Fordham International Law Journal Volume 25, Issue 1 2001 Article 2 Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia William A. Schabas∗ ∗ Copyright c 2001 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia William A. Schabas Abstract There are to date some six significant judicial pronouncements dealing with the interpreta- tion and application of article 4–genocide - of the ICTY Statute: two Rule 61 hearings; the Trial Chamber rulings in Jelisic, Krstic, and Sikirica; and the Appeals Chamber decision in Jelisic. In the course of these judgments, the ICTY has made important pronouncements about the actus reus of genocide, the nature of the protected groups, the quantitative dimension of the crime, and the concept of intent. It is now nearly a decade since international justice began examining whether genocide was com- mitted in Bosnia. Astonishingly, the really big question-and the most interesting one from a po- litical and historical standpoint-still remains unanswered, namely whether there was an organized plan or policy on the part of the Bosnian Serb leadership, with the complicity of the Belgrade regime, to destroy the Bosnian Muslims within the meaning of article II of the Convention. The ICJ, seized of the matter in March 1993, has yet to adjudicate the question on the merits. WAS GENOCIDE COMMITTED IN BOSNIA AND HERZEGOVINA? FIRST JUDGMENTS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA William A. Schabas* INTRODUCTION When the International Criminal Tribunal for the Former Yugoslavia ("ICTY") was established by the Security Council in May of 1993,' it held the promise of being the first international tribunal to prosecute the crime of genocide. Back in 1948, the United Nations General Assembly had experienced considerable difficulty determining the appropriate jurisdiction for genocide prosecutions as it was drafting the Convention for the Preven- tion and Punishment of the Crime of Genocide ("Conven- tion").2 After rejecting recognition of universal jurisdiction,3 the drafters settled on a minimal formula allowing for territorial ju- risdiction but holding out the prospect of a yet-to-be-established international criminal court. According to article VI of the Con- vention: "[p]ersons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribu- * Professor of Human Rights Law, National University of Ireland, Galway and Di- rector, Irish Centre for Human Rights. 1. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. S/RES/827 (1993), annex [hereinafter Statute]. For the preparatory documents, see VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YuGO- sLAvtA: A DOCUMENTARY HISTORY AND ANALYSIS (1995); M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGO- sLAVtA (1996). 2. Convention for the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, G.A. Res. 260A (III), U.N. GAOR, U.N. Doc. A/810 (1948), 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Convention]. 3. In the Sixth Committee of the General Assembly, in 1948, Iran proposed the following amendment to the draft convention: "Add a paragraph: 'They may also be tried by tribunals other than those of the States in the territories of which the act was committed, if they have been arrested by the authorities of such States, and provided no request has been made for their extradition.'" U.N. Doc. A/C.6/218. The amendment was rejected by twenty-nine votes to six, with ten abstentions. U.N. GAOR, 100th mtg., U.N. Doc. A/C.6/SR.100 (1948). 24 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 25:23 nal of the State in the territory of which the act was commit- ted, or by such international penal tribunal as may have juris- diction with respect to those Contracting Parties which shall have accepted its jurisdiction."4 Efforts to create such an international tribunal were launched immediately by the General Assembly,5 but nothing substantial came of them for more than four decades.6 In late 1992, inter- national organizations began to make charges that genocide was being committed in the ongoing conflict in Bosnia and Herzego- vina.7 An application to the International Court of Justice ("ICJ") filed by Bosnia and Herzegovina in early 1993 relied on article XI of the 1948 Convention, and focused still more atten- tion on the claim that genocide was being committed. The pro- visional measures ordered by the Court, on April 8, 1993, seemed to confirm the credibility of the charge.8 A few days later, in a resolution referring to the ICJ order, the Security Council used the word "genocide" for the first time in its his- tory.9 And of course, popular journalistic accounts repeatedly described the ongoing atrocities in Bosnia and Herzegovina as 4. Convention, supra note 2, art. VI. On the Convention, see generally WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW (2000). 5. The General Assembly called on the International Law Commission "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions." G.A. Res. 260B (III), U.N. GAOR, U.N. Doc. A/810 (1948). 6. See generally M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent InternationalCriminal Court, 10 HARV. HUM. RTS. J. 11 (1997). 7. See Interim Report of the Commission of Experts Established Pursuantto Security Council Resolution 780 (1992), U.N. SCOR, U.N. Doc. S/25274, paras. 55-56 (1993) [hereinafter Interim Report]; The Situation in Bosnia and Herzegovina, U.N. GAOR, 91st plen. mtg., U.N. Doc. A/RES/47/121 (1992). 8. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. & Herz. v. Yugoslavia (Serb. & Mont.)), Requests for the Indi- cation of Provisional Measures, 1993 I.C.J. 3, 16 (Apr. 8, 1993) [hereinafter Applica- tion]; see also Laurence Boisson de Chazournes, Les ordonnances en indication de mesures conservatoires dans l'affaire relative d l'application de la convention pour la prvention et la repression du crime de genocide, 39 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 514 (1993); Christine Gray, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), 43 INT'L & CoMp. L.Q. 704 (1994); Rafaflle Maison, Les ordonnances de la Cour internationale de justice dans l'affaire relative d I'application de la Convention pour la preention et la r pression du crime deg6nocide, 3 EUR.J. INT'L L. 381 (1994). 9. See S.C. Res. 819, U.N. SCOR, 48th Sess., 3199th mtg. at 1, U.N. Doc. S/RES/ 819 (1993). 2001] FIRST JUDGMENTS OF THE ICTY genocide.1 ° Although the Security Council Resolution did not explicitly identify it as the body contemplated by article VI of the 1948 Convention, when the ICTY was established on May 8, 1993 the Tribunal was given explicit jurisdiction over the crime of geno- cide in article 4 of the Statute of the International Criminal Tri- bunal for the Former Yugoslavia ("Statute")." The definition set out in article 4 essentially reproduced the text of articles II and III of the 1948 Convention. 12 But it soon became rather clear that the focus of the ICTY would be upon the other two catego- ries of crimes within its subject matter jurisdiction, namely war crimes and crimes against humanity. The initial indictments were extremely parsimonious in making accusations of geno- cide. The Prosecutor was quite obviously hesitant to present in- dictments for genocide in the former Yugoslavia, in marked con- trast to his policy with respect to indictments before the Interna- tional Criminal Tribunal for Rwanda ("ICTR"). The Prosecutor's caution in preferring accusations of genocide be- came manifest in the very first case to actually come to trial. Af- ter Dusko Tadic was arrested in Germany, national courts pro- ceeded against him for aiding and abetting genocide, as well as torture, murder, and causing grievous bodily harm.14 Although Tadic was only a minor player in Bosnian war crimes, the youth- ful International Tribunal was hungry for work and jumped at the chance to preempt the German courts. 5 But the Prosecutor 10. See generally Roy GUTMAN, A WITNESS TO GENOCIDE (1993); MICHAEL A. SELLS, THE BRIDGE BETRAYED, RELIGION AND GENOCIDE IN BOSNIA (1996); BEVERLY ALLEN, RAPE WARFARE: THE HIDDEN GENOCIDE IN BOSNIA-HERZEGOVINA AND CROATIA (1996); NOR- MAN CIGAR, GENOCIDE IN BOSNIA: THE POLICY OF "ETHNIC CLEANSING" IN EASTERN Eu- ROPE (1995); FRANCIS A. BOYLE, THE BOSNIAN PEOPLE CHARGE GENOCIDE (1996). 11. See Statute, supra note 1, art. 4(1). 12. Compare id. art. 4(2), with Convention, supra note 2, arts. II, III. 13. Statute of International Criminal Tribunal for the Prosecution of Persons Re- sponsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for geno- cide and other such violations committed in the territory of neighboring states, be- tween January 1, 1994 and December 31, 1994, U.N. Doc. S/RES/955 (1994), annex [hereinafter ICTR].