of genocide. However, on the sidelines
of international and domestic collective memory has remained the fact that
the German courts on the basis of universal jurisdiction have established
that the crime of genocide had been committed in other parts of Bosnia and
Herzegovina - in Doboj, Kotor Varoš, Osmaci near Zvornik and Foca.
Besides, this paper analyzes the constituting legal elements of
this crime primarily on the basis of jurisprudence of the international and
national courts of the above referred countries, thereby advocating the need
for a reinterpretation of certain elements of genocide vis-à-vis the accepted
jurisprudence of mentioned courts, and offering the proposals for the novel
legal denition of genocide.
Keywords: genocide in Bosnia and Herzegovina, genocide in
Srebrenica, the specic intent, judgements on genocide.
36
Introduction
Although the term „genocide“ represents the creation of modern times
usually associated with the name of a Polish lawyer Raphael Lemkin1, horrible
atrocities, which from this historical time distance can be characterized as
genocidal represent in fact historical constant. Historical sources tell us that
the earliest times of human existence bore witness to numerous genocidal
criminal enterprises. Some argue that the Bible was rst written source of
knowledge about the genocide, but the other historical events such as the
Roman destruction of Carthage could be given this name, too.2 As a matter of
fact, there are opinions that over 10 genocides occurred in 20th century alone.3
Though previous initiatives existed, it was the brutality and horrors of
the Nazi scourge in the World War II that managed to force the international
community to react and penalize such acts with a particular and a capital crime
that protects the collective existence of human communities. Namely, on 11th
December 1946 the General Assembly of the United Nations (hereinafter: UN)
adopted Resolution on the Crime of Genocide that had singled out genocide
as a crime (criminal offense) under international law – a specic crimina
iuris gentium. The resolution, inter alia, stated that genocide is a crime under
international law consisting in a denial of the right of existence of entire human
groups, which the civilized world condemns and whose principal perpetrators
as well as their accomplices shall be punished as its punishment is a matter of
international concern.4
On the basis of this resolution, two years later, on 9th December 1948,
the UN adopted and opened for signature the Convention on the Prevention and
Punishment of the Crime of Genocide (hereinafter: the Convention), in which
1 The syntagm genocide (Greek. genos - gender, race, nation, and Latin. occidere - kill) as
a new concept of crime R. Lemkin used for the rst time in his book entitled: Axis Rule
in Occupied Europe in 1944, alluding to a planned and systematic extermination of Jews,
Gypsies as well as other groups during World War II. Compare: Werle, G., Jessberger,
F., Principles of International Criminal Law (third edition), Oxford University Press,
2014, pp. 288-289; Munivrana Vajda, M., Etničko čišćenje kao oblik genocida? Hrvatsko
zakonodavstvo i praksa u svjetlu međunarodnih izvora, Zbornik Pravnog fakulteta u
Zagrebu, 6/2011., p. 1922-1923.
2 Josipović, I., Krapac, D., Novoselec, P., Stalni međunarodni kazneni sud, Narodne
novine: Hrvatski pravni centar, Zagreb, 2001., p. 13-16.
3 Weitz, E., A Century of Genocide: Utopias of Race and Nation, Princeton University
Press, 2009, p. 8-13., Totten, S., Parsons, W. (eds.), Centuries of Genocide: Essays and
Eyewitness accountss (fourth edition), Routledge, New York, 2013, p.p. 5.
4 Babić, M. et alt., Komentari krivičnih/kaznenih zakona u Bosni i Hercegovini (knjiga I),
Savjet/Vijeće Evrope: Evropska komisija, Sarajevo, 2005., p. 559.
37
genocide was legally dened as a distinct international criminal offence.5 The
Convention entered into force on 12 January 1951. Under its inuence many
national criminal laws have incorporated the criminal offence of genocide, as
dened under the Convention, into their own criminal laws.6 Following the
Convention, the punishment of the crime of genocide has also been included
in the statutes of international criminal tribunals: the International Criminal
Tribunal for the Former Yugoslavia (hereinafter: ICTY), the International
Criminal Tribunal for Rwanda (hereinafter ICTR) and the Rome Statute of
the International Criminal Court (hereinafter: ICC). Similarly, the statutes of
certain hybrid and internationalised criminal tribunals, such as the Special
Panel for Serious Crimes (East Timor) and the Extraordinary Chambers in
the Courts of Cambodia (ECCC) also have prescribed jurisdiction ratione
materiae for the prosecution of the crime of genocide.7 Of course, the
prosecution before the above referred international as well as national courts
implies establishing of a person’s individual criminal responsibility for this
criminal offence (the crime). On the other hand, the Convention provides for
the responsibility of states for genocide, that is to say, the possibility for
states, as subjects of public international law, to bring claims against each
other for genocide before the International Court of Justice (hereinafter: the
ICJ) and establish their responsibility for this crime. As a matter of fact, the
prevailing view nowadays is that the Convention has become an integral part
of customary international law and that its rules are jus cogens or peremptory
set of rules that can not be derogated by international agreements or national
laws.8
1. The Prosecution of the Crime of Genocide in Bosnia and
Herzegovina Before Various Courts
Following the amplitude of legal history of the prosecution of the crime
of genocide one can conclude that this term was ofcially used for the rst
time in the criminal proceedings before the International Military Tribunal
5 Shany, Y., The Road to Genocide Convention and Beyond in Gaeta, P. (ed.), The UN
Genocide Convention: A Commentary, Oxford University Press, 2009, p.p. 5.
6 Fabijanić Gagro, S., Škorić, M., Zločin genocida u praksi međunarodnih kaznenih ad
hoc tribunala, Zbornik Pravnog fakulteta u Zagrebu, br. 6/2008., p. 1388.
7 On the other hand, the statutes of other tribunals of this type, such as the Special Court
for Sierra Leone, do not provide the jurisdiction for the prosecutution of the crime of
genocide. Pavišić, B., Bubalović, T., Međunarodno kazneno pravo, Pravni fakultet
Sveučilišta u Rijeci, Rijeka, 2013., p. 210-219.
8 Kaseze, A., Međunarodno krivično pravo, Beogradski centar za ljudska prava, Beograd,
2006., p. 112.
38
at Nuremberg and the Polish courts in the aftermath of the Second World
War. Inter alia, it was employed in the indictment of the Committee of Chief
Prosecutors (in the case of Goering and others.) to describe, as genocidal, the
atrocities of some Nazi leaders.9 However, none of the accused was convicted
of this crime since the Statute of the International Military Tribunal and Control
Council Law No. 10, as the normative basis of the abovementioned trials, had
not introduced genocide as a distinct criminal offense. At the time, certain acts,
which nowadays constitute the actus reus of the criminal offence of genocide,
were a category of the crime against humanity. This is not surprising given
the fact that the Nuremberg trials were conducted before the adoption of the
Convention on the Prevention and Punishment of the Crime of Genocide.10
Also, the Polish courts in some cases, particularly in the case of Hoess in
1948, discussed, inter alia, the crime of genocide.11
However, after the Convention’s entry into force and the introduction
of the crime of genocide to penal laws of national jurisdictions across the
world there have been only sporadic cases of the prosecution of this crime
before some national courts. The small number of prosecuted cases for
crimes committed in the Second World War is understandable considering the
traditional principles of criminal law retroactivity doctrine. The small number
of prosecuted cases in the period after the Second World War could be justied
by the fact that Article VI of the Convention recognized only territorial
jurisdiction of a state where the criminal offence of genocide was committed,
and not the universal jurisdiction for the prosecution of this crime.12 However,
today the prevailing view is that the universal jurisdiction for the prosecution
of the crime of genocide has become a principle of customary international
law. Moreover, the great majority of contemporary national criminal codes
prescribe the universal jurisdiction as the universal principle as well as the
complementary principle to the principle of territorial jurisdiction. Anyway,
the literature cites the trial of Adolf Eichmann in Israel in 1961 is as one of
the rst examples of the prosecution of the crime of genocide by a national
criminal justice system. 13
9 Schabas, W., Genocide in International Law: The Crimes of Crimes, Oxford Univerity,
2000., p. 38
10 Horović, S., Genocid, ratni zločini, zločini protiv čovječnosti, Zbornik radova Pravnog
fakulteta Sveučilišta u Mostaru, br. XVII., 2004, p. 104.
11 Kaseze, A., op. cit., p. 110.
12 Ibid, p. 111.
13 Pavišić, B., Bubalović, T.,op.cit., p. 81.
39
1.1. Genocide Trials Before the German Courts
The more intensive prosecution of the crime of genocide before
national courts has been noted at the end of the twentieth and the beginning of
the twenty-rst century in relation to the atrocities committed in the 90¢s on
the territory of Bosnia and Herzegovina and Rwanda. In that regard it seems
interesting to point out the fact that the rst serious trials of genocide in Bosnia
and Herzegovina, on the basis of universal jurisdiction, were conducted before
the German courts and not courts in the region. According to the judgement of
the Higher Regional Court of Düsseldorf in 1997 Bosnian Serb Nikola Jorgić
was sentenced to life imprisonment for the crime of genocide committed in
the Doboj area in 1992.14 The judgement was upheld by the Federal Court of
Justice in 1999 and the Federal Constitutional Court in 2000.15 Unsatised
with the rulings of the German courts Jorgić lodged an application to the
European Court of Human Rights (case no. 74613/01), which in 2007 ruled
unanimously that the German courts had correctly applied the relevant national
and international law.16 Moreover, in 1999 the same court found Maksim
Sokolović guilty of complicity in genocide against the Bosniak population
in the area Osmaci near Zvornik and sentenced him to 9 years in prison. The
decision was upheld in 2001 by the Federal Court of Justice.17 Furthermore, in
1999 the Bavarian Higher Regional Court in Munich convicted Ðurađ Kušljić
for genocide against the non-Serb population in the area of Kotor Varoš and
consequently sentenced him to life in prison. In 2001 the respective decision
was upheld by the Federal Court of Justice.18 Finally, it shall be pointed out
14 Urteil des Obrelandesgericht Düsseldorf (Nikola Jorgic) (IV-26-96) vom 26. September
1997. (The judgement of Suprema Regional Court of Nort Rhine-Westphalia,
Dusseldorf). About this case, including the translation of the Court’s judgement on
the Bosnian language, you can refer to: Mahmutović, Dž., Muharemović, M., Prva
presuda za genocid u Evropi poslije drugog svjetskog rata u: (ur.) Đozić, A., Monumenta
Srebrenica, JU Zavod za zaštitu i korištenje kulturno-historijskog i prirodnog naslijeđa
Tuzlanskog kantona, Tuzla – Srebrenica, 2013, P. 129-157
15 Urteil des Bundesgerichtshof (Nikola Jorgic) (3 StR 215/98) vom 30. April 1999. (The
Judgement of Federal Court of Justice), Nikola Jorgic, Bundesverfassungsgericht (2 BvR
1290/99) vom 12. Dezember 2000., (The Judgement of the Federal Constitutional Court
of Germany).
16 Jorgic vs. Germany, European Court of Human Rights, Judgment, No. aplication:
74613/01, 12. July 2007.
17 Urteil des Oberlandesgerichts Düsseldorf (Maksim Sokolovic) vom 29. November 1999.
(The judgement of Suprema Regional Court of Nort Rhine-Westphalia, Dusseldorf),
Urteil des Bundesgerichtshof (Maksim Sokolovic) (3 StR 372/00) vom 21. Februar
2001. (The Judgement of Federal Court of Justice).
18 Urteil des Bayerischen Obersten Landesgerichts (Djurad Kuslic) vom 15. Dezember
1999. (The judgement of Suprema Regional Court of Bavaria, Munchen), Urteil des
40
that before this court Novislav Đajić also was tried for the crime of genocide
against the Bosniak population in Foca. In its trial judgement,19 the court found
that the crime of genocide was committed in the Foča area.20 Nevertheless,
the Public Prosecutor had failed to prove Đajić intent to commit this crime.
Accordingly, he was convicted for 14 counts of murder and one of attempted
murder.
1.2. Genocide Trials Before Domestic Courts of Bosnia and
Herzegovina
As far as the prosecution of the crime of genocide before the courts
of Bosnia and Herzegovina is concerned, the rst such trial began in 1993
before the District Military Court in Sarajevo against Berislav Herak, who
was sentenced to death after being found guilty of genocide committed in
Sarajevo. The appeals in this case were exhausted in 1999 before the Supreme
Court of FBiH, which upheld the genocide charge and sentenced him to twenty
years’ imprisonment. The same court in 1993 tried for genocide also Sretko
Damjanović. The trial ended in 2005 with the judgment of the Supreme Court
of the Federation that found Damjanović guilty of war crime against civilians
and sentenced him to 9 years in prison. He was acquitted of the genocide
charge. Apart from the named defendants the trial for genocide faced also
Veselin Čančar before the Cantonal Court in Sarajevo as well as Tešić Teše
and Borović Dušan before the Cantonal Court in Tuzla. Upon the exhaustion
of all legal remedies the trials came to end in 1998 and 2000 respectively
before the Supreme Court of the FBiH with acquittal of all three defendants
for the charge of genocide.21
However, the systematic prosecution of crimes against humanity and
values protected by international law, including the prosecution of the crime
of genocide as “the crime of crimes”, began in 2005 with the establishment of
the Court of Bosnia and Herzegovina (hereinafter: the Court of BiH). The rst
genocide conviction before this court was in 2008 in the so-called “Kravica
Bundesgerichtshof (Djurad Kuslic) (3 StR 244/00) vom 21. Februar 2001. (The
Judgement of Federal Court of Justice).
19 Urteil des Bayerischen Obersten Landesgerichts (Novislav Djajic) (3 St 20/96) vom 23.
Mei 1997. (The judgement of Suprema Regional Court of Bavaria, Munchen)
20 Hoare, M. A., A Case Study in Underachivement: The International Courts and Genocide
in Bosnia –Herzegovina, Genocide Studies and Prevention: An International Journal,
vol. 6, iss. 1/2011, p.. 82
21 Compare: Ratni zločini u BiH: Pravomoćno završeni kazneni postupci u Bosni i
Hercegovini 1992-2006, ABA/CEELI i Udruženje tužilaca BiH, Sarajevo, 2006., p. 169-
223, 296-302 i 370-379.
41
case” (the case of Miloš Stupar and others), in which the defendants Miloš
Stupar, Milenko Trifunović, Brano Đinić, Slobodan Jakovljevic, Branislav
Medan and Aleksandar Radovanović were found guilty of the crime of
genocide committed in the area of Srebrenica, while the accused Velibor
Maksimović, Milovan Matić, Miladin Stevanović and Dragiša Živanović were
acquitted of the genocide charge22.23 On appeal the Appellate Chamber of the
Court of BiH upheld the trial judgement in respect of all the defendants except
Miloš Stupar who was acquitted of the genocide charge.24 However, all ve
convicted defendants in 2013 appealed to the Constitutional Court of Bosnia
and Herzegovina arguing that the application of the 2003 Criminal Code of
Bosnia and Herzegovina by the Court of BiH in the course of defendants trial,
instead of the Criminal Code of the former Yugoslavia as the law in force
at the time of the commission of the crime, had breached their rights under
Article 7 of the European Convention on Human Rights (hereinafter: ECHR).
the Constitutional Court of Bosnia and Herzegovina granted the appeal and
quashed the conviction. In new trial before the Court of BiH on 29th April
2014 all ve defendants were convicted again for the crime of genocide (this
time according to Criminal Code of SFRY), whereas the sentence of long-term
imprisonment was reduced to 20 years25.26
On 16th October 2009 the trial judgment in the case of Milorad Trbić
was issued by the Court of BiH, in which he was sentenced to 30 years in
prison after found guilty of the crime of genocide committed in the area of
Srebrenica.27 The Appellate Chamber of the Court of BiH upheld the trial
22 The trial judgement of the Court of BiH in the case of Miloš Stupar and others (“Kravice”)
(X-KR-05/25) dated 29 July 2008.
23 With the above mentioned group of the defendants Petar Mitrovic was also initially
charged. However, the court ruled in his case that he was to be tried in separate criminal
proceedings. In the rst instance judgement issued on 29 July 2008 Mitrović was
convicted for complicity to genocide against the Bosniak population in Srebrenica and
sentenced to long term imprisonment of 38 years. The Appellate Chamber of the Court
(X-KR -05/24-1) dated 07.09.2009 upheld the conviction, whereas the sentence was
reduced to 28 years in prison.
24 The judgement of the Appellate Chamber of the Court in the case of Milos Stupar and
others (“Kravice”) (X-KR-05/24) dated 09 September 2009.
25 The judgement of the Appellate Chamber of the Court in the case of Slobodan Jakovljevic
and others dated 23 January 2014.
26 For the same reasons the retrial was also set in the case of Petar Mitrovic before the
Appellate Chamber of the Court. By the decision of the Appellate Chamber dated 22
January 2014 the defendant was found guilty of the crime of genocide under the SFRY
Criminal Code and sentenced to a prison term of 20 years.
27 The trial judgement of the Court of BiH from the above referred date in the case of
X-KR-07/386.
42
judgement’s conviction and sentence.28 Similarly, in the trial of Radomir
Vuković and Zoran Tomić the Trial Chamber of the Court of BiH found them
guilty of the crime of genocide committed in the area of Srebrenica, and
sentenced each defendant to long term imprisonment of 31 years.29 On 25
January 2012 the Appellate Chamber of the Court upheld an earlier decision
against Radomir Vuković, while Tomić was acquitted.30
In October 2011, the Trial Chamber of the Court of BIH, in the rst
instance trial, convicted Momir Pelemiš and Slavko Perić for the crime of
genocide for aiding and abetting the members of the joint criminal enterprise
who had the intent to kill the Bosniak population in Srebrenica.31 On appeal,
the Appellate Chamber of the Court of BiH acquitted Momir Pelemiš of the
genocide charge, 32 while it upheld the judgement in respect of Slavko Perić
and sentenced him to a prison term of 11 years.33
By the trial judgement dated 25th of May 2012 Duško Jević and
Mendeljev Đurić were convicted for aiding and abetting members of the joint
criminal enterprise to commit genocide in Srebrenica. Consequently, Jević
was sentenced to 35 and Đurić 30 years in prison. In the same trial, Goran
Marković and Neđo Ikonić were acquitted of the genocide charge.34 On appeal,
28 The judgement of the Appellate Chamber of the Court dated 21 October 2010. Due to the
judgement of the Constitutional Court made on the appeal of Milorad Trbic concerning
the breach of rights guaranteed under Article 7 of the ECHR and the quashing of the
second instance decision, the defendant was retried before the Appellate Chamber of the
Court. By the decision of the Appellate Chamber of the Court dated 19 January 2015 the
defendant was again found guilty of the crime of genocide under the Criminal Code of
SFRY, whereas his sentence was reduced to a prison term of 20 years.
29 The trial judgement of the Court of BiH in the case of Radomir Vukovic and Zoran
Tomic (X-KR-06 / 180-2) dated 22 April 2010.
30 The judgement of the Appellate Chamber of the Court of BiH in the case of Radomir
Vuković and Zoran Tomić (S1 1K 006124 11 Kžk (connection X-KR-06 / 180-2)) of
25th January 2012.
31 The trial judgement of the Court of BiH in the case of Momir Pelemiš and Slavko Perić
(S1 1 K 003379 09 Krl) from 31st October 2011.
32 The judgement of the Appellate Chamber of the Court of BiH in the case of Momir
Pelemiš (S 11 K 003379 12 Kžk) from 13th June 2013.
33 The judgement of the Appellate Chamber of the Court of BiH in the case of Momir
Pelemiš and Slavko Perić (S1 1 K 003379 12 Krž 10) of 18th October 2012. By this
judgement the ruling of the Court of BiH in this case, in the part concerned with Momir
Pelemiš was quashed, and the new trial ordered before the Appellate Chamber of the
Court, which has issued a new decision dated 13th June 2013, in which it was ruled as
stated above.
34 The trial judgement of the Court of BiH in the case of Duško Jević, Mendeljev Đurić,
Goran Marković and Neđo Ikonić (S1 1 K 003417 10 Krl (X-KR-09 / 823-1)) of 25th
May 2012.
43
the Appellate Chamber of the Court of BiH upheld the convictions of Jević
and Đurić, whereas it reduced their sentences.35
In the trial of Željko Ivanović who, among other things, was charged
with the crime of genocide the Trial Chamber of the Court of BiH on April
2012 acquitted him of the genocide charge and convicted him for crimes
against humanity.36 On appeal, the Appellate Chamber of the Court of BiH
reversed the decision by convicting him for the crime of complicity in
genocide with the sentence of 24 years in prison.37 The defendant in 2014
appealed to the Constitutional Court of Bosnia and Herzegovina arguing that
the application of the 2003 Criminal Code of Bosnia and Herzegovina by the
Court of BiH in the course of trial, instead of the Criminal Code of the former
Yugoslavia as the law in force at the time of the commission of the crime, had
breached the defendants” rights under Article 7 of the European Convention
on Human Rights (hereinafter: ECHR). The Constitutional Court of Bosnia
and Herzegovina granted the appeal and quashed the conviction. In the new
trial before the Court of BiH on 29th April 2014 Ivanović was convicted again
for the crime of genocide (this time according to Criminal Code of SFRY),
with the sentence of 20 years imprisonment.38
In mid-2011, the trial of Boško Lukić and Marko Adamović was
completed, as well. The defendants were charged with the criminal offence of
incitement of a group of people to commit genocide, crimes against humanity
and war crimes (Article 176, paragraph 2 of Criminal code of BiH) in the area
of Ključ. By the trial judgement of the Court of BiH all the defendants were
found guilty as charged on all counts of the indictment except the rst one.39
The defendants were also found guilty for the same criminal offence by the
Appellate Chamber of the Court.40 In the middle of 2012 one more genocide
35 The judgement of the Appellate Chamber of the Court of BiH in the case of Duško Jević,
Mendeljev Đurić, Goran Marković and Neđo Ikonić (S1 1 K 003417 12 Krž 12) from
20th May 2013.
36 The trial judgement of the Court of BiH in the case of Željko Ivanović (S1 1 K 003442
09 Criminal (X-KR-07 / 180-3) of 24th April 2012.
37 The judgement of the Appellate Chamber of the Court of BiH in the case of Željko
Ivanović (S1 1 K 003442 12 Kžk) from 17th June 2013.
38 The judgement of the Appellate Chamber of the Court of BiH in the case of Željko
Ivanović (S1 1 K 003442 14 Kžk 2) of 18th June 2014.
39 The trial judgement of the Court of BiH in the case of Boško Lukić and Marko Adamović
(S1 1 K 003359 08 Krl) dated 30th May 2011. In the same case Vinko Kondić was also
tried on the same charges. On 13th September 2010 due to the defendant incapacity to
stand trial ensued as a result of his health condition, the Court of BiH decided to try him
separately. For the stated reasons his trial is still pending.
40 The judgement of the Appellate Chamber of the Court of BiH in the case of Boško Lukić
and Marko Adamović (S1 1 K 003359 12 Kžk) dated 08th November 2013.
44
trial was completed, in which the defendants Franc Kos, Stanko Kojić, Zoran
Goronja and Vlastimir Golijan were acquitted of the genocide charge, but
were convicted for crimes against humanity.41 The Appellate Chamber of the
Court in its judgement dated 15th February 2013 upheld the trial judgement
regarding the legal qualication of criminal offences that the defendants were
charged with and granted the appeal in part concerned with their sentence.
Namely, it reduced the sentence set by the Court of BiH.42 Similarly, in January
2013 the Trial Chamber of the Court of BiH acquitted Božidara Kuvelju for
the charge of genocide and convicted him for crimes against humanity.43 In
November of the same year the Appellate Chamber of the Court of BiH upheld
the rst instance judgement and rejected the appeals of the defendant and the
State Prosecution as unfounded44.45
In addition, it shall be noted that Vaso Todorović was also charged
with the crime of genocide, among other crimes, committed in the area of
Srebrenica. At hearing on 23th June 2008 Todorovic pleaded not guilty for
the charged crimes. At Statutory Conference held on 17th September 2008
the State Prosecution amended indictment against the defendant by charging
him this time with the lesser criminal charge – the criminal offense of crimes
against humanity. Following the amendment to the indictment on 16th October
2008 the State Prosecution and the defendant concluded a plea agreement in
which he pleaded guilty to the charge of the above stated criminal offence. On
the basis of this Agreement, the Court of BiH convicted the defendant for the
criminal offence of the crimes against humanity.46
Finally, in 2013 the Court of BiH conrmed the indictment for
genocide in Srebrenica against Aleksandar Cvetković. His rst instance trial is
41 The trial judgement of the Court of BiH in the case of Franc Kos, Stanko Kojić, Vlastimir
Golijan and Zoran Goronja (S1 1 K 003372 10 Krl (X-KR-10 / 893-1)) of 15th June 2012
42 The judgement of the Appellate Chamber of the Court of BiH in the case of Franc Kos,
Stanko Kojić, Vlastimir Golijan and Zoran Goronja (S1 1 K 003372 12 Krž 13 (X-KR-10
/ 893-1)) of 15th February 2013.
43 The trial judgement of the Court of BiH in the case of Božidar Kuvelja (S1 1 K 004050
11 blood) from 11th January 2013.
44 The judgement of the Appellate Chamber of the Court of BiH in the case of Božidar
Kuvelja (S1 1 K 004050 13 Krž 15) dated 16th September 2013.
45 It’s worthwhile to note that the Court of BiH on 11th June 2008 conrmed the indictment
against Milisav Gavrić for the criminal offence of crimes against humanity in relation to
the criminal offense of genocide, but the trial is still pending as the defendant is on the
run.
46 The trial judgement of the Court of BiH in the case of Vaso Todorović (X-KR-06 / 180-1)
dated 22nd October 2008.
45
still pending. Hearing of the State Prosecution closing arguments is scheduled
on 12th May 2015.
For the same crime on 2nd October and 16th December 2014 the Court
of BiH conrmed the indictment against Miodrag Josipovic, Branimir Tešić,
Dragomir Vasić, Danilo Zoljić and Radomir Pantić. The trial of all defendants
began on 2nd April 2015 with a reading of the indictment and presentation of
introductory statements by the State Prosecution.47
1.3. The Prosecution of Genocide in Bosnia and Herzegovina
Before International Courts
On the other hand, as far as the prosecution of the criminal offences
of genocide and complicity to genocide before the ICTY are concerned, 22
persons were indicted for these offences and they all are related to the acts of
the Serb Army committed on the territory of Bosnia and Herzegovina.48 The
three accused, Slobodan Miloševic, Momir Talić and Milan Kovačević died
before the end of their trials. In the case of Biljana Plavšić, Momir Nikolić
and Dragan Obrenović the ICTY Prosecutor’s Ofce dropped the genocide
charges against them after they pleaded guilty for crimes against humanity.
Momčilo Krajišnik, Milomir Stakić, Radoslav Brđanin, Goran Jelisić, and
Duško Sikirica, inter alia, were indicted for genocide, but subsequently were
acquitted of this charge.49
The trial judgement conviction for the crime of genocide by the ICTY was
rendered in the case of Radislav Krstić. By the judgement of the Trial Chamber
from 2001 Krstić was found guilty of the crime of genocide committed in the
area of Srebrenica, and sentenced him to 46 years in prison.50 In 2004 the
Appeals Chamber exonerated Krstić from the direct execution of the crime of
genocide and found him guilty of the criminal offense of aiding and abetting
the genocide. Accordingly, his sentence was reduced to imprisonment of 35
years.51
47 On all cases hereinafter referred to see more on the website of the Court: http://www.
sudbih.gov.ba
48 Džouns, Dž. R., Pauls, S., op. cit., p. 147.
49 Ibid.
50 Prosecutor v. Radoslav Krstić, Judgement of the Trial Chamber (case no. IT-98-33-T) 02
August 2001
51 Prosecutor v. Radoslav Krstić, Judgement of the Appeal Chamber (case no. IT-98-33-A)
19 April 2004.
46
The second conviction for the crime of genocide was rendered in the
case of Vidoje Blagojević (Case: IT-02-60), on 17th January 2005, in which the
accused was found guilty of complicity in genocide by aiding and inciting.52
However, by the judgment dated 9th May 2007 the Appeals Chamber acquitted
the accused of the genocide charges and sentenced him for crimes against
humanity on the grounds that the Appeals Chamber in this case was not
convinced beyond reasonable doubt in the existence of the accused genocidal
intent.53
In 2005, for the crime of genocide in the area of Srebrenica, among
others, began the trials of Vujadin Popovic, Ljubiša Beara, Drago Nikolić,
Ljubomir Borovčanin, Vinko Pandurević, Milorad Trbić,54 Radivoje Miletić
and Milan Gvero55 (the case of Popovic and others(IT -05-88) - “Srebrenica”).
The judgement of the Trial Chamber in this case was rendered on 10th June
2010, in which Popović, Beara and Nikolić were convicted of the crime of
genocide, whereas Borovčanin and Pandurević were cleared of the genocide
charges.56 On appeal, the Appeals Chamber on 30thJanuary 2015 upheld
the conviction of Popovic, Beara and Nikolić for the crime of genocide in
Srebrenica and the rst two sentenced to life imprisonment, while Nikolić was
sentenced to 35 years imprisonment.57 In 2012 the Trial Chamber rendered
the judgement in the case of Tolimir ((IT-05-88-2) “Srebrenica”), in which
Zdravko Tolimir, inter alia, was convicted for the crime of genocide and was
sentenced to life imprisonment.58 On appeal, The Tribunal’s Appeals Chamber
upheld the judgement of the Trial Chamber and convicted him for the crime of
genocide in Srebrenica with the sentence of life imprisonment.59
52 Prosecutor v. Vidoje Blagojević and Dragan Jokić, Judgement of the Trial Chamber (case
no. IT-02-60-T) 17 January 2005.
53 Prosecutor v. Vidoje Blagojević and Dragan Jokić, Judgement of the Appeal Chamber
(case no. IT-02-60-A) 09 May 2007.
54 The case of Milorad Trbic was transferred to the Court of BiH before which, as previously
mentioned, the accused was convicted for the crime of genocide.
55 In spite of being tried in this case, Radivoje Miletic and Milan Gvero were not convicted
for the crime of genocide.
56 Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin,
Radivoje Miletić, Milan Gvero, Vinko Pandurević, Judgement of the Trial Chamber
(case no. IT-05-88-T) 30 June 2010.
57 Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić, Vinko
Pandurević, Judgement of the Appeal Chamber (case no. IT-05-88-A) 30 January 2015.
58 Prosecutor v. Zdravko Tolimir, Judgement of the Trial Chamber (case no. IT-05-88/2-T)
12th December 2012.
59 Prosecutor v. Zdravko Tolimir, Judgement of the Appeals Chamber (case no. IT-05-
88/2-A) dated 8 April 2015. By judgement of the Trial Chamber Tolimir was convicted
for genocide for acts committed by the Army of Republika Srpska on the territory
47
Finally, the trials of Radovan Karadzic and Ratko Mladić are underway
before the Trial Chamber of the ICTY.60
Apart from the establishment of individual criminal responsibility of
persons before the above stated forums, the crime of genocide in Bosnia and
Herzegovina was also referred to and judged by the International Court of
Justice in the 1993 proceedings initiated by Bosnia and Herzegovina against
Serbia and Montenegro on the basis of Article IX of the Convention. This was
the rst trial of this type conducted before the International Court of Justice
since the adoption of the Convention. The trial was completed on 26th February
2007 with the judgement of the International Court of Justice, in which it
found Serbia and Montenegro responsible for failing to prevent and punish the
crime of genocide in the area of Srebrenica committed by the Police and Army
of Republika Srpska on the Muslim population in Srebrenica.61
2. The Normative Denition of Genocide
Article II of the Convention provides that genocide means any of the
following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) Killing members of the
group;(b) Causing serious bodily or mental harm to members of the group;(c)
Deliberately inicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; (d) Imposing measures intended to
prevent births within the group; (e) Forcibly transferring children of the group
to another group.
In respect of the stated acts the following criminal offences are
prescribed: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and
public incitement to commit genocide; (d) Attempt to commit genocide; (e)
Complicity in genocide (Article III of the Convention).
In the criminal legislation of Bosnia and Herzegovina, in addition to
the above listed acts, the issuing of orders to commit these acts is provided as
a distinct criminal offence (Article 171 of the Criminal Code of BiH).62
of Žepa, however, the Appeals Chamber subsequently quashed that part of the Trial
Chamber judgement, with dissenting opinions of the judge Williama H. Sekulea i
Mehmeta Guneya.
60 For more about these cases visit: http://www.icty.org
61 Judgement of International Court of Justice in the case of Bosna i Hercegovina vs. Srbija
and Montenegro from 2007., para. 438 and 450.
62 In regards to reasons for incrimination of orders as acts of perpetration of a specic
48
The specicity of this crime (a criminal offense) is reected in the
fact that it protects the collective right of the protected peoples or groups to
their own existence as the distinctive social entities. The constitutive legal
elements of this crime are divided into: a) the subjective element (mens rea)
or the intent to destroy, in whole or in part, some of the protected groups, and
the objective element (actus reus), or committing one of the ve acts referred
above. Some national jurisdictions either as a distinct sixth act or as the part
of act provided under Article 2 clause e) also add a forced displacement/
deportation of population.63 This was the case with the Criminal Code of the
Former SFRY as the law in force at the time of commission of genocide in
Bosnia and Herzegovina as well as the Croatian Criminal Code (until 2013)
and the Slovenian Criminal Code (until 2008). Finally, it is noted that the legal
denition of the given crime, unlike the denitions of other war crimes, as
its element does not stipulate a specic time of perpetration, hence, it can be
concluded that the crime of genocide can be committed in time of peace and
war.
3. The Objective Element of the Crime of Genocide (Actus Reus)
In order to be convicted for this crime, one with the intent to destroy, in
whole or in part, the group protected by the Convention has to commit at least
one of the above stated acts of genocide.
a) Killing members of the group – This act represents the most severe
mode of the genocide perpetration. In fact, it is the most inherent to the notion
of genocide considering the fact that it was coined by the word genos (race,
tribe) and occidere (to kill).64 Given the fact that the loss of life of a person
can be caused intentionally, recklessly or even by negligence it is absolutely
vital to determine as to what level of mens rea is required in this particular
case. the French and the English version of the Convention as well as many
other international documents that dene genocide for this act mainly use the
expression “meurtre” (in French), which means the intentional causing of
death, and “killing” (in English), which implies intentional, reckless as well
as negligent cause of death. The varied terminology has created in the practice
of international criminal tribunals a dilemma as to how to understand this
crime, given the fact that it is actually the act of instigation, see more at: Babic, M., et
al, op. cit., p. 560
63 It is the legislation of Bolivia, Estonia, Ethiopia, Italy, Costa Rica, Lithuania, Nicaragua,
Ivory Coast, Paraguay, Russia and El Salvador. Munivrana-Vajda, M., op. cit., p. 1925
64 Fabijanić - Gagro, S., Škorić, M., op. cit., p. 1408.
49
concept.65 Following the principle in dubio pro reo the international courts
have opted for an approach that is favourable to the accused, whereby a
murder means the intentional killing.66 The same approach was taken in the
jurisprudence of the Court of BiH67, and the domestic criminal law theory.68
b) Causing serious bodily or mental harm to members of the group
with the intent to destroy the protected group, in whole or in part is the second
alternative act of the crime of genocide. Having in mind that the referred
syntagma has neither been dened by the provisions of the Convention nor the
statutes of international tribunals and national laws, the case law has offered
its meaning by interpreting the relevant norms. As in the case of clause a),
the acts referred to under this clause have to be perpetrated with the intent, as
well.69 According to the case law, the “serious bodily or mental harm” must
reach beyond temporary unhappiness, embarrassment or humiliation, that is to
say, grave damage to mental or physical capacities of a person, which it can,
eventhough it does not have to, cause a permanent or incurable injury”.70
It shall be a harm that inicts grave and long-term disadvantage to a person’s
ability to lead a normal and constructive life”,71 which could be compared
with a grievous bodily injury under Article 172 clause 1 and 3 of the Criminal
Code of the FBiH. Of course, these injuries can be caused by various forms of
inhumane treatment, such as torture, rape, beating, etc.
c) Deliberately inicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part - Deliberate inicting
of conditions of life calculated to bring about the total or partial destruction
of the group is the mode of so-called slow death, where victims are not
immediately exterminated, but are subjected to such living conditions that
will gradually and in stages result in their elimination. According to the case
law of the ICTR this may be starvation, deterioration of health conditions
below any reasonable level, rape, persecution from homes under extremely
65 Ibid.
66 Judgement of the Trial Chamber in the case of Blagojević and Jokić, para. 642. Judgement
of the Trial Chamber in the case of Bagilishema, para. 58.
67 Judgement of the Appellate Chamber of the Court of BiH in the case of Vuković Radomir
and others dated 25th January 2012., para. 419.
68 Tomić, Z., Krivično pravo: posebni dio (2 izmjenjeno i dopunjeno izdanje), Pravni
fakultet Univerziteta u Sarajevu, Sarajevo, 2007., p. 417.
69 Judgement of the Trial Chamber in the case of Brđanin, para. 690.
70 Judgement of the Trial Chamber in the case of Bagilishema, para. 59.
71 Judgement of the Trial Chamber in the case Krstić, para. 513, Judgement of the Trial
Chamber in the case Blagojević i Jokić, para. 645.
50
low temperatures that can cause death,72 as well as other acts that regularly
take place in many conicts and wars. Moreover, certain genocidal acts can
be committed in time of peace, as well. For example, the continued poisoning
of air, food or water, the settlement of a targeted group on contaminated and
polluted areas, or a failure to take adequate measures to protect members
of such group during major environmental disasters or epidemics that have
occurred in a particular area inhabited exclusively by its members with the
intent to destroy, in whole or in part, such groups.73
(d) Imposing measures intended to prevent births within the group in
fact represents a variety of extreme forms of denial of the right to privacy and
free parenting. These forms can be manifested as the separation of sexes and
passing (in times of war and peace) various administrative bans on marriages
within the group as well as the various forms of sterilization, forced abortion,
castration, and other means of birth control.
It is interesting to note that a systematic rape as the act of genocide was
put under this clause by the ICTR. In the Akayesu case (the trial judgement,
paragraph 507-508), the ICTR took the view that “a rape can be a measure
of birth control when followed by the subsequent refusal of a raped person
to give birth”, which is the consequence of the greatest number of the rape
crimes. Namely, rape victims feel contempt not only for rapists, but for all
members of his gender.
On the other hand, in some cases brought before the Court of BiH the
issue was raised as to whether the mass killings of men of the protected group
may be construed as the act of genocide that falls under this clause. Although
the Court of BiH has acknowledged the fact that the indiscriminate mass
killing of men does indeed disables a reproduction within a group, the Trial
Chamber of the Court of BiH has taken the position that the mass murder of
men per se can¢t be interpreted as the act of birth control within the group
since killing in itself does not constitute a “measure” stipulated under this
clause, but it falls under clause a) as the proof of special genocide intent. 74
(e) Forcibly transferring children of the group to another group is
undertaken to quantitatively weaken a certain group. In doing so, the intent to
destroy, in whole or in part, a group by transferring its children does not have
72 Judgement of the Trial Chamber in the Akayesu case, para. 505-506, Judgement of the
Trial Chamber in the case of Kayishema i Ruzindana, para. 116.
73 Babić, M. et al, op. cit., p. 559.
74 Judgement of the Trial Chamber of the Court of BiH in the case of Pelemiš Momir and
others dated 31 of October 2011., para. 145.
51
to include the intent to destroy or kill the children. As a matter of fact, in most
cases, creators of genocide enterprise have no intent of killing children. By
transferring children from a hated group to the group of their own they weaken
or destroy the hated group as well as strengthen their own quantitatively. Some
authors argue that such acts represent a unique form of cultural genocide,
which is not contained in the other provisions of this crime.75
4. The Specic Intent (Dolus Specialis) as a Subjective Element of
the Genocide and the Ways to Proof it
The subjective element of the crime of genocide (mens rea) implies
the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group. This intent (lat. dolus specialis) represents the institute of
international criminal law. Its equivalent in national criminal legislations
of the former Yugoslavia, as well as other national criminal legislations, is
“umišljaj” meaning the awareness and will to cause prohibited consequence
as the form of guilt which is a general precondition for culpability in many
crimes.76 While in other criminal offences (crimes) it is sufcient to prove a
general intent to commit a crime, in the crime of genocide it is necessary to
establish the existence of special intent (lat. dolus specials). 77The exclusivity
and uniqueness of the genocide intent is reected in the fact that in addition to
the awareness and willingness of a perpetrator to commit any of the acts of the
crime of genocide it must be proved that such acts were not the perpetrator’s
ultimate aim, but the means to achieve the higher goal of the destruction of
group protected by the Convention78.79 By reason of targeted actions that are
75 Pavišić, B., Grozdanić, V., Veić, P., Komentar Kaznenog zakona, Narodne novine,
Zagreb, 2007., p. 421.
76 Omerović, E., Suvremene doktrinarne postavke i koncept međunarodnog krivičnog suda
o specičnoj namjeri kod zločina genocida, Anali Pravnog fakulteta u Zenici, br. 10.,
2013., p. 180.
77 On such intent as an exclusive element of genocide is insisted in the jurisprudence of
international ad hoc tribunals. See Judgement of the Trial Chamber in the Krstić case,
para. 572-573, Judgement of the Trial Chamber in Tolimir’s case from 12th December
2012, para. 744, Judgement of the Trial Chamber in the case of Kayishema and
Ruzindana from 21 May 1999, para. 89, Judgement of the Trial Chamber in the case of
Musema dated 27 January 2000, para. 412, Judgement of the Trial Chamber in the case
of Semanza of 15 May 2003, para. 315.
78 Omerović, E., op. cit, p. 178.
79 The intent concerned shall not to be confused with motive. The essential element of
genocide is the intent to destroy a group, and not the reason for such purpose. Whether
its revenge, a desire for military supremacy, hatred, or anything else is irrelevant.
Dimitrijević, V., et all., Osnovi međunarodnog javnog prava, Beogradski centar za
ljudska prava, Beograd, 2005., p. 229.
52
being directed to achieve further consequence, in the sense that a perpetrator
does not only intend to destroy a victim’s life as one’s highest value, but
strives to destroy the collective life of a group one belongs to, Kai Ambos to
this intent refers to as the double intent.80 Accordingly, from the perspective of
our national criminal law the acts that constitute the crime of genocide can be
treated as such only if committed intentionally and not as result of knowledge,
recklessness or negligence.81 The existence of the crime of genocide is
neither conditional upon the materialization of the accused special intent nor
his understanding of the legal meaning and denition of genocidal intent. It
sufces that he has required intent referred to in the genocide denition, which
is the total or partial destruction of the protected groups.82
The specic content of the above referred intent, and consequently the
specic state of a perpetrator’s mind and will is what makes genocide “the
crime of crimes”.83 In 1948 during the debate in the UN General Assembly that
preceded the adoption of the Convention proposals were made to replace this
subjective element of the crime of genocide with the objective term “whose
outcome is”.84 However, the idea was abandoned because it would create
difculties in establishing genocidal intent and, as it was claimed then, it is
the fundamental criterion that makes the genocide the crime of all crimes. 85
Fears in respect of difculties of proving genocidal intent came true
in the subsequent practice of national and international criminal courts.
Generally, in criminal proceedings it is far easier to prove objective facts related
to the perpetration of acts that constitute a crime and its consequences, than
the question of guilt, which is situated within the context of modern science
80 Ambos, K., What Does „Intent to Distroy“ in Genocide Mean?, International Review of
the Red Cross, vol. 91, 876, 2009., p.p. 834.
81 Tomić, Z., op. cit., p. 39, Simović, M., Blagojević, M., Simović, V., Međunarodno
krivično pravo, Pravni fakultet Univerziteta u Istočnom Sarajevu, Istočno Sarajevo,
2013., p. 206, Petrović, B., Jovašević, D., Međunarodno krivično pravo, Pravni fakultet
Univerziteta u Sarajevu, Sarajevo, 2010., p. 235.
82 Judgement of the Trial Chamber of the Court of BiH in the case of Trbić Milorad dated
16th October 2009., para. 793.
83 Fabijanić Gagro, S., Škorić, M., Zločin genocida u praksi međunarodnih kaznenih ad
hoc tribunala, Zbornik Pravnog fakulteta u Zagrebu, br. 6/2008., p. 1396.
84 Had this concept of the existence of the crime of genocide been adopted it would be
enough to determine that someone with general intent (intent) to commit one of the
alternative acts of genocide, which objectively had the consequence of total or partial
destruction of a protected group. On the basis of general intent accompanied with the
objective consequence of partial destruction of a group one with such intent would be
convicted for the crime of genocide.
85 Džouns, Dž. R., Pauls, S., op. cit. p. 155.
53
and sometimes foggy areas of the human psyche meaning the perpetrator’s
consciousness and will, i.e., the intent. Additional challenge with the so-called
goal-oriented crimes such as genocide is that, in addition to establishing
general intent, the proof of specic intent directed to the ultimate aim of the
destruction of some of the protected groups is required.
The complexity of establishing a special intent in this crime is related to
two facts. The rst one is the conventional denition of genocide from which
one can not make reliable conclusion as to the (legal) nature of genocidal
intent. As noted previously, in the jurisprudence of international criminal
ad hoc tribunals are accepted the rigid conception of the special intent as a
goal-oriented intent irrespective of the fact that in the writings of scholars
on the subject there are different understandings of its legal nature. On the
other hand, each legally relevant fact can be proved directly or indirectly,
whereas it is much more complex to establish genocidal intent indirectly,
that is to say by the use of circumstantial evidence, which was most often
the case in contemporary practice of both domestic and international courts.
Namely, direct or indirect establishing of a perpetrator’s genocidal intent of
the genocide implies the existence of direct evidence which clearly manifests
its specic intent to completely or partially destroy the protected group. In
the catalogue of this type of evidence could primarily be classied written
documents (action plans, orders, instructions, directives, minutes of meetings),
from which genocidal intent of the accused is established or perhaps his
confession of the crime of genocide. However, the case law indicates that
nding written documents in which genocidal intent was explicitly indicated
have been quite rare because, as a measure of precaution, such documents
were not created or, more likely, they were destroyed.86 The confession as
another way of establishing individual criminal responsibility of an accused
for the criminal offense of genocide before international and domestic courts
has been rare, as well. Unlike cases tried before the ICTR in which accused
as Jean Kambanda (1998), Omar Serushago (1999), Georges Ruggiu (2000)
and Joseph Serugendo (2006), 87 had confessed the crime on the basis of which
they were convicted, no such cases have been reported by the ICTY and the
Court of BiH with respect to the prosecution of genocide in our country. In
fact, in the trial of Franc Kos, Stanko Kojic, Vlastimir Golijan and Zoran
Goronja before the Court of BiH the accused Vlastimir Golijanin at the plea
hearing dated 08th August 2010 had pleaded guilty, inter alia, to the crime of
genocide. However, the Trial Chamber, on its session held on 23rd September,
86 Karović, S., Kompleksnost utvrđivanja postojanja genocidne namjere, Zbornik radova
Pravnog fakulteta u Splitu, 1/2014, p. 125.
87 Fabijanić - Gagro, S., Škorić, M., op. cit., p.. 1398.
54
did not accept the plea since it was established that he did not understand the
legal qualication of the crime he was charged with.88
Given the fact that genocidal intent can not usually be proven by
presenting direct evidence, as outlined in the Gacumbitsi case89 before the
ICTR, in the absence of such evidence such intent can be inferred from
circumstantial evidence.90 The jurisprudence of international tribunals and the
Court of BiH has set several criteria concerning circumstantial evidence that
can prove the existence of genocidal intent.
The rst of all, it can be proven on the basis of the existence of genocidal
plan and policy, as well as action in the broader context of genocide91.92
Although it is possible to imagine genocide as individual criminal enterprise,
proving genocidal intent in such case is almost impossible as noted by the
ICTY in the case of Jelisic and Brđanin.93 On the other hand, if there is a wider
genocidal plan which the accused approached with the awareness and the will
to realize it, then genocidal intent is easier and more likely to be proven. The
plan does not necessarily have to be a written document. In accordance with
in the judgement of the ICTY rendered pursuant to Rule 61 in the case of
Karadžić and Mladić, its existence can be inferred from a general political
doctrine that leads to the acts of genocide.94 As the Trial Chamber explained it
implies speech or projects that justify the acts of genocide or serve as the basis
for their future perpetration.
88 Judgement of the Trial Chamber of the Court of BiH in the case of Franca Kosa, Stanka
Kojića, Vlastimira Golijana andZorana Goronje (S1 1 K 003372 10 Krl (X-KR-10/893-
1)) dated 15. June 2012., para. 4-6.
89 Judgement of the Trial Chamber in the case of Gacumbitsi dated 17 June 2004., para.
253.
90 Judgement of the Trial Chamber in the case of Kayishema and Ruzindana dated 21 May
1999., para. 94., Judgement of the Trial Chamber in the case of Setako, from 25 February
2010., para. 476.
91 Judgement of the Appeals Chamber in Krstić case, para. 225, Judgement of the Trial
Chamber in the case of Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir
Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević from 30 June 2010., para.
830.
92 This criterion is accepted in the jurisprudence of the Court of BiH. See: Judgement of the
Trial Chamber of the Court of BiH in the case of Stupar Miloš and others from 29 July
2008. P. 139.
93 Judgement of the Trial Chamber in the case of Brđanin dated 1 Septembre 2004., para.
980, Judgement of the Appeals Chamber in the case of Jelisić from 5 July 2001., para. 48.
94 “... In this case the plans of the Serb Democratic Party in BiH contain elements that
would lead to the destruction of non-Serb groups. Project of ethnicly monolith state
formulated in the light of the existence of a mixed population can’t anything else but
lead to exclusion of any group that is not identical to the Serb group. “Para. 94. Of the
aforementioned decision.
55
In addition, the proof as to the existence of genocidal intent can
also be circumstantial evidence concerning the manner in which crimes are
being committed such as the repetition of deliberate, systematic, destructive
and discriminate acts on victims who were victimized because of their
membership in a particular group.95 So, despite not being the formal element
of the legal denition of genocide, as is the case with the criminal offense of
crimes against humanity (“when as part of a widespread and systematic attack
directed against any civilian population ...”), 96 the jurisprudence of the ad hoc
tribunals for example in the Akayesu case (para. 523) and the judgement of
the ICTY rendered pursuant to Rule 61 in the case of Karadžić and Mladić
(par. 95) has taken the view that a systematic and repeated perpetration of the
acts of genocide or acting in the framework of pattern of premeditated action
can be taken as circumstantial evidence of genocidal intent. 97
As circumstantial evidence of the existence of genocidal intent can
surely be also the relative proportions of the crimes committed. This criterion
in particular has been often used in the practice of the ICTR considering the
enormous proportions of Tutsi victims in this African country. According to
Kajishema and Ruzindana trial judgement (par. 118) and the Report of the
Sub-Commission on Genocide, the Special Rapporteur noted that “the relative
proportions of the actual or attempted destruction of a group with any offense
referred to in Articles II and III of the Genocide Convention, is strong evidence
of the required intent to destroy a group in whole or in part.
However, it should be noted that even though a number of victims is
relevant for determining the given intent, it is not decisive. Namely, considering
the fact that the genocide can be committed in a conned geographical area,
killing all or part of the members of a group located therein, despite of fewer
casualties, can be qualied as the genocide if committed with intent to destroy
95 Judgement of the Appeals Chamber in Krstić case, para. 34 i 35, Judgement of the
Appeals Chamber in the case of Jelisić, para. 47., Judgement of the Trial Chamber in
the Akayesu case, para. 523, Judgement of the Trial Chamber in the case of Rutaganda,
para. 525, Judgement of the Trial Chamber of the Court of BiH in the case of BiH Trbić
Milorad, para. 820.
96 The Rome Statute of International Criminal Court (ICC), Article 172 of the Criminal
Code of BiH.
97 Kindly note that the Elements of the Criminal Offences in the Rome Statute at each of the
ve alternative acts as the last element provide “a perpetrator’s conduct in the context of
a clear (obvious) pattern of similar behaviour directed against that group or conduct was
such that it in itself could cause such destruction “, thus in this manner emphasizing the
element of systematic and planned action.
56
a part of such group.98 Moreover, in the judgement of Ndindabahizi case, the
ICTR Trial Chamber found the existence of genocidal intent was established
in case of the murder of one person at a checkpoint.99
Finally, undertaking other actions, which ex lege do not constitute the
legal elements of the genocide, may represent circumstantial evidence of the
intent to commit this crime. As it will be seen henceforth, the destruction of
cultural and spiritual heritage of a group, or the so-called “cultural genocide” is
not formal determinant of the elements of the crime of genocide, nevertheless,
the ICTY has adopted the view that this can be taken as the evidence of
genocidal intent, which is evident from the Trial judgement in the Krstić case
(para. 580): „…where there is physical or biological destruction there are
often simultaneous attacks on the cultural and religious property and symbols
of the targeted group as well, attacks which may legitimately be considered
as evidence of an intent to physically destroy the group. In this case, the Trial
Chamber will thus take into account as evidence of intent to destroy the group
the deliberate destruction of mosques and houses belonging to members of the
group“.
These are some of the facts and circumstances which have been used
before international tribunals as circumstantial evidence of genocidal intent.100
However, the complexity of proving genocidal intent in practice and even
more the absence of direct evidence have inuenced the ICTY and the ICTR’s
understanding of the nature and quality of such intent. The Convention’s
denition of genocide as one of the elements of this crime stipulates intent
to destroy the protected group in whole or in part. From the aforementioned
denition the nature of such intent is not explicitly revealed. In the jurisprudence
of the ICTY and ICTR the concept of the so-called „special intent“ as goal
oriented intent have been developed, which, as previously stated, implies not
only intent to perpetrate one of the alternative acts of genocide, but also intent
to achieve higher (further) goal, which is the destruction of the protected
group in whole or in part. In practice, such intent, in the absence of direct
evidence, is very difcult to prove. Therefore, in the contemporary theory new,
alternative approaches to understanding genocidal intent have arisen. One of
98 Judgement of the Trial Chamber of the Court of BiH in the case of Duška Jević,
Mendeljeva Đurić, Gorana Marković and Neđe Ikonić, para. 937., Judgement of the
Appeals Chamber of the Court of BiH in the case of Vuković Radomir and others, para.
442.
99 Judgement of the Trial Chamber in the case of Ndindabahizi dated 15 July 2004, para.
471.
100 For more about circumstantial evidence see: Karović, S., op. cit., p. 126, Fabijanić-
Gagro,S., Škorić, M., op. cit. p. 1399.
57
these is the so-called knowledge-based approach enunciated by Alexander
KA Greenawalt.101 According to this concept, individual responsibility for
genocide in the absence of goal-oriented intent would exist if the accused
committed one of the alternative genocidal acts with the knowledge, meaning
awareness that his actions will result in the destruction of a group.102 Having
in mind that the special intent (goal-oriented intent) is analogous to the
intent of rst degree, while the new concept of intent with the knowledge
of consequences is equivalent to intent of second or even lower degree of
culpability,103 it follows that this new concept (standard) of genocidal intent
would be far easier to prove in practice.104
5. The Protected Groups as an Object of the Criminal Offence of
Genocide
As already pointed out the object of protection in this crime is the
right to life and self-existence of collectivities, groups and not individuals.
Accordingly, by the text of the Convention the legislature has given legal
protection only to certain groups: national, racial, ethnic and religious.
UN Resolution on Genocide 96 (I) from 1946 envisioned the protection of
racial, religious, as well as other groups, which, for example, could include
political, economic, cultural, gender and similar groups. However, the text of
the Convention adopted on 9 December 1948 by the United Nations General
Assembly contains much narrower denition of groups over which the crime
of genocide can be committed. Regardless of suggestions that such protection
be provided to political and other groups such proposals did not receive
adequate support.105 It was argued that only these four protected groups are
relatively stable in which one becomes a member by birth, that is to say,
automatically in the way that is “the permanent and often unchangeable”,
unlike, for example, political, economic or cultural groups, which are mobile
and whose membership one joins or leaves voluntarily and easily. 106
101 Greenawalt, A., Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation, Columbia Law Review, vol. 99., no. 8, 1999.
102 Ibid, p. 2259.
103 Munivrana - Vajda, M., op. cit., p. 1937.
104 Actually, the Trial Chamber in Krstic’s case have considered supercially this approach,
and concluded conclusion that “it is unclear as to whether this interpretation can be
taken to reect the state of customary international law at the time of the criminal offense
in this case”, in this case the Trial Chamber opted for the concept of special intent. See
Trial Judgement, para. 571.
105 Shany, Y., op. cit., p. 9.
106 Džouns, Dž. R., Pauls, R., op. cit., p. 151.
58
However, the reasoning of the accepted solutions simply does not
stand in view of the fact that only racial groups are relatively stable, while on
the other hand individuals can freely change their national, ethnic or religious
beliefs and afliation. The reason why the effective legal protection had not
been given to the latter groups, especially political, was the effort to achieve an
appropriate compromise that would ensure the ratication of the Convention
by the largest number of states. This was so because in the political climate
at the time, a signicant number of member states had openly opposed the
possibility of standardizing of the so-called “political genocide” because of the
terrible atrocities they perpetrated against their political opponents.107 However,
having in mind that recent history of the human race have faced many criminal
enterprises, which in the general discourse are titled as genocide, and which
by the nature of the victimized groups could hardly be put under any of the
groups protected by the Convention, contemporary science quite reasonably
advocates the need to redene the crime of genocide, as well as expand the
range of groups that are to be given legal protection.108 The best example of
this claims are the crimes perpetrated by the Khmer Rouge in the period of
1975-1979 in Cambodia under the rule of Pol Pot , in which around 1.7 million
people lost their lives , or 21% of the national population. Even though these
crimes individual researchers understandably describe in logical and general
terms as genocide,109 a treatise on the subject point out that such qualication,
viewed through the prism of the Convention, is very difcult to sustain. This
view is based on the fact that the Khmer Rouge carried out the execution
of those who in any way resisted their ideology of the so called Democratic
Kampuchea), so for ideological reasons, and the ideological and political
groups do not enjoy the protection under the Convention.110 Therefore, some
national legislatures have learnt the lesson from these terrible experiences and
included the possibility of committing genocide on groups other than national,
racial, ethnic or religious. 111
107 Ibid.
108 Such requests could be heard even on the Rome Conference on which the Statute of the
International Criminal Court (ICC) was adopted in 1998, which as one of the criminal
offences for which the ICC shall have the subject matter jurisdiction was the genocide.
However, such requests were not accepted on the ground that such change would be
more appropriate in the context of a possible amending of the Genocide Convention.
Schabas, W., The International Criminal Court: A Commentary on the Roma Statute,
Oxford University Press, 2010., p. 129.
109 Etcheson, C., After the Killing Fields: Lessons from Cambodian Genocide, Praeger
Publishers, 2005., Bergin, S., The Khmer Rouge and the Cambodian Genocide, Rosen
Publishing Group, New York, 2009.
110 Škulić, M., Međunarodni krivični sud: nadležnost i postupak, Dosije, Beograd, 2005., p.
223
111 For example, Article 211 of the French Penal Code provides that genocide, in addition to
59
5.1. Dening the Protected Groups
Bearing in mind that the Convention does not provide either the
conceptual denition of each of the protected groups or any further guidelines
for their understanding, one of the rst challenges encountered by international
tribunals in trials of the crimes of genocide was how to identify any of the
protected groups? This was the burning issue at the beginning of the ICTR
regarding the denition of Tutsis. 112 Ad hoc tribunals have in their practice
of genocide trials applied different concepts in determining the content of
these terms. The initial practice of the ICTR insisted on an objective denition
of the above groups, demanding that the listed groups can be characterized
as stable and permanent group. The Trial Chamber in the Akayesu case in
its Judgement has even offered their denition.113 Nevertheless, subsequent
jurisprudence of both of both ad hoc tribunals has developed the subjective
concept of their understanding, as well. According to this concept denition
of a protected group is done on the basis of self-identication, meaning a
group identies itself or even more frequently how specied group is seen
or perceived by others and primarily perpetrators of genocide. 114 Finally,
in practice, the combination of objective-subjective approach has also been
applied in the identication of protected groups. 115
the groups provided by the Convention can be committed in relation to any other group
dened by any other criterion.” Fabijanic - Gagro, S., Skoric, M., op. cit., p. 1,401, about
genocide.
112 It was controversial as to how to treat Tutsis, namely, as a national, ethnical or religious
group, given the fact that it is almost impossible to distinguish them against the Hutus,
who share with them the same faith, culture and language. See Cassese, A., op. cit., p.
116..
113 A national group is a collection of individuals who have the same legal relationship based
on common citizenship. The ethnic group is one group whose members share the same
language and culture, on the basis of which a group can be identied from its members, as
well as from other persons who do not belong to it, including the person who committed
the genocide. Racial groups are, according to this view differ from other such groups by
hereditary physical traits that are often identied with geographical area, irrespective
of linguistic, cultural, ethnic or religious factors. Finally, the religious group is a group
of individuals who share the same faith, that is to say the creed profession of the same
faith, performance of the prayer, and common religious beliefs (Trial Judgement in the
Akayesu case, para. 512-515). As far as determination of an ethnic group is concerned
the reliance is made on elements of subjective criterion concerning self-identication of
a groups as well as its identication by others.
114 Compare: Judgement of Trial Chamber in the case of Rutaganda, para. 56., Judgement
of Trial Chamber in the case of u Jelisić, para. 70-71, Judgement of Trial Chamber in the
case of Krstić, para. 556-557, 559-560.
115 In this regard, exempli gratia, in the case of Brđanin, (Trial Judgement para. 683-
684), the Trial Chamber found that the relevant groups can be dened by the use of
60
In identication of a group what matters is its positive and not negative
traits. This means that a group is dened by its “concrete positive characteristics
- national, racial, ethnic or religious - and not their absence.”116 Therefore, the
determination of a group in negative terms does not t the protected group
denition, such as “non-Serb population” from the given territory.
5.2. Does Genocide Imply Only Physical Destruction of Protected
Groups?
A very important question which relates to the crime of genocide in the
context of Convention norms is how to understand the syntagma “destruction
of the group.” Does it imply only the physical (biological) destruction or the
destruction of cultural marks of a group (traditions, language, cultural and
religious heritage), which make constituent elements of its identity and to
what the literature refers to as “cultural genocide” or in the narrower sense
“urbicide”. Lemkin’s concept of the crime of genocide, which he presented
before the end of the Second World War included both of these perspectives. 117
Moreover, the “cultural genocide” was dened in the rst (1947) and second
(1948) Draft of the Convention, but was left out in its nal version.118
In the jurisprudence of international tribunals119 as well as the Court of
BiH120 the restrictive interpretation of the phrase concerned, which insists on
the “subjective criteria stigmatization of a group, notably by perpetrators of the crime,
based on the perceptions of the national, ethnic, racial or religious traits of a group.”
However, dening a protected group shall also be guided by the objective criteria, as
a subjective criterion may not be enough to determine the type of group. Examples of
objective-subjective approach in identifying a group was used , for example. In the case
of Kayishema and Ruzindana, (Trial Judgement para. 98), in the case of Semanza, (Trial
Judgement para. 317), in the case of Muvunyi, (Trial Judgement para. 484), in the case
of Jelisic ( Trial Judgement para. 70), in the case of Tolimir, (Trial Judgement para. 735).
116 Judgement of the International Court of Justice in the case of Bosnia and Herzegovina
vs. Serbia i Montenegro from 2007., para. 193, Judgement of the Appeals Chamber in the
case of Stakić, para. 21.
117 Haračić, Š., Tretman „kulturnog genocida“ u međunarodnom krivičnom pravu, Anali
Pravnog fakulteta u Zenici, br. 1/2010, p. 119.
118 Ibid, p.. 120-121, Shany, Y., op. cit., p.p. 5., Quigley, J., The Genocide Convention: An
International Law Analysis, Ashgate Publishing, Hampshire – Burlington, 2006., p.p.
9-10.
119 Judgement of Appeals Chamber in the case of Krstić, para. 25., Judgement of Trial
Chamber in the case of Tolimir, para. 746, Judgement of Trial Chamber in the case of
Semanza, para. 315.,
120 Judgement of Trial Chamber of the Court of BiH in the case of Stupar Miloš and others,
p. 60., Judgement of Trial Chamber of the Court of BiH in the case of Duška Jevića,
Mendeljeva Đurića, Gorana Markovića i Neđe Ikonića, para. 931.
61
the intention of the physical or biological destruction of the protected groups,
has been accepted. This is the view accepted in international customary law.121
Although the destruction of cultural and spiritual heritage of a group is not
considered as the element of the crime of genocide, it has, as noted previously,
been used in cases tried before international courts, in particular the ICTY,
treated as circumstantial evidence of genocidal intent.122
However, it should be noted that the jurisprudence of the German
courts has recognized an interesting broader paradigm of understanding the
syntagma “to destroy a group” in individual cases of genocide in Bosnia and
Herzegovina tried on the basis of universal jurisdiction. Namely, based on
the terrible experience of the Holocaust German courts had opened wider
perspectives of looking at the destruction of protected groups, and as in the case
of Jorgić, took the view that apart from the physical and biological destruction,
the court shall as legally relevant consider all other activities, which aim to
destroy a group’s social existence as such, its social unity embodied in its
distinctiveness and uniqueness.123
5.3. The Extent of the Destruction of Protected Group
At the same time, in courts¢ practice a dilemma has arisen as to how
to understand a part of the Convention’s provisions concerning the intent to
destroy in whole or in part a protected group. In reference to this phrase two
issues arose. First of all, it is questionable whether a group is considered at
the level of a particular country, region or perhaps local community? It is
interesting that the UN General Assembly paved the way for understanding
that genocide can be committed in a conned geographical area of some local
community, when it qualied the killing of Palestinian civilians in the refugee
camps of Sabra and Satilla in Lebanon in 1982 as genocide.124 This view
have also accepted by the German courts in the case of Jorgić, Sokolović and
Kušljić by establishing individual criminal responsibility of the accused for
the crimes of genocide in the area of Bosnian municipalities of Doboj, Osmaci
and Kotor Varos125.126 Finally, this approach is evident in the practice of the
121 Yearbook of the International Law Commision 1996., II, part II, (1996.), p.p. 25.
122 Judgement of the Trial Chamber in the case of Krstić, para. 580, Judgement of the Trial
Chamber in the case of Tolimir, para. 773.
123 Mahmutović, Dž., Muharemović, M., op. cit., p. 151., Haračić, Š., op. cit., p. 132.
124 Behrens, P., Henham, R. (eds.), Elements of Genocide, Routledge, 2013., p.p. 93.
125 Omerović, E., Namjera za genocid u Bosni i Hercegovini, p. 270-273.
126 Here needs to be noted that Higher Regional Court of Bavaria with its headquarters
in Munich in the trial of Novislava Đajića for genocide found that the genocide was
62
ICTY, for example, in the case of Jelisic, 127 Krstic, 128 and Tolimir, 129 as well
as in cases tried before the Court of BiH.130
Another issue is related to partial destruction of a group, while complete
destruction of a group logically was indisputable. The Trial Chambers of ad
hoc tribunals with regards to this issue have developed some jurisprudence.
the Trial Chamber of the ICTR in the Akayesu case131 was of the view that
partial destruction of a group implies a „substantial part“, while in the case of
Kayishema and Ruzindana,132, and Bagilishema133 and Semanza134 concluded
that the partial destruction of a group refers to “a considerable number of
individuals of a group“. Similar criteria have been taken by the ICTY. In the
Jelisic case the ICTY insists on the intention to destroy a “signicant part of
a group”, while in the case of Sikirica135 and Krstić136 “substantial part of a
group”.
The intent of a partial destruction of a group in its jurisprudence
the Court of BiH137 has accepted the standard of “substantial part”.138 It
is interesting that the Trial Chamber of the ICTY in the Jelisic case139 has
distinguished the intent of a partial destruction of a group in quantitative and
qualitative terms. While in quantitative terms the Trial Chamber implied an
essential part of a group, in qualitative terms it considered the destruction of
“the most representative members of targeted communities”, which implies
committed in the area of Foča municipality. See: Judgement of the Appellate Chamber
in the case of Novislava Đajića dated 23 May 1997
127 Judgement of the Trial Chamber in the case of Jelisić, para. 83.
128 Judgement of the Appeals Chamber in the case Krstić, para. 144.
129 Judgement of the Trial Chamber in the case of Tolimir, para. 773.
130 Judgement of the Trial Chamber of the Court of BiH in the case of Trbić Milorad, para.
786.
131 Judgement of the Trial Chamber in the case of Akayesu, para. 93.
132 Judgement of the Trial Chamber in the case of Kayieshema and Ruzindana, para. 97.
133 Judgement of the Trial Chamber in the case of Bagilishema, para. 64.
134 Judgement of the Trial Chamber in the case of Semanza, para. 316.
135 Judgement of the Trial Chamber of the Court of BiH in the case of Sikirica on the
Defense’s motion to the Court to acquit the accused, para. 65.
136 Judgement of the Appeals Chamber in the case of Krstić, para. 8.
137 Judgement of the Trial Chamber of the Court of BiH in the case of Stupar Miloš and
others, p. 65., Judgement of the Trial Chamber of the Court of BiH in the case of Trbić
Milorad, para. 784.
138 Judgement of the Trial Chamber of the Court of BiH in the case of Stupar Miloš and
others, p. 65., Judgement of the Trial Chamber of the Court of BiH in the case of Trbić
Milorad, para. 784.
139 Judgement of the Trial Chamber in the case of Jelisić, para. 82.
63
the destruction of its leadership (political and religious leaders, intellectuals,
etc.), under the condition that it affects the survival of the group as such140.141
Finally, the intent must be directed to destroy the protected group as
such. This implies that the emphasis is on the right to collective existence of
a group, which is the object of protection, and not on the victims of this crime
meaning their individual right to life. In this context it is stressed out that intent
concerned must be directed towards the destruction of targeted group itself, and
not its collection of individual group members142.143 Therefore, based on the
evidence it must be established that “proscribed acts were committed against
the victims because of their membership in a protected group,” although they
do not exclusively have to be committed for reason of such afliation.”144
Conclusion
Notwithstanding the repeated message of “never again” in public
discourse, as some sort of mantra, in the aftermath of the apocalyptic
experience of the Holocaust in World War II and criminalizing genocide as
the “crime of crimes”, the fact is that the humankind in the second half of the
twentieth century had been faced with the terrible scale of crimes, which in
the 90’s culminated to genocides in Rwanda and Bosnia and Herzegovina.
The most atrocious crimes recorded on the territory of the European continent
after World War II, which in the period from 1992 to 1995 had experienced the
citizens of Bosnia and Herzegovina, were legally qualied as genocide by the
competent national courts in Bosnia and Herzegovina and Germany as well
as by the International Criminal Tribunal for the Former Yugoslavia and the
International Court of Justice. Although unquestionably the proportions of the
crime occurred in the area of Srebrenica in 1995 are the most atrocious, it is
necessary to point out that genocide in Srebrenica, unfortunately, is not unique
criminal enterprise of this type, but rather the bloodiest scene of systemic
atrocities that took place elsewhere in Bosnia and Herzegovina, as well.
140 The identical approach was emphasized by the Trial Chamber in the case of Tolimir. See
judgement: Judgement of the Trial Chamber in the case of Tolimir, para. 778-782.
141 Dual criterion was adopted in the practice of the Court of BiH, where in some judgements
the intent to destroy a group in part in a qualitative sense is understood as the intent to
destroy “a characteristic part of the group” whose destruction would have consequences
on the entire group. See Trial Judgement in the case of Dusko Jevic, Mendeljev Djuric,
Goran Markovic and Nedjo Ikonic, para. 939
142 The identical approach was emphasized by the Trial Chamber in the case of Tolimir. See:
Judgement of the Trial Chamber in the case of Tolimir, para. 778-782.
143 Judgement of the Appeals Chamber in the case of Stakić, para. 20.
144 Judgement of the Trial Chamber in the case of Niyitegeka from 9 July 2004., para. 53.
64
While the horric images of the Srebrenica genocide became globally
known on the margins of not only general, but also the professional public has
remained the fact that there are nal decisions of national courts in Bosnia and
Herzegovina and Germany, in which some crimes committed in Doboj, Kotor
Varos, Foca, Osmaci near Zvornik and Sarajevo, were legally qualied as
genocide. Before the stated judiciary forums individual criminal responsibility
of direct perpetrators and their accomplices have been established for the
crime of genocide. However, it is important to emphasize that the International
Court of Justice in a dispute between Bosnia and Herzegovina and Serbia and
Montenegro in its judgment dated 26th February 2007 also established the
responsibility of Serbia and Montenegro for genocide in Srebrenica, not for
its direct perpetration, but for failure to take appropriate measures to prevent
and punish such acts, which were carried out by members of the Army and
Police of the Republika Srpska. Apart from being the rst case of this type
that was decided by the International Court of Justice, up to date Serbia and
Montenegro remains the only state as a subject of public international law that
was found responsible for violation of the Genocide Convention. 145
Finally, it should be pointed out that even during the debate in the
General Assembly of the UN, which preceded the adoption of the Genocide
Convention there were many proposals for a broader denition of the crime of
genocide, but they have not received ofcial support. However, based on the
experience of horric atrocities that marked mankind’s existence in the second
half of the twentieth century, and the trials of the crime of genocide before
various international and national courts, in the international scientic and
professional public is increasingly growing awareness of the need to redene
the legal denition of the crime. The new legal paradigm of understanding
of genocide at least should include the expanded range of protected groups
in addition to the existing one. The legal protection should be provided to
the political, ideological, gender and other groups. Considering the fact that
international jurisprudence has accepted the understanding of genocidal intent
as target-oriented, as well as its standard of proof that seems quite complex
145 In 1999 Croatia has led the suit before the International Court of Justice against the
Federal Republic of Yugoslavia (FRY) with a view of establishing responsibility for
violations of the relevant provisions of the Genocide Convention. In 2010 the Republic
of Serbia as its successor led the same counterclaim against the Croatia. The Court
in its judgment of 3 February 2015 found that crimes committed on Croatian territory
during the war in the 90’s of the last century do not qualify as the genocide, and
consequently has not established either the responsibility of Serbia or Croatia for the
genocide. See: Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia) is available at: http://www.icj-cij.org/docket/
les/118/18422.pdf (accessed on: 09. 06. 2015.).
65
and rigid, we believe that greater support should be given to the new so-called
alternative interpretations that would facilitate the way of qualifying systematic
atrocities directed towards the destruction of various human communities for
reason of their distinctive nature by their real name - genocide.
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25. Schabas, W., The International Criminal Court: A Commentary on the Roma
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26. Shany, Y., The Road to Genocide Convention and Beyond u: Gaeta, P. (ed.), The
UN Genocide Convention: A Commentary, Oxford University Press, 2009.,
27. Škulić, M., Međunarodni krivični sud: nadležnost i postupak, Dosije, Beograd,
2005.,
28. Tomić, Z., Krivično pravo: posebni dio (2 izmjenjeno i dopunjeno izdanje),
Pravni fakultet Univerziteta u Sarajevu, Sarajevo, 2007.,
29. Quigley, J., The Genocide Convention: An International Law Analysis, Ashgate
Publishing, Hampshire – Burlington, 2006.,
30. Weitz, E., A Century of Genocide: Utopias of Race and Nation, Princeton
University Press, 2009., Totten, S., Parsons, W. (eds.), Centuries of Genocide:
Essays and Eyewitness Accountss (fourth edition), Routledge, New York, 2013.,
31. Werle, G., Jessberger, F., Principles of International Criminal Law (third edition),
Oxford University Press, 2014.
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JUDGEMENTS OF THE INTERNATIONAL CRIMINAL TRIBUNAL
FOR THE FORMER YUGOSLAVIA:
1. Prosecutor v. Radoslav Krstić, Judgement in the Trial Chamber (case no. IT-98-
33-T) 02 August 2001.
2. Prosecutor v. Radoslav Krstić, Judgement in the Appeal Chamber (case no. IT-
98-33-A) 19 April 2004.
3. Prosecutor v. Vidoje Blagojević and Dragan Jokić, Judgement in the Trial
Chamber (case no. IT-02-60-T) 17 January 2005.
4. Prosecutor v. Vidoje Blagojević and Dragan Jokić, Judgement in the Appeal
Chamber (case no. IT-02-60-A) 09 May 2007.
5. Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir
Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević, Judgement in
the Trial Chamber (case no. IT-05-88-T) 30 June 2010.
6. Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić,
Vinko Pandurević, Judgement in the Appeal Chamber (case no. IT-05-88-A) 30
January 2015.
7. Prosecutor v. Zdravko Tolimir, Judgement in the Trial Chamber (case no. IT-05-
88/2-T) 12 December 2012.
8. Prosecutor v. Zdravko Tolimir, Judgement in the Appeals Chamber (case no. IT-
05-88/2-A) 8 April 2015.
JUDGEMENTS OF INTERNATIONAL COURT OF JUSTICE:
1. Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of
26. February 2007.
2. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia) Judgement of 03. February 2015.
JUDGEMENTS OF EUROPEAN COURT OF HUMAN RIGHTS:
1. Jorgic vs. Germany, European Court of Human Rights, Judgment, No. aplication:
74613/01, 12. July 2007.
JUDGEMENTS OF THE COURT OF BOSNIA AND HERZEGOVINA:
1. The trial judgement of the Court of BiH in the case of MiloS Stupar and others
(“Kravice”) (X-KR-05/25) dated 29 July 2008.
2. The judgement of the Appellate Chamber of the Court in the case of Milos Stupar
and others (“Kravice”) (X-KR-05/24) dated 09 September 2009.
68
3. The trial judgement of the Court of BiH in the case of Petar Mitrović dated 29
July 2008.
4. The judgement of the Appellate Chamber of the Court in the case of Petar
Mitrović (X-KR -05/24-1) dated 07. 09. 2009.
5. The judgement of the Appellate Chamber of the Court in the case of Slobodan
Jakovljević and others dated 23 January 2014.
6. The trial judgement of the Court of BiH in the case of Milorad Trbić (X-KR-
07/386) dated 16. 10. 2009.
7. The judgement of the Appellate Chamber of the Court in the case of Milorad
Trbić dated 21.10.2010.
8. The trial judgement of the Court of BiH in the case of Radomir Vuković and
Zoran Tomić (X-KR-06/180-2) dated 22 April 2010.
9. The judgement of the Appellate Chamber of the Court of BiH in the case of
Radomir Vuković and Zoran Tomić (S1 1K 006124 11 Kžk (connection X-KR-
06/180-2)) of 25th January 2012.
10. The trial judgement of the Court of BiH in the case of Momir Pelemiš and Slavko
Perić (S1 1 K 003379 09 Krl) from 31st October 2011.
11. The judgement of the Appellate Chamber of the Court of BiH in the case of
Momir Pelemiš (S 11 K 003379 12 Kžk) from 13th June 2013.
12. The trial judgement of the Court of BiH in the case of Duško Jević, Mendeljev
Đurić, Goran Marković and Neđo Ikonić (S1 1 K 003417 10 Krl (X-KR-09 / 823-
1)) of 25th May 2012.
13. The judgement of the Appellate Chamber of the Court of BiH in the case of Duško
Jević, Mendeljev Đurić, Goran Marković and Neđo Ikonić (S1 1 K 003417 12
Krž 12) from 20th May 2013.
14. The trial judgement of the Court of BiH in the case of Željko Ivanović (S1 1 K
003442 09 Criminal (X-KR-07/180-3) of 24th April 2012.
15. The judgement of the Appellate Chamber of the Court of BiH in the case of
Željko Ivanović (S1 1 K 003442 12 Kžk) from 17th June 2013.
16. The trial judgement of the Court of BiH in the case of Boško Lukić and Marko
Adamović (S1 1 K 003359 08 Krl) dated 30th May 2011.
17. The judgement of the Appellate Chamber of the Court of BiH in the case of Boško
Lukić and Marko Adamović (S1 1 K 003359 12 Kžk) dated 08th November 2013.
18. The trial judgement of the Court of BiH in the case of Franc Kos, Stanko Kojić,
Vlastimir Golijan and Zoran Goronja (S1 1 K 003372 10 Krl (X-KR-10/893-1))
of 15th June 2012.
19. The judgement of the Appellate Chamber of the Court of BiH in the case of Franc
Kos, Stanko Kojić, Vlastimir Golijan and Zoran Goronja (S1 1 K 003372 12 Krž
13 (X-KR-10/893-1)) of 15th February 2013.
69
20. The trial judgement of the Court of BiH in the case of Božidar Kuvelja (S1 1 K
004050 11 blood) from 11th January 2013.
21. The judgement of the Appellate Chamber of the Court of BiH in the case of
Božidar Kuvelja (S1 1 K 004050 13 Krž 15) dated 16th September 2013.
22. The trial judgement of the Court of BiH in the case of Vaso Todorović (X-KR-
06/180-1) dated 22nd October 2008.
JUDGEMENTS OF GERMAN COURTS:
1. Urteil des Obrelandesgericht Düsseldorf (Nikola Jorgic) (IV-26-96) vom 26.
September 1997. (The judgement of Suprema Regional Court of Nort Rhine-
Westphalia, Dusseldorf)
2. Urteil des Bundesgerichtshof (Nikola Jorgic) (3 StR 215/98) vom 30. April 1999.
(The Judgement of Federal Court of Justice),
3. Nikola Jorgic, Bundesverfassungsgericht (2 BvR 1290/99) vom 12. Dezember
2000., (The Judgement of the Federal Constitutional Court of Germany).
4. Urteil des Oberlandesgerichts Düsseldorf (Maksim Sokolovic) vom 29.
November 1999. (The judgement of Suprema Regional Court of Nort Rhine-
Westphalia, Dusseldorf),
5. Urteil des Bundesgerichtshof (Maksim Sokolovic) (3 StR 372/00) vom 21.
Februar 2001. (The Judgement of Federal Court of Justice).
6. Urteil des Bayerischen Obersten Landesgerichts (Djurad Kuslic) vom 15.
Dezember 1999. (The judgement of Suprema Regional Court of Bavaria,
Munchen),
7. Urteil des Bundesgerichtshof (Djurad Kuslic) (3 StR 244/00) vom 21. Februar
2001. (The Judgement of Federal Court of Justice).
8. Urteil des Bayerischen Obersten Landesgerichts (Novislav Djajic) (3 St 20/96)
vom 23. Mei 1997. (The judgement of Suprema Regional Court of Bavaria,
Munchen).
