Knowledge of genocidal intent

Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ

The Trial Chamber determined that Blagojević was complicit in genocide by allowing Bratunac Brigade resources and personnel to be used in connection with the forcible transfer from Potočari and the mistreatment and murder of the Bosnian Muslim detainees in Bratunac town.[1] For the Trial Chamber, the forcible transfer of the women and others was a “manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population” and the killings and mistreatment at Bratunac town were a similar “manifestation of this intent to destroy the group.”[2]

122. The main question for the Appeals Chamber is whether, in the absence of knowledge about the mass killings, the above findings form a sufficient basis to conclude that Blagojević knew of the principal perpetrators’ genocidal intent. It follows from the Krstić Appeal Judgement that the existence of the mass killings which followed the take-over of Srebrenica was key to the finding that genocide had been committed.[3] In this respect, the Appeals Chamber stated: “[t]he main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.”[4] Moreover, the Appeals Chamber also placed significant weight on Radislav Krstić’s awareness of the mass killings in determining that he had knowledge of the genocidal intent of the principal perpetrators.[5] In this respect, the Appeals Chamber refers to its assessment of the impact of Radislav Krstić’s awareness of the forcible transfer operation, the separations in Potočari, and the detention and mistreatment of Bosnian Muslim men in Bratunac town on his knowledge of the genocidal intent of the principal perpetrators.[6]

123. The Appeals Chamber notes that genocidal intent may be inferred, among other facts, from evidence of other culpable acts systematically directed against the same group.[7] Thus, the Appeals Chamber accepts that the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent.[8] However, the Appeals Chamber is not convinced by the Trial Chamber’s reasoning that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators’ intent to “destroy” the protected group.[9] The Krstić Appeal Judgement clearly held that “forcible transfer does not constitute in and of itself a genocidal act”, and it is simply a relevant consideration as part of the overall factual assessment.[10] Similarly, the Appeals Chamber notes that “opportunistic killings” by their very nature provide a very limited basis for inferring genocidal intent. Rather, as the Appeals Chamber determined in the Krstić Appeal Judgement, these culpable acts simply assist in placing the mass killings in their proper context.[11] Consequently, no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts related to the forcible transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent.[12]

[1] Trial Judgement, paras. 784, 787. More specifically, the Trial Chamber concluded that the following acts of practical assistance had had a substantial effect on the commission of genocide: (1) aiding and abetting the murders committed in Brutanac town; (2) aiding and abetting persecutions committed through the underlying acts of murder, cruel and inhumane treatment, terrorizing the civilian population and forcible transfer; (3) aiding and abetting the commission of other inhumane acts through forcible transfer; and, thus, rendering practical assistance in the killings and in causing serious bodily or mental harm to the Bosnian Muslims from Srebrenica.

[2] Trial Judgement, paras. 675-676.

[3] See, e.g., Krstić Appeal Judgement, paras. 26, 28, 29, 37, 83, 98, 100, 137.

[4] Krstić Appeal Judgement, para. 26.

[5] Krstić Appeal Judgement, paras. 104, 106, 112, 137.

[6] Krstić Appeal Judgement, paras. 99, 100 [CITATION OMITTED].

[7] Krstić Appeal Judgement, para. 33. See also Jelisić Appeal Judgement, para. 47; Semanza Appeal Judgement, paras. 261, 262; Kayishema and Ruzindana Appeal Judgement, para. 159.

[8] See, e.g., Krstić Appeal Judgement, para. 33 (“the Trial Chamber […] was entitled to conclude that the evidence of the transfer supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.”).

[9] Trial Judgement, paras. 665, 675, 676.

[10] Krstić Appeal Judgement, para. 33.

[11] Krstić Appeal Judgement, para. 35 (“As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.”).

[12] The Trial Chamber’s conclusion to the contrary may have been based on a view that in removing a group from a particular location, the removers are “destroying” the group. See Trial Judgement, paras. 657-666. The Appeals Chamber emphasizes, however, that displacement is not equivalent to destruction. See [Case Concerning the 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] para. 334  

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