Bosnian genocide
The Bosnian genocide took place during the Bosnian War of 1992–1995 and includes the Srebrenica massacre of July 1995 or the wider crimes against humanity and ethnic cleansing campaign perpetrated throughout areas controlled by the Army of Republika Srpska. The events in Srebrenica in 1995 included the killing of more than 8,000 Bosniak men and boys, as well as the mass expulsion of another 25,000–30,000 Bosniak civilians by VRS units under the command of General Ratko Mladić.
The ethnic cleansing that took place in VRS-controlled areas targeted Bosniaks and Bosnian Croats. The ethnic cleansing campaign included extermination, unlawful confinement, genocidal rape, sexual assault, torture, plunder and destruction of private and public property, and inhumane treatment of civilians; the targeting of political leaders, intellectuals, and professionals; the unlawful deportation and transfer of civilians; the unlawful shelling of civilians; the unlawful appropriation and plunder of real and personal property; the destruction of homes and businesses; and the destruction of places of worship. The acts have been found to have satisfied the requirements for "guilty acts" of genocide and that "some physical perpetrators held the intent to physically destroy the protected groups of Bosnian Muslims and Croats".
In the 1990s, several authorities asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide; this remains the academic consensus, although Bosnian genocide denial remains. Later assertions included a resolution by the United Nations General Assembly and three convictions for genocide in German courts. In 2005, the United States Congress passed a resolution declaring that the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide.
The Srebrenica massacre was found to be an act of genocide by the International Criminal Tribunal for the Former Yugoslavia, a finding upheld by the ICJ. On 24 March 2016, former Bosnian Serb leader and the first president of the Republika Srpska, Radovan Karadžić, was found guilty of genocide in Srebrenica, war crimes, and crimes against humanity and sentenced to 40 years in prison. In 2019 an appeals court increased his sentence to life imprisonment. On 12 May 2021, it was announced that, in an agreement with UK authorities, he would serve the rest of his sentence in a UK prison.
United Nations
On 18 December 1992, the U.N. General Assembly resolution 47/121 in its preamble deemed ethnic cleansing to be a form of genocide stating:On 12 July 2007, in its judgement on the Jorgić v. Germany case, the European Court of Human Rights noted that:
International Criminal Tribunal for the Former Yugoslavia
Finding of genocide at Srebrenica
In 2001, the International Criminal Tribunal for the Former Yugoslavia judged that the 1995 Srebrenica massacre was genocide. In the unanimous ruling Prosecutor v. Krstić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, located in The Hague, reaffirmed that the Srebrenica massacre was genocide, the Presiding Judge Theodor Meron stating:In September 2006, former Bosnian Serb leader Momcilo Krajišnik was found guilty of multiple instances of crimes against humanity, but while the ICTY judges found that there was evidence that crimes committed in Bosnia constituted the criminal act of genocide, they did not establish that the accused possessed genocidal intent, or was part of a criminal enterprise that had such an intent.
In 2007, the court found insufficient evidence to conclude on alleged genocidal intent.
Finding of genocide at Žepa
In the case of Tolimir, in the first degree verdict, the International Criminal Tribunal concluded that genocide was committed in the enclave of Žepa, outside of Srebrenica. However, that conviction was overturned by the appeals chamber, which narrowed the crime of genocide only to Srebrenica.Milošević trial
On 16 June 2004, in Prosecutor v. Slobodan Milošević: Decision on Motion for Judgement of Acquittal, the ICTY Trial Chamber refused to acquit former Serbian president Slobodan Milošević on the same grounds, and ruled:On 26 February 2007, however, in the Bosnian genocide case, the United Nations International Court of Justice found that there was no evidence linking Serbia under the rule of Milošević to genocide committed by Bosnian Serbs in the Bosnian War. However, the court did find that Milošević and others in Serbia did not do enough to prevent acts of genocide from occurring in Srebrenica.
On 22 November 2017, an International court in The Hague found General Ratko Mladić guilty of one count of genocide, five counts of crimes against humanity and four counts of violations of the laws or customs of war. He was found not guilty of one count of genocide and sentenced to life imprisonment.
Involvement of Serbia
In Bosnia and Herzegovina v Serbia and Montenegro, the International Court of Justice concluded that Serbia was not responsible for the events in Srebrenica, although it did conclude that Serbia had failed in its duty to prevent the massacre.On 28 February 2013, the ICTY Court of Appeals overturned a conviction for JNA Chief of Staff Momčilo Perišić for crimes committed in Bosnia and Herzegovina and Croatia and ordered Perišić's immediate release. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has ever been convicted by the ICTY for war-crimes committed in Bosnia.
On 30 May 2013, the ICTY acquitted and ordered the immediate release of Jovica Stanišić and Franko Simatović, two close aides of Slobodan Milošević. Stanišić was the Chief of the Serbian State Security Service, while Simatović was in charge of the special operations arm of the State Security Service.
United States House and Senate resolutions
The month before the 10th anniversary of the Srebrenica Massacre, both houses of the United States Congress passed similarly worded resolutions asserting that the policies of aggression and ethnic cleansing as implemented by Serb forces in Bosnia and Herzegovina from 1992 to 1995, including the Srebrenica Massacre, constituted genocide.On 27 June 2005, during the 109th Congress, the United States House of Representatives passed a resolution commemorating the 10th anniversary of the Srebrenica genocide. The resolution, as amended, was passed with an overwhelming majority of 370 – YES votes, 1 – NO vote, and 62 – ABSENT. The resolution is a bipartisan measure commemorating 11 July 1995 – 2005, the tenth anniversary of the Srebrenica massacre. The Senate version, S.Res.134, was sponsored by Senator Gordon Smith with 8 cosponsors and was agreed to in the Senate on 22 June 2005 without amendment and with unanimous consent. The summaries of the resolutions are identical, with the exception of the name of the house passing the resolution, and the substitution of the word executed for murdered by the House in the first clause:
International Court of Justice (ICJ): ''Bosnia and Herzegovina v. Serbia and Montenegro''
A trial took place before the International Court of Justice, following a 1993 suit by Bosnia and Herzegovina against Serbia and Montenegro alleging genocide. On 26 February 2007, the ICJ, in the Bosnian Genocide Case concurred with the ICTY's earlier finding that the Srebrenica massacre constituted genocide:ICJ President Rosalyn Higgins noted that there was much evidence to prove that crimes against humanity and war crimes had been committed in Bosnia and Herzegovina such as widespread killings, the siege of towns, mass rapes, torture, deportation to camps and detention centres, but the ICJ did not have jurisdiction over them, because the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term". Moreover, the Court found "that Serbia has not committed genocide" nor "conspired to" or "incited the commission of genocide". It did however, find that Serbia had failed "to take all measures within its power to prevent genocide in Srebrenica" and to comply fully with the ICTY by failing to transfer Ratko Mladić to the custody of the ICTY in the Hague and that Serbia must in future transfer to the Hague all ICTY-indicted individuals, who reside under Serbian jurisdiction.
Criticism of the ICJ judgement
The Court's finding that Serbia was not directly involved in the Srebrenica genocide have been strongly criticized. Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem, described the Court's conclusions on the three questions before it as controversial:Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide." He further added that the fact that according to the court, Serbia was aware of the very high risk of acts of genocide and did nothing, yet it was not complicit because "it has not been proven" that the acts of genocide at Srebrenica "had been brought to Belgrade's attention", was a puzzling statement.
The vice-president of the International Court of Justice, Judge Al-Khasawneh, criticized the judgement as not reflecting the evidence with respect to Serbia's direct responsibility for genocide at Srebrenica:
The 'effective control' test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The 'overall control' test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court's refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY's knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.