Srebrenica: How to Prove a Genocide

“How is it possible that a human being could do something like this, could destroy everything, could kill so many people… Just imagine this youngest boy I had, those little hands of his, how could they be dead? I imagine those hands, picking strawberries, reading books, going to school, going on excursions… Every morning I wake up, I cover my eyes not to look at other children going to school and husbands going to work…”

These are the words of a protected witness at the trial of former Bosnian Serb Army general Radislav Krstic, the first person to be convicted of involvement in the genocide of Srebrenica’s Bosniaks.

Her 14-year-old son was taken from her arms in July 1995 in Potocari, near Srebrenica. In his last words to her, her son told her to take his bag, which Serb soldiers had thrown on the ground along with items belonging to other men from the town that was supposed to be a UN-protected ‘safe zone’.

They didn’t need their things, because in the days that followed, they would be taken to execution sites around the towns of Zvornik and Bratunac and killed.

As a result of pioneering work by the International Criminal Tribunal for the Former Yugoslavia, prosecutors showed for the first time since World War II how an ethnic group was targeted for destruction in Europe.

But the investigation into this mass atrocity, during which more than 7,000 Bosniak men and boys were killed by Bosnian Serb forces – and which was ultimately classified as genocide by the UN-backed war crimes court – was highly complex and took years to complete.

Jean-Rene Ruez, an investigator for the Hague Tribunal prosecution from 1995 to 2001, recalled that the task of determining the facts about Srebrenica was daunting from the outset.

“The crime scene is unbelievable in size – 70 kilometres from north to south and 40 kilometres east to west… It is totally out of scale to what someone might consider a crime scene,” said Ruez.

A year before Srebrenica, during a bloody 100-day campaign in 1994, more than 800,000 people were killed in the east African state of Rwanda. The mass killings in Rwanda and in the former Yugoslavia both led to the establishment of UN tribunals which attempted to prove that these crimes amounted to genocide.

The chief prosecutor at the International Criminal Tribunal for Rwanda, Hassan Jallow, said that there was never a doubt in his mind that the mass murders were intended to annihilate the ethnic Tutsis in the country.

“What happened was being done in plain sight and it was clear that the killings were done with the genocidal intent to eliminate the Tutsi as a group,” said Jallow.

In Srebrenica, proving genocide would be more difficult. The international investigation into the eastern Bosnian massacres was launched in July 1995 by Ruez, who was later put in charge of the team for Srebrenica. They set out on their task with no more than rumours.

“We were only two investigators. We were transferred from Split [in Croatia] to Tuzla [in Bosnia] by helicopter, where we faced 25,000 refugees. The aim was to check information, rumours that after the Bosnian Serbs took over Srebrenica, the men who were still missing were killed. At that time only one survivor had given a statement to the police that he was a [surviving] victim of a mass execution,” said Ruez.

‘Genocide without corpses’

Ruez recalled that after a few months he got a third investigator and spent July and August 1995 going through as many statements as possible.

“We knew nothing about the area. I came to the [Hague] Tribunal in April and I didn’t know where Tuzla was on the map… Everyone was a victim, everyone had a story to tell. Within the investigation, we had to find the best witnesses in a mass of information, who saw something with their own eyes. We had to extract diamonds from a coal mine. That was the challenge in the summer of 1995,” he said.

After Tuzla, Ruez returned to Sarajevo and went back to analysing witness statements. By October 1995, it became clear that something very terrible had happened – but more evidence was needed.

“What I needed was to check the statements, and we had problem with access to crime scenes. We needed to enter [Bosnia’s Serb-led entity] Republika Srpska, where all the political and police and military personal was still there and we needed to dig in their yard to gather evidence against them,” Ruez recalled.

The first visits to Srebrenica crime scenes were organised when the American under-secretary of state visited Bosnia, in order to ensure freedom of movement.

“We told him to go to some places we wanted to see, like the school in Grbavci and the warehouse in Kravica [where massacres took place]… In Kravica, we scratched samples to check material that looked like blood, to see if it was human. A forensic group analysed the site for a week and gathered hundreds of pieces of evidence. Blood samples, skin on the wall, bomb traces,” said Ruez.

“One survivor said he hid in a cargo hold, which was destroyed when the trucks went inside to pick up bodies, but the remains of this shelter were there – that is a sequence of events that confirmed the survivor’s tale,” he added.

Andrew Cayley, a Hague prosecutor from 1995 to 2005, said he would be haunted forever by seeing the Pilica Cultural Centre, where hundreds of Bosniaks were executed.

“I went into this building in 1999 with Rene [Ruez] and we went under the stage. There was planking and it was horrible. Congealed blood between the planks, where once you had concerts… The area was closed for four years. We saw holes from automatic rifles on the walls. Those are the types of guns you use when you want to kill a lot of people fast. It was a brutal place,” Cayley recalled.

But the challenge for the investigators was to use their observations of the crime scenes to assemble a coherent narrative of what had happened so it could be used in court.

“Near one house where mass executions took place, in the woods about 30 meters away we found ammunition casings. So they brought ammunition, put the gun on a tripod and killed people. Then they threw the casings in the woods. I can’t guarantee this is what happened, but why would there be ammunition boxes in the middle of nowhere?” asked Cayley.

By the end of 1996, the search process was complete and 90 per cent of the detention and execution sites had been analysed. The first exhumations of victims’ bodies started the same year – but it soon became clear that the bodies had been moved from the place where the killings happened.

“When three bodies were exhumed, it was clear that the places were disturbed. Where, based on testimonies, we expected to find several thousand bodies at the end of 1996, we had less than 500. Bodies were moved, god knows where. We went into a new phase – where were the bodies? I remember an article in 1996 in Newsweek – ‘Genocide without corpses’,” said Ruez.

In order to solve the problem, aerial footage was requested from the US government, without which the secondary grave sites – the places to which the bodies had been moved – would never have been discovered.

“By the end of October [1995], perpetrators started a new operation, equal in size to the operation of destruction of prisoners, in order to drive all the bodies, to bulldoze them from the ground, put them on trucks and drive them to remote areas, which were war zones, where there were mines… By the end of 1997, we had 29 secondary graves… Forgive my expression, but we found garbage of human remains,” Ruez recalled.

Then began a campaign of denial that the victims were civilians, Ruez said.

“When [US ambassador to the United Nations] Madeleine Albright showed [Bosnian Serb military chief] Ratko Mladic the photographs of the graves, he admitted they were graves, but of Muslim soldiers, who were killed in fights and they had to bury them for sanitary reasons. The problem was that when we opened the graves, we found victims with their hands tied behind their backs,” he explained.

Cayley also recalls attempts by the Bosnian Serbs to claim that the victims were all combatants.

“We had forensic evidence and the Serbs said that those were combatants, but they had their hands tied and some had blindfolds. Not all, but many. One body was on a stretcher, that’s how we found the body. He was obviously a fighter, but an injured fighter. That is not someone you kill and throw into a mass grave. He is a protected person… Almost all the skulls, not all but many, had a bullet hole in the back of the head. The Serbs know this, but they don’t want to say,” Cayley said.

Guilty pleas

Unlike Srebrenica, the investigation into the mass killings in Rwanda focused on witness testimonies rather than forensic evidence, which brought its own difficulties.

“People were scared to testify so we had to create special protection mechanisms… Some witnesses were accomplices, some insiders, people from the establishment who testified against their colleagues. There was an issue of security. We had thousands of witnesses,” said prosecutor Jallow.

Both in Rwanda and Srebrenica, it was evident that the killings had been systematically planned, which gave clear indications to prosecutors that they should treat the cases as genocide.

“Killings happened with the intent to eliminate a group. The targets were the Tutsi. For example across the country you had roadblocks in which the army with the ruling party militia searched for Tutsi. Everyone who passed the barricade – and you had to pass by them since they were everywhere – had to show his identification card. At that time, [ID cards] had an ethnic background sign. If you were Tutsi, you were killed. If you said you didn’t have a card, you were also killed,” said Jallow.

The Convention on the Prevention and Punishment of Genocide was adopted by the United Nations in 1948. Fifty years later, the prosecutors at the UN tribunals for Rwanda and the former Yugoslavia had the challenge of enforcing it in court for the first time.

Marko Attila Hoare, a historian at Britain’s Kingston University who briefly worked for the Hague Tribunal prosecution, said that proving genocide was committed was not just a matter of the number of victims.

“If you look at the international legal definition of genocide, it does not say just killing as a type of crime, but also stopping births within a group. So in theory you could commit genocide without killing anyone if you sterilise all adult members of a group. So genocide is not a matter of numbers, but the intent to destroy a group,” said Hoare.

Prosecutor Cayley says that although more than 1.8 people were killed by Cambodia’s Khmer Rouge in a three-year period in the 1970s, it was not genocide because they were murdered for political reasons, and not on racial, ethnic or national grounds.

“The target has to be an ethnic, racial or religious group. We had that [in Srebrenica]. They were all Bosnian Muslims. We knew that all Bosniaks from Bosnia weren’t killed in Srebrenica, but we knew and believed that the Bosniak population from Srebrenica – the males – because of the patriarchal structure of the population, where women relied on the males, we knew this was a destruction of the group,” he said.

Former Hague Tribunal prosecutor Geoffrey Nice, who worked on the case against Slobodan Milosevic between 1998 and 2006, said the biggest problem in proving genocide is showing that the defandant had the intent to obliterate an entire ethnic group.

“Defendants usually don’t speak publically about what they plan to do,” explained Nice. “This is what we had in the Milosevic case. He said little, if anything, which would speak about his intent. So you had to gather his intent from his actions. This was difficult to prove.”

Systematic killings

According to Cayley, the systematic nature of the Srebrenica killings was vital in proving that genocide had been committed.

“It was more systematic in Srebrenica than elsewhere [in Bosnia and Herzegovina during the war]. I am not saying there was no plan in any other place, but in Srebrenica there was a lot of planning we could prove through intercepted conversations in the Bosnian Serb army, which identified groups of prisoners in locations who were taken to execution sites. Such a concentrated manner of killing was not visible in other parts of the country,” Cayley explained.

An important factor in proving that genocide took place in Rwanda was the guilty pleas of some of the suspects, prosecutor Jallow explained.

“We had several guilty pleas. Starting from the prime minister, the head of the interim government, he admitted genocide. Eight or nine followed. We dropped certain counts but not the genocide count. The only thing that was never admitted was sexual violence, even though it was widespread,” he said.

In the former Yugoslavia, some of the defendants’ guilty pleas also gave the investigators new evidence.

“Thanks to [defendant] Drazen Erdemovic [a Croat who fought for the Bosnian Serb Army], we analysed and learned what happened in the Pilica Cultural Centre… Without him I don’t think we would have found this location. No one survived, so we had no witnesses. No local would ever admit this,” said Ruez.

The tribunals’ legacy

The International Criminal Tribunal for the Former Yugoslavia has so far convicted 14 people of genocide and other crimes related to Srebrenica as a result of the wide-ranging and highly complex investigations that were carried out.

The former Bosnian Serb political and military chiefs Radovan Karadzic and Ratko Mladic are still on trial, while former Yugoslav leader Slobodan Milosevic died before his verdict and Bosnian Serb general Momcilo Perisic was acquitted. The International Criminal Tribunal for Rwanda has meanwhile convicted 61 people of genocide.

Hoare, the historian, said that both tribunals have handed down landmark verdicts.

“I think the Rwanda tribunal had an easier job, the genocide was easier to prove – more people were killed. They convicted higher officers and were more successful. However, they dealt with a system which was defeated and the Hague Tribunal dealt with regimes in Serbia, Republika Srpska and Croatia which were in power, and it was harder,” he said.

Jallow said that with both tribunals set to shut down within the next two years, their legacies will be important for dealing with atrocities committed in future conflicts.

“We can see that high-ranking officials were prosecuted who would in the past walk free. These two tribunals are important for jurisprudence of international criminal law. Finally, with our successes and failures, we gave lessons for national courts how to do or not do some things,” he said.

Another important thing, Jallow said, is that the genocide in Rwanda is not being denied – the country has adopted a law forbidding denial. The Srebrenica genocide however remains an issue of heated dispute between Serbs and Bosniaks.

Former Hague Tribunal prosecutor Nice said it remained to be seen what lessons would be learned from the facts established by the two tribunals.

“We determined the level of evidence required to prove genocide. We showed how it happens, how to help stop these crimes, or reduce them or discourage perpetrators. The question is, will people learn from that? I don’t know that they will, since they haven’t so far,” he said.

“If they had, we would not have Srebrenica or Rwanda or Cambodia… But it is important to have this information if the human race ever decides to use its superior intellect to stop doing what it has been doing.”