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Only 1990's? In 2005, the US Congress deemed the ethnic cleansing to be genocide. In 2007, the ECHR deemed the German court definition of genocide to be consistent with Art. 2 of the Gen. Convention.
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''This article refers to [[genocide]] during the 1992-1995 [[Bosnian War]]. Other cases of genocide in the same region during World War II are covered in other articles.''
''This article refers to [[genocide]] during the 1992-1995 [[Bosnian War]]. Other cases of genocide in the same region during World War II are covered in other articles.''
[[Image:MassGraveNearSrebrenicaGenocideVictims.jpg|thumb|right|250px|One of 550 exhumed [[mass grave]]s of [[Bosniak]] victims near [[Srebrenica]]]]
[[Image:MassGraveNearSrebrenicaGenocideVictims.jpg|thumb|right|250px|One of 550 exhumed [[mass grave]]s of [[Bosniak]] victims near [[Srebrenica]]]]
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[[Image:Omarska2.jpg|thumb|200px|'''[[Omarska camp]]''' detainees]]
[[Image:Srebrenica2007.jpg|thumb|right|250px|[[Burial]] of 465 identified Bosniak civilians ([[July 11]] [[2007]])]]
The term '''Bosnian Genocide''' is used to refer either to [[Srebrenica massacre|the massacre]] of approximately 8,000 Bosniak men and boys committed by nationalist Serb forces in [[Srebrenica]] in [[1995]],<ref>Staff. ''[http://news.bbc.co.uk/1/hi/world/europe/1907122.stm Bosnian genocide suspect extradited]'', [[BBC]], [[2 April]] [[2002]]</ref> or to the entire [[ethnic cleansing]] campaign conducted throughout Bosnia and Herzegovina during the 1992-1995 war of which the Srebrenica massacre was a part. The convictions by international courts establishing the Srebrenica massacre as genocide are based upon a narrow definition of genocide. The judgements of German courts and resolutions of the United Nations establishing the ethnic cleansing as genocide are based upon a wider definition of genocide. <ref>[http://www.echr.coe.int/echr/ European Court of Human Rights] - [http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=1448788&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=63590&highlight= Jorgic v. Germany Judgment], [[July 12]] 2007. § 105, 106 </ref>


In 2001 the [[International Criminal Tribunal for the Former Yugoslavia]] (ICTY) judged that the 1995 [[Srebrenica massacre]] was an act of genocide.<ref>The [[International Criminal Tribunal for the Former Yugoslavia]] found in [http://www.worldlii.org/int/cases/ICTY/2001/8.html Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001)] that genocide had been committed. (see paragraph 560 for name of group in English on whom the genocide was committed). It was upheld in ''[http://www.worldlii.org/int/cases/ICTY/2004/7.html Prosecutor v. Radislav Krstic - Appeals Chamber - Judgment - IT-98-33 (2004) ICTY 7 (19 April 2004)]''</ref>
The term '''Bosnian Genocide''' is used to refer either to [[Srebrenica massacre|the genocide]] committed by Serb forces in [[Srebrenica]] in [[1995]],<ref>Staff. ''[http://news.bbc.co.uk/1/hi/world/europe/1907122.stm Bosnian genocide suspect extradited]'', [[BBC]], [[2 April]] [[2002]]</ref> or to [[ethnic cleansing]] that took place during the 1992-1995 [[war in Bosnia and Herzegovina|Bosnian War]].


On [[February 26]], [[2007]] the [[International Court of Justice]] (ICJ), in the ''[[Bosnian Genocide Case]]'' upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.<ref>{{cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/02/26/international/i033600S38.DTL&type=politics|title=Courte: Serbia failed to prevent genocide, UN court rules|date=[[2007-02-26]]|publisher=[[Associated Press]]}}</ref>
In the 1990s several authorities, in line with a minority of scholars, asserted that ethnic cleansing as carried out by elements of the Bosnian Serb army was genocide. These included three convictions for genocide in German courts and resolution by the [[United Nations General Assembly]]<ref>[http://www.echr.coe.int/echr/ European Court of Human Rights] - [http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=1448788&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=63590&highlight= Jorgic v. Germany Judgment], [[July 12]] 2007. § 47,107,108</ref> More recently the [[International Criminal Tribunal for the Former Yugoslavia]] (ICTY) and the [[International Court of Justice]] (ICJ) have followed the majority of scholarly opinion and ruled that there must be physical destruction of a protected group for genocide to occur. To date the ICTY has ruled that only the [[Srebrenica massacre]] was an act of genocide, a view that was upheld by the ICJ.<ref>ECHR Jorgic v. Germany Judgment §47,112</ref>

On [[12 July]] [[2007]], [[European Court of Human Rights]], when upholding the conviction of [[Nikola Jorgic]] for genocide by a German court ([[Jorgic v. Germany]]), noted that the German courts wider interpretation of genocide, while consistent with the Genocide Convention of 1948, has since been rejected by international courts considering similar cases.<ref>ECHR Jorgic v. Germany Judgment, [[July 12]] 2007. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580</ref><ref>ECHR Jorgic v. Germany Judgment, [[July 12]] 2007. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751. In [[14 January]] 2000 the ICTY ruled in the [[Prosecutor v. Kupreskic and Others]] case that the killing of 116 Muslims in order to expel the Muslim population from a village, was persecution, not of genocide.</ref><ref>[http://www.icj-cij.org/presscom/index.php?pr=1897&pt=1&p1=6&p2=1 ICJ press release 2007/8] [[26 February]] 2007</ref> Considering the interpretation of legal writers, the ECHR stated: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"<ref>ECHR Jorgic v. Germany Judgment, [[July 12]] 2007. § 47</ref> In consideration of the German court's decision in relation to the Genocide Convention of 1948, the ECHR stated: "the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide." <ref>[http://www.echr.coe.int/echr/ European Court of Human Rights] - [http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=1448788&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=63590&highlight= Jorgic v. Germany Judgment], [[July 12]] 2007. § 47, 108 </ref>


==Individuals accused of genocide==
==Individuals accused of genocide==
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The ECHR noted in its judgement on ''Jorgic v. Germany'' case, [[12 July]] 2007, that "the ICTY, in its judgments in the cases of Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly disagreed with the wide interpretation of the 'intent to destroy' as adopted by the UN General Assembly and the German courts. Referring to the principle of [[nullum crimen sine lege]], the ICTY considered that genocide, as defined in public international law, comprised only acts aimed at the physical or biological destruction of a protected group."<ref>ECHR Jorgic v. Germany Judgment, [[July 12]] 2007. §112</ref>
The ECHR noted in its judgement on ''Jorgic v. Germany'' case, [[12 July]] 2007, that "the ICTY, in its judgments in the cases of Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly disagreed with the wide interpretation of the 'intent to destroy' as adopted by the UN General Assembly and the German courts. Referring to the principle of [[nullum crimen sine lege]], the ICTY considered that genocide, as defined in public international law, comprised only acts aimed at the physical or biological destruction of a protected group."<ref>ECHR Jorgic v. Germany Judgment, [[July 12]] 2007. §112</ref>

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==US resolution 199==
[[Image:Omarska2.jpg|thumb|200px|'''[[Omarska camp]]''' detainees]]
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On [[June 27]] [[2005]], the [[United States House of Representatives]] passed a resolution (H. Res. 199 sponsored by Congressman [[Christopher Smith]] and Congressman [[Benjamin Cardin]]) commemorating the 10th [[anniversary]] of the Srebrenica genocide. The resolution was passed with overwhelming majority of 370 - YES votes, 1 - NO vote, and 62 - ABSENT.<ref name=Post>Washington Post. "Votes Database: Bill: H RES 199" [[27 June]] [[2005]] [http://projects.washingtonpost.com/congress/109/house/1/votes/322/]</ref> The [[Resolution (policy debate)|resolution]] is a bipartisan measure commemorating [[July 11]], [[1995]]-2005, the tenth anniversary of the [[Srebrenica massacre]].

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The resolution states that ''"the policies of [[aggression]] and [[ethnic cleansing]]<sup>[[Bosnian Genocide#Notes|1|2]]</sup> as implemented by Serb forces in Bosnia-Herzegovina from 1992 and 1995 with the direct support of [[Serbia]]n regime of Slobodan Milosevic and its followers ultimately led to the displacement of more than 2,000,000 people, an estimated 200,000 killed, tens of thousands [[rape]]d or otherwise [[torture]]d and [[abuse]]d, and the innocent [[civilians]] of Sarajevo and other urban centers repeatedly subjected to shelling and [[sniper]] attacks; meet the terms defining the crime of genocide in Article 2 of the [[Convention on the Prevention and Punishment]] of the Crime of [[Genocide]], created in Paris on December 9, 1948, and entered into force on January 12, 1951."''<ref name=Res199>US House of Representatives, "Resolution 199 (H. Res. 199): Srebrenica Genocide". [[27 June]] [[2005]]. [http://srebrenica-genocide.blogspot.com/2006/02/us-resolution-199-srebrenica-genocide.html] </ref>


== International Criminal Tribunal for the Former Yugoslavia ==
== International Criminal Tribunal for the Former Yugoslavia ==
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{{quote|By seeking to eliminate a part of the Bosnian Muslims'' [Bosniaks]'', the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.<ref>ICTY; "Address by ICTY President Theodor Meron, at Potocari Memorial Cemetery" The Hague, 23 June 2004 [http://www.un.org/icty/pressreal/2004/p860-e.htm]</ref>}}
{{quote|By seeking to eliminate a part of the Bosnian Muslims'' [Bosniaks]'', the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.<ref>ICTY; "Address by ICTY President Theodor Meron, at Potocari Memorial Cemetery" The Hague, 23 June 2004 [http://www.un.org/icty/pressreal/2004/p860-e.htm]</ref>}}

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==US resolution 199==
⚫
[[Image:Omarska2.jpg|thumb|left|200px|'''[[Omarska camp]]''' detainees]]
⚫
On [[June 27]] [[2005]], the [[United States House of Representatives]] passed a resolution (H. Res. 199 sponsored by Congressman [[Christopher Smith]] and Congressman [[Benjamin Cardin]]) commemorating the 10th [[anniversary]] of the Srebrenica genocide. The resolution was passed with overwhelming majority of 370 - YES votes, 1 - NO vote, and 62 - ABSENT.<ref name=Post>Washington Post. "Votes Database: Bill: H RES 199" [[27 June]] [[2005]] [http://projects.washingtonpost.com/congress/109/house/1/votes/322/]</ref> The [[Resolution (policy debate)|resolution]] is a bipartisan measure commemorating [[July 11]], [[1995]]-2005, the tenth anniversary of the [[Srebrenica massacre]].

⚫
The resolution states that ''"the policies of [[aggression]] and [[ethnic cleansing]]<sup>[[Bosnian Genocide#Notes|1|2]]</sup> as implemented by Serb forces in Bosnia-Herzegovina from 1992 and 1995 with the direct support of [[Serbia]]n regime of Slobodan Milosevic and its followers ultimately led to the displacement of more than 2,000,000 people, an estimated 200,000 killed, tens of thousands [[rape]]d or otherwise [[torture]]d and [[abuse]]d, and the innocent [[civilians]] of Sarajevo and other urban centers repeatedly subjected to shelling and [[sniper]] attacks; meet the terms defining the crime of genocide in Article 2 of the [[Convention on the Prevention and Punishment]] of the Crime of [[Genocide]], created in Paris on December 9, 1948, and entered into force on January 12, 1951."''<ref name=Res199>US House of Representatives, "Resolution 199 (H. Res. 199): Srebrenica Genocide". [[27 June]] [[2005]]. [http://srebrenica-genocide.blogspot.com/2006/02/us-resolution-199-srebrenica-genocide.html] </ref>


== International Court of Justice ==
== International Court of Justice ==

Revision as of 17:23, 27 January 2008

This article refers to genocide during the 1992-1995 Bosnian War. Other cases of genocide in the same region during World War II are covered in other articles.

File:MassGraveNearSrebrenicaGenocideVictims.jpg
One of 550 exhumed mass graves of Bosniak victims near Srebrenica
File:Omarska2.jpg
Omarska camp detainees
Burial of 465 identified Bosniak civilians (July 11 2007)

The term Bosnian Genocide is used to refer either to the massacre of approximately 8,000 Bosniak men and boys committed by nationalist Serb forces in Srebrenica in 1995,[1] or to the entire ethnic cleansing campaign conducted throughout Bosnia and Herzegovina during the 1992-1995 war of which the Srebrenica massacre was a part. The convictions by international courts establishing the Srebrenica massacre as genocide are based upon a narrow definition of genocide. The judgements of German courts and resolutions of the United Nations establishing the ethnic cleansing as genocide are based upon a wider definition of genocide. [2]

In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.[3]

On February 26, 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.[4]

On 12 July 2007, European Court of Human Rights, when upholding the conviction of Nikola Jorgic for genocide by a German court (Jorgic v. Germany), noted that the German courts wider interpretation of genocide, while consistent with the Genocide Convention of 1948, has since been rejected by international courts considering similar cases.[5][6][7] Considering the interpretation of legal writers, the ECHR stated: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"[8] In consideration of the German court's decision in relation to the Genocide Convention of 1948, the ECHR stated: "the applicant's acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide." [9]

Individuals accused of genocide

Main article: List of Bosnian genocide prosecutions

About 30 people have been indited for participating genocide or complicity in genocide during the early 1990s in Bosnia. To date after several plea bargains and some convictions that were successfully challenged on appeal only Radislav Krstic had been found guilty of complicity in genocide in an international court. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights. Several former members of the Bosnian Serb security forces are currently on trial in Bosnia and Herzegovina indited on several charges including genocide.

Slobodan Milosevic, as the former President of Serbia and of Yugoslavia he was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was as accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina so no verdict was returned. The ICTY has issued a warrant for the arrest of Radovan Karadzic and Ratko Mladic on several charges including genocide but to date they have evaded arrest and remain at large.

United Nations

On 18 December 1992 the United Nations General Assembly resolution 47/121 referred in its preamble to "the abhorrent policy of 'ethnic cleansing', which is a form of genocide", as being carried on in Bosnia and Herzegovina.[10][11]

The ECHR noted in its judgement on Jorgic v. Germany case, 12 July 2007, that "the ICTY, in its judgments in the cases of Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly disagreed with the wide interpretation of the 'intent to destroy' as adopted by the UN General Assembly and the German courts. Referring to the principle of nullum crimen sine lege, the ICTY considered that genocide, as defined in public international law, comprised only acts aimed at the physical or biological destruction of a protected group."[12]

US resolution 199

File:Omarska2.jpg
Omarska camp detainees

On June 27 2005, the United States House of Representatives passed a resolution (H. Res. 199 sponsored by Congressman Christopher Smith and Congressman Benjamin Cardin) commemorating the 10th anniversary of the Srebrenica genocide. The resolution was passed with overwhelming majority of 370 - YES votes, 1 - NO vote, and 62 - ABSENT.[13] The resolution is a bipartisan measure commemorating July 11, 1995-2005, the tenth anniversary of the Srebrenica massacre.

The resolution states that "the policies of aggression and ethnic cleansing1|2 as implemented by Serb forces in Bosnia-Herzegovina from 1992 and 1995 with the direct support of Serbian regime of Slobodan Milosevic and its followers ultimately led to the displacement of more than 2,000,000 people, an estimated 200,000 killed, tens of thousands raped or otherwise tortured and abused, and the innocent civilians of Sarajevo and other urban centers repeatedly subjected to shelling and sniper attacks; meet the terms defining the crime of genocide in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, created in Paris on December 9, 1948, and entered into force on January 12, 1951."[14]

International Criminal Tribunal for the Former Yugoslavia

Main article: Srebrenica massacre

In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide.[15] In the unanimous ruling "Prosecutor v. Krstić", the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), located in The Hague, ruled that the Srebrenica massacre was genocide[16], the Presiding Judge Theodor Meron stating:

By seeking to eliminate a part of the Bosnian Muslims [Bosniaks], the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.[17]

International Court of Justice

File:Public hearing at the ICJ.jpg
Public hearing at the ICJ.
Main article: Bosnian Genocide Case

On February 26, 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide:[18]

ICJ President Rosalyn Higgins noted that there is a lot of 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 centers. The International Court of Justice does not have jurisdiction over them, because this case deals "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term".[19][20][21] 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 indited individuals, who reside under Serbian jurisdiction.[22]

European Court of Human Rights

European Court of Human Rights building in Strasbourg

The Higher Regional Court of Dusseldorf, in September 1997, handed down a genocide conviction against Nikola Jorgić, a Bosnian Serb from the Doboj region who was the leader of a paramilitary group located in the Doboj region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica.[23]

In a judgement issued on 12 July 2007 the European Court of Human Rights (ECHR) in the Jorgic v. Germany case (Application no. 74613/01), reviewed the German courts judgements against Jorgic . While rejecting Jorgic 's appeal, they highlighted that the German courts ruling in the 1990 had interpreted the German domestic law on genocide more broadly than the more recent rulings by the ICTY and the ICJ.

The ECHR concluded that the German court had ruled that the "intent to destroy" also included "meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together; a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the North of Bosnia, or at least in the Doboj region."[24] Under the wider definition that the German judiciary upheld the ethnic cleansing carried out by Jorgić was a genocide because it was an intent to destroy the group as a social unit. At the time Jorgić committed his acts in 1992 a majority of scholars took the view that genocidal 'intent to destroy a group' under German law mean the killing of members of the group, but a considerable number of scholars were of the opinion that the notion had a wider meaning encompasing destruction of the group as a social unit.[25]

The ECHR noted that this wider interpretation of genocide has since been rejected by international courts considering similar cases. In the case of Prosecutor v. Krstic (2 August 2001) the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide."[26] On [19 April] 2004 This was upheld on Appeal "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ..." although like the lower court, the appeal court also ruled that ethnic cleansing might with other evidence lead to an inference of genocidal intent.[27] In 14 January 2000 the ICTY ruled in the Prosecutor v. Kupreškić and Others case that the Lašva Valley ethnic cleansing campaign in order to expel the Bosnian Muslim population from the region, was persecution, not genocid per se[28] The ECHR noted and quoted the opinion of the International Court of Justice ruling in the Bosnian Genocide Case that ethnic cleansing was not in its self genocide.[29]

The ECHR also noted that in the 21 century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"[30]

The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ..., is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable",[31] so " In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.",[32] and for this reason the court rejected Jorgic assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany.[33]

Controversy

Srebrenica, the Memorial

There is a significant disagreement between the Bosnian and Serbian side about the possibility or scope of genocide in Bosnia during the Bosnian War that has made this a controversial and contentious issue. The Bosnian side claims that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.[34]

The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the Duško Tadić case. In the judgment delivered in July 1999, the Appeals Chamber found that the Army of Republika Srpska was "under overall control" of Belgrade and the Yugoslav Army, which meant that they had funded, equipped and assisted in coordination and planning of military operations. Had the International Court of Justice accepted this finding of the Tribunal, Serbia would have been found guilty of complicity in the Srebrenica genocide. Instead it concluded that the Appeals Chamber in the Tadić case "did not attempt to determine the responsibility of a state but individual criminal responsibility". Paradoxical as it may be, the outcome of this legal suit filed back in March 1993 arrived too early for Bosnia and Herzegovina. Radovan Karadžić and Ratko Mladić, accused of Bosnian genocide are not arrested yet. Slobodan Milošević died during the trial and three trials of former Serbian officials have just started.[35]

The allegations about the ICTY Prosecution agreement with Belgrade authorities by which the transcripts of the meetings of Supreme Defense Council remained not disclosed to the public and the International Court of Justice appeared immediately after the International Court of Justice delivered its judgment in the Bosnia Herzegovina Vs. Serbia and Montenegro case. Geoffrey Nice, who was lead counsel for the prosecution at the Slobodan Milošević trial, notes in his letter that Carla Del Ponte personally agreed to a ‘deal’ with the Belgrade authorities to ‘protect’ the documents of the Supreme Defense Council relating to the role of Serbia in the wars in Croatia and Bosnia and Herzegovina. Those documents remained under seal. The public and the International Court of Justice thus had no access to them.[36]

Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that allegedly women and children were spared and that only military age men were targeted[37][38] which is not supported by evidence, because children were targeted too, and many women were raped according to ICTY finding.[39]

References

  1. ^ Staff. Bosnian genocide suspect extradited, BBC, 2 April 2002
  2. ^ European Court of Human Rights - Jorgic v. Germany Judgment, July 12 2007. § 105, 106
  3. ^ The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001) that genocide had been committed. (see paragraph 560 for name of group in English on whom the genocide was committed). It was upheld in Prosecutor v. Radislav Krstic - Appeals Chamber - Judgment - IT-98-33 (2004) ICTY 7 (19 April 2004)
  4. ^ "Courte: Serbia failed to prevent genocide, UN court rules". Associated Press. 2007-02-26. {{cite web}}: Check date values in: |date= (help)
  5. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580
  6. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751. In 14 January 2000 the ICTY ruled in the Prosecutor v. Kupreskic and Others case that the killing of 116 Muslims in order to expel the Muslim population from a village, was persecution, not of genocide.
  7. ^ ICJ press release 2007/8 26 February 2007
  8. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 47
  9. ^ European Court of Human Rights - Jorgic v. Germany Judgment, July 12 2007. § 47, 108
  10. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. §45 citing Bosnia and Herzegovina v. Serbia and Montenegro ("Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide") the International Court of Justice (ICJ) found under the heading of "intent and 'ethnic cleansing'" § 190
  11. ^ A/RES/47/121 91st plenary meeting: The situation in Bosnia and Herzegovina 18 December 1992.
  12. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. §112
  13. ^ Washington Post. "Votes Database: Bill: H RES 199" 27 June 2005 [1]
  14. ^ US House of Representatives, "Resolution 199 (H. Res. 199): Srebrenica Genocide". 27 June 2005. [2]
  15. ^ The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001) that genocide had been committed. (see paragraph 560 for name of group in English on whom the genocide was committed). It was upheld in Prosecutor v. Radislav Krstic - Appeals Chamber - Judgment - IT-98-33 (2004) ICTY 7 (19 April 2004)
  16. ^ ICTY "Prosecutor v. Krstic" [3]
  17. ^ ICTY; "Address by ICTY President Theodor Meron, at Potocari Memorial Cemetery" The Hague, 23 June 2004 [4]
  18. ^ "Courte: Serbia failed to prevent genocide, UN court rules". Associated Press. 2007-02-26. {{cite web}}: Check date values in: |date= (help)
  19. ^ "Sense Tribunal: SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE".
  20. ^ ICJ: Bosnian Genocide Case: Summary of the Judgment of 26 February 2007 [5]
  21. ^ "Courte: Serbia failed to prevent genocide, UN court rules". Associated Press. 2007-02-26. {{cite web}}: Check date values in: |date= (help)
  22. ^ ICJ press release 2007/8 26 February 2007
  23. ^ Federal High Court of Germany: Translation of Press Release into English Nr. 39 on 30 April 1999: Federal High Court makes basic ruling on genocide, Prevent Genocide International
  24. ^ European Court of Human Rights - Jorgic v. Germany Judgment, July 12 2007. § 18
  25. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 36 but also §§ 18,47,99,103,108
  26. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580
  27. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 43 citing the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A §§ 25,33
  28. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751
  29. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. §45 citing Bosnia and Herzegovina v. Serbia and Montenegro ("Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide") the International Court of Justice (ICJ) found under the heading of "intent and 'ethnic cleansing'" § 190
  30. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 47
  31. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 105
  32. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 113
  33. ^ ECHR Jorgic v. Germany Judgment, July 12 2007. § 116
  34. ^ van den Biesen."Application of the Convention on the Prevention and Punishment of the Crime of Genocide, General Concluding Observation". International Court of Justice. 24 April 2006, para. 1-12. [6]
  35. ^ SENSE Tribunal: ICTY - THE MISSING LINK: [7]
  36. ^ SENSE Tribunal: Del Ponte Denies Alleged "Deal" with Belgrade [8]
  37. ^ The Politics of the Srebrenica Massacre, Z Net, 7 July 2007, by Edward S. Herman [9]
  38. ^ "The real story behind Srebrenica", Globe and Mail, July 14, 2005. [10]
  39. ^ ICTY, Prosecutor vs Krstic, Trial Chamber Judgement, Case No. IT-98-33-T, paras 43–46. [11]

See also

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