As a follow-up to Marko Milanovic’s excellent post, I have some further comments on the recent Karadzic judgment, especially on the Trial Chamber’s bifurcated approach to the two genocide charges (acquittal re the municipalities joint criminal enterprise [JCE] and conviction re the Srebrencia JCE, see paras. 2571 et seq. and 5655 et seq. respectively). Before turning to the concrete points, I must present a caveat and a general commentary on the evidentiary standard.
The caveat refers to the quite delicate position of an academic commentator when analysing a trial judgment. Being myself a trial judge (albeit only in my second profession as the majority of my time is dedicated to my academic work) in a procedural system where the actual trial, governed by the principles of orality and immediacy, is considered the height of the proceedings, I am aware that nothing can substitute the direct impressions taken from the actual trial hearings, especially regarding the oral and immediate presentation of evidence. The academic commentator is more in the position of a judge at the appeal stage, in the sense of the French cassation or the German Revision, where the ensuing legal review of the trial court’s sentence is essentially based on the critical legal analysis of this court’s written judgment. Thus, my comments are the mere product of a critical reading of the respective parts of the Karadzic trial judgment, further limited by the natural margin of deference to be given to any trial court, and the restrictive ‘reasonable trier of fact’ appeal standard of international criminal proceedings.
This brings me to the evidentiary standard with regard to the proof of the subjective element (mens rea) of criminal law offences captured in the old Roman maxim, dolus ex re, i.e. the intent (mental element) (is to be) inferred from the external circumstances of the objective act (actus reus). This is nothing other than the modern indirect or circumstantial evidence which has taken centre stage in international criminal proceedings, especially as regards the proof of the special intent to destroy a protected group in the crime of genocide (paras. 550, 5825). Indeed, the whole genocidal case against Karadzic is based on circumstantial evidence, defined by the Chamber, referring to settled case law, as “evidence of a number of different circumstances surrounding an event from which a fact at issue may be reasonably inferred” (para. 14) and, in addition, requiring a highly demanding ‘only reasonable inference’ standard (paras. 10, 14). In concrete terms, this entails a double evidentiary test as the trial chamber must first be convinced that a certain inference is the only reasonable one and second, that all reasonable inferences taken together – as the totality of (indirect) evidence – prove beyond reasonable doubt the respective mental element and thus, ultimately, the guilt of the accused.
Let us now turn to my concrete queries.
The Chamber affirms the actus reus of genocide with regard to both the municipalities and the Srebrenica JCE (by killing members of the group of the Bosnian Muslims and causing serious bodily mental harm to its members, paras. 2575 ff. and 5658 ff. respectively) but only infers Karadzic’s genocidal intent from the available circumstantial evidence with regard to the latter. How does the Chamber arrive at these different conclusions?
First of all, it is clear that Karadzic, being a participant in a JCE (in its first variant), must himself possess genocidal intent (para. 2591). This may either be inferred from his proper conduct or from the conduct of the members of the JCE, being composed of the Bosnian Serb leadership; in this case it must be shared by Karadzic.
As to the municipalities, the Chamber first analyses the ideology and objectives of the JCE members, including Karadzic, as expressed in their speeches, statements and concrete actions (para. 2595 ff.). While from this follows the leadership’s objective to remove the non-Serbian population from the BiH territory in order to create an ethnically pure Serbian State, i.e. to pursue a policy of ethnic cleansing (which is not a form of genocide, cf. Ambos, Treatise on International Criminal Law II, OUP 2014, pp. 15-6), the Chamber does not infer – as the only reasonable inference – a genocidal intent. The Chamber was not convinced that the intention to physically destroy a part of the Bosnian Muslim and/or Bosnian Croat groups was the only reasonable inference to be drawn from statements which:
2598: […] had the effect of identifying the historic enemies of the Bosnian Serbs and furthering the objective of ethnic separation.
2599: […] show that the Bosnian Serbs were prepared to use force and violence against Bosnian Muslims and Bosnian Croats in order to achieve their objectives and assert their historic territorial claims.
2600: […]: intended to threaten the Bosnian Muslims against pursuing independence for BiH and [show] that he was fully aware that a potential conflict would be extremely violent.
The Chamber thus concluded that:
2605: […] the evidence does not support a conclusion that the only reasonable inference is that the Accused or any of the alleged members of the Overarching JCE had the intent to physically destroy the Bosnian Muslim and/or the Bosnian Croat groups in the Count 1 Municipalities as such.
The same conclusion is reached by the Chamber with regard to the Serb civilian and military, being outside the JCE:
2612: In light of the above and having assessed the entire trial record, including the pattern of crimes described below, the Chamber is not satisfied beyond reasonable doubt that the only reasonable inference that can be drawn from the facts and circumstances is that Bosnian Serbs not named as alleged Overarching JCE members possessed the intent to destroy the Bosnian Muslim and/or the Bosnian Croat groups in the Count 1 Municipalities as such.
As to the physical perpetrators, the Chamber finds a discriminatory, but not a genocidal intent (para. 2613). Similarly, the pattern of “dreadful” crimes committed against the Bosnian Muslims and Bosnian Croats (paras. 2614-2625) indicate a discriminatory intent “to ensure the removal of members” of this group but not a genocidal intent (para. 2624). All in all, the Chamber concludes:
2626: Having reviewed all of the evidence on the record […] the Chamber is not satisfied beyond reasonable doubt that the acts under Article 4(2) identified above in the Count 1 Municipalities were committed with genocidal intent. Further, it is not convinced that the only reasonable inference to be drawn from the evidence is that named members of the alleged Overarching JCE, including the Accused, other Bosnian Serbs not named as alleged members of the Overarching JCE, or physical perpetrators possessed such intent to destroy the Bosnian Muslim and/or Bosnian Croat groups in the Count 1 Municipalities as such.
Now contrast these considerations on genocidal intent with the ones on Srebrenica (paras. 5655 ff.). Here, the Chamber arrives at a different conclusion affirming Karadzic’s genocidal intent. Its basic reasoning has already been set out by Marko Milanovic but let us take a closer look.
The Chamber, in a way, pursues a bottom-top analysis starting with an analysis of the crimes of the ‘Bosnian Serb Forces’ at Srebrenica and finding that these have been committed with genocidal intent (paras. 5668 ff., emphasis added):
5669: […] the Chamber finds that the only reasonable inference on the basis of such evidence is that members of the Bosnian Serb Forces orchestrating this operation intended to destroy the Bosnian Muslims in Srebrenica as such.
5671: […] Viewing the evidence in its totality, the Chamber considers that the Bosnian Serb Forces must have been aware of the detrimental impact that the eradication of multiple generations of men would have on the Bosnian Muslims in Srebrenica in that the killing of all able-bodied males while forcibly removing the remainder of the population would have severe procreative implications for the Bosnian Muslims in Srebrenica and thus result in their physical extinction. The Chamber therefore finds beyond reasonable doubt that these acts were carried out with the intent to destroy the Bosnian Muslims in Srebrenica as such.
The general problem with this finding is that the ‘Bosnian Serb Forces’ are a collective entity and as such, cannot act with a (collective genocidal) intent. Rather, the Chamber should have distinguished, as it did before, between the core leadership of the Bosnian Serbs (having been the members of the JCE), other important military and civilian personnel (outside the JCE), and the actual physical perpetrators. The Bosnian Serb Forces belong to the latter but, we do not know whether all of these persons acted with genocidal intent or merely with knowledge of the genocidal context of their acts (which would, according to the knowledge-based approach, be sufficient, cf. Ambos, Treatise ICL II, op. cit., pp. 21 ff.).
As to the actual finding of genocidal intent, it becomes clear from the emphasis added that the Chamber connects awareness (regarding the consequences of the acts) and the intent to destroy, in that the former entails (‘therefore’) the latter. As will be seen below, the same logical operation is carried out by the Chamber with regard to Karadzic’s awareness and intent. Indeed, this transfer from knowledge to (genocidal) intent appears to be the key to the Chamber’s finding of Karadzic’s genocidal intent regarding Srebrenica.
Another problem is the relatively small size of the Bosnian Muslim population in Srebrenica compared to the group of Bosnia Muslims in BiH. Does such a small part of a larger group comply with the substantiality element of genocide implicit in the requirement ‘in whole or in part’? I have criticized this earlier with regard to the Krstic judgment (Ambos, Treatise ICL II, op.cit., pp. 43-4) but the Chamber, while admitting that the targeted group only “constituted a numerically small percentage of the Bosnian Muslim population” (para. 5672), focuses on the strategic importance of Srebrenica and its “symbolic stature as a refuge for Bosnian Muslims” (ibid.). It therefore finds “that the Bosnian Muslims in Srebrenica constituted a substantial part of the Bosnian Muslim population” (ibid.).
The Chamber then turns to Karadzic’s responsibility in the Srebrenica JCE. As to the latter, the Chamber makes a twofold distinction: on the one hand, the overall JCE “to eliminate the Bosnian Muslims in Srebrenica” had two distinct aspects, namely, the killing of the able-bodied males and the forcible removal of the females and children (para. 5678); on the other hand, the original plan of a removal turned into a plan of killing the male population, i.e. a kind of expanded common purpose/JCE (paras. 5685-5745). The Chamber speaks here of the “removal aspect” and “killing aspect” of the “plan to eliminate” (also paras. 5817-8). This is puzzling since to ‘remove’ a population does not mean to ‘eliminate’ it; it rather refers to (forceful) displacement or deportation of the kind the Chamber identified with regard to the municipalities.
As to Karadzic’s participation in the (expanded) Srebrenica JCE, the Chamber finds (paras. 5756 ff., 5798 ff., 5815 ff.) that he had a significant role and was fully aware of the events occurring in Srebrenica due to conversations and meetings with his subordinates directly involved in the operations, including with Radko Mladic (paras. 5768-5770). As to the (alleged) conversation with the latter, the Chamber concludes from Mladic’s statement that Srebrenica was “done”, that Karadzic had known what happened although, with regard to that conversation, “the evidence does not establish that there was any explicit indication that the Bosnian Muslim men then being held by the Bosnian Serb Forces would be killed” (para. 5770). There is, however, more convincing evidence showing Karadzic’s knowledge. In particular, his 13 July conversation with Deronjic, his civilian administrator in Srebrenica, where Karadzic is informed about detainees and ordered their transfer to Zvornik (paras. 5773, 5807). Karadzic then met Deronjic and other persons from Srebrenica the following day where he obtained further information (para. 5777). Additional information was received by him from Bajagic (para. 5783), Vasic (para. 5784), Zivanovic (para. 5803). The Chamber’s findings with regard to the conversations with Kovac are quite illustrative:
5767: […] the Chamber finds it inconceivable that Kovač did not discuss the developments on the ground in Srebrenica—including the reports he had received from the DB, as well as the communications received from Vasić and his own response—with the Accused during their meeting on 13 July.
5781: […] the Chamber finds that the only reasonable inference is that Kovač indeed shared the knowledge and observations he had gathered during his trip with the Accused during their meeting on 14 July.
5782: […] The Chamber finds it incredible that Kovač would not have discussed these matters [transport of detainees and his attempt to distance the police from killings] with the Accused.
The Chamber further infers Karadzic’s awareness from certain actions, “establishing that he was a directing force in the events leading up to the take-over of Srebrenica […]” (para. 5799). Yet, how does the Chamber arrive from this awareness to Karadzic’s genocidal intent? There are only a few relevant findings; one of which is derived from a conversation with Deronjic (emphasis added):
5805: […] the use of code to refer to the detainees, as well as the direction to move them toward Zvornik, demonstrates the malign intent behind the conversation. The Chamber finds that this conversation, in addition to the Accused’s subsequent acts as described further below, demonstrate beyond reasonable doubt the Accused’s agreement to the expansion of the objective to encompass the killing of the Bosnian Muslim males.
Yet, the “malign intent” does not necessarily entail a genocidal intent – any intent to commit a criminal act is ‘malign’ – and Karadzic’s agreement to the expanded JCE, while showing an intent to kill, does not necessarily demonstrate genocidal intent.
As to the 14 July meeting with Deronjic, the Chamber finds, albeit not having any direct evidence of the conversation and without “mention or discussion about the executions […]” (para. 5808), that (emphasis added):
5808: […] Nevertheless, the Chamber has no doubt that during the individual meeting between Deronjić and the Accused, they both discussed the killings at the Kravica Warehouse, and the implementation of the Accused’s order to transport the detainees from Bratunac to Zvornik by midday that day.
Thus, the Chamber infers the discussion of the killing despite (‘[N]evertheless’) absence of direct evidence. Further on, the Chamber makes a puzzling jump from knowledge to intent (emphasis added):
5811: […] Accused must have known about the killing aspect of the plan to eliminate at some point prior to his conversation with Deronjić in the evening of 13 July. However, the Chamber can only make a positive determination as to the Accused’s agreement to the expansion of the means so as to encompass the killing of the men and boys as of the moment of the conversation with Deronjić. The Accused’s shared intent is reaffirmed by the fact that, from the moment he directed Deronjić to move the detainees to Zvornik the Accused became, and subsequently continued to be, actively involved in overseeing the implementation of the plan to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys.
Taking into account some actions of Karadzic, inter alia his investigation orders (which were never implemented), the Chamber then concludes:
5814: Based on all this evidence, and taking into consideration that the Accused knew of the concrete plan of eliminating the Bosnian Muslims in Srebrenica by forcibly removing the women, children, and elderly men as of the evening of 11 July, and participated in that plan; and that he agreed to and embraced its expansion to encompass the killing of the able-bodied men and boys as demonstrated by his conversation with Deronjić on the evening of 13 July as well as his subsequent actions, the Chamber is satisfied beyond reasonable doubt that the Accused shared the common purpose of eliminating the Bosnian Muslims in Srebrenica with the other members of the JCE.
Up to this point, the Chamber has at best indirectly affirmed Karadzic’s genocidal intent. Explicitly, it has only found – quite plausibly – his knowledge and inferred from this, his shared intent with regard to the Srebrenica (expanded) JCE. Yet, depending on the definition of this JCE, this intent could be limited to the (forced) removal of Bosnian Muslims, perhaps also including some killing, but this does not necessarily amount to the intent to destroy this group as such. Thus, the Chamber correctly makes some final conclusions on Karadzic’s responsibility for the crimes, including genocide, committed pursuant to the JCE (paras. 5822 ff., especially 5825). It once again rightly stresses the distinction between a discriminatory intent (of a persecution crime) and the intent to destroy (of genocide) (para. 5827). It infers from the 13 July conversation with Deronjic, Karadzic’s knowledge that the Bosnian Muslim males detained by Bosnian Serb Forces constituted “a very significant percentage” of the Srebrenica Bosnian Muslims (para. 5829). Yet, Karadzic did not intervene to stop the killings but instead, furthered these by certain actions (para. 5830). Thus:
5830: […] the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.
This is certainly a reasonable inference, but is it the ‘only reasonable’ one? I share here Marko Milanovic’s skepticism and indeed think that the evidence presented by the Chamber, especially Karadzic’s certain knowledge of the events at Srebrenica, allows for many (reasonable) inferences. In particular, that he had the intention to remove the Bosnian Muslims from Srebrenica – in fact, there are many references to that effect (e.g. take-over of Srebrenica “devised with the intent to permanently remove the Bosnian Muslim population living there” para. 5801) – as a strategic step in his plan to create an ethnically pure BiH. Strictly speaking, genocidal intent can only be proven ‘watertight’ by direct evidence; if such evidence is not available, as in this case, the ‘only reasonable inference’ test, if interpreted at face value, is too high of a threshold. In fact, an ‘inference’ is the process of making deductions and reaching conclusions, whereby the ‘only reasonable’ wording serves as a qualification of that process. Proof (or non-proof) “is the result – the conclusion to be reached after the inferences have been evaluated” (Anderson/Schum/Twining, Analysis of Evidence, CUP 2005, p. 94). It seems thus preferable to simply apply the beyond reasonable doubt standard as a standard of proof. The ultimate question would then be, whether a trial chamber is convinced beyond reasonable doubt that the totality of the evidence indicates a genocidal intent of the accused. Admittedly, it seems that the Trial Chamber had that in mind when it stated:
10: Where that inference was not the only reasonable inference, it [the Chamber] found that the Prosecution had not proved its case. The Chamber further notes that while it has not always reiterated the phrase “beyond reasonable doubt” in all of its findings, this standard of proof was applied throughout the Judgement.
But why use the high ‘only reasonable inference’ threshold for reaching the conclusion that there is a logical relationship between two propositions, i.e. that the evidence mentioned above (proposition one) supports Karadzic’s intent to destroy (proposition two) the Bosnian Muslims in Srebrenica, if the ultimate standard of proof applicable is ‘beyond reasonable doubt’? That the ‘only reasonable inference’ test (as the process of deduction) is aligned with the ‘beyond reasonable doubt’ standard as a standard of proof has already been demonstrated by the ICTR Appeals Chamber in Zigiranyirazo with regard to an inference by an accused. Here the Chamber stated however that an accused’s inference based on circumstantial evidence “need not be the only reasonable one” because “an accused does not bear a burden of proof, by contrast to the burden of the Prosecution in establishing a conviction” (ICTR-01-73-A, 16 November 2009, para. 49 with fn. 136).
At any rate, the Chamber’s recourse to superior responsibility (para. 5833 ff.) implies that it is itself somewhat uneasy with its finding on genocidal intent. Yet, here another issue arises which is ignored by the Chamber namely, whether the ‘knowledge’ or ‘had reason to know’ (negligence) standard can displace the special intent requirement of genocide. The Chamber just applies the superior responsibility standard (para. 5843) but if this were correct, the special intent requirement would effectively be undermined. As a result, a superior could be held responsible for the genocidal crimes of his subordinates without possessing himself, a genocidal intent, i.e. he would be responsible for genocide (by omission) without an intent to destroy. I have argued elsewhere that in such a case, the superior can only be held liable as an assistant to the subordinates’ crimes (Ambos, Treatise ICL I, OUP 2013, p. 230).
All in all, notwithstanding these doubts regarding the only reasonable inference test and the Chamber’s ensuing inferences regarding the Srebrenica events, the genocide parts of the judgment read well and are reasonably argued. In this sense, the judgment is an important contribution to the development of international criminal law, and to the further clarification of the war time events in BiH.
I thank the editors of EJIL:Talk! and Dr. Alexander Heinze for valuable comments.