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The term '''Bosnian Genocide''' is used to refer either to the [[Srebrenica massacre]],<ref>Staff. ''[http://news.bbc.co.uk/1/hi/world/europe/1907122.stm Bosnian genocide suspect extradited]'', [[BBC]], [[2 April]] [[2002]] </ref> or — prior to the [[International Court of Justice]] (ICJ) ruling on the [[Bosnian Genocide Case]] in February 2007 — the term ''Bosnian Genocide'' had been used by academics,<ref name=UCR>University of California Riverside, Bosnian Genocide In the Historical Perspective, [http://www.honors.ucr.edu/Courses/hnpg036p.htm]</ref> and [[human rights]] institutions,<ref name=HRW>Human Rights Watch, Milosevic to Face Bosnian Genocide Charges, [[11 December]] [[2001]] [http://hrw.org/english/docs/2001/12/11/bosher3415.htm]</ref> to describe the [[ethnic cleansing]] [[campaign]] and [[persecution]] on political, racial and religious grounds in the context of a widespread attack on the [[Bosniaks|Bosniak]] (Bosnian Muslim) civilian population conducted by Serb, and to a lesser extent Croat secessionist [[authorities]] in [[Bosnia and Herzegovina|Bosnia]] during the 1992-1995 [[war in Bosnia and Herzegovina|war]].
The term '''Bosnian Genocide''' is used to refer either to the [[Srebrenica massacre]],<ref>Staff. ''[http://news.bbc.co.uk/1/hi/world/europe/1907122.stm Bosnian genocide suspect extradited]'', [[BBC]], [[2 April]] [[2002]] </ref> or — prior to the [[International Court of Justice]] (ICJ) ruling on the [[Bosnian Genocide Case]] in February 2007 — the term ''Bosnian Genocide'' had been used by academics,<ref name=UCR>University of California Riverside, Bosnian Genocide In the Historical Perspective, [http://www.honors.ucr.edu/Courses/hnpg036p.htm]</ref> and [[human rights]] institutions,<ref name=HRW>Human Rights Watch, Milosevic to Face Bosnian Genocide Charges, [[11 December]] [[2001]] [http://hrw.org/english/docs/2001/12/11/bosher3415.htm]</ref> to describe the [[ethnic cleansing]] [[campaign]] and [[persecution]] on political, racial and religious grounds in the context of a widespread attack on the [[Bosniaks|Bosniak]] (Bosnian Muslim) civilian population conducted by Serb, and to a lesser extent Croat secessionist [[authorities]] in [[Bosnia and Herzegovina|Bosnia]] during the 1992-1995 [[war in Bosnia and Herzegovina|war]].


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> 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 there had been no 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 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>
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.<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>

Despite the evidence of widespread killings, the [[siege of Sarajevo]], mass [[rape]]s, [[ethnic cleansing]] and torture conducted by different Serb forces which also included [[JNA]] (VJ), elsewhere in Bosnia, especially in [[Prijedor]], [[Banja Luka]] and [[Foča massacres|Foča]], as well as [[concentration camp|camps]] and detention centers, the judges ruled that the criteria for genocide with the specific intent (''dolus specialis'') to destroy Bosniaks were met [[Srebrenica Genocide|only in Srebrenica]] or Eastern Bosnia.<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>
The court concluded that the crimes, including mass killings, rapes, detentions, destruction and [[deportation]], committed during the war, were "acts of genocide" according to the [[Genocide Convention]], but that these acts did not, in themselves, constitute genocide per se.<ref>{{cite web|year=|url=http://www.sense-agency.com/en/stream.php?sta=3&pid=9273&kat=3|title=Sense Tribunal: SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE}}</ref>


==German prosecutions==
==German prosecutions==

Revision as of 11:28, 11 October 2007

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.

The term Bosnian Genocide is used to refer either to the Srebrenica massacre,[1] or — prior to the International Court of Justice (ICJ) ruling on the Bosnian Genocide Case in February 2007 — the term Bosnian Genocide had been used by academics,[2] and human rights institutions,[3] to describe the ethnic cleansing campaign and persecution on political, racial and religious grounds in the context of a widespread attack on the Bosniak (Bosnian Muslim) civilian population conducted by Serb, and to a lesser extent Croat secessionist authorities in Bosnia during the 1992-1995 war.

In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.[4]

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.[5]

Despite the evidence of widespread killings, the siege of Sarajevo, mass rapes, ethnic cleansing and torture conducted by different Serb forces which also included JNA (VJ), elsewhere in Bosnia, especially in Prijedor, Banja Luka and Foča, as well as camps and detention centers, the judges ruled that the criteria for genocide with the specific intent (dolus specialis) to destroy Bosniaks were met only in Srebrenica or Eastern Bosnia.[6] The court concluded that the crimes, including mass killings, rapes, detentions, destruction and deportation, committed during the war, were "acts of genocide" according to the Genocide Convention, but that these acts did not, in themselves, constitute genocide per se.[7]

German prosecutions

During the late 1990s the German courts handed down custodial sentences to several individuals who were found guilty by the German courts of participating in genocides in Bosnia. Two of theses cases were cited in the judgement handed down by the ICTY against Radislav Krstić in the Prosecutor v. Radislav Krstic case, when considering whether the Srebrenica massacre met the United Nations Convention on the Prevention and Punishment of the Crime of Genocide requirement of "in part".[8]

Novislav Djajic

Novislav Djajic was indicted in Germany for participation in genocide, but the Higher Regional Court failed to find that there was sufficient certainty, for a criminal conviction, that he had intended to commit genocide. Nevertheless Djajic was found guilty of 14 cases of murder and one case of attempted murder.[9] At Djajic's appeal on 23 May 1997, the Bavarian Appeals Chamber found that acts of genocide were committed in June 1992, confined within the administrative district of Foca.[10]

Nikola Jorgic

The Higher Regional Court (Oberlandesgericht) of Dusseldorf, in September 1997, handed down a genocide conviction against Nikola Jorgic, 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;[11] On 12 July 2007, European Court of Human Rights dismissed Nikola Jorgic appeal.[12][13]

In 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."[14] Under the wider definition that the German judiciary upheld the ethnic cleansing carried out by Jorgic was a genocide because it was an intent to destroy the group as a social unit. At the time Jorgic 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.[15]

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."[16] 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.[17] 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 genocid[18] 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.[19]

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"[20]

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",[21] 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.",[22] 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.[23]

Maksim Sokolovic

"On 29 November 1999, the Higher Regional Court (Oberlandesgericht) of Dusseldorf condemned Maksim Sokolovic to 9 years in prison for aiding and abetting the crime of genocide and for grave breaches of the Geneva Conventions";[24]

Controversy

Srebrenica, the Memorial

There is a significant disagreement between the Bosnian and Bosnian Serb/Serbian side about the possibility or scope of genocide in Bosnia during the Bosnian War that has made this a controversial and contentious issue.

Despite the ICJ ruling that genocide outside of Srebrenica is not supported by evidence, the Bosnian side claims that the Srebrenica massacre was just one instance of what was a broader genocide.[25]

On the other hand, some commentators believe that the Srebrenica massacre was not an act of genocide. Typically, they cite the fact that women and children were spared and that only military age men were targeted (though some teenagers and elderly men were killed).[26][27]

Opinions

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.[28] 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."[29]

Vladimir Srebrov

Srebrov, co-founder of the Serbian Democratic Party, claimed that the party intended to exterminate the Bosniak population of Bosnia after it had come to power.[30] He was imprisoned by the Serb side during the war.

References

  1. ^ Staff. Bosnian genocide suspect extradited, BBC, 2 April 2002
  2. ^ University of California Riverside, Bosnian Genocide In the Historical Perspective, [1]
  3. ^ Human Rights Watch, Milosevic to Face Bosnian Genocide Charges, 11 December 2001 [2]
  4. ^ 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)
  5. ^ "Courte: Serbia failed to prevent genocide, UN court rules". Associated Press. 2007-02-26. {{cite web}}: Check date values in: |date= (help)
  6. ^ "Courte: Serbia failed to prevent genocide, UN court rules". Associated Press. 2007-02-26. {{cite web}}: Check date values in: |date= (help)
  7. ^ "Sense Tribunal: SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE".
  8. ^ Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001), The International Criminal Tribunal for the Former Yugoslavia, paragraph 589. citing Bavarian Appeals Court, Novislav Djajic case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation. Paragraph 589:
    Several other sources confirm that the intent to eradicate a group within a limited geographical area such as the region of a country or even a municipality may be characterised as genocide. ... Two Judgements recently rendered by German courts took the view that genocide could be perpetrated within a limited geographical area. The Federal Constitutional Court of Germany, in the Nikola Jorgic case, upheld the Judgement of the Düsseldorf Supreme Court, interpreting the intent to destroy the group "in part" as including the intention to destroy a group within a limited geographical area. In a Judgement against Novislav Djajic on 23 May 1997, the Bavarian Appeals Chamber similarly found that acts of genocide were committed in June 1992 though confined within the administrative district of Foca.
  9. ^ Novislav Djajic, TRIAL (Track Impunity Always)
  10. ^ Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001), The International Criminal Tribunal for the Former Yugoslavia, paragraph 589. citing Bavarian Appeals Court, Novislav Djajic case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation.
  11. ^ Oberlandesgericht Dusseldorf, "Public Prosecutor v Jorgic", 26 September 1997 (Trial Watch Nikola Jorgic
  12. ^ European Court of Human Rights - Jorgic v. Germany Judgment, July 12th 2007.
  13. ^ Europe's human rights court upholds life term for Bosnian Serb convicted of genocide - AP, July 12th, 2007.
  14. ^ ECHR Jorgic v. Germany. § 18
  15. ^ ECHR Jorgic v. Germany § 36 butt also §§ 18,47,99,103,108
  16. ^ ECHR Jorgic v. Germany. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580
  17. ^ ECHR Jorgic v. Germany. § 43 citing the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A §§ 25,33
  18. ^ ECHR Jorgic v. Germany. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751
  19. ^ ECHR Jorgic v. Germany] §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
  20. ^ ECHR Jorgic v. Germany. § 47
  21. ^ ECHR Jorgic v. Germany § 105
  22. ^ ECHR Jorgic v. Germany. § 113
  23. ^ ECHR Jorgic v. Germany. § 116
  24. ^ Trial watch Maksim Sokolovic
  25. ^ 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. [3]
  26. ^ The Politics of the Srebrenica Massacre, Z Net, 7 July 2007, by Edward S. Herman [4]
  27. ^ "The real story behind Srebrenica", Globe and Mail, July 14, 2005. [5]
  28. ^ Washington Post. "Votes Database: Bill: H RES 199" 27 June 2005 [6]
  29. ^ US House of Representatives, "Resolution 199 (H. Res. 199): Srebrenica Genocide". 27 June 2005. [7]
  30. ^ Kulenovic, Adil. "Interview with Vladimir Srebrov, a founding member of the Serb Democratic Party". Vreme Magazine. 30 October 1995. [8]

See also

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