A different approach towards Srebrenica genocide – can killings of Bosnian Muslim men amount to imposing measures intended to prevent births within the protected group?

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University of Amsterdam, Faculty of Law

A different approach towards

Srebrenica genocide – can

killings of Bosnian Muslim men

amount to imposing measures

intended to prevent births within

the protected group?

Master Thesis

LLM, International and Transnational Criminal Law Word count: 14,453

Monika Zakrzewska

SID 12821578

monika.zakrzewska@student.uva.nl, mzakrzewska.0014@gmail.com

Supervisor: Mr Rogier Bartels

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Abstract

This thesis aims to look at the Srebrenica massacre from a different perspective in order to assess whether it could also amount to genocide by imposing measures intended to prevent births within Bosnian Muslims of Srebrenica based on the ICTY judgments in Krstić, Popović et al. and Mladić. First, this underlying act is analysed by assessing which measures could fall within the scope of the actus reus of this particular form of genocide. The mens rea, for this type, is two-fold – aside from the specific genocidal intent to destroy, in whole or in part, national, ethnical, racial or religious group, as such, an intention for the imposed measures to prevent births is also required. The very few cases that interpreted the scope of this crime relate to the sterilisation practices during World War II, and there is no modern international case law on the matter. The aforementioned ICTY cases are then used to analyse the conduct based on which the accused were found guilty of genocide by killing and causing serious bodily and mental harm. This analysis is used to assess whether the killing of Bosnian Muslim males of Srebrenica could also amount to imposing measures intended to prevent births. This will be done by answering two major questions: (1) whether the killing of Bosnian Muslim males could amount to a measure preventing births and (2) whether its perpetrators intended to prevent births within the Bosnian Muslims of Srebrenica by killing the males. Whereas the conduct itself could have amounted to a measure preventing births, the evidence discussed in Srebrenica-related cases could have been used to prove the intention to impose such measures. However, the judges might have required additional evidence in order to establish beyond a reasonable doubt that the conduct amounted to genocide by imposing measures intended to prevent births. The evidence is then discussed as a relevant factor impacting how the Prosecutors exercised their discretion to open an investigation and their choice in relation to the scope of the indictment. Aside from the evidence, another, albeit indirect, assessed factors are the impact of the stare decisis and the staffing in the first years of the ICTY. Stare decisis, imposed in the ICTY by the so-called Aleksovski rule, could have impacted the OTP’s discretion by pushing the Prosecutor to follow what has been once adjudicated or by creating an internal sort of procedure where the latter employees of the OTP followed the findings of their predecessors. As per staffing, in the first years of the ICTY majority of the staff was male. Considering that male investigators were found being less effective in investigating sexual violence, that could have impacted the first Srebrenica investigations and therefore the first indictments and decisions. Therefore, the quality of the investigation could have impacted the

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evidence presented in the first Srebrenica cases and, based on the stare decisis, indictments and judgments.

Key words: genocide; imposing measures intended to prevent births; Srebrenica massacre; ICTY; prosecutorial discretion

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Acknowledgements

I would like to thank my parents, Tomasz and Beata, for the support received throughout my studies, and my LLM thesis supervisor, Mr Rogier Bartels, for all helpful comments received while completing this thesis.

Monika Zakrzewska

The character of my mandate only allows me to further describe crimes and violations of human rights [in the former Yugoslavia]. But the present critical moment forces us to realize the true character of those crimes and the responsibility of Europe and the international community for their own helplessness in addressing them. We have been fighting in Poland against a totalitarian system with a vision for the Europe of tomorrow. How can we believe in a Europe of tomorrow created by children of people who are abandoned today? (emphasis added)

Tadeusz Mazowiecki (1927-2013)

Special Rapporteur on the situation of human rights in the territory of the former Yugoslavia 1991-1995 Letter dated 27 July 1995 to the Chairman of the Commission on Human Rights addressing events that took place following the fall of the Srebrenica and Žepa enclaves

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Table of Abbreviations

AC – Appeals Chamber COI – Commission of Inquiry EoC – ICC Elements of Crime

Genocide Convention – UN Convention on the Prevention and Punishment of the Crime of Genocide

ICC – International Criminal Court ICJ – International Court of Justice

ICTR – International Criminal Tribunal for Rwanda

ICTY – International Criminal Tribunal for the former Yugoslavia JCE – Joint Criminal Enterprise

MICT – International Residual Mechanism for Criminal Tribunals OTP – Office of the Prosecutor

PTC – Pre-Trial Chamber

Rome Statute / ICC Statute – Rome Statute of the International Criminal Court RPE – Rules of Procedure and Evidence

SGBV – sexual and gender-based violence TC – Trial Chamber

UN – United Nations

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1. Introduction

The crime of genocide is often described as the gravest crime that could be ever committed. It is because of its unique nature characterised by the intent of the perpetrator to ‘destroy, in whole or in part, national, ethnical, racial or religious group, as such’.1_{Until Raphael Lemkin’s}

famous Axis Rule in Occupied Europe and subsequent United Nations General Assembly (UNGA) Resolution 96(I) and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), genocide, although being committed, existed as a crime without a name. In some cases, it has been named as a ‘crime against humanity’ as it happened for instance with the atrocities committed by Ottoman Turks against Armenians.2 Nowadays, crimes against humanity are treated as a separate type of international crime under international law.3

Genocide is often associated only with killings and causing serious bodily or mental harm. However, these are only two of in total five genocidal acts listed in Article II of the Genocide Convention. Other acts are deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.4 The list is exhaustive – acts not falling within the scope of Article II of the Genocide Convention, such as the controversial cultural genocide,5 do not constitute the crime of genocide. It is worth emphasising that, the scope of groups protected by the Genocide Convention is limited only to national, ethnical, racial and religious groups despite the UNGA Resolution 96(I) aimed to leave the catalogue open and non-exhaustive.6 The reason for limiting the scope of protected groups to only four of them is the understanding that the Convention was aimed to protect only the stable groups with permanent membership based on birth.7

1_{Art. II, UN Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 December}

1948, entered into force on 12 January 1951) UNTS, Vol. 78 p. 277 (Genocide Convention).

2_{United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the}

Development of the Laws of War < http://www.unwcc.org/wp-content/uploads/2017/04/UNWCC-history.pdf >

accessed 14 May 2020.

3_{Under customary international law, as well as in the Statutes of international courts and tribunals, see for instance}

Art. 7, Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into force on 1 July 2002) UNTS Vol. 2187, p. 3 (Rome Statute); Art. 5, UNSC Res 827 (25 May 1993) (ICTY Statute); Art. 3, UNSC Res 955 (8 November 1994) (ICTR Statute).

4_{Art. II, Genocide Convention (n 1).}

5_{These would be, e.g., prohibition of the use of group’s language, destruction of monuments, etc; see: William}

Schabas, Genocide in International Law: the Crime of Crimes (2nd_{edn, Cambridge University Press 2009)}

207-221.

6_{Art. II, Genocide Convention (n 1); UNGA Res 96(I) (11 December 1946).}

7_{Prosecutor v Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, para. 511; groups are then defined}

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One of the more intriguing genocidal acts is imposing measures intended to prevent births within the group. At the same time, this is one of the genocidal acts that is not discussed in much detail, what may relate to the fact that despite several post-World War II convictions for the commission of biological genocide, there were no convictions for imposing measures intended to prevent births in relation to any subsequent atrocities, including genocides that took place in the 1990s in Rwanda and Srebrenica. In its submissions to the International Court of Justice (ICJ), Bosnia and Herzegovina accused Serbia and Montenegro, as the successor of the Federal Republic of Yugoslavia, of genocide by imposing measures intended to prevent births. However, the ICJ judges found that those accusations were not supported by sufficient evidence in order to decide on that matter.8

The main aim of this research is to analyse genocide by imposing measures intended to prevent births in relation to the Srebrenica massacre by using socio-legal qualitative methodology. The purpose of this paper is to thoroughly analyse some of the ICTY judgments dealing with the Srebrenica genocide in order to apply the legal provisions to the previously made factual findings.

The first question answered in this paper relates to what is genocide by imposing measures intended to prevent births. This is done by the analysis of the legal provisions criminalising that act and the of the legal documents in the form of international treaties. This is supported by the judicial interpretation of domestic and international courts, as well as the review of academic publications on that topic.

The next step is an analysis of the Srebrenica genocide based on the judgments in three cases of the International Criminal Tribunal for the former Yugoslavia (ICTY) related to the Srebrenica massacre, that are Krstić, Popović et al. and Mladić. The ICTY issued a series of judgments on the take-over of Srebrenica by the Bosnian Serb army and its violent aftermath.9 Krstić was chosen because that was the first genocide conviction by the ICTY, whereas the Mladić judgment was the last one. Popović et al. was chosen because five out of seven accused were charged with the commission of the crime of genocide. This exercise aims to evaluate the factual conduct of the perpetrators during the relevant time period, followed by answering the

8_{Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide}

(Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, paras 355-361 (Bosnia v Serbia ICJ Judgment).

9_{Aside from judgments discussed in this thesis, see also, for instance, Prosecutor v Karadžić (Case No.}

IT-95-5/18-T), Judgment, 24 March 2016; Prosecutor v Tolimir (Case No. IT-05-88/2-A), Appeals Judgment, 8 April 2015.

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question whether such conduct amounts to the genocide by imposing measures intended to prevent births with intent to destroy, in whole or in part, the Bosnian Muslim population. The methods used at this step are the case study analysis for the evaluation of the factual conduct of perpetrators of Srebrenica genocide and the case law analysis in order to find out whether, based on the evidence collected and presented by the Office of the Prosecutor (OTP) at the Yugoslav Tribunal, the alleged conduct could amount to the genocide by imposing measures intended to prevent births with intent to destroy, in whole or in part, the Bosnian Muslims of Srebrenica.

Following the analysis of the ICTY cases related to the Srebrenica massacre, this paper discusses what is prosecutorial discretion and how possibly it impacted the decision of the OTP not to include genocide by imposing measures intended to prevent births. The main discussed factors are those that might have directly impacted the way the Prosecutor exercised the discretion, such as the evidence, as well as indirectly, e.g. stare decisis and the staffing in the first years of existence of the ICTY.

The choice to analyse the stare decisis is based on the observation of the application of precedent in the ICTY that is discussed in chapter 4 and the further thought if there is possibility that it could apply not only to the judgments but also to the use of prosecutorial discretion. The analysis of the possible impact of the staffing in the first years of existence of ICTY was triggered by reading a chapter of the book edited by Baron Serge Brammetz and Michelle Jarvis in which authors of this chapter discussed how the composition of the OTP impacted the first investigations. That led the Author of this thesis to consider whether, considering the impact on the investigations, that could also affect how the Prosecutors exercised their discretion. This is done based on the review of the relevant literature with the subsequent discussion on how these factors could have impacted the Prosecutor’s decision in the context of the Srebrenica genocide.

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2. Genocide by imposing measures to prevent births

2.1. Background

The crime of genocide has been first named and defined by a Polish lawyer Raphael Lemkin in his book Axis Rule in Occupied Europe, in which he analysed the laws and policies implemented by Nazis on territories they occupied during the World War II, such as the destruction of a nation or an ethnic group.10 At the time, Lemkin also identified an act that he called ‘biological genocide’ – a term relating to the adoption of measures aiming to decrease of the birth rate of the groups targeted by Nazis in the process of elimination of such groups.11 The methods he mentioned related to inter alia separation of sexes, prohibition of marriages and starvation aimed at lowering the birth rate.12

Following Lemkin’s work, UNGA adopted in 1946 a resolution condemning the crime of genocide and affirming its status of the crime under international law due to its gravity and character.13 However, this resolution does not mention any specific crimes that could qualify as genocide. The task to create the list of acts amounting to the crime of genocide formed part of the drafting of the Genocide Convention.14 Article II of this Convention includes a paragraph explicitly stating that imposing measures intended to prevent births within the national, ethnic, racial or religious group committed with the intent to destroy, in whole or in part, such group amounts to the crime of genocide and therefore is prohibited.15 Because international courts and tribunals should rely on what has already been criminalised, the definition of the crime of genocide contained in the Genocide Convention has been fully adopted, inter alia, in the statutes of the ICTY, International Criminal Tribunal for Rwanda (ICTR), as well as the Rome Statute of the International Criminal Court (Rome Statute or ICC Statute).16

10_{Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for}

Redress (Carnegie Endowment for International Peace, Division of International Law 1944) 79.

11_{Ibid. 86-87.} 12_{Ibid. 86.}

13_{UNGA Res 96(I) (11 December 1946).} 14_{Genocide Convention (n 1).}

15_{Ibid., Art II.}

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2.2. Elements of Crime

Genocide by imposing measures intended to prevent births within the group consists, as every crime, of actus reus describing the punishable act and mens rea relating to the state of mind of the perpetrator while committing the crime, that in this case would be the genocidal intent.17 According to Article II(d) of the Genocide Convention, the punishable act is the imposition of measures intended to prevent births.18 These may amount to, inter alia, methods identified previously by Lemkin, such as segregation of sexes, forced sterilisation, birth control and abortion, but also other measures including sexual mutilation, rape and other forms of sexual violence.19 Rape can amount to a measure preventing birth within the group in two cases. The first one is when a woman is intentionally impregnated by a man belonging to another group in order to change the group composition as the child would belong to the group other by mother’s, what is characteristic for the patriarchal societies where the membership in a certain group is determined based on the identity of the father.20 The second case is where rape leads the victim to the subsequent refusal of procreation.21_{Importantly, this list is non-exhaustive,}

so as long as the measure is imposed by a perpetrator with a relevant state of mind, it may amount to the genocide by imposing measures intended to prevent births.22_{Moreover, such}

measures can be either physical or mental.23

This particular genocidal act is characterised by having a two-fold genocidal intent. Firstly, the perpetrator must have dolus specialis –the specific intent required for the commission of an underlying act. The committed act must be done with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.24 The ‘intent to destroy’ should be understood as referring to more than the mere intention to commit a particular act against a

17_{See, for instance, Schabas (n 5) 172; Akayesu Trial Judgment (n 7) para. 499.} 18_{Art II(d) Genocide Convention (n 1); Schabas (n 5) 198.}

19_{Lemkin (n 10) 86; Akayesu Trial Judgment (n 7) para. 507; Application of the Convention on the Prevention}

and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment, 3 February 2015, para. 165 (Croatia v

Serbia ICJ Judgment).

20_{Akayesu Trial Judgment (n 7), para. 507.} 21_{Ibid. para. 508.}

22_{Secretariat’s Draft provided in its Article I only three acts that could be used for restricting births, which were}

sterilisation and/or compulsory abortion, segregation of sexes and obstacles of marriage – UN Doc. E/447; Schabas (n 5) 197.

23_{Prosecutor v Rutaganda (Case No. ICTR-96-3-T), Judgment, 6 December 1999, para. 53 (Rutaganda Trial}

Judgment); Prosecutor v Popović et al. (Case No. IT-05-88-T), Judgment, 10 June 2010, para. 818 (Popović et

al. Trial Judgment); Akayesu Trial Judgment (n 7) para. 508.

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certain amount of members of the group.25_{However, the crime of genocide can be committed}

with the intent to destroy at least a substantial number of members of the protected group what would fulfil the criterion to destroy a part of such group.26 The requisite genocidal intent can also be seen as the ‘desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such’.27 The words ‘in part’ might also be understood that the crime of genocide requires its perpetrator to intend to destroy a considerable number of members of the targeted group.28 Another meaning of what is a part in the meaning of the Genocide Convention relates to the geographical scope – the destruction of all members within a certain location would then classify as a part of the protected group.29 As previously mentioned, the crime of genocide must be also committed against members of a national, ethnical, racial or religious group. The definition of the crime in Article II of the Genocide Convention enumerates only four groups, creating an exhaustive list. The main reason to include only those and not others is the fact that they characterised by stability and the fact that the membership in them is usually determined by birth.30

Secondly, as seen for instance in Popović et al., the person imposing measures must do so with the intent to prevent births within the group.31 Therefore, even if the perpetrator possesses the genocidal intent, not every crime committed by him or her that may affect the birth rate within the protected group would qualify as imposing measures intended to prevent births if such offender does not commit it with the intent to affect that birth rate. That act may, however, qualify as one of the other genocidal acts not requiring an additional intentional element, such as e.g. killing members of the group or causing serious bodily or mental harm, as long as it falls within their scopes.

25_{William Schabas, ‘Article 6: Genocide’ in: Otto Triffterer, Kai Ambos (eds), The Rome Statute of the}

International Criminal Court: A Commentary (3rd_{edn, C H Beck, Hart, Nomos 2016) 133.}

26_{Prosecutor v Krstić (Case No. IT-98-33-A), Appeals Judgment, 19 April 2004, paras 12 and 28 (Krstić Appeals}

Judgment); Prosecutor v Jelisić (Case No. IT-95-10-T), Judgment, 14 December 1999, para. 82 (Jelisić Trial Judgment).

27_{Jelisić Trial Judgment (n 26), para. 82.}

28_{Prosecutor v Kayishema et al. (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 97 (Kayishema et al.}

Trial Judgment).

29_{William Schabas, 'Genocide Law in a Time of Transition: Recent Developments in the Law of Genocide' (2008)}

61 Rutgers L Rev 161, 183; William Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia’ 25(1) Fordham International Law Journal 23, 42; however, Schabas points out that such localised genocide could possibly suggest that there is no plan or policy on a national level and that genocide was not organised on a larger scale.

30_{Akayesu Trial Judgment (n 7), para. 516; see also travaux preparatoires of the Genocide Convention: UN Doc}

A/C.6/SR.63 where one of the delegates stated that the scope of the protected groups must be specific as their members must possess a permanent characteristic.

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Reversely, not every act committed with the intention to impose measures to prevent births will amount to the crime of genocide if the perpetrator does not do so in order to destroy the protected group. Therefore, social birth control programmes, such as so-called one-child policy in China, even though its purpose is to impose measures to prevent births within the group, do not amount to the acts of genocide due to the lack of the specific intent to destroy, in whole or in part, one of the protected groups.32

2.2.1. Genocide by imposing measures in the International Criminal Court Although the present thesis analyses the conduct that was within the jurisdiction of the ICTY, it is worth looking at the ICC’s approach towards the elements of the crime of genocide. According to the Rome Statute, Elements of Crimes (EoC) are an internal document of the ICC, adopted by the Assembly of States Parties for the purpose of interpretation of the ICC Statute.33 As it can be seen in the elements of genocide by imposing measures intended to prevent births, there are five particular elements characterising it:

1. The perpetrator imposed certain measures upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The measures imposed were intended to prevent births within that group. 5. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.34

Elements 1-4 reflect what was identified during the analysis of Article II of the Genocide Convention. This should be no surprise – Article 6 of the Rome Statute is a literal implementation of Article II of the Convention. However, the EoC add an additional fifth element that has not been required by either the Genocide Convention or the statutes of international and internationalised tribunals, which is the contextual element. What is important, not only the Convention but also customary international law does not require the

32_{Schabas (n 5) 294; Florian Jessberger, ‘The Definition and the Elements of the Crime of Genocide’ in: Paola}

Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford University Press 2009) 102; the policy has changed over the last years allowing parents to have two children.

33_{Art. 9, Rome Statute (n 3); according to the Art. 9, EoC are meant to provide Chambers with the guidance on}

how to interpret crimes listed in Art. 5 and defined in Arts 6-8bis.

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existence of a plan or policy in relation to the commission of the crime of genocide.35_Although

the text of the ICC Statute does not explicitly mention such a requirement, the EoC are among the most important applicable sources of applicable law in the ICC, alongside its Statute and the Rules of Procedure and Evidence (RPE).36 Therefore, even though the ICC regime may, at the first sight, seem to be consistent with the customary international law and the Genocide Convention on the matter of the contextual element based on the content of the Rome Statute,37 it differs by adding an additional required element of the crime alongside its actus reus and mens rea. However, the approach towards the requirement of an existing genocidal plan or policy seems to be mixed. On one side, the ICC Pre-Trial Chamber (PTC) in Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir from 2009 stated that EoC elaborate on the existing definition of the crime of genocide and therefore comply with the Rome Statute.38 Nevertheless, in more recent PTC decision judges found that EoC should not be seen as modifying the interpretation or elaborating the ICC Statute but rather consistent with it.39 Therefore, in the second case, the requirement of a contextual element in the form of a manifest pattern can be argued as being ultra vires of the Rome Statute, as well as inconsistent with the customary international law.40 The non-existence of a requirement of a plan or policy has also been affirmed in numerous decisions made by the ad hoc tribunals, stating in the same time that such element may only become of any importance while assessing the specific intent of the perpetrator of the crime.41

2.3. Judicial interpretation

2.3.1. Post-World War II interpretation

Until now, there was no conviction for the crime of genocide by imposing measures intended to prevent births based on the Genocide Convention made by the international and

35_{Popović et al. Trial Judgment (n 23) paras 828-830.} 36_{Art. 21, Rome Statute (n 3).}

37_{Guénaël Mettraux, International Crimes: Law and Practice: Volume I: Genocide (Oxford University Press}

2019) 157.

38_{Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan}

Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3, paras 132-134 (Al Bashir Arrest Warrant Decision).

39_{Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’,}

ICC-RoC46(3)-01/18, 6 September 2018, para. 56.

40_{Al Bashir Arrest Warrant Decision (n 38), Separate and Partly Dissenting Opinion of Judge Anita Ušacka, 4}

March 2009, paras 16-20; Mettraux (n 37) 157.

41_{For instance, Krstić Appeals Judgment (n 26) para. 225; Jelisić Trial Judgment (n 26) para. 100; Prosecutor v}

Jelisić (Case No. IT-95-10-A), Appeals Judgment, 5 July 2001, para. 48 (Jelisić Appeal Judgment); Kayishema et al. Trial Judgment (n 28), para. 276; Kayishema et al. (Case No. ICTR-95-1-A), Appeals Judgment, 1 June

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internationalised courts and tribunals. However, there were several cases deciding on charges including this genocidal act in domestic jurisdictions. These include cases following Resolution 96(I), but preceding the Convention, that took into consideration certain acts of what Lemkin described as ‘biological genocide’.

In 1947 the Supreme National Tribunal of Poland, which dealt with seven war crime cases against Nazis, found Rudolf Hoess, commander of the Auschwitz death camp, guilty of sterilisation and castration of the prisoners, amounting it to the crime of genocide.42 The Tribunal condemned commission of the crime of genocide by biological means, stating that it is ‘an attempt on the most organic bases of the human relationship such as the right to live and the right to existence’.43_{In the 1948 case against Ulrich Greifelt and his associates, the United}

States Military Tribunal found the defendant guilty of restricting birth by the means of the prohibition of marriages, imposing fines for the births of illegitimate children, sterilisation and the separation of mothers and new-born children.44

The only conviction that followed the enforcement of the Genocide Convention also related to the atrocities committed by Nazis during World War II. In the early 1960s, following the capture of Adolf Eichmann by Israeli Mossad agents, the charges that were presented included the imposition of measures that were devised to prevent ‘child-bearing among the Jews’. He was found guilty of taking measures calculated to prevent births by forbidding births and abortion among Jewish women in the Theresin Ghetto between the years 1943 and 1944.45

2.3.2. (Lack of) modern judicial interpretation

Genocide by imposing measures intended to prevent births lacks modern judicial interpretation. This can be seen in, for instance, the jurisprudence of ICTY and ICTR, where none of the accused was found guilty of this particular genocidal act, as well as other international and hybrid courts and tribunals. Reasons for that may be different. The first may relate to the insufficient evidence presented during the trial.46 The ad hoc tribunals and the ICJ have nevertheless discussed briefly this provision by confirming the acts falling within the scope of the actus reus and the two-fold character of the mens rea, as discussed in sub-chapter 2.2.

42_{Poland v Hoess (1948) 7 LRTWC 11 (Supreme National Tribunal of Poland), pp. 24-26.} 43_{Ibid., p. 24.}

44_{United States v Greifelt et al. (1948) 13 LRTWC 1 (United States Military Tribunal), pp. 17-19.} 45_{A-G Israel v Adolf Eichmann (1968) 36 ILR 5, para. 244.}

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The other reason may relate to the fact that measures intended to prevent births generally also qualify as other genocidal acts, such as causing serious bodily or mental harm and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.47 Especially with the causing serious bodily or mental harm, it is easier for the Prosecution to establish that such crime took place.48

The existing gap in the judicial interpretation of genocide by imposing measures intended to prevent births becomes more visible nowadays with more atrocities coming into light that are alleged to fall within this scope, such as sterilisation policies against the indigenous peoples in Canada, Australia, alleged genocide against Yazidis committed by the Islamic State and even China.49 Indians, as the indigenous peoples of Canada, were subjected to the sterilisation from as early as 1928, when the Sexual Sterilization Act was passed in Alberta, allowing to sterilise native children upon the approval of the principal of the school they attended.50 Other Canadian provinces followed shortly with identical laws.51 Based on official statistics, only in Alberta there were around 3,500 victims of that law.52 Currently, these policies, as well as the possible forcible transfer of children, are investigated by the International Human Rights Tribunal into Genocide in Canada established by the indigenous peoples, alongside the Truth and Reconciliation Commission established by the Canadian government.53 In the case of Australia, the Working Group on Indigenous Populations established by the United Nations (UN) Economic and Social Council has received and published various reports, such as The Darwin Declaration (1989) that has been produced by the Australian Aboriginal peoples.54

According to such documents, indigenous women of Australia were subjected to forced sterilisations, along with various other human rights violations.55 More recently, within the last decade, the UN Commission of Inquiry (COI) into the situation in the Syrian Arab Republic

47_{Guénaël Mettraux, International Crimes and ad hoc Tribunals (Oxford University Press 2006) 242.} 48_Ibid.

49_{Zia Akhtar, 'Canadian Genocide and Official Culpability' (2010) 10 Int'l Crim L Rev 111; Bradley Howard,}

'Human Rights and Indigenous People: On the Relevance of International Law for Indigenous Liberation' (1992) 35 German YB Int'l L 105; UNHRC, 32nd Session, Human Rights Situation that Require the Council’s Attention, ‘They Came to Destroy: ISIS Crimes Against the Yazidis,’ UN Doc. A/ HRC/32/CRP.2, 15 June 2016 (UN Yazidi Report); The Guardian, China sterilising ethnic minority women in Xinjiang, report says < https://www.theguardian.com/world/2020/jun/29/china-sterilising-ethnic-minority-women-in-xinjiang-report-says > accessed 30 June 2020.

50_{Akhtar (n 49) 118.} 51_Ibid.

52_Ibid.

53_{Ibid., 111; the author, however, points out that the Commission established by the Canadian government lacks}

the investigative and punitive powers.

54_{Howard (n 49) 147.} 55_{Ibid., 147.}

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investigated atrocities committed against Yazidis that allegedly amounted to the crime of genocide.56_{The report published in 2016 amounted separation of the Yazidi women and men,}

killings of the captured men and rapes of women and girls to imposing measures intended to prevent births.57 As mentioned in sub-chapter 2.2, Chinese authorities have implemented policies aiming at the national birth control programme. However, it was reported over the last days that aside from the standard forced birth control, women from the ethnic minorities including Uighurs started being subjected to forced sterilisations aiming at lowering the birth rates amongst them.58 According to the media, some experts are amounting it to genocide.59 Considering that the victims of the aforementioned atrocities and policies may want to seek criminal trials in order to try alleged perpetrators,60 having an established judicial interpretation would be of great importance. Although its current lack does not mean that the alleged atrocities against Aborigines, Canadian Indians and Yazidis cannot be established as genocides by imposing measures intending to prevent births, having a modern interpretation alongside the post-World War II decisions could strengthen the future judicial decisions made either by national or international courts on those as well as other atrocities that could potentially amount to genocide under Article II(d) of the Genocide Convention.

2.4. Conclusion

Genocide by imposing measures intended to prevent births is prohibited under Article II(d) of the Genocide Convention and customary international law. This and other genocidal acts have been implemented into statutes of international and internationalised criminal tribunals, such as, inter alia, ICTY and ICTR. Its actus reus covers, for instance, separation of sexes, sexual mutilation, forced birth control, rape intending to change the determination of the group membership of a child. This list is non-exhaustive.

The mens rea of genocide by imposing measures intended to prevent births has a two-fold character. First, the genocidal act must be committed with the intention to prevent births within the group. Secondly, the perpetrator must do so with the intent to destroy, in whole or in part,

56_{UN Yazidi Report (n 49).} 57_{Ibid. paras 142-146.}

58_{The Guardian (n 49); The Associated Press, China cuts Uighur births with IUDs, abortion, sterilization <}

https://apnews.com/269b3de1af34e17c1941a514f78d764c?utm_medium=AP&utm_campaign=SocialFlow&ut m_source=Twitter > accessed 1 July 2020.

59_Ibid.

60_{See, for instance, Akhtar (n 49) 129; author points that the Tribunal established by the indigenous peoples aims}

to seek the United Nations support in creating a tribunal similar to ICTY and ICTR that could have a power to try the perpetrators of atrocities.

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a national, ethnical, racial or religious group, as such. Therefore, certain acts may qualify as genocide, for instance by causing serious bodily or mental harm, but not by imposing measures intended to prevent births even though they result in biological destruction of a group because the perpetrator did not intend to prevent births as such. Reversely, certain actions may be done intending to prevent births but not qualify as genocide as the person or institution imposing measures does not intend to destroy the protected group. That would be the case of, for instance, Chinese one-child policy.

Although there were several post-World War II convictions for biological genocide, the lack of judicial interpretation of genocide by imposing measures intended to prevent births within the group is visible. However, there are discussions over certain conducts such as policies implementing sterilisation of indigenous people in Australia and Canada, ethnic minorities in China or atrocities committed against Yazidis by the Islamic State as to whether they amount to the crime of genocide, potentially by imposing measures intended to prevent births.

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3. Application of the provision to Srebrenica cases

Srebrenica massacre differs from other well-known genocides, such as Holocaust or Rwandan genocide – the first one was based on killings that targeted only males, mainly in the military age, whereas the perpetrators of the latter ones indiscriminately targeted both men and women as victims of killings. Bosnian Muslim women were also undoubtedly victims of genocide due to the mental harm caused by the fact that their sons, husbands and fathers were killed or disappeared.61 This chapter first assesses the findings relating to genocide that were made in cases relating to the Srebrenica massacre. This is followed with the application of facts and circumstances to the genocide by imposing measures intended to prevent births in order to assess whether such charge could be brought up by the OTP based on the killing of over 7,000 Bosnian Muslim men.

3.1. The genocide charges in cases related to the Srebrenica massacre

As mentioned in the Introduction, Srebrenica judgments discussed in this thesis are Krstić, Popović et al. and Mladić. In these cases, the accused have been charged with the commission of genocide under the Art. 4(3)(a) of the ICTY Statute in relation to the joint criminal enterprise (JCE) to murder by the commission of the mass killings that took place after the fall of Srebrenica enclave on 11 July 1995 and, in the case of Popović, of the forcible transfer of women, children and the elderly from enclaves in Srebrenica and Žepa.62 Whereas indictments in these three cases allege the commission of genocide by killing and causing serious bodily and mental harm punishable under Article 4(2)(a)-(b) of the ICTY Statute, the OTP in Popović included also allegations that the forcible transfer amounted to genocide by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and by imposing measures intended to prevent births, punishable under Article 4(2)(c)-(d) of the ICTY Statute.63

61_{In general terms there is a difference between direct victims of a crime that are the subject of the crime and}

indirect victims who are usually persons victimised by the result of the crime, e.g. loss of a spouse, children, etc. However, having in mind the character of the crime of genocide that must be directed against a group as such, members of such group who survived genocide are nevertheless direct victims.

62_{Prosecutor v Krstić (Case No. IT-98-33-I), Amended Indictment, 27 October 1999, paras 21-26 (Krstić}

Indictment); Prosecutor v Popović et al. (Case No. IT-05-88-I), Revised Second Consolidated Amended Indictment, 4 August 2006, paras 26-33 (Popović et al. Indictment); Prosecutor v Mladić (Case No. 09-92-I), Fourth Amended Indictment, 16 December 2011, paras 40-46 (Mladić Indictment).

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The first judgment acknowledging Srebrenica as genocide, labelled by Schabas as ‘an impressive triumph’,64_{was Krstić, where, although the defendant was not a key figure in the}

JCE, he was found guilty of mass killings of Bosnian Muslim men and causing serious bodily and mental harm to the survivors with the intent to destroy in part a national group.65 The Appeals Chamber (AC) later changed Radislav Krstić’s conviction of the commission of the crime of genocide to aiding and abetting genocide, however, judges upheld that Srebrenica was indeed a genocide.66 In the case of Popović, five out of the seven accused, namely Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin and Vinko Pandurević were accused of commission of genocide,67 of whom Popović and Beara were found guilty of its commission and Nikolić was found guilty of complicity.68_{What is important, their genocide}

convictions were based solely on the JCE to Murder and not on the forcible transfer of women, children and the elderly since the evidence presented was found being insufficient to find that such transfer constituted genocide.69 Convictions of the Trial Chamber (TC) have been upheld by the AC. Ratko Mladić was the last person found guilty of genocide in the ICTY before its closure and his appeal before the International Residual Mechanism for Criminal Tribunals (MICT) is currently ongoing.70

The acts of which accused in all three cases were found guilty of genocide are the mass killings that took place in the surroundings of Srebrenica upon the fall of the enclave on 11 July 1995. It is estimated that killings started on 14 July lasted until the late July 1995, of which the vast majority took place until 17 July 1995.71_{Executions took place in various locations near}

Srebrenica, including, inter alia, Bratunac, Kravica, Kravica Warehouse, Luke School near Tišća, School in Orahovac, School in Petkovici, Kula School, Branjevo Military Farm and more.72 The number of victims has been estimated as approximately 7,000-8,000 Bosnian Muslim men.73 These figures included military men captured from the Bosnian Muslim column, as well as civilians separated from women, children and elderly in Potočari on 12 and

64_{Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina?’ (n 29) 29.}

65_{Prosecutor v Krstić (Case No. IT-98-33-T), Judgment, 2 August 2001, paras 598 and 653 (Krstić Trial}

Judgment).

66_{Krstić Appeal Judgment (n 26), paras 137-138 and 144.} 67_{Popović et al. Indictment (n 62), para 26.}

68_{Popović et al. Trial Judgment (n 23) paras 1181, 1319, 1415, 1589 and 2090.} 69_{Ibid., paras 854-855.}

70_{See Mladić MICT case information site < https://www.irmct.org/en/cases/mict-13-56 > accessed 1 June 2020.} 71_{See, for instance, Prosecutor v Krstić (n 65) paras 66-67.}

72_{See, for instance, Prosecutor v Mladić (Case No. 09-92-T), Judgment,22 November 2017, para. 3543 (Mladić}

Trial Judgment).

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13 July.74_{What is also important, the victims of the mass killings were not only the men of}

military age, albeit they were a majority, but also some boys and elderly.75_{This conduct}

amounted to two alleged genocidal acts, namely genocide by killing and by causing serious bodily or mental harm.

Whereas genocide by killing is self-explanatory since it refers to the executions that were carried out by Bosnian Serb forces, there should be more clarification on why the executions carried out on Bosnian Muslim men amounted also to causing serious bodily and mental harm. The harm was caused to many victims who were seriously injured and treated in an inhumane and degrading way by Bosnian Serbs before being killed.76 Secondly, the lack of knowledge of the fate of the loved ones has caused distress within the women, children and the elderly who have been bussed out from Potočari upon the fall of Srebrenica, what amounted to causing them suffering from mental harm.77

3.1.1. Mens rea in Srebrenica cases

A key element to establish whether perpetrators of the atrocities are guilty of genocide is the assessment of mens rea – a mental state of the offender at the time of the commission of the crime. As previously established, a person who commits genocide must carry out the underlying act with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. In the context of the Srebrenica massacre, such specific intent has three elements of which each should be discussed separately – ‘intent to destroy’, what does ‘in part’ mean in the context of killings of Bosnian Muslims, and whether the victims fall within the scope of the protected groups.

3.1.1.1. ‘Intent to destroy’

As abovementioned, the first element of the mens rea in Srebrenica-related cases was to prove whether the perpetrators intended to destroy Bosnian Muslims. The destruction of the group was not a part of the initial plan,78 however, considering events that took place in July 1995, it must have become at some point an intention of the perpetrators. Several factors helped in reaching such a conclusion. These would be, for instance, the level of organisation and the

74_{Ibid., para. 66.}

75_{Ibid., paras 73-74; Mladić Trial Judgment (n 72) para. 3540.} 76_{See, for instance, Mladić Trial Judgment (n 72) para. 3543.} 77_{Ibid., para. 3542.}

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massive scale of the executions,79_{determination to ensure all detained men are killed}80_{and the}

knowledge of the long-term impact that disappearance of several thousand men will have on the Bosnian Muslim community of Srebrenica.81 An additional factor that helped to establish the possession of intent to destroy was also the fact that the killed Bosnian Muslim males did not cause a military threat at the time of being murdered as they were detained by Bosnian Serb forces.82

3.1.1.2. ‘in part’

Another element of the specific intent that had to be defined by the ICTY Chambers is ‘part’. It was found that Bosnian Muslims of Eastern Bosnia or Srebrenica do not constitute a separate group but are a part of the group.83 Such an approach has been followed by the subsequent judgments discussing Srebrenica while discussing whether they actually qualify as a part of the group in the meaning of the definition of the crime of genocide. Bosnian Muslims of Srebrenica, a town with the population of approximately 37,000 to 42,000 residents of which approximately 73% were Muslims, were not representing a big part of over 4 millions of Bosnian Muslims of Bosnia and Herzegovina.84 Even considering that in July 1995, as a result of creating there an enclave, the number of Bosnian Muslims there raised to from 50,000 to 60,000,85 this still was just a small representation of the whole group and therefore ICTY had to consider also criteria other than the quantity, such as significance and substantiality. The geographical location of mainly Muslim-inhabited Srebrenica, which with the Central Podrinje region was of great importance for the Bosnian Serb leadership if to consider their plans to create an ethically Serb state that could be connected with Serbia and Montenegro. It was pointed by the ICTY judges on several occasions that without Srebrenica such creation of an ethnically purely Serb region was impossible what proved the substantiality of the Bosnian Muslims of Srebrenica as a part of the protected group.86 Defence submissions claiming that the strategic location of Srebrenica proves territorial aspirations rather than the possession of genocidal intent have been rejected by the AC in Popović et al. by stating that such an argument

79_{Ibid., para. 572; Popović et al. Trial Judgment (n 23) para. 858; Mladić Trial Judgment (n 72) para. 3547.} 80_{Popović et al. Trial Judgment (n 23) para. 859.}

81_{Krstić Appeals Judgment (n 26) para. 28.}

82_{Popović et al. Trial Judgment (n 23) para. 860; Mladić Trial Judgment (n 72) para. 3546.} 83_{Krstić Trial Judgment (n 65) para. 560.}

84_{Ibid., para. 592; Mladić Trial Judgment (n 72) para. 3551.}

85_{See, for instance, Mladić Trial Judgment (n 72) para. 3551; Popović et al. Trial Judgment (n 23) para. 92.} 86_{See, for instance, Krstić Appeals Judgment (n 26) para. 15; Mladić Trial Judgment (n 72) paras 3552-3553;}

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shows a misunderstanding of the test for substantiality.87_{The significance of targeting Bosnian}

Muslim males as victims of the mass killings was explained as having a lasting impact on the entire group as Bosnian Serb forces must have known about the impact of the disappearance of several generations of men, considering the patriarchal character of the Bosnian Muslims of Srebrenica.88

3.1.1.3. Protected group

The last important element was to prove that Bosnian Muslims constitute a protected group in the meaning of Article II of the Genocide Convention and Article 4 of the ICTY Statute. TC judges found support in assessing whether the targeted group of Bosnian Muslims fell within the scope of protection of the Genocide Convention and Article 4 of the ICTY Statute in the Yugoslav Constitution from 1963. According to the evidence presented during the trial, although historically Bosnian Muslims were viewed as a religious group, at the time of the Yugoslav war in the 1990s, Bosnian Serb political authorities and forces based in Srebrenica considered them as a national group under the 1963 Constitution.89 The approach endorsed by the ICTY on the matter of assessing the criterion of the protected group was, as Schabas assessed it, subjective.90 The academic indicated that the TC in Krstić followed the approach presented in Jelisić by specifying that the evaluation of the membership in the group should be done from the point of view of a perpetrator.91_{As Schabas pointed out, such approach makes}

sense since this is the intent by which the perpetrator is driven that makes an important element of the crime of genocide. However, he also points out that the objective existence of the protected groups should be also determined as ‘law cannot permit the crime to be defined by the offender alone’.92

87_{Prosecutor v Popović et al. (Case No. IT-05-88-A), Appeal Judgment, 30 January 2015, para. 422; test for}

substantiality was the subject of considerations in the Krstić Appeals Judgment (n 26), paras 12-17; the following considerations should be analysed while applying the test: (1) numeric size of the group that is subject of the crime relative to the total size of the group, (2) area of the perpetrators’ activity and control and the possible extent of the perpetrators’ reach. These considerations are, however, non-exhaustive and various secondary factors, such as strategic importance of Srebrenica were also taken into account.

88_{Krstić Trial Judgment (n 65) para. 595.} 89_{Krstić Trial Judgment (n 65) para. 559.} 90_{Schabas (n 29) 38.}

91_{Jelisić Trial Judgment (n 26) para. 70; Krstić Trial Judgment (n 65) para. 557.} 92_{Schabas, 'Was Genocide Committed in Bosnia and Herzegovina?’ (n 29) 39.}

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3.2. Analysis of factual findings made by the ICTY in Srebrenica cases

and their application to the genocide by imposing measures

intended to prevent births

As stated in the sub-chapter 3.1, the OTP in Popović et al. charged the accused with genocide by imposing measures intended to prevent births in relation to the forcible transfer of women and children by alleging that such conduct led to ‘the failure of the population to (…) reproduce normally’.93_{However, the TC has found that the evidence presented during the proceedings is}

insufficient to find the accused guilty of that conduct.94_{The issue was not discussed further by}

the AC since it has been raised by neither of the Prosecution nor Defence during the subsequent appeal. Conduct that was alleged to impose measures intended to prevent births in the Indictment was particularly limited to the forcible transfer from Srebrenica and Žepa – executions of Bosnian Muslim males of Srebrenica were not considered as a potential genocidal act within the meaning of Article 4(2)(d) of the ICTY Statute at the time. The killing of the Bosnian Muslim males was not considered as a measure intended to prevent births in the indictments relating to the Srebrenica massacre.

This sub-chapter further analyses if the factual findings made by the ICTY Chambers in Krstić, Popović et al. and Mladić in relation to the mass killings of Bosnian Muslim males that took place upon the fall of Srebrenica in July 1995 by applying them to Article 4(2)(d) of the ICTY Statute. The following two elements of the crime will be analysed:

1. Whether the actions taken by the perpetrators imposed measures that prevented births within the group.

2. Whether such imposed measures were intended to prevent births within the protected group.

As discussed in sub-chapter 3.1, perpetrators possessed the specific intent to destroy in part the national group of Bosnian Muslims. Therefore, the victims’ membership to the protected group and to the intent to destroy, in whole or in part, members of such group will not be discussed further.

93_{Popović et al. Indictment (n 62) para. 33.} 94_{Popović et al. Trial Judgment (n 23) para. 855.}

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3.2.1. Does the killing of men could amount to preventing births within the group?

As it was established in Chapter 2, the conduct that may amount to measures preventing births within the group includes separation of sexes, prohibition of marriages, forced sterilisation, sexual mutilation, forced birth control and rape when its purpose is either the impregnation of a woman with the intention of the establishment of the child’s group membership based on the father’s group association or when its purpose is to stop women to procreate. As previously indicated, these are examples of conduct that could amount to imposing measures preventing births rather than the exhaustive list and any act that could potentially have the same effect on the protected group may be added alongside the ones that were already mentioned. As it was also mentioned in Chapter 2, the measures preventing births do not have to limit only to physical ones and can also amount to psychological measures what would be applicable in the case of rape where victims refuse to procreate as a result of experienced trauma.

As previously stated, ICTY Chambers found, based on the evidence presented during trials and appeals, that Srebrenica genocide amounted to killings of Bosnian Muslim males. The victims were mainly the military aged men, however, among the victims, there were also some elderly men and boys.95_{Upon the fall of the enclave, they were separated from women, children and}

elderly who were forcibly transferred from the area and held for several days in Potočari, where they were joined by Bosnian Muslim men from the column that was captured nearby. Mass executions started on 14 July 1995. The number of men that disappeared at that time was estimated between 7,000 and 8,000.

Considering that separation of sexes is generally accepted as an act amounting to preventing births within the group,96 the separation of Bosnian Muslim males from women, children and elderly and detaining them in Potočari while the rest was transferred out of the territory itself qualifies as a measure limiting reproduction. The fact that separated males have been later executed would therefore also amount to a birth prevention measure, considering that the final result of killing representatives of one particular sex also results in lowering the birth rate within the group. Moreover, an additional factor of the number of Bosnian Muslims present in Srebrenica before its takeover on 11 July 1995 should also be taken into account. As stated before, there were approximately 50,000-60,000 Bosnian Muslims present in the enclave.97

95_{Krstić Trial Judgment (n 65) paras 73-74; Mladić Trial Judgment (n 72) para. 3540.} 96_{See, for instance, Akayesu Trial Judgment (n 7) paras 507-508.}

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The 7,000-8,000 males who were separated in Potočari and captured from the column more likely represented the vast majority of the male population of Srebrenica and more likely represented two or three generations of men, especially since some older boys have been separated and killed alongside the military aged men.98 The disappearance of those generations must have had an impact on the reproduction rate within the Bosnian Muslims in Srebrenica. Another factor that might be of importance as to whether the killing of the Bosnian Muslim males could amount to the birth preventing measure is the so-called Srebrenica Syndrome. It is associated with the trauma suffered by women who survived the events of July 1995. This issue has been very briefly discussed by the Trial Chambers in Krstić and Popović et al. Bosnian Muslim women of Srebrenica, not knowing of the fate of the majority of their husbands and sons who were at the time of the trial listed as missing, were unable to move on due to the unclear marital status as they were unaware of whether they became widows or their loved ones survived and would come back.99 Having a clear marital status could have possibly let women remarry in a relatively short amount of time and lead to the creation of new families. The Srebrenica Syndrome was not discussed in Mladić judgment even though the Prosecution Brief addressed it.100 However, there may be various reasons for such omission. The main one seems to be that this could have been considered by the Trial Chambers while assessing the conduct leading to causing serious mental harm to Srebrenica survivors and therefore it would be reasonable that judges have not mentioned it specifically by name. Nonetheless, the Srebrenica Syndrome might have been the result of the psychological measures preventing births within the group as long as the actions undertaken by the perpetrators were committed with the intent to limit the procreation not only in a physical way by killing all the men in the reproductive age, but also by taking into account the tradition and character of the society of which they were aware of.

3.2.2. Does the killing of men was intended to prevent births within the group? As explained in sub-chapter 2.2, genocide by imposing measures intended to prevent births has a two-fold mens rea – aside from the intention to destroy, in whole or in part, national, ethnical, racial or religious group, as such, the Prosecution must prove an additional mental element. This element relates to the intention of the perpetrator that the measures he or she imposed on

98_{Krstić Trial Judgment (n 65) para. 595.}

99_{Ibid. para. 93; Popović et al. Trial Judgment (n 23) para. 2151.}

100_{Prosecutor v Mladić (Case No. IT-09-92-T), Notice Of Filing Of Corrigendum To Updated Public Redacted}

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members of the targeted protected group will have an impact on the reproduction rate of the victims. This sub-chapter analyses whether it would have been possible to prove that perpetrators of the Srebrenica massacre killed Bosnian Muslim males with the intention that these killings will result in preventing births within the group.

Several factors could have been taken into account while assessing whether such intent to prevent births was possessed by the perpetrators of Srebrenica killings. These are, for instance, targeting all representatives of one particular sex within their reach in connection with the knowledge of the long-lasting impact on the Bosnian Muslims in Srebrenica, as well as the awareness of the patriarchal structure of the society.

The knowledge that disappearance of several thousand of Bosnian Muslim males might have a long-lasting effect on the society has been assessed by the ICTY as a factor supporting the finding that perpetrators of executions possessed the intent to destroy,101 what has been discussed in the sub-chapter 3.1. The AC in Krstić found on that time that the TC established correctly that, based on the patriarchal character of the Bosnian Muslim society in Srebrenica, the killing of the men would ‘inevitably result in a physical disappearance of the Bosnian Muslim population of Srebrenica’.102

What was emphasised by the ICTY Chambers on several occasions is that although victims are often described as Bosnian Muslim military aged men or simply as Bosnian Muslim men, the perpetrators did not limit themselves to target only the men of a military age that could potentially carry the firearms and join the column, but also some boys and elderly.103_The

reason behind separating them and executing alongside others might have been their notwithstanding ability to carry guns that has been acknowledged in Krstić Appeals Judgment. However, such targeting derived from the genocidal intent to destroy possessed by the perpetrators of killings and was not based solely on the will to eliminate potential military risk.104

The conclusion could potentially be drawn that the perpetrators of Srebrenica massacre decided to kill Bosnian Muslim males with the intent to prevent births within the protected group of Bosnian Muslims of Srebrenica, however, such finding could have been seen to be very circumstantial at the time. The judgments in Krstić present some arguments in favour of such

101_{Krstić Appeals Judgment (n 26) para. 28.}

102_{Ibid., para. 28; Krstić Trial Judgment (n 65) para. 595.}

103_{Krstić Appeals Judgment (n 26) para. 27; Mladić Trial Judgment (n 72) para. 3543.} 104_{Krstić Appeals Judgment (n 26) para. 27.}

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a hypothesis based on the findings concerning the long-lasting effect of the killings on the society due to its patriarchal structure. However, this has been associated with the possession of the intent to destroy in the general meaning of genocide and not in relation to any other aspect. The other analysed judgments, Popović et al. and Mladić, have not discussed any of those issues in depth or at all. Based only on the ICTY Chambers’ findings relating to the Srebrenica massacre, it could be potentially drawn that killings of the Bosnian Muslim males of Srebrenica, based on the perpetrators’ knowledge, intended to limit the reproduction rate. Nevertheless, this could be difficult based only on the evidence discussed in the judgments and judges might have needed additional evidence in order to establish beyond a reasonable doubt that perpetrators committed genocide by imposing measures intended to prevent births on the Bosnian Muslims of Srebrenica.

3.3. Impact of not including the imposition of measures to prevent

births in the charges in Srebrenica cases

There are several reasons in favour of adding genocide by imposing measures intended to prevent births to the indictments in cases related to the Srebrenica massacre. The main one would be filling the gap in judicial interpretation of legal provisions concerning the crime of genocide that was identified in sub-chapter 2.3. Such interpretation might have been important on the current understanding of this particular genocidal act. Another reason would be that, if the perpetrators would have been found responsible for genocide by imposing measures intended to prevent births within the Bosnian Muslims of Srebrenica, the underlying act would have been correctly labelled.

Nonetheless, there is also an important reason against adding this particular charge in the indictments in relation to the evidence. The additional intention to impose measures preventing births could be potentially drawn based on what has been discussed in the judgments as discussed in the previous sub-chapter. However, it could have been found by the judges as too circumstantial and that they cannot find beyond a reasonable doubt that perpetrators are guilty of genocide by imposing measures intended to prevent births.

3.4. Conclusion

According to the ICTY jurisprudence, mass killings of Bosnian Muslim males that took place in Srebrenica in July 1995 as a result of the JCE to Murder amounted to the crime of genocide by killing and causing serious bodily and mental harm. It was found that the perpetrators possessed the specific intent to destroy in part the national group of Bosnian Muslims, where

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the ‘part’ referred to the Bosnian Muslims of Srebrenica. The intent to destroy has been proven based on, inter alia, perpetrators’ awareness of the long-lasting effect on the Bosnian Muslim society, the knowledge that the captured men do not pose a military threat and the level of organisation of the killing operation.

To establish whether the executions of Bosnian Muslim males could also amount to the genocide by imposing measures intended to prevent births, two elements must have been assessed: whether the killing could amount to preventing births and whether the perpetrators of the killings did so with the intention to impact the reproduction rate within the protected group. Separation from women, children and elderly and subsequent mass executions of the vast majority of males in reproductive age and the fact that two or three generations of males disappeared could itself amount to a measure preventing births within the Bosnian Muslims of Srebrenica. However, the question is if these killings were committed with the intention to limit the reproduction rate. Some of the evidence discussed by the ICTY Chambers, such as knowledge of the perpetrators of the long-lasting impact of the disappearance of the males and targeting several generations, could be potentially understood that the accused intended to prevent births. However, judges could have required more evidence presented by the OTP to find beyond a reasonable doubt that the killing of Bosnian Muslim males amounted to genocide by imposing measures intended to prevent births.

There are reasons in favour and against whether or not an additional underlying genocidal act should have been added to the Srebrenica-related indictments. On one side, it could have filled the gap in the judicial interpretation of the crime of genocide, however, on the other side, in order to prove beyond a reasonable doubt, the additional evidence could have been required. Nevertheless, the Prosecutors decided to concentrate on genocide by killing and causing serious bodily and mental harm by using their discretion, which is the subject of the next chapter.

A different approach towards Srebrenica genocide – can killings of Bosnian Muslim men amount to imposing measures intended to prevent births within the protected group?