By Marjolein Cupido and Francisca van Schuppen –
On 8 April 2015, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued its final judgment in the case against Zdravko Tolimir – an Assistant Commander and Chief of the Sector for Intelligence and Security Affairs of the Army of Republika Srpska (VRS). The Appeals Chamber affirmed Tolimir’s conviction for committing genocide in Srebrenica and upheld his life sentence. In particular, the Appeals Chamber accepted that Tolimir made a significant contribution to the murder of the Bosnian Muslim men from Srebrenica and the forcible transfer of the women, children and elderly, thereby acting with the intent to destroy the Bosnian Muslims from Eastern Bosnia. The findings of the Tolimir Appeals Chamber accord with previous case law (e.g. the Popovic et al. Trial and Appeals Chamber judgments) in which the ICTY similarly qualified the Srebrenica massacre as genocide and convicted senior political and military leaders for their role in this atrocity. In this sense, the conclusion of the Tolimir Appeals Chamber are not unexpected. Nonetheless, it is worth reflecting upon the Appeals Chamber’s reasoning, since it exemplifies remaining uncertainties about the destructive nature of genocide. In particular, two points stand out in this respect.
First, the Tolimir Appeals Chamber judgment raises the question of whether the requirement that genocide is committed with the aim of destroying a protected group only relates to the accused’s mens rea, or whether it also influences the actus reus requirements of genocide. The definition of genocide stipulates that génocidaires must act with the intent to destroy an ethnic, national, racial or religious group. In this light, international courts (see e.g. the judgment of acquittal in the Milošević case) and scholars have traditionally maintained that the accused should merely have acted with the intent of bringing about a group’s destruction. It is not required that the accused actually succeeded in destroying one of the protected group. This implies that the distinctive character of genocide as a crime of destruction is primarily reflected in the accused’s mens rea, rather than his actus reus. Genocide can accordingly be committed through acts that are not inherently linked to the annihilation of a protected group (e.g. infliction of bodily and mental harm).
Having said that, in practice the ICTY has diluted the strict distinction between the actus reus and mens rea elements of genocide by connecting the objective genocidal acts to the subjective intent to destroy. For example, the Tolimir Appeals Chamber held that when genocide is committed through the infliction of mental harm, this harm ‘must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group’ (at para. 203). Moreover, it recalled the finding of the ICTR Appeals Chamber in the Seromba case that ‘to support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part’ (Seromba Appeals Chamber judgment, para. 46). The interplay between the acts of genocide and the destruction of a group was also emphasized by Judge Antonetti in his separate opinion to the Tolimir Appeals Chamber judgment. According to Judge Antonetti, the actus reus of genocide needs to be assessed in light of the genocidal intent to destroy. Acts of genocide must therefore have a clear destructive character and effect (Separate opinion Judge Antonetti, para. B.4).
At first sight, the majority of the Tolimir Appeals Chamber and Judge Antonetti thus set a high legal standard, which closely links the infliction of mental harm to the underlying goal to destroy a protected group. However, it is questionable whether the Appeals Chamber’s findings on the specific facts of the Tolimir case meet this standard. In particular, the Appeals Chamber’s analysis of the alleged mental harm suffered by the Bosnian Muslim women from Srebrenica reflects a rather lenient approach to the infliction of mental harm. On this point, the Appeals Chamber determined that the Bosnian Muslim women are still traumatized as a result of the separation from their men, the fear as to the fate of their male relatives, and the appalling conditions during their journey to Muslim-held territory (para. 210). Considering this trauma, as well as the financial and emotional difficulties they have faced since their forcible transfer, the Bosnian Muslim women have not been able to lead a normal and constructive life (para. 211). According to the Appeals Chamber, the inability to lead a normal and constructive life equals the threat of destruction: the forcible transfer caused ‘grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life, so as to threaten the physical destruction of the group in whole or in part’ (para. 212).
In our view, this equation is unjustified and inconsistent with the Appeals Chamber’s view that genocidal acts must be of such a nature as to contribute to the destruction of a group. The impossibility of leading a normal and constructive life and the threat of being destroyed are two different things that cannot be lumped together. By doing so, the Appeals Chamber implicitly waters down the standard it set for itself. As a result, it is still uncertain to what extent génocidaires should implement their intent to destroy a protected group through actions that can realize this destruction. To address this issue, it is important that the ICTY either starts explaining more precisely how circumstances surrounding forcible transfer can threaten a group’s physical existence, or acknowledges that the acts of genocide do not have to cause the destruction of a protected group.
A second – related – question that the Tolimir Appeals judgment raises concerns the inference of genocidal intent from non-destructive acts. It is generally recognized (see e.g. Milošević Trial Chamber judgment of acquittal, para. 124 and the report of International Law Commission, para. 12) that the element of genocidal intent requires that the accused sought to physically or biologically destroy a protected group. Persons who pursue the group’s cultural destruction do not qualify as génocidaires. Since it is difficult to find direct evidence that an accused wanted to destroy a protected group, genocidal intent may be inferred from objective circumstances (e.g. Kayishema et al. Trial Chamber judgment, para. 93; Rutaganda Trial Chamber judgment, para. 61; Musema Trial Chamber Judgment, para. 167). According to the Tolimir Appeals Chamber, these circumstances can inter alia relate to the way in which the actions constituting the actus reus of genocide were carried out. The Appeals Chamber thus accepts that facts concerning the acts of genocide are evidentially relevant for establishing the accused’s genocidal intent.
In our view, it is critical that the accused’s intent to destroy a protected group is inferred from acts that can actually bring about the group’s destruction. After all, it is difficult to maintain that a person intended to physically destroy a group on the basis of evidence concerning actions that cannot cause such destruction. Yet, this is exactly what the Tolimir Appeals Chamber did. The Appeals Chamber used evidence of, inter alia, forcible transfer – which in itself cannot cause the physical or biological destruction of a group – to establish that the perpetrators of the Srebrenica massacre acted with an intent to physically destroy the Bosnian Muslim population. The Appeals Chamber in this respect recognized that
[t]he record (…) is devoid of any evidence that the forcible transfers (…) were ‘carried out [ … ] with a view to the destruction of the group, as distinct from its removal from the region’ at issue (i.e., the enclaves of Srebrenica and Zepa). Although the Appeals Chamber is satisfied that there was a deliberate plan to expel the Bosnian Muslim women, children, and elderly from Srebrenica and the entire Muslim population from Zepa, it has not been established beyond reasonable doubt that such a policy of removal (…) was aimed at causing the physical destruction, i.e., the slow death, of these populations. There is no evidence on the record that the forcible transfer operations were carried out in such a way so as to lead to the ultimate death of the displaced Bosnian Muslims (para. 233).
However, according to the Appeals Chamber, this finding does not preclude the Tribunal from using acts of forcible transfer as a basis for inferring the perpetrators’ intent to destroy (para. 254). The Appeals Chamber considered that even though evidence of forcible transfer may not in itself prove that genocide was committed, it can contribute to the establishment of genocidal intent in combination with other evidence concerning the commission of large-scale killings and discriminatory actions.
In his separate opinion, Judge Antonetti raised strong critiques against this approach. According to Judge Antonetti, genocidal intent can only be inferred from facts that will cause the physical or biological destruction of a group, rather that the group’s expulsion (para. B.2 and B.4). In particular with respect to the forcible transfer of a population, the Judge emphasized that these acts may only be used as a basis for establishing genocidal intent if they had a destructive effect. On this account, the Judge held that the forcible transfer of the women, children, and elderly from Srebrenica cannot be reconciled with a finding of genocidal intent. By transporting these groups of persons to safe zones, the Bosnian-Serb army protected them from being killed, rather than sending them to their deaths. Judge Antonetti therefore concluded that the majority was wrong in using the forcible transfer of part of the population from Srebrenica to corroborate their finding that the alleged perpetrators acted with genocidal intent (para. B.4).
We agree with Judge Antonetti that the inference of genocidal intent from non-destructive acts by the Tolimir Appeals Chamber is problematic, since it is logically incoherent. Studies into legal logics (by e.g. Giovanni Sartor) generally demonstrate that facts have to be evaluated in a holistic way, i.e. in combination with each other. This holistic assessment generates a certain interplay between facts. As a result, it is possible that individual facts support a specific decision, whilst they negate this decision when combined. Following this thought, one could argue that the Tolimir Appeals Chamber correctly decided that the combined effect of the forcible transfer of the women, children and elderly from Srebrenica and the simultaneous occurrence of large-scale killings of men justifies the conclusion that genocide was committed. However, this argument would disregard another important starting point of legal logics, namely that the judicial assessment of facts must advance the purpose underlying a legal rule. This means that courts can only substantiate their findings on the basis of facts that are relevant in light of the purpose of the applicable legal rule. The purpose underlying the prohibition of genocide is the criminalization of conduct that seeks to destroy a protected group either physically or biologically. On this account, genocidal intent can only be inferred from facts which show that the perpetrators’ conduct was aimed at the physical or biological destruction of a protected group. Accordingly, we consider it unjustified that the ICTY still substantiates its findings that accused acted with an intent to destroy with reference to facts that in and of themselves cannot cause or contribute to such destruction, such as acts of forcible transfer. In our view, the Tribunal in this way negates the character of genocide as a crime of destruction and weakens the distinctions between different international crimes. By this, we do not mean to trivialize the crimes that were committed in Srebrenica, which have caused permanent damage to the Bosnian Muslim society. We only wish to emphasize the importance of clearly distinguishing between (evidence of) expulsion – which may amount to crimes against humanity – and (evidence of) genocidal destruction.